Widower can seek excess damages in med-mal complaint, COA rules

A widower may pursue excess damages from the Indiana Patient’s Compensation Fund upon the Indiana Court of Appeals’ finding that nothing in the Medical Malpractice Act requires him to accept a settlement offer from the doctor he alleged was responsible for his wife’s death.

Not long after Cathy Wallen was diagnosed with a pulmonary embolism and was admitted to Porter Regional Hospital, she began to experience severe abdominal pain. An C-ray and CT scan interpreted by radiologist Dr. Steven Hossler revealed no internal bleeding, but rather gallstones.

There was internal bleeding, however, and Cathy ultimately died after suffering from bleeding within her abdomen, hemorrhagic shock and multi-system organ failure.

Cathy’s husband, Richard Wallen, sued Hossler for medical malpractice, alleging his negligence resulted in her death. Hossler declined an offer from Wallen to settle the claims for $250,000, the applicable statutory cap for a single medical malpractice claim, which would allow Wallen to pursue additional damages from the Indiana Patient’s Compensation Fund.

When Hossler later offered the same proposal subject to 13 conditions, Wallen refused. Hossler then argued that pursuant to the Medical Malpractice Act, the fund was the “real party in interest” once Hossler had offered to pay the statutory cap for his liability.

The Porter Superior Court ultimately granted Hossler’s motion to enforce the act upon finding one distinct act of negligence and one distinct injury, concluding the act applied and the matter should proceed against the Patient’s Compensation Fund. It subsequently certified the order as a final appealable order under Trial Rule 54(B) and Wallen appealed, arguing the trial court erred when it granted Hossler’s motion to enforce.

First, Wallen asserted that nothing in the act required him to accept the conditional settlement offer and forgo a jury trial against Hossler. He next questioned whether the two alleged separate acts of medical malpractice with two distinct injuries to Cathy were questions of fact reserved for a fact finder.

The Indiana Court of Appeals reversed and remanded the trial court’s decision in Richard L. Wallen, Individually, and as Personal Representative of the Estate of Cathy L. Wallen, Deceased v. Dr. Steven Hossler, M.D., and Radiologic Associates of Northwest Indiana, P.C., 19A-CT-40, finding that under the express provisions of the act, Wallen could pursue excess damages from the fund either after a jury trial or after he had entered into a settlement agreement with Hossler. The act, the appellate court concluded, does not require Wallen to accept Hossler’s offer to settle, and the trial court erred in requiring he do so.

“A settlement is, by definition, a voluntary agreement to resolve contested issues. In other words, a settlement cannot be compelled,” Judge Edward Najam wrote for the court. “That is especially true here, where Dr. Hossler’s offer was encumbered by thirteen conditions, which were unacceptable to Wallen. Wallen may agree to settle with Dr. Hossler, or Wallen may choose to proceed to trial.”

However, the appellate court agreed with the trial court that Hossler’s alleged misdiagnosis and failure to diagnose occurred simultaneously and, therefore, constituted “one distinct act of negligence.”

“While, on another set of facts, a misdiagnosis and a failure to diagnose might constitute two distinct acts of medical negligence, in this case the two are one and the same,” Najam wrote. The panel therefore found the trial court did not err in concluding Wallen was not entitled to recover more than one statutory cap in his claims.

Judge John Baker concurred with the result reached by the majority and concurred with its analysis as to whether a settlement could be compelled.  But in a separate opinion, he parted ways with the panel as to how many statutory caps were at issue.

“In my view, there were two different acts of medical malpractice,” Baker opined. “But I do not think that it matters, inasmuch as there was only one injury—Cathy’s death.”

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