Rоbin Everhart filed suit against the Indiana Patient’s Compensation Fund (PCF) to recover excess damages after settling a wrongful death claim against an emergency room physician in whose care her husband died. The PCF asked the trial court to reduce its award of damages to account for the twenty percent chance that Robin’s husband would have died anyway, even in the absence of the physician’s negligence. The trial court declined to do so, awarding Robin the statutory maximum $1 million in excess damages. We affirm, but on slightly different grounds.
Facts and Procedural History
Around 2 p.m. on October 4, 2004, James K. Everhart, Jr. was riding his motorcycle on Margaret Avenue in Terre Haute, Indiana. Tragically, Larry B. Perkins, an employee of Standard Forwarding Company, Inc., crashed his semi-truck into Everhart’s motorcycle and ran over Ever-hart.
Because the accident occurred so close to a fire station and a bystander ran in to personally alert the paramedics, the paramedics arrived on the scene almost exactly as the first call came into the emergency dispatch. Paramedic James Henderson and EMT Norm Loudermilk both testified that Everhart sustained massive injuries but that they were able to control his bleeding. (Appellant’s App. at 16.)
Henderson and Loudermilk both later came to expect Everhart would survive. (Appellant’s App. at 17.) Although Ever-hart appeared unconscious when the paramedics loaded him into the ambulance, he opened his eyes and started speaking to Loudermilk after receiving an intravenous drip and oxygen. (Appellant’s App. at 16.) Initially, Everhart registered only a six on the Glasgow Coma Scale (GCS), but he improved to an eleven and then a thirteen on the GCS during the ambulance ride to the hospital. (Appellant’s App. at 17.) Although the paramedics could not pick up a blood pressure reading for Everhart, Henderson testified that their equipment would not have been sensitive enough to pick up a blood pressure of less than 80/40 mmHg. (Appellant’s App. at 18.)
The paramedics transferred Everhart to the care of Dr. C. Bilston Clarke, a physician in the emergency room at Terre Haute Regional Hospital. Despite Ever-hart’s severe bleeding at the scene, Dr. Clarke did not immediately administer a blood transfusion to Everhart. Everhart later died of a cardiac arrest while still in Dr. Clarke’s care. Everhart left behind his wife and son, Robin and Troy Ever-hart.
*132 Robin filed a wrongful death suit against Perkins and Standard Forwarding in October 2004. The parties settled for $1.9 million. Robin amended her complaint in October 2005, adding a wrongful death claim against Dr. Clarke. Again, the parties settled out of court, this time for a lump-sum payment and future payments with a total present value of $187,001. Robin then filed a third amended complaint on June 17, 2008, adding a claim against the PCF that sought to recover excess damages over and above her settlement with Dr. Clarke.
At trial, the parties disputed whether Everhart suffered a cardiac arrest in the ambulance or after arriving at the hospital. Robin’s expert witness, Dr. Frank Miller, testified that if Everhart had suffered a cardiac arrest after arriving at the hospital, then he would still have stood an eighty percent chance of surviving his injuries if he had received proper medical care. (Appellant’s App. at 19-20.) By contrast, the PCF’s expert witness, Dr. Geoffrey L. Billows, testified that if Ever-hart had suffered a cardiac arrest before arriving at the hospital, then he would only have stood a zero to three percent chance of surviving his injuries even with proper medical care. (Appellant’s App. at 17.)
Finding that Everhart did not suffer a cardiac arrest until after arriving at the hospital, the trial court accepted Dr. Miller’s opinion that Everhart stood an eighty percent chance of recovering had he received proper medical care. (Appellant’s App. at 19-20.) It accepted Henderson’s testimony that the equipment in the ambulance would not have been sensitive enough to pick up some blood pressure readings and Dr. Billows’ testimony that it would have been physically impossible for anyone suffering a cardiac arrest to exhibit a GCS of thirteen. (Appellant’s App. at 18.)
