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Sawlani v. Mills7/13/2005
damages to award the plaintiff, you must decide whether the defendant's negligence caused a decrease in the plaintiff's life expectancy.
To make this determination, you should carefully consider the evidence presented as to what plaintiff's normal life expectancy would have been had the alleged negligent acts or omissions not occurred, compared to her life expectancy now as shown by the evidence.
If you find that the plaintiff has a decreased life expectancy proximately caused by the defendant's negligence, then you may award such damages as you believe will fairly compensate the plaintiff for this loss. You must value plaintiff's damages based upon the difference between the plaintiff's life expectancy before and after defendant's negligence. In addition to considering the change in plaintiff's overall life expectancy, you may also consider the loss of opportunity for a cure and unnecessary physical pain and mental suffering.
In considering the extent of loss of life expectancy, you may consider the medical and statistical evidence submitted by the parties to guide your determination.
If you decide that the plaintiff has a decreased life expectancy proximately caused by the defendant's negligence, you are not to assess damages that would occur beyond the life expectancy determined by you.
See Alexander v. Scheid, 726 N.E.2d 272, 282-83; Burke, Kevin G., A New Remedy for a Life Cut Short, 40-MAR Trial 64, 64 n.1, 66-67 (March 2004) (citing to and quoting from Townsend v. Little Co. of Mary Hosp. & Health Care, Inc., No. 00 L 3555 (Ill., Cook County Cir. Ct. Dec. 3, 2002)).
I believe that the foregoing is a more clear and complete recitation of the law in Indiana regarding loss of chance damages, and I encourage parties and trial courts to consider using this instruction or a version thereof should the issue arise.
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