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Indiana Supreme Court: Court Clarifies Patient's Compensation Fund Opinion
Posted in Litigation

On Monday, the Indiana Supreme Court granted the plaintiff’s petition for rehearing of its March 10 opinion in Atterholt v. Herbst.  (Click here for our summary of the original opinion).  In its original opinion, the Court held that "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."  902 N.E.2d 220, 220-21 (Ind. 2009).

In its opinion on rehearing, the Court clarified that its original holding was 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 Court explained that it has not expressed an opinion on the question of “under what circumstances, if any, an issue as to the [Patient’s Compensation] Fund’s liability may be left unresolved by a judgment in the underlying medical malpractice case.”



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