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PCF may not present evidence to dispute injury

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The Indiana Supreme Court ruled Wednesday that in a case involving a boy diagnosed with a mild form of cerebral palsy, the Indiana Patient’s Compensation Fund may not present evidence to dispute the existence or cause of the boy’s injury while defending his petition for excess damages from the fund.

B.O. was diagnosed with spastic diplegia at age four and his parents filed a complaint under the Medical Malpractice Act, alleging the boy’s health care providers were negligent at his birth. The providers settled for a sum that allowed B.O. and his family to seek excess damages from the PCF.

The fund wanted to have five expert witnesses testify that B.O. either didn’t have spastic diplegia or if he did, it wasn’t the result of the conduct of the health care providers at his birth. The trial court granted the parents’ motion for partial summary judgment that the testimony couldn’t be offered; the Court of Appeals reversed.

The justices 4-0 affirmed the trial court in Stephen W. Robertson, Indiana Comm. of Insurance, as Admin. of Indiana Patient's Compensation Fund and The Indiana Patient's Compensation Fund v. B.O., A Minor, Lisa A. Ort and Kevin C. Ort, 49S04-1111-CT-671, finding the PCF is precluded from disputing the existence or cause of B.O.’s claimed injury based on Indiana Code 34-18-15-3(5). At issue is this sentence of the statute: “In approving a settlement or determining the amount, if any, to be paid from the patient’s compensation fund, the court shall consider the liability of the health care provider as admitted and established.” The parties’ arguments hinge on the meaning of “liability” and in what manner it is “admitted and established.”

In this instance, the health care providers chose to settle B.O.’s claim as to the causation of his cerebral palsy consisting of spastic diplegia, and thus that is the claim for which liability is “admitted and established,” Justice Mark Massa wrote, “including, by implication, the required elements of causation and injury.”

“We recognize that this means that the existence and type of injury that B.O. sustained is determined without the full explication that may have been adduced at a trial. But this was the method chosen by the General Assembly when enacting the MMA,” he continued. “Perhaps in an effort to balance this sweeping reform, the legislature chose to provide plaintiffs with the benefit of final and established liability when the healthcare provider chooses to settle. It is not our place to upset that balance.”

The justices found that Atterholt v. Herbst, 902 N.E.2d 220 (Ind. 2009), is not applicable in the instant case, as the PCF argued. They also held the PCF is correct that it may present evidence regarding compensability of a claim when that issue is in dispute, but compensability is not disputed in the instant case.

 

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  1. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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