Recent Hilbrich Blog Entries

Doctors' Settlement Removes Issue of Liability in Medical Malpractice Case

Indiana medical malpractice claims are governed by the Medical Malpractice Act. The Act caps a patient’s recovery at $1,250,000 but limits the liability of a qualified health care provider to the first $250,000. Consequently, if a patient’s damages exceed $250,000 a patient may try to recover excess damages from the Patient Compensation Fund (PCF). However, this two-step system may not be as tedious as it sounds. The Indiana Supreme Court recently stated that for purposes of determining excess damages, a court shall consider the liability of the health care provider as “admitted and established” if a patient obtains a judgment against or settles with a health care provider. In Robertson v. B.O., the parents of B.O. sued the doctors who attended B.O.’s birth for failing to adequately monitor his condition during labor and failing to respond to signs of fecal distress which they claimed caused B.O.’s cerebral palsy consisting of spastic diplegia. Shortly before trial, the doctors settled the case for a sum which still allowed B.O. to seek excess damages from the PCF. The PCF wanted to introduce 5 expert witnesses to the court to testify that either B.O. did not have cerebral palsy or that the attending doctors did not cause the cerebral palsy. However, the Court did not allow the PCF to introduce such evidence because the Court determined that when the doctors settled with B.O., the issue as to their liability for his injury was admitted and established and thus could not be argued by the PCF. The only thing the PCF could argue was the issue of how much B.O. was entitled to recover as a result of the medical negligence. The Robertson Court held that the PCF may only introduce evidence relating to the determination of a patient’s damages and may not introduce evidence relating to issues of liability except in the very limited instance of increased risk of harm cases. An increased risk of harm case is when a patient’s illness or injury already results in a probability of dying greater than 50 percent prior to any medical negligence on the part of the health care provider. The Robertson case, however, was not an increased risk of harm case but rather a standard medical malpractice case – i.e. if the doctors had not acted negligently, the patient’s injury would not have occurred. Consequently, the PCF could not introduce its expert testimony. If you or a loved one were injured as a result of the negligent act of a medical provider, you may be entitled to damages. For a free consultation with one of our top attorneys please call 877-877-LAW2 (5292) or 219-924-2427.

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