COA affirms excess damages award in med-mal case

July 5, 2016

Based on the evidence before it, a trial court correctly awarded a man $300,000 in excess damages from the Indiana Patient’s Compensation Fund after an Indianapolis hospital missed the signs he was having a stroke, the Indiana Court of Appeals held Tuesday.

John Green was brought to Wishard Hospital in Indianapolis in 2008 after suffering from vomiting, weakness and loss of control of his legs. Wishard staff didn’t document any neurological symptoms his children said he experienced there — drooping of the left side of his face and difficulty speaking — and instead tested to see if he was having a heart attack or an intestinal issue. Green was released and the next day his friend, who is a doctor, suspected he suffered a stroke. Green was admitted to St. Vincent Hospital, where his friend’s suspicion was confirmed.

Green sued Wishard and his treating physicians and the parties settled for $250,000. Green then filed a petition for excess damages from the PCF. The trial court found based on his damages, the injury associated with corneal scarring from his left eye’s inability to close, pain and suffering and loss of enjoyment of life, he is entitled to $550,000, $250,000 of which was paid through the settlement. The court reduced some of the damages he should receive as a result of his eye injury because expert testimony showed this is a very common condition of stroke patients.

Green immediately appealed. He claimed while at Wishard, he was experiencing a transient ischemic attack, which led to a stroke. He argued that had the Wishard physicians administered tissue plasminogen activator, a clot-busting drug used to treat strokes, he would not have later experienced a stroke.

Green also argued that he is entitled to the statutory maximum of $1.25 million in damages and that his med-mal claim was settled on traditional negligence principles and the court erred in reducing a portion of the damages based on increased risk of harm principles.

The appellate judges declined to reweigh the evidence, as Green sought in his appeal, and found the trial court’s findings concerning the effectiveness of tPA were not clearly erroneous. All of the expert witnesses who testified on the effectiveness of the drug agreed that stroke patients often retain neurological deficits even after tPA treatment.

The COA also rejected Green’s argument that his claim must be settled on traditional negligence principles because the settlement agreement did not specify the theory of recovery, and the characterization of the claim in the pleadings does not necessarily determine the proper theory of recovery, Judge Margret Robb wrote.

“The trial court’s judgment is not clearly erroneous because the damage award was within the scope of the evidence before the trial court. Where recovery is limited to damages for increased risk of harm because the patient stood less than a 50 percent chance of recovery prior to encountering the physician’s negligence, the trial court may consider evidence of the patient’s underlying risk in order to determine the appropriate amount of damages,” she wrote in John Green v. Stephen Robertson, Commissioner, Indiana Department of Insurance, 49A02-1509-MI-1487.


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