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Judges rule couple did not release medical providers from liability

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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.
 

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  1. Video pen? Nice work, "JW"! Let this be a lesson and a caution to all disgruntled ex-spouses (or soon-to-be ex-spouses) . . . you may think that altercation is going to get you some satisfaction . . . it will not.

  2. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  3. wow is this a bunch of bs! i know the facts!

  4. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  5. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

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