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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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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  4. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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