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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. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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