Relying on our holdings in
Atterholt v. Herbst,
Instead, after finding that the plaintiffs’ losses exceeded $3.15 million, the trial court held that our Mayhue line of cases applied only when a patient initiаlly stood a fifty percent or worse chance of avoiding any injury. (Appellant’s App. at 31.) The court refused to reduce its overall finding on injuries by twenty percent and therefore awarded Robin and Troy the remaining $1 million of the statutory cap. (Appellant’s App. at 21, 32.) Because the court found that Robin and Troy’s actual losses exceeded their recoveries from Standard Forwarding and Dr. Clarke’s insurance company plus the maximum amount of excess damages the trial court could impose on the PCF, the court found it unnecessary to address the PCF’s argument that it was further entitled to a set-off in the amount equal to what Robin and Troy already rеcovered in settlements. (Appellant’s App. at 28, 31.) It further declined to address Robin’s response that it should reduce the amount of any set-off *133 to account for Robin’s attorneys’ fees and expenses. (Appellant’s App. at 28, 31.)
On appeal, the Court of Appeals reversed based on our
Mayhue
line of cases and therefore remanded for further findings of fact as to the damages owed Robin, Troy, and Everhart’s estate.
Indiana Dep’t of Ins. v. Everhart,
Standard of Review
On an appeal from a final judgment, we review conclusions of law
de novo. Johnson v. Johnson,
I. Cahoon Did Not Address the Better-Than-Even Cases.
The Indiana Medical Malpractice Act caps a recovery for a patient’s injury or death at $1,250,000. Ind.Code § 34-18-14-3(a)(3) (2008). The Act limits the liability of a qualified health care provider whose medical negligence proximately caused the injury or death to the first $250,000 of damages. Ind.Code § 34-18-14-3(b). 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 PCF. Ind.Code § 34-18-14-3(c).
In a suit to recover excеss damages from the PCF, an earlier settlement with a qualified health care provider conclusively establishes his liability. Ind.Code § 34-18-15-3(5) (2008). Nevertheless, in
Herbst,
we held that evidence of a patient’s preexisting risk of harm was still admissible for the purpose of determining the amount of excess damages to which the plaintiff was entitled.
Herbst,
Our holding in
Herbst
was a necessary consequence of
Cahoon,
in which we held that a successful
Mayhue
claim for causing an increased risk
of harm
entitled a plaintiff to damages in proportion to that increased risk.
Cahoon,
The PCF therefore argues that our decision in Herbst required the trial court to reduce its award of damages in proportion to Everhart’s preexisting risk of death. (Appellant’s Br. at 14.) But the PCF has not cited any Indiana casеs in which a court held that a plaintiff who more likely than not would have avoided any injury but for the defendant’s negligence could only recover proportional damages. 1 As *134 both Robin and the trial court noted, however, all the decisions in our Mayhue line of cases involved patients who stood a fifty percent or worse chance of recovering before suffering some medical negligence. (Appellant’s App. at 21; Appellee’s Br. at 10-14.)
This distinction is not a coincidence, as
Mayhue
reflects a special concern for plaintiffs who stood a fifty percent or worse chance of recovering before suffering some form of medical negligence. In
Mayhue,
a husband filed suit for loss of consortium after a physician negligently failed to diagnose cancer in his wife, who later passed away.
Mayhue,
As we noted in
Mayhue,
this situation presents an obvious problem because this type of plaintiff could
never
establish proximаte cause under the traditional analysis no matter how negligent the physician’s conduct.
Id.
at 1387. We therefore fashioned a solution to this particular problem based on Restatement (Second) of Torts § 323 (1965).
2
Id.
at 1388. Other courts that based their loss-of-chanee doctrines on Section 323 likewise made clear that their purpose in adopting a loss-of-chance doctrine was to ensure that patients with a fifty-percent or worse chance of recovering would still receive the same care as healthier patients by preventing physicians from claiming a blanket release from liability undеr the label of cause-in-fact.
