Tag Archives: Indiana

Indiana Supreme Court Rules PCF Cannot Contest Liability

On Oct. 31, the Indiana Supreme Court unanimously ruled that the state’s Patient Compensation Fund (PCF)—established to cover excess damages in medical malpractice cases—may not dispute the existence or cause of a plaintiff’s injury in a case in which the medical providers previously settled the claim, admitting liability. The decision, Robertson v. B.O., has led to much excitement among the plaintiff’s bar.

In accordance with the Indiana Medical Malpractice Act, a plaintiff in a medical malpractice action can only recover $1.25 million in total damages. The negligent healthcare worker pays the first $250,000, and the Indiana PCF pays the next $1 million.

At the heart of this case was the question: When defending against a petition to recover excess damages that arise from a medical malpractice action where the healthcare provider has admitted liability, may the Indiana Patient’s Compensation Fund present evidence to dispute the existence or cause of the plaintiff’s injury?

In Robertson v. B.O., the plaintiff was diagnosed with spastic diplagia, the most common type of cerebral palsy, which occurs when the brain’s cerebral cortex is damaged, at age four. The plaintiff’s parents filed a medical malpractice lawsuit claiming medical negligence at the time of B.O.’s birth. The day prior to the malpractice trial, the two parties settled.

In most situations, this would have been the end of the case, but the Indiana PCF wanted to dispute the facts of the case that lead to the settlement. The PCF claimed that it had expert witnesses willing to testify that B.O. either did not have spastic diplagia or that the spastic diplagia was not due to medical negligence.

The plaintiff attorney immediately filed a motion that this expert testimony could not be made after the fact. The trial judge agreed. The PCF appealed the decision, and the Court of Appeals agreed with the PCF. B.O. appealed that ruling to the Indiana Supreme Court.

The Indiana Supreme Court would only address whether liability had been established. Because the definition of liability was not spelled out in the Indiana Medical Malpractice Act, the high court would turn to common law in order to define liability.

Under these conditions, the Indiana Supreme Court found that the finding of liability against the physician contained in the settlement provided a determination of an injury to the plaintiff. Further, while unfair that the PCF is bound by something determined n a settlement rather than a trial, the Indiana Medical Malpractice Act was drafted to permit unfairness because:

“In an effort to control the costs associated with medical malpractice claims, the General  Assembly  placed  numerous  constraints  on plaintiffs such as a statute of limitations, the use of medical review panels, caps on recoverable damages and retention of the contributory negligence  defense.  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.”

Indiana Medical Malpractice Insurance Rates Threatened by Courts

side note: Since 1975, capping non-economic (pain and suffering) damages in medical malpractice lawsuits has been considered the Gold Standard of effective tort reforms. There is gobs of data supporting the conclusion that state’s with non-economic damage caps have considerably lower medical malpractice insurance premiums than states of a comparable size and demographic that do not have non-economic damage caps. If the Indiana cap on non-economic damages is ruled unconstitutional by its court system, expect rates to rise for doctors practicing in the Hoosier state.

A ruling from the Indiana Court of Appeals will allow a Hancock County widower to challenge the constitutionality of the state’s medical malpractice law.
Timothy Plank’s wife Debbie died after he said doctors waited too long to perform intestinal surgery.
“It’s been a living hell to have to go through this all the time,” Plank said. “There were several different mess-ups throughout the chain of events.”

In 2009, a jury awarded Plank $8.5 million, $7.25 million more than the state’s cap on malpractice damages allows, RTV6’s Joanna Massee reported.
Plank’s wife died at Community North hospital. Lynda de Widt, Community North spokeswoman, said officials are still evaluating Plank’s claims.
“On Oct. 25, 2011, the Indiana Court of Appeals issued a preliminary opinion in the Plank matter. Mr. Plank is attempting to challenge the constitutionality of Indiana’s cap on damages in medical malpractice cases. Without addressing the merits of Mr. Plank’s arguments, the Court found he was entitled to an evidentiary hearing regarding the constitutionality of the state’s malpractice cap. We are still evaluating the Court’s ruling and are beginning our preparation for the evidentiary hearing. After this evidentiary hearing, we believe that the appropriate court will uphold the constitutionality of the medical malpractice cap, which has preserved the availability of health care services in Indiana and has served this state well over the last 35 years,” de Widt said.

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Renowned Indiana Medical Malpractice Judge Retires

Side note: Judge Michael H. Eldred retired from the Vigo Superior Court on Tuesday Dec. 28. Judge Eldred had served on the Indiana court for more than 30 years and his retirement brought out everyone, who is anyone, in the Indiana Justice System. Known for his versatility, Judge Eldred presided over everything from criminal law to medical malpractice law.

by Lisa Trigg
The Tribune-Star

TERRE HAUTE — Highest praise and admiration filled the fourth-floor courtroom in Vigo Superior Court 1 on Tuesday where Judge Michael H. Eldred met with friends and colleagues during a reception marking his departure from the bench where he has served for 30 years.

“Mike makes Swiss Army knives jealous of his versatility,” fellow Judge Phillip Adler said in speaking of his long-time colleague.

Whether it has been criminal or family law, medical malpractice, product liability or civil law, Eldred has handled a broad spectrum of cases, and has been the voice of judicial experience in the courthouse.

“Judge Eldred has been a mentor to me and others,” said Adler, who has himself served 14 years on the bench after serving 10 years as county prosecutor. “I suspect he’s on the speed dial of all the judges in the area as well.”

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Verdicts could tap $90M from state medical malpractice insurance fund

side note: Even while in police custody, the infamous fugitive Dr. Mark Weinberger is managing to bring harm to the citizens of Indiana. Experts fear that the 357 medical malpractice lawsuits that face Weinberger could end up costing the Indiana state medical malpractice fund over 90 million dollars. The depletion of the Indiana state fund would have repercussions felt through out the entire Indiana medical community. When I’ve had the opportunity to speak to doctors one on one at conferences, they have all told me that they wished doctors would be more willing to call out their own especially when the guy has 357 claims against him. For a free quote on medical malpractice insurance in the state of Indiana visit mymedicalmalpracticeinsurance.com.


Friday’s $300,000 jury verdict in the first medical malpractice lawsuit to go to trial against ear, nose and throat specialist Dr. Mark Weinberger was not huge by Indiana standards.

The maximum allowable payout under Indiana’s malpractice statute is $1.25 million, so the award to plaintiff William Boyer was far below that limit.

However, Boyer, a 58-year-old Gary heavy equipment operator, had no permanent injuries from the unnecessary surgery Weinberger performed on him, so some attending the weeklong trial in Lake Superior Court in Hammond expected a smaller verdict.

What is consequential is that Weinberger faces another 357 medical malpractice lawsuits. Most of those cases involve allegations of unnecessary surgery, needed surgery that was not performed or surgery that was poorly performed. At least 20 of those cases have already received opinions of medical malpractice from three-doctor medical review panels, a key step in the state’s medical malpractice process.

That could mean that if all of the claims against Weinberger go to trial and result in similar verdicts — an unlikely scenario because most cases will either be settled or dismissed before going to trial — the fund could face liability of nearly $90 million.

In 2009, the fund paid a total of 150 malpractice claims for $108,438,141, down slightly from 2008, when it paid 154 claims for $109,809,087.

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