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Justices: patient fund not entitled to set-off

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The Indiana Supreme Court has affirmed a $1 million excess damages award from the Indiana Patient’s Compensation Fund to the estate of a man who died following a truck accident, determining the fund is not entitled to a reduction of the award to account for the 20 percent chance the man would have died even without the doctor’s negligence.

In Indiana Dept. of Insurance, Indiana Patient's Compensation Fund v. Robin Everhart, Personal Rep. of the Estate of James K. Everhart, Jr., No. 84S01-1105-CV-282, James Everhart was riding his motorcycle when he was hit by a semi-truck driven by an employee of Standard Forwarding Co. Inc. Everhart was alive when he was taken to the hospital, but later died of cardiac arrest while in the care of Dr. C. Bilston Clarke, the doctor in the emergency room.

James Everhart’s wife, Robin, filed a wrongful death lawsuit, and the truck driver and Standard Forwarding settled for $1.9 million. Clarke settled for a lump-sum and future payments with a total present value of $187,001. Robin Everhart added a claim against the Patient’s Compensation Fund to recover the excess damages above her settlement with Clarke.

It was determined that James Everhart would have had an 80 percent chance of surviving his injuries had he received proper medical care. The estate was awarded $3.15 million, which the trial court refused to reduce by 20 percent, as the fund argued. The trial court awarded the estate the remaining $1 million of the statutory cap.

The Indiana Court of Appeals reversed based on the line of Mayhue cases and remanded for further proceedings.

The justices affirmed the trial court, looking at Cahoon v. Cummings, 734 N.E.2d 535 (Ind. 2000), in which the high court held that a successful Mayhue claim for causing an increased risk of harm entitled a plaintiff to damages in proportion to that increased risk. But all of the decisions in the Mayhue line of cases involved patients who stood a 50 percent or worse chance of recovering before suffering the medical negligence, wrote Chief Justice Randall T. Shepard.

But Cahoon doesn’t apply to cases in which a plaintiff stood a better-than-even chance of recovering before suffering some form of medical negligence. In addition, Robin Everhart’s case differs from the Mayhue line of cases in that joint tortfeasors negligently caused James Everhart an indivisible harm.

“That latter distinguishing fact triggers our rules on joint and several liability, which make it unnecessary for us to decide today whether to extend Cahoon to better-than-even cases,” he wrote.

The justices decided the rule for calculating set-offs could decide the instant matter, and it found that even if Cahoon required a reduction of the award, the fund would still have to pay the statutory maximum in excess damages. The trial court found that Robin Everhart and her son suffered injuries of at least $3.15 million, so the trial court should have reduced its finding on total injuries by $1.9 million because of the Standard Forwarding settlement and $250,000 for the settlement with Clark’s insurance company. The result: $1 million in uncompensated damages, the exact statutory limit of the fund’s liability for excess damages, wrote Shepard.

“Reducing the finding on injuries by twenty percent and then subtracting the full $1.9 million from the remainder, and then another $250,000, as the PCF asks, effectively ignores that Standard Forwarding, not Robin and Troy, should bear the remaining loss,” he wrote.

 

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  1. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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