See, e.g. Herskovits v. Group Health Coop.,
May hue’s
scope is important because
Cahoon
established only the measure of damages in cases involving a
Mayhue
claim. In
Cahoon,
we stated that “upon a showing of causation under
Mayhue,
damages are proportional to the increased risk attributable to the defendant’s negligent act or omission.”
Cahoon,
Indeed, the general rule in a suit for negligence is that a plaintiff may recover damages for all injuries the defendant proximately caused.
See Bader v. Johnson,
Decisions like Mayhue and Cahoon arose from the scholarly criticism that the traditional rule undercompensated some plaintiffs for their injuries and undercharged some physicians for their negligence. See, e.g., Joseph H. King, Jr., Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353, 1377, 1387 (1981). Under the traditional analysis, a plaintiff who could show only a forty-nine-pereent chance that the patient would not have suffered some injury but for the physician’s negligence would not recover anything. See David A. Fischer, Tort Recovery for Loss of Chance, 36 Wake Forest L. Rev. 605, 627 (2001). Because over a large number of cases it seems statistically certain that some of these less-than-even patients would have lived, this all-or-nothing rule left some plaintiffs who had actually suffered an injury at the hands of a defendant out in the cold. See King, supra, at 1377.
But this coin had a flip-side: A plaintiff who showed a fifty-one percent chance that the patient wоuld not have died but for the physician’s negligence would be entitled to recover damages in the amount of 100 percent of her injuries. See Fischer, supra, at 627. Because over a large number of cases it seems statistically certain that some of these better-than-even patients would have died anyway, the all- or-nothing rule punished some physicians who did not actually cause any injury at all. See King, supra, at 1387. Assuming the probabilities of patients avoiding harm in the absence of medical negligence fell in an even distribution around a mean of fifty percent, however, these errors may have simply canceled each other out, adequately compensating plaintiffs for injuries and deaths and adequately charging physicians for their negligence as classes, if not as individuals. See Fischer, supra, at 631.
Once courts addressed the problem of undercompensating plaintiffs by issuing decisions like Mayhue and Cahoon, however, some commentators argued that awarding proportional damages in less-than-even cases and full damages in better-than-even cases systematically imposed punitive damages on physicians. E.g., Fischer, supra, at 628. Thus, the argument goes, courts should extend decisions like Cahoon to better-than-even cases. See Fischer, supra, at 628; Jonathan P. Kieffer, The Case for Across-the-Board Application of the Loss-of-Chance Doctrine, 64 Def. Couns. J. 568, 568-69 (1997); King, supra, at 1387. But others have defended awarding proportional damages at or below the fifty percent threshold and full damages above it. E.g., Lori R. Ellis, Note, Loss of Chance as Technique: Toeing the Line at Fifty Percent, 72 Tex. L. Rev. 369, 383 (1993); see also Fischer, supra, at 628-29 (acknowledging one-time tortfeasors and difficulty financing lawsuits as possible reasons for not extending proportional damages to better-than-even cases).
*136
For all the academic interest in this issue, however, very few courts in other jurisdictions have confronted it. The PCF has cited Chief Justice Marshall’s opinion in
Renzi v. Paredes,
On appeal, the Supreme Judicial Court held that the trial court should have instructed the jury on proportional damages. Id. at 813. It noted that loss of chance and wrongful death were distinct theories of injury, and that the physician’s negligence proximately caused only the wife’s loss of chance, not her actual death. Id. Indeed, the Massachusetts court remanded for a new trial solely on the issue of damages, thereby accepting the jury’s finding that the physician’s negligence was not the proximate cause of the patient’s death. Id. at 813. Renzi therefore seems not to demonstrate that a Massachusetts court would apply proportional damages in a case like Robin Everhart’s, in which the plaintiff could show that the physician’s negligence did proximately cause the patient’s actual death, not merely a loss of chance.
