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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. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  2. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  3. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  4. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  5. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

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