Robertson v. B.O. ex rel. Ort
2012 Ind. LEXIS 894
| Ind. | 2012Background
- B.O. diagnosed with spastic diplegia (mild cerebral palsy) at age four following birth-related events.
- Parents sue under the Indiana Medical Malpractice Act against attending healthcare providers for alleged negligent labor and delivery monitoring and response to fetal distress.
- Before trial, providers settle, allowing B.O. to seek excess damages from the Indiana Patient’s Compensation Fund (PCF).
- PCF discloses five experts who testify B.O. either lacks cerebral palsy or that any such condition was not caused by the providers’ conduct.
- B.O. moves for partial summary judgment to limit the issues at trial to damages for mild cerebral palsy and preclude PCF testimony disputing existence or causation.
- Trial court grants partial summary judgment for B.O.; appellate court reverses; Indiana Supreme Court affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can PCF dispute existence or cause of injury after settlement? | B.O.’s injury existence and causation are admitted with liability. | PCF should be allowed to contest causation and compensability to determine damages. | PCF may not dispute existence or causation; they are precluded. |
| Meaning of 'liability' and 'admitted and established' under § 34-18-15-3(5)? | Liability includes causation and injury; those are established by settlement. | Liability may be broader or misunderstood; evidence may inform damages. | Liability as admitted and established encompasses causation and injury; existence/cause cannot be challenged. |
| Application of Herbst to the present case. | Herbst allows evidence of underlying risk to inform liability and damages even after settlement. | Herbst applies only to Mayhue increased-risk claims, not to traditional negligence damages. | Herbst does not apply here; this is not a Mayhue increased-risk claim. |
| Are damages under compensability versus factual compensability at issue? | PCF may challenge compensability of injury in damages phase. | In this context, compensability is not in dispute; existence/causation are foreclosed. | Factual compensability cannot be contested; existence/causation are foreclosed. |
Key Cases Cited
- Ind. Dep’t of Ins. v. Everhart, 960 N.E.2d 129 (Ind. 2012) (presents the interplay of MMA injuries and damages in expert testimony)
- Atterholt v. Herbst, 902 N.E.2d 220 (Ind. 2009) (defines 'liability' consistent with common law)
- Mayhue v. Sparkman, 653 N.E.2d 1387 (Ind. 1995) (increased risk of harm framework for certain claims)
- Cahoon v. Conn. Gen. Life Ins. Co., 734 N.E.2d 534 (Ind. 2000) (damages proportional to increased risk; Mayhue damages framework)
- Robinson v. Butler, 872 N.E.2d 633 (Ind. Ct. App. 2007) (distinguishes theory of recovery when settlements do not specify theory)
- Dunn v. Cadiente, 516 N.E.2d 52 (Ind. 1987) (proximate cause and injury required for liability)
- Estate of Mintz v. Conn. Gen. Life Ins. Co., 905 N.E.2d 998 (Ind. 2009) (classic negligence elements for liability)