Atterholt v. Herbst

Decision Date15 June 2009
Docket NumberNo. 49S04-0806-CV-344.,49S04-0806-CV-344.
Citation907 N.E.2d 528
CourtIndiana Supreme Court
PartiesJim ATTERHOLT, Commissioner of the Indiana Department of Insurance, as Administrator of the Indiana Patient's Compensation Fund, Appellant (Defendant below), v. Geneva HERBST, Personal Representative of the Estate of Jeffrey A. Herbst, Deceased, Appellee (Plaintiff below).

Appeal from the Marion Superior Court; No. 49D07-0511-PL-045446; Gerald Zore, Judge.

Elizabeth H. Knotts, Rori L. Goldman, Indianapolis, IN, Attorneys for Appellant.

Thomas J. Costakis, Libby Y. Mote, Indianapolis, IN, Attorneys for Amicus Curiae Indiana State Medical Association.

Steven L. Langer and Tara M. Wozniak, Valparaiso, IN, Attorneys for Appellee.

On Petition for Rehearing

BOEHM, Justice.

Under circumstances spelled out in the Indiana Medical Malpractice Act, the Act limits the liability of a health care provider and permits recovery of excess damages from the Patient's Compensation Fund. In this case, our original opinion summarized our holding as follows:

when a claimant seeks excess damages from the Patient's Compensation Fund after obtaining a judgment or settlement from a health care provider in a medical malpractice case, the Fund may introduce evidence of the claimant's preexisting risk of harm if it is relevant to establish the amount of damages, even if it is also relevant to liability issues that are foreclosed by the judgment or settlement.

Atterholt v. Herbst, 902 N.E.2d 220, 220-21 (Ind.2009).

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 objection 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...

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13 cases
  • Garau Germano, P.C. v. Robertson
    • United States
    • Indiana Appellate Court
    • August 19, 2019
    ...Fund , 968 N.E.2d 254, 259 (Ind. Ct. App. 2012) (citing Atterholt v. Herbst , 902 N.E.2d 220, 222 (Ind. 2009), clarified on reh'g , 907 N.E.2d 528 (2009) ), trans. denied .[6] If a health care provider decides to settle a claim with a plaintiff, there are two ways in which that plaintiff ma......
  • First Sav. Bank, F.S.B. v. Baird Realty Appraisal Consultants, Inc.
    • United States
    • Indiana Appellate Court
    • September 1, 2011
    ...of Review We review a summary judgment order de novo. Atterholt v. Herbst, 902 N.E.2d 220, 222 (Ind. 2009), clarified on reh'g, 907 N.E.2d 528 (Ind. 2009). We must determine whether the evidence that the parties designated to the trial court presents a genuine issue of material fact and whe......
  • Green v. Robertson
    • United States
    • Indiana Appellate Court
    • July 5, 2016
    ...evidence of a patient's preexisting risk of harm. Atterholt v. Herbst, 902 N.E.2d 220, 220–21 (Ind.2009), clarified on reh'g, 907 N.E.2d 528 (Ind.2009). Our supreme court recently clarified when such evidence is relevant in Robertson v. B.O., 977 N.E.2d 341 (Ind.2012). Before addressing B.O......
  • M.O. v. Ind. Dep't of Ins.
    • United States
    • Indiana Appellate Court
    • May 3, 2012
    ...paid a portion of the damages owed for medical malpractice. Atterholt v. Herbst, 902 N.E.2d 220, 222 (Ind.2009), clarified on reh'g,907 N.E.2d 528 (2009). Allowing claims against the Fund for excess damages is not based on tort principles of compensating patients for any purported wrongdoin......
  • Request a trial to view additional results

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