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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 just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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