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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. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

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