Statement of the Case
Richard L. Wallen, Individually, and as Personal Representative of the Estate of Cathy L. Wallen, Deceased, (“Wallen”) filed a complaint alleging that Dr. Steven Hossler, M.D., and Radiologic Associates of Northwest Indiana, P.C. (collectively “Dr. Hossler”) committed medical malpractice in providing medical care to Wallen’s wife, Cathy, which resulted in injuries and her death. About five weeks prior to trial, Dr. Hossler offered to settle his liability for $250,000 with various conditions attached, which Wallen rejected. Thereafter, Dr. Hossler sought to force Wallen to accept the offer and filed a motion to enforce the Medical Malpractice Act (“the Act”). Following multiple hearings and memoranda filed with the court, but with no evidence submitted by either party, the trial court granted Dr. Hossler’s motion to enforce the Act. Wallen appeals and presents a single dispositive issue for our review, namely, whether the trial court erred when it concluded that Wallen was required to accept Dr. Hossler’s settlement offer and proceed against the Patient’s Compensation Fund for additional damages.
We reverse and remand for further proceedings.
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The Act “creates a bifurcated procedure for determining medical malpractice claims against a qualified healthcare provider.” Robertson v. B.O., 977 N.E.2d 341, 343 (Ind. 2012). This process is correlated to the separate damages caps imposed by the Act. Id. If a judgment or settlement fixes damages in excess of a qualified health care provider’s liability, then a plaintiff may recover excess damages from the Fund. Id. (citing I.C. § 34-18-14-3(c)). An injured plaintiff thus proceeds first against the healthcare provider and then against the Fund. Id.
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The parties dispute the meaning of the phrase “agreed to settle” in the statute, which presents an issue of first impression for this Court. Dr. Hossler maintains that, because he offered to settle his liability for $250,000, Wallen was required by statute to accept that offer and proceed against the Fund to seek additional damages. But Wallen maintains that the statute only requires him to release Dr. Hossler and proceed against the Fund after Wallen has entered into a settlement agreement with Dr. Hossler, which has not yet occurred.
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Here, the parties agree that the statute is unambiguous, albeit to support opposing interpretations. We hold that the statute unambiguously sets out a procedure whereby a plaintiff, who has in fact settled with a defendant health care provider, may pursue excess damages from the Fund. Dr. Hossler would have us define “agreed to settle” to mean “offered to settle.” But the legislature did not write the statute to say, “If a health care provider has offered a plaintiff $250,000, the plaintiff must accept that settlement offer and proceed against the Fund for excess damages.” The statute clearly contemplates that a plaintiff shall proceed against the Fund only after the plaintiff has affirmatively entered into a settlement agreement with a defendant health care provider or insurer in lieu of trial. An offer is not an agreement. A settlement agreement requires at least two parties.
In the alternative, Indiana Code Section 34-18-14-3(c) provides in relevant part that “[a]ny amount due from a judgment . . . that is in excess of the total liability of all liable health care providers . . . shall be paid from the [Fund].” Thus, a plaintiff is always entitled to reject a defendant health care provider’s settlement offer and proceed to trial to determine his total damages, including damages to be paid by the Fund.
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Conclusion
Under the express provisions of the Act, Wallen may pursue excess damages from the Fund either after a jury trial or after he has entered into a settlement agreement with Dr. Hossler. Nothing in the Act requires Wallen to accept Dr. Hossler’s offer to settle his liability. And, while whether a defendant health care provider has committed more than one act of medical malpractice is generally a question of fact, here, where Wallen’s allegations cannot be construed as alleging more than one act, we hold as a matter of law that Wallen is only entitled to one statutory cap in his complaint against Dr. Hossler.
Reversed and remanded for further proceedings.
Robb, J., concurs. Baker, J., concurs in part and concurs in result in part with separate opinion.
Baker, Judge, concurring and concurring in result.
I concur in the result reached by the majority and I fully concur in its analysis regarding whether a settlement can be compelled. I respectfully part ways, however, with its analysis regarding the number of statutory caps at issue. In my view, there were two different acts of medical malpractice. But I do not think that it matters, inasmuch as there was only one injury—Cathy’s death. Because it is without dispute that she sustained only a single injury, I agree with the majority that Wallen is not entitled to recover more than one statutory cap in his claims against Dr. Hossler.