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. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. 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?)

  3. 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.

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

  5. 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.