Court rules on medical malpractice excess damages issue

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The Indiana Court of Appeals has ruled on an issue of first impression, adopting recent guidance from the state’s highest court to decide that evidence relating to medical malpractice liability can be introduced in determining damages even after someone enters into a settlement with the healthcare provider on that underlying claim.

A unanimous decision came in a Marion Superior suit today in Stephen W. Robertson, Indiana Commissioner of Insurance as Administrator of the Indiana Patient’s Compensation Fund, et al. v. B.O., a minor, by his parents and next friends, Lisa and Kevin C. Ort, No. 49A04-1009-CT-528.

The case stems from a February 2004 complaint with the state’s Department of Insurance under the Indiana Medical Malpractice Act, alleging negligence by Lutheran Hospital of Indiana during the labor and delivery of a child, B.O., born in February 2007. The suit claimed the hospital failed to adequately monitor the baby’s condition and didn’t timely respond to persistent changes in his fetal heart rate that indicated fetal distress. Though not diagnosed with any abnormalities after his birth or during the first years of his life, at age 4 he was diagnosed with a mild form of cerebral palsy. The case alleged the diagnosis was a result of the negligence that occurred at birth.

A medical review panel found Lutheran Hospital hadn’t met the standard of care, but determined the “conduct complained of was not a factor of the resultant damages.” The hospital settled with B.O. in October 2006 under an agreement that allowed access to the Patient Compensation Fund – which at the time allowed for a $650,000 cap from the fund. B.O. filed this action in June 2007 seeking that statutory maximum in excess damages, and the fund brought in expert witnesses to argue that the birth conduct wasn’t related to the cerebral palsy. Both parties disputed whether that should be allowed in the damages portion, since the underlying medical malpractice claim had been settled on liability.

A Marion Superior judge in April 2010 granted partial summary judgment for B.O. on grounds that the fund’s expert witness testimony couldn’t be introduced. But on interlocutory appeal, the Court of Appeals panel reversed that ruling and remanded for further proceedings based on state statute and new guidance from the Indiana Supreme Court in recent years.

The state’s Medical Malpractice Act detailed in Indiana Code 34-18-15-3 says in part that the court can consider “the liability from the health care provider’s liability as admitted and established” when approving a settlement or determining any amount to be paid from the patient’s compensation fund.

The court cited Atterholt v. Herbst, 907 N.E.2d 528 (Ind. 2009), which re-evaluated some of the precedent on this topic and held that the fund may introduce evidence of a claimant’s pre-existing risk of harm if it’s relevant to establishing the amount of damages – “even if it is also relevant to the liability issues that are foreclosed by the judgment or settlement.”

The panel noted that health care providers in Indiana may settle medical malpractice claims for a multitude of reasons, such as concerns over the complexity of the case that might make it difficult for a jury to understand the issues or the costs of defending a malpractice action, and that can’t be held against them when the damages aspect is being considered.

“Holding otherwise would force health care providers to litigate the compensable nature and extent of the alleged injury in the underlying action or forfeit the Fund’s ability to present such evidence in calculating the amount of excess damages, if any, recoverable in the secondary action against the Fund,” the court wrote.



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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.