May 24, 2011
Yesterday, the Indiana Court of Appeals held that the Indiana Patient's Compensation Fund is entitled to introduce evidence of the extent of a patient's injury when a patient is making an application against the Fund in
Robertson v. B.O., ___ N.E.2d ___ (Ind. Ct. App. 2011), Cause No. 49A04-1009-CT-528, even if that evidence would go to the ultimate issue of liability.
less..
In this case, negligence committed during the delivery of an infant allegedly caused the infant to suffer from spastic diplegia, a mild form of cerebral palsy. The infant's parents sued the doctor, who settled under an agreement that permitted access to the Fund. An action was filed against the Fund, which identified five experts who had opined that either the child did not have spastic diplegia, or that if he did, it was not consistent with cerebral palsy that occurred as a result of a birth injury. The trial court concluded that the Fund could not introduce this testimony and granted partial summary judgment to the plaintiff. The Fund appealed.
On appeal, the Court recognized that since its decision in
Dillon v.
Glover, 597 N.E.2d 971 (Ind. Ct. App. 1992), a settlement with a doctor established liability, but that an action against the Fund only involved the amount of damages. Therefore, the Court had held, evidence that went to liability was inadmissible in an action against the Fund. However, the Court recognized that the Indiana Supreme Court's recent decision in
Atterholt v. Herbst, 902 N.E.2d 220 (Ind. 2009),
reh’g granted, 907 N.E.2d 528 (Ind. 2009), changed that calculus.
In
Herbst, the Indiana Supreme Court held that evidence of liability was admissible in an action against the Fund to determine the extent of damages in an action for proportional damages. The Court in
Robertson held the same should apply in this case, even though the claim was not for proportional damages.
While pursuant to
I.C. § 34-18-15-3, Lutheran's liability and proximate causation are deemed established by the underlying settlement with B.O., the extent of the excess damages is still before us and contested by the Fund. Based on the recent developments in the case law, it follows logically that evidence of the extent of this injury which is sought to be recovered from the Fund is properly admissible before the trial court.
...
The admission of liability and acceptance of proximate cause by way of a settlement between the claimant and the health care provider does not obligate the Fund to compensate claimants for damages that are of a noncompensable nature. As such, the Fund cannot be precluded from introducing relevant evidence on the compensable nature and event of a claimant's injury merely because the health care provider elected to settle the underlying medical malpractice claim and liability has been established by operation of I.C. § 34-18-15-3. Holding otherwise would force health care providers to litigate the compensable nature and extent of the alleged injury in the underlying action or forfeit the Fund's ability to present such evidence in calculating the amount of excess damages, if any, recoverable in the secondary action against the Fund.
This decision will likely have as great an impact on medical malpractice litigation as the Indiana Supreme Court's decision in
Herbst. Plaintiff's lawyers will need to be more careful when accepting a medical malpractice case and the costs of that litigation for all parties will likely increase.
Lesson:
- The Indiana Patient's Compensation Fund can introduce evidence of the extent of damage in an action against the Fund, even if that evidence goes towards the question of liability.
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