Fort Wayne Indiana Personal Injury Lawyer and Attorney Blog

Widower can seek excess damages in med-mal complaint

By Jack H. FarnbauchNovember 7, 2019

Cathy Wallen was diagnosed with a pulmonary embolism and was admitted to Porter Regional Hospital, not long after, she began to experience severe abdominal pain. An X-ray and CT scan interpreted by radiologist Dr. Steven Hossler revealed no internal bleeding, but rather gallstones. There was internal bleeding, however, and Cathy ultimately died after suffering from the bleeding within her abdomen, hemorrhagic shock, and multiple organ failure. 

Cathy’s husband, Richard Wallen, sued Hossler for medical malpractice, alleging negligence resulted in her death. Hossler declined an offer from Wallen to settle the claims for $250,000, the applicable statutory cap for a single medical malpractice claim, which would allow Wallen to pursue additional damages from the Indiana Patient’s Compensation Fund.

Hossler later offered to settle with the same proposal, with 13 different conditions, but Wallen refused. Hossler then argued in the Porter Superior Court that under the Medical Malpractice Act, the fund was the “real party in interest” once Hossler had offered to pay the statutory cap for his liability and the matter should proceed against the Patient’s Compensation Fund.

Wallen appealed the decision and argued that nothing in the Medical Malpractice Act required him to accept the conditional settlement offer and forgo a jury trial against Hossler. The Indiana Court of Appeals reversed and remanded the trial court’s decision in Richard L. Wallen, Individually, and as Personal Representative of the Estate of Cathy L. Wallen, Deceased v. Dr. Steven Hossler, M.D., and Radiologic Associates of Northwest Indiana, P.C., 19A-CT-40, finding that under the express provisions of the act, Wallen could pursue excess damages from the fund either after a jury trial or after he had entered into a settlement agreement with Hossler. The act, the appellate court concluded, does not require Wallen to accept Hossler’s offer to settle, and the trial court erred in requiring he does so.

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