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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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  3. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  4. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

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