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Fee cap provision in Med Mal Act does not reduce fund’s liability

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The Indiana Supreme Court has sided with an estate in a dispute over whether the Indiana Medical Malpractice Act's cap on attorney fees from a Patient Compensation Fund award also applies to reduce the fund’s liability. The issue is one of first impression in Indiana.

The estate of Mable Louise Cochran received excess damages from the fund after it settled an adult wrongful death medical malpractice claim against Cochran’s nursing home for $250,000, the maximum liability of the nursing home under the Medical Malpractice Act. The estate and the fund left it up to the trial court to determine how much in attorney fees the fund should pay the estate.

The estate argued the fund should pay more than $50,000 in attorney fees on the $101,166.89 settlement with the fund. The fund claimed the 15 percent limit on attorney fees imposed by the MMA should be judicially expanded to directly apply to the fund and limit its liability on a basis unrelated to the specific attorney fee claim.

The trial court ordered the fund to pay the estate the $50,000 in attorney fees as the fund’s remaining liability for excess wrongful death damages; the Indiana Court of Appeals reversed and remanded.

On Tuesday, the justices unanimously affirmed the trial court in Indiana Patient's Compensation Fund v. Judy Holcomb, Personal Representative of the Estate of Mable Louise Cochran, Deceased, 49S05-1404-CC-209.

The fee cap provision in I.C. 34-18-18-1 says that in malpractice cases, “the plaintiff’s attorney’s fees from any award made from the patient’s compensation fund may not exceed fifteen percent (15%) of any recovery from the fund.”

“In crafting the language of the Fee Cap Provision, the General Assembly did not direct any reduction in the Fund's liability to a plaintiff, nor any methodology to be employed. Rather, the 15% limitation expressly applies to ‘the plaintiff's attorney's fees.’  That is, the legislature chose language that applied the 15% limit only on the attorney fees that an attorney could charge his or her client on the client's award received from the Fund,” Justice Brent Dickson wrote. “If the legislature intended the 15% limitation to reduce the liability of the Fund to an AWDS claimant, then it would have clearly directed such result, specified the method of calculation to be utilized, and placed the Fee Cap Provision in Chapter 14 of the MMA— the chapter entitled ‘Limits on Damages.’ Principles of judicial restraint compel us to interpret and apply the Fee Cap Provision as written and to refrain from judicially rewriting this legislative enactment.”
 

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  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

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