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Monday, June 15, 2009

Ind. Decisions - Supreme Court issues one today

In Jim Atterholt, Commissioner of the Indiana Dept. of Insurance v. Geneva Herbst, Personal Rep. of the Estate of Jeffrey A. Herbst, a 2-page, 5-0 opinion in a petition on rehearing, Justice Boehm writes:

Plaintiff has petitioned for rehearing, contending that our opinion incorrectly states that its holding applies to cases tried to judgment as well as to claims that have been settled by agreement between the plaintiff and the health care provider or its insurer. Plaintiff contends that ordinary principles of collateral estoppel and finality render any judgment reached after trial conclusive as to the amount of damages and therefore our holding should be limited to cases where the Fund is free to contest the award of damages by reason of the provisions contained in the Act that expressly authorize the Fund to contest petitions for “excess damages.” These provisions, by their terms, are limited to cases settled by agreement. Ind. Code § 34-18-15-3 (2004).

In this case, because the underlying case was settled, the damages remained subject to ob-jection by the Fund. We agree with plaintiff that in the ordinary case the amount of damages awarded by a judgment after trial is conclusive as to this issue. Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 400, 404 N.E.2d 585, 602 (1980). We did not intend to imply that the issue necessarily or even frequently remains open after a trial. We were not presented in this case with the question under what circumstances, if any, an issue as to the extent of the Fund’s liability may be left unresolved by a judgment in the underlying medical malpractice case. We express no opinion on that issue. Our opinion is restricted solely to the evidentiary question whether, if the extent of the Fund’s liability is in issue, the Fund may offer evidence relevant to the extent of damage which may include the patient’s risk of harm that preexisted the alleged malpractice.

The original, March 10th opinion, is here.

Posted by Marcia Oddi on June 15, 2009 12:19 PM
Posted to Ind. Sup.Ct. Decisions