The case coming closest to bearing on point seems to be
Scafidi v. Seiler,
Remanding for a new trial, however, the New Jersey Supreme Court instructed the *137 trial court that “any damages ... assuming that defendant’s proofs include evidence that the infant’s premature birth and death might have occurred even if defendant’s treatment had been proper, should be apportioned to reflect the likelihood that the premature birth and death would have been avoided by proper treatment.” Id. at 400 (emphasis added). It is therefore possible to read Scafidi as indicating that the New Jersey Supreme Court would apportion damages to account for the mother’s preexisting condition even if the child had a better-than-even chance of survival.
Still, even this quick survey of a theoretically thorny area of law makes it clear that both courts and commentators have been focusing on cases in which a single tortfeasor’s negligent conduct interacted with a preexisting mediсal condition. That is not the case here. Robin’s case differs from our Mayhue line of eases not only in that Everhart stood a better-than-even chance of recovering in the absence of any medical negligence, but also in that joint tortfeasors negligently caused him an indivisible harm. That latter distinguishing fact triggers our rules on joint and several liability, which make it unnecessary for us to decide today whether to extend Cahoon to better-than-even cases.
II. The Rule for Calculating Set-Offs Can Decide This Case.
There is no critical need to decide the Cahoon valuation issue because of how the trial court’s peculiar findings of fact interact with the rules for calculating a set-off. The court found that Robin and Troy’s total injuries exceeded the sum of all distinct, legally allowable awards of damages. A double recovery would therefore have been impossible under a correct application of the set-off rules. Even if we embraced the PCF’s reading of Mayhue and the resulting application of Cahoon, the PCF would still have to pay the statutory maximum in excess damages.
The PCF argues that the trial court should have reduced its finding on injuries by twenty percent to account for harm Dr. Clarke probably did not cause and then further reduced the damages by the amount of Robin’s settlement with Dr. Clarke’s insurance company and by the full value of her settlement with Standard Forwarding. In other words, it says that after finding that Robin and Troy suffered injuries of at least $8,150,000, the trial court should have reduced that amount to $2,250,000 (twenty percent chance of death in any event), subtracted $250,000 (Dr. Clarke’s insurance company) and then subtracted another $1.9 million (Standard Forwarding) to arrive at its final award of damages.
Again, this contention ignores a critical distinction between the Mayhue cases and Robin’s case. In the Mayhue cases, the chance that a patient would have suffered some injury regardless of a physician’s medical negligence arose from a natural, preexisting medical condition. Here, the chance that Everhart would have died anyway arose as a result of the independent negligence of a joint tortfeasor.
Two or more co-defendаnts constitute joint tortfeasors if their independent negligent conduct proximately caused some indivisible harm.
See Palmer v. Comprehensive Neurologic Servs., P.C.,
But the Legislature altered this landscape when it passed the Indiana Comparative Fault Act. A leading effect of the Act was to abolish the rule that contributory negligence constituted a complete bar to recovery in most suits for negligence. Ind.Code § 34-51-2-5 (2008). Instead, the Act requires a jury to allocate a percentage of responsibility for the plaintiffs injuries to each defendant and any nonparty who contributed to those injuries, and each defendant need only pay his proportional share. Ind.Code § 34-51-2-7, -8 (2008). In exchange for giving negligent plaintiffs greater access to the courts, however, the Act abrogates the old rule of joint and several liability in suits to which the Act applies.
Huber v. Henley,
A plaintiff who settled with one joint tortfeasor, however, might still wish to sue another joint tortfeasor to increase her recovery. Historically, Indiana prevented the plaintiff from doing so under the release rule.
See, e.g., Cooper v. Robert Hall Clothes, Inc.,
We abrogated the release rule in
Huffman v. Monroe County Cmty. Sch. Corp.,
We noted in
Huffman
that a trial court has the power and duty to reduce a jury verdict by an amount already received in an earlier settlement to ensure that a plaintiff does not receive more than one recoveiy.
Huffman,
The action in
Manns
arose before the effective date of the Comparative Fault Act, which would appear to abrogate
Manns
for cases that come within its provisions.
See Mendenhall v. Skinner & Broadbent Co.,
The Court of Appeals applied this same one-satisfaction doctrine in
Palmer,
the case the PCF cites for the proposition that a joint tortfeasor in a medical malpractice suit is entitled to a set-off for any amount the plaintiff received in exchange for settling with another joint tortfeasor.
