If Defendants Settle and Plaintiff Does Not Seek Compensation for Increased Risk of Harm, State Compensation Fund Cannot Dispute Injury or Causation

An infant underwent distress during labor and delivery. Four years later the child was diagnosed with a mild form of cerebral palsy. The child’s parents sued the healthcare providers who attended the birth for medical malpractice. The defendants settled for a sum allowing the plaintiff to seek excess damages from the Indiana Patient's Compensation Fund (PCF).


The parents filed a petition seeking excess damages from the PCF. In its response, the PCF listed five expert witnesses to testify that the child either did not have a mild form of cerebral palsy or, if he did, it was not caused by the conduct of the healthcare providers at his birth. The parents filed a motion for partial summary judgment to limit the issue at trial to the amount of compensable damages. The trial court granted the plaintiff’s motion. The court of appeals reversed. The parents appealed.


The Supreme Court of Indiana affirmed the trial court’s decision and reversed the court of appeals. Under Indiana law, when the healthcare providers settled, they admitted and established that they caused the child’s mild form of cerebral palsy. The only open question in the proceeding involving the PCF was the amount of damages.


The court disapproved of the decision in Ind. Patient's Comp. Fund v. Butcher, 863 N.E.2d 11 (Ind. Ct. App. 2007) in which the court considered evidence of injury and causation, and because the plaintiff failed to respond to the PCF’s argument, found no evidence to support recovery from the fund. Under Indiana law, courts should not consider evidence of injury and causation in compensation fund cases after health care providers admit liability, where the patient does not allege that medical negligence resulted in increased risk of harm and that the patient is seeking damages in proportion to risk.


See: Robertson v. B.O., 2012 WL 5358870 (Ind., October 31, 2012) (not designated for publication).