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. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  2. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  3. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  4. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  5. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.