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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 will continue to pray that God keeps giving you the strength and courage to keep fighting for what is right and just so you are aware, you are an inspiration to those that are feeling weak and helpless as they are trying to figure out why evil keeps winning. God Bless.....

  2. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  3. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  4. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  5. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

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