ILNews

Judges rule couple did not release medical providers from liability

Back to TopCommentsE-mailPrintBookmark and Share

A trial court appropriately denied the partial summary judgment motion filed by medical providers in a malpractice claim, the Indiana Court of Appeals held, because the plaintiffs did not release the medical group from liability by filing a proof of claim with the doctor’s insurer, which was insolvent and being liquidated.

Cynthia Kendall went to Deaconess Hospital with stroke-like symptoms in 2002 and was examined by Dr. Peters. He said she experienced a “transient ischemic attack,” gave her some baby aspirin, discharged her despite continuing symptoms and told her to follow up with her family doctor. An hour later, Kendall was back at the hospital, and testing discovered she had a stroke.

Peters had medical malpractice insurance with PHICO Insurance Co. of Pennsylvania, with a liability limit of $250,000 and aggregate limit of $750,000. Four months after Kendall’s stroke, a court in Pennsylvania declared the insurer insolvent and appointed a liquidator. All polices were cancelled and Kendall would have to recover from the insurer’s assets by filing a proof of claim in the liquidation.

She and her husband filed two forms, one that omitted the amount of her claim, and later one that asked for $250,000. The proof of claim contains a provision, stating in part that “the undersigned hereby releases any and all claims which have been or could be made against such PHICO insured … .”

She and her husband filed their medical malpractice complaint in 2008 after a medical review panel found the medical providers met the applicable standard of care. In 2011, Kendall received $75,000 from PHICO – 30 percent of the $250,000 claim she made.

The trial court denied summary judgment on the issue of whether the Kendalls had released their claim against Peters.

In Michael W. Peters, M.D. and Deaconess Hospital, Inc. v. Cynthia S. Kendall and Michael J. Kendall, 82A01-1302-PL-55, the Court of Appeals found the proof of claim’s liability provision lacked the essential elements to render it a binding contract.

“In Indiana Insurance Guaranty Association, a hospital settled its malpractice liability with the patient’s estate, and the court held that the (Indiana Insurance Guaranty Association) was obligated to reimburse the hospital because its insurance policy would have required PHICO to pay the full amount of the claim had PHICO not been insolvent,” Judge Patricia Riley wrote. “Based on the supreme court’s holding, the Kendalls are entitled to compensation for Dr. Peters’ malpractice, if established, notwithstanding PHICO’s insolvency, and if PHICO fails to uphold the obligations of its policy, Dr. Peters must pay the first $250,000 of the Kendalls’ damages and then pursue recovery of those costs from the IIGA.”

“Accordingly, PHICO has a legal and contractual duty to pay its policy limit for any damages determined to be the result of Dr. Peters’ malpractice. It is, therefore, insufficient as consideration for the release of all liability that the Kendalls were permitted to file a Proof of Claim that obligated PHICO to do no more than it was already bound to do,” she continued.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
2015 Distinguished Barrister &
Up and Coming Lawyer Reception

Tuesday, May 5, 2015 • 4:30 - 7:00 pm
Learn More


ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. by the time anybody gets to such files they will probably have been totally vacuumed anyways. they're pros at this at universities. anything to protect their incomes. Still, a laudable attempt. Let's go for throat though: how about the idea of unionizing football college football players so they can get a fair shake for their work? then if one of the players is a pain in the neck cut them loose instead of protecting them. if that kills the big programs, great, what do they have to do with learning anyways? nada. just another way for universities to rake in the billions even as they skate from paying taxes with their bogus "nonprofit" status.

  2. Um the affidavit from the lawyer is admissible, competent evidence of reasonableness itself. And anybody who had done law work in small claims court would not have blinked at that modest fee. Where do judges come up with this stuff? Somebody is showing a lack of experience and it wasn't the lawyers

  3. My children were taken away a year ago due to drugs, and u struggled to get things on track, and now that I have been passing drug screens for almost 6 months now and not missing visits they have already filed to take my rights away. I need help.....I can't loose my babies. Plz feel free to call if u can help. Sarah at 765-865-7589

  4. Females now rule over every appellate court in Indiana, and from the federal southern district, as well as at the head of many judicial agencies. Give me a break, ladies! Can we men organize guy-only clubs to tell our sob stories about being too sexy for our shirts and not being picked for appellate court openings? Nope, that would be sexist! Ah modernity, such a ball of confusion. https://www.youtube.com/watch?v=QmRsWdK0PRI

  5. LOL thanks Jennifer, thanks to me for reading, but not reading closely enough! I thought about it after posting and realized such is just what was reported. My bad. NOW ... how about reporting who the attorneys were raking in the Purdue alum dollars?

ADVERTISEMENT