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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. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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