Robb, J.
Case Summary and Issues
John Green filed a petition for excess damages from the Indiana Patient’s Compensation Fund (“PCF”) after settling a medical malpractice claim against Health and Hospital Corporation of Marion County d/b/a Wishard Memorial Hospital (“Wishard”) and Emergency Medical Group, Inc. (“EMG”). The trial court awarded Green an additional $300,000.00. Green appeals, raising several issues, which we consolidate and restate as whether the findings and judgment of the trial court are clearly erroneous. Concluding the trial court’s findings and judgment are not clearly erroneous, we affirm.
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The trial court awarded Green $300,000.00 in excess damages from the PCF “for the aggravation of his condition, the injury associated with the corneal scarring, pain and suffering, and loss of enjoyment of life . . . .” Appellant’s App. at 42. Green contends the trial court’s findings are clearly erroneous because he experienced a TIA in the Wishard emergency room, rather than a stroke, and the administration of tPA could have prevented his stroke. [Footnote omitted.] Proceeding from these assertions, Green further contends he is entitled to the statutory maximum in damages, that his medical malpractice claim was settled on traditional negligence principles, and the trial court erred in reducing at least a portion of his damages based on increased risk of harm principles. We conclude the trial court’s findings and judgment are not clearly erroneous and affirm the judgment awarding Green an additional $300,000.00.
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Green contends the trial court’s judgment is clearly erroneous because the underlying settlement was based on traditional negligence principles, not increased risk of harm principles. He argues the claim must have been settled on traditional negligence principles because he did not allege increased risk of harm in the complaint. He also believes he is entitled to $1,000,000.00 in excess damages. We disagree on both counts. Although liability was established by the settlement, the settlement agreement did not specify the theory of recovery. See Pl.’s Ex. 6. And we do not agree Green’s characterization of the claim in the pleadings necessarily determines the proper theory of recovery. Certainly plaintiffs would prefer to prove causation by traditional means and thereby recover full damages, but in cases where the patient stood less than a 50% chance of recovery prior to encountering medical negligence, permitting the plaintiff to recover full damages “would hold doctors liable not only for their own negligence, but also for their patients’ illnesses, which are not the product of the doctors’ actions.” Cahoon, 734 N.E.2d at 541
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The trial court’s judgment is not clearly erroneous because the damage award was within the scope of the evidence before the trial court. Where recovery is limited to damages for increased risk of harm because the patient stood less than a 50% chance of recovery prior to encountering the physician’s negligence, the trial court may consider evidence of the patient’s underlying risk in order to determine the appropriate amount of damages. “[D]amages for such a claim are to be measured in proportion to the increased risk, and not by the full extent of the ultimate injury.” Cahoon, 734 N.E.2d at 538.
Conclusion
The trial court’s findings and judgment are not clearly erroneous. We therefore affirm the judgment awarding Green $300,000.00 from the PCF.
Affirmed. Najam, J., and Crone, J., concur.