Court of Appeals affirms dismissal of ‘purely hypothetical’ med-mal question

The Indiana Court of Appeals found a widow’s argument that she should have access to the Indiana Patient’s Compensation Fund was not ripe for judicial review.

Faith Fenner, represented by Garau Germano, P.C., was pursuing a medical malpractice claim under the Indiana Medical Malpractice Act, alleging her husband’s death in February 2016 was caused by the negligence of various qualified health care providers.

Fenner filed a lawsuit against the Indiana Patient’s Compensation Fund, the Indiana Department of Insurance and Stephen W. Robertson, commissioner of the IDOI and the administrator of the PCF, arguing they were not following the language of the Indiana Medical Malpractice Act. Specifically, she asserted they were requiring that she receive the maximum liability allowed by state’s medical malpractice statute from her payment agreement with a health care provider before she can access the Patient’s Compensation Fund.

Garau Germano claimed the defendants’ policy meant the firm could not advise clients to accept a periodic payments agreement that does not pay out the health provider’s maximum liability over time. In turn, Fenner asserted she was unable to evaluate any potential settlement offers or options.

Defendants filed a motion to dismiss. The Marion Superior Court concluded, in part, that Fenner’s claims were not ripe for review because she had not alleged that she was entitled to access the PCF.

The Court of Appeals agreed in Garau Germano, P.C., and Faith Fenner, v. Stephen W. Robertson (Commissioner of the Indiana Department of Insurance and Administrator of the Indiana Patient’s Compensation Fund), Indiana Department of Insurance, and Indiana Patient’s Compensation Fund, 18A-CT-2739.

On appeal, the plaintiffs argued the claim was ripe for declaratory judgment because Fenner is pursuing medical malpractice claims against several qualified health providers and does not know how to proceed.

The plaintiffs asserted the MMA does not require a periodic payments agreement to pay out the health care provider’s maximum liability and instead contend a claimant may gain access to the PCF merely by entering into a settlement agreement where the present payment, plus the cost to the provider to procure a periodic payments agreement, costs more than $187,000.

The unanimous appellate panel noted the plaintiffs’ argument presupposes that Fenner has a valid medical malpractice claim. However, the merits of her claim have not been determined.

“The bottom line is that the question presented by the Plaintiffs is still purely hypothetical,” Judge Paul Mathias wrote for the court. “Fenner may enter into a settlement agreement with the providers against whom she is claiming medical malpractice. She may not. She may enter into a settlement including a periodic payments agreement that costs in excess of $187,000. She may not. But now, she has not even received any offers of settlement, much less entered into any agreement. Her ability to access the PCF is, at this stage, contingent upon her either obtaining a judgment against the providers after trial or by entering into a settlement agreement that meets certain requirements.

“This is not to say that Fenner must necessarily enter into a settlement agreement before her claims are ripe for determination,” Mathias continued. “But there must be more than just the mere hope or anticipation of receiving such a settlement offer before she may seek declaratory judgment.

Also, the appellate court upheld the trial court’s ruling that the plaintiffs did not have standing to seek an action for judicial mandate.

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