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The ISMA court brief helps save $1 million for PCF
ISMA e-Reports, March 22, 2010
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To prevent surcharge increases, the ISMA was the only physician organization to file a brief

In an Indiana malpractice case, the ISMA filed an amicus curiae (friend of the court) brief that helped save $1 million for the Patient’s Compensation Fund (PCF) – ultimately keeping you and all Indiana physicians from a future insurance surcharge increase.

On March 30, 2009, ISMA Reports notified you of a favorable opinion in the Atterholt v. Herbst medical malpractice case, in which the ISMA filed an amicus curiae brief. The Indiana Supreme Court sent the case back to the trial court for a damages determination, and on March 4, 2010, the trial court issued a ruling – saving the PCF $1 million.

The ISMA historically monitors such court action and, as in this case, is typically the only physician organization to file an amicus brief on behalf of physicians.

“At issue here was whether the PCF can admit evidence to reduce damages when a health care provider only slightly contributed to a patient’s injury,” said Julie Reed, ISMA legal counsel. On March 10, 2009, the Indiana Supreme Court unanimously ruled that it can.

Details of the case
A 34-year-old patient went to his doctor twice within two days complaining of various symptoms. His physician, suspecting pneumonia, sent him to the hospital. Upon admission, the hospital determined the patient was gravely ill with cardiogenic shock; he died within 11 hours due to fulminant myocarditis. His estate sued for wrongful death.

The doctor and hospital settled for $250,000; plaintiffs then sued the PCF for excess damages. At trial, the judge would not allow the PCF to introduce expert testimony from Fort Wayne cardiologist Michael Mirro, M.D., indicating that even with proper care, the patient had less than a 10 percent chance of surviving. (Plaintiff’s experts concluded 36-42 percent). If he survived, he would have been unable to return to work.

The court concluded damages exceeded $2.5 million and awarded the estate the statutory maximum of $1 million from the PCF. The Court of Appeals affirmed the trial court, and the Indiana Supreme Court accepted the case. The ISMA filed its amicus curiae brief as an interested third party.

The decisions
The Supreme Court agreed with the PCF that its expert testimony was improperly excluded, and agreed with the ISMA that it was legally improper and unfair to hold a physician liable for damages his actions did not cause.

Assuming the PCF expert was accurate about the 10 percent chance of survival, the court ruled: “…any malpractice by either provider increased his chance of harm by no more than 10 percent, and the Fund is liable for only 10 percent of the value of his survival. Moreover, if with proper care Herbst still had no chance of working in the future, no lost wages are recoverable from the Fund.”

The case was remanded back to the trial court for a damages determination where the judge went to great lengths to note that, unlike the PCF’s expert, none of the plaintiff’s four experts were board certified cardiologists. None had current personal experience treating patients with myocarditis.

Additionally, most or all of the literature reviewed by at least two plaintiff’s experts was provided by plaintiff’s counsel. Therefore, the judge found Dr. Mirro’s testimony to be “the most credible and reliable…based upon his education, training, and experience.”

The trial court concluded the plaintiff was entitled to recover only 10 percent of the full amount of damages ($2,500,000), the amount proportional to the increased risk of harm attributable to malpractice. Plaintiff was entitled to recover $250,000, already paid by the settling health care providers. The PCF was not required to pay additional money.

“This case safeguards the principle that damages must always be proportionate to a physician’s liability and preserves the right of the PCF to challenge damage awards,” said Reed. “The decision saved the PCF $1 million in this case alone, and will most certainly save it more money in the future.”

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