J.L. v. Mortell

• Decision Date: 27 April 1994
• Docket Number: No. 49A05-9305-CV-189,49A05-9305-CV-189
• Parties: J.L. and R.L., Appellants-Plaintiffs, v. John F. MORTELL, In His Capacity as Commissioner of Insurance, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 300

633 N.E.2d 300

J.L. and R.L., Appellants-Plaintiffs, v. John F. MORTELL, In His Capacity as Commissioner of

Insurance, Appellee-Defendant.

No. 49A05-9305-CV-189.

Court of Appeals of Indiana,

Fifth District.

April 27, 1994.

Alfred H. Plummer, III, Wabash, for appellants.

Adam O. Crowe, Indianapolis, for appellee.

BARTEAU, Judge.

This is an appeal from the dismissal of a petition for excess damages from the Patient's Compensation Fund. We reverse and remand.

FACTS

In 1986, upon her doctor's referral, J.L. began receiving physical therapy for muscle spasms in her abductor muscle. ¹ The physical therapist eventually added a vaginal massage to the treatment program. In 1990, J.L. began seeing another therapist who informed J.L. that vaginal massages were inappropriate and that the technique was unfounded. J.L. suffered severe physical and emotional distress after discovering the inappropriateness of the technique. She was diagnosed as suffering from post-traumatic distress syndrome. She received a settlement from the therapist and his insurer in the amount of $100,000. She and her husband, R.L. (hereinafter referred to jointly as J.L.), then filed for excess damages from the Patient's Compensation Fund.

Commissioner filed neither an agreement nor an objection to the demand for payment within the time allotted by Indiana Code 16-9.5-4-3(3), and the trial court entered an order noting the same and setting the matter for hearing to determine the amount, if any, to be paid out of the fund. Although not noted by the trial court, on the day prior to the issuance of the order, Commissioner filed an objection to setting the petition for approval, with an explanation of his delay in filing a response, and an answer and objection. J.L. never objected to the belated filing nor asked that the belated answer be stricken.

At the hearing, following the close of J.L.'s case, Commissioner filed a Motion to Dismiss under Ind.Trial Rule 41(B). The court took the motion under advisement and Commissioner rested without presenting evidence.

Thereafter, the court granted Commissioner's Motion to Dismiss and entered the following conclusions of law:

1. Indiana follows the general rule that damages for emotional distress are recoverable only when accompanied by and resulting from a physical injury.

2. Although a substantial injury is not required, a physical injury rather than mere physical contact is required.

3. Therefore, the emotional distress experienced by the Plaintiff [J.L.], as a result of the treatment which she received from the Defendant, Jay S. Frye, is a noncompensable injury.

In denying J.L.'s motion to correct errors, the court made the following entry:

Come now the Plaintiffs, [J.L.] and [R.L.], by counsel, having filed their Motion to Correct Errors, and the Court being duly advised in the premises, now finds that the motion should be denied pursuant to Eakin v. Kumiega (1991, Ind.App., 567 N.E.2d 150), trans. denied.

APPLICABLE STATUTE

The issues presented focus on the meaning and scope of the former Ind.Code 16-9.5-4-3 (recodified as I.C. 27-12-15-3), which governs the procedure for pursuing claims of excess damages from the Patient's Compensation Fund. The former I.C. 16-9.5-4-3 reads:

If a health care provider or its insurer has agreed to settle its liability on a claim by payment of its policy limits of one hundred thousand dollars ($100,000), and claimant is demanding an amount in excess thereof, then the following procedure must be followed:

(1) A petition shall be filed by the claimant in the court named in the proposed complaint, or in the circuit or superior court of Marion County, at the claimant's election, seeking (a) approval of an agreed settlement, if any, or (b) demanding payment of damages from the patient's compensation fund.

(2) A copy of the petition with summons shall be served on the commissioner, the health care provider and his insurer, and shall contain sufficient information to inform the other parties about the nature of the claim and the additional amount demanded.

(3) The commissioner and either the health care provider or the insurer of the health care provider may agree to a settlement with the claimant from the patient's compensation fund, or the commissioner, the health care provider or the insurer of the health care provider may file written objections to the payment of the amount demanded. The agreement or objections to the payment demanded shall be filed within twenty (20) days after service of summons with copy of the petition attached thereto.

(4) The judge of the court in which the petition is filed shall set the petition for approval or, if objections have been filed, for hearing, as soon as practicable. The court shall give notice of the hearing to the claimant, the health care provider, the insurer of the health care provider, and the commissioner.

(5) At the hearing the commissioner, the claimant, the health care provider, and the insurer of the health care provider may introduce relevant evidence to enable the court to determine whether or not the petition should be approved if it is submitted on agreement without objections. If the commissioner, the health care provider, the insurer of the health care provider, and the claimant cannot agree on the amount, if any to be paid out of the patient's compensation fund, then the court, after hearing any relevant evidence on the issue of claimant's damage, submitted by any of the parties described in this section, shall determine the amount of claimant's damages, if any, in excess of the one hundred thousand dollars ($100,000) already paid by the insurer of the health care provider. The court shall determine the amount for which the fund is liable and render a finding and judgment accordingly. In approving a settlement or determining the amount, if any, to be paid from the patient's compensation fund, the court shall consider the liability of the health care (6) Any settlement approved by the court shall not be appealed. Any judgment of the court fixing damages recoverable in any such contested proceeding shall be appealable pursuant to the rules governing appeals in any other civil case tried by the court.

provider as admitted and established. (emphasis added)

(7) A release executed between the parties shall not bar access to the patient's compensation fund unless the release specifically provides otherwise.

TIMING OF ANSWER

J.L.'s initial contention relates to the late filing of the Answer and Objection. J.L. contends that Commissioner's failure to timely file his Objection waived his right to contest the award of damages. Even though the issue is raised, J.L. neglects to provide any citation to authority in support of her claim nor any cogent argument on the issue. Therefore, consideration of this issue has been waived. Ind. Appellate Rule 8.3(A)(7).

TRIAL COURT EXCEEDED AUTHORITY

J.L.'s second contention is that the trial court exceeded its authority by engaging in an inquiry and determination as to whether her injuries were noncompensable under the Medical Malpractice Act. Dillon v. Glover (1992), Ind.App., 597 N.E.2d 971, is offered in support of her argument. Commissioner contends Glover is inapplicable.

In Glover, a wrongful death action, the Commissioner appealed the trial court's award of damages to Glover, individually and as the personal representative of the Estate of Milton Glover, contending that the negligence of the health care provider was not the proximate cause of Milton Glover's death. This court, in affirming the trial court, held that the question of causation was not at issue and permitted the award of damages. In so doing, this...