Palmer,
Here, the PCF belatedly concedes that Perkins and Dr: Clarke constitute joint tortfeasors. 6 (Appellant’s Br. at 23-24.) Perkins’s negligent driving and Dr. Clarke’s negligent medical care both caused a single indivisible harm: Ever-hart’s death. Under the pure common law rule of joint and several liability, Robin could have sued either Perkins or Dr. Clarke and recovered from the defendant of her choice damages in the entire amount of the injuries she and Troy suffered. The second defendant, however, would have been entitled to a set-off from the total judgment against him in the amount of any settlement Robin reached with the first. Because the PCF assumes Dr. Clarke’s liability over and above the statutory cap in the Medical Malpractice Act, the PCF is entitled to the same set-off and no more.
The trial court found that Robin and Troy suffered injuries of at least $3.15 million. Under the Manns rule for set-offs, the court should have reduced its finding on total injuries by $1.9 million on account of the settlement with Standard Forwarding. The court should have further reduced that amount by another $250,000 on account of the settlement with Dr. Clarke’s insurance company. The convenient result: $1 million in uncompensat *140 ed damages, which is precisely equal to the statutory limit of the PCF’s liability for excess damages. 7
And this result would not change if the trial court had applied Cahoon in apportioning damages. Cahoon apportions damages between all the parties who should fairly bear some of the loss. The PCF concedes that Dr. Clarke caused eighty percent of the plaintiffs’ injuries. Because the only possible causes of Everhart’s death are two known joint tortfeasors, however, this concession is tantamount to conceding that Standard Forwarding caused the remaining twenty percent. Initially, the PCF would be responsible for $2,520,000 in damages, whereas Standard Forwarding would be responsible for $680,000. At most, the PCF would therefore only be entitled to a set-off on account of the settlement with Standard Forwarding to the extent that it exceeded Standard Forwarding’s liability. Giving the PCF the benefit of this set-off in the amount of $1,270,000 and a further $250,000 set-off on account of the settlement with Dr. Clarke’s insurance company would still leave a remaining $1 million in uncompensated damages for the PCF to cover in excess damages payable to Robin аnd Troy.
Reducing the finding on injuries by twenty percent and then subtracting the full $1.9 million from the remainder, and then another $250,000, as the PCF asks, effectively ignores that Standard Forwarding, not Robin and Troy, should bear the remaining loss. Indeed, doing so would magically wipe out $630,000 of Robin and Troy’s total recovery and leave the PCF with a windfall in the same amount. In essence, the PCF would succeed in turning the one-satisfaction doctrine from a shield into a sword. The purpose of the one-satisfaction doctrine is to prevent a plaintiff from realizing more than one recovery. It is plainly not to reduce a plaintiff to realizing less than one full recovery.
As a result, we do not see any grounds on which we could reduce the trial court’s awаrd of $1 million in excess damages, so deciding whether to extend or halt Ca-hoon’s advance would seem unnecessary at best. Because we hold that the PCF was not entitled to a set-off, we also need not address Robin’s argument that the trial court should reduce any set-off based on fees and expenses.
Conclusion
For the reasons stated above, we affirm the trial court.
Notes
. The PCF appears to have cited
Smith v. Washington,
. The Restatement (Third) of Torts criticizes this approach because Section 323 appears in a chapter dealing with duties, not causation. Restatement (Third) of Torts: Liability for Physical and Emotional Harms § 26 сmt. n (2005). More recent cases from other jurisdictions have trended away from this approach, preferring to recognize loss of chance as a legally cognizable injury in its own right. See, e.g.,
Matsuyama v. Birnbaum,
. This would be something of an understatement. The plaintiff's expert testified that the economic loss from the patient’s death amounted to a present value of $1,019,936.
Renzi,
. Neither party contends that the old rule of joint and several liability does not apply here, nor does either party contend that the Court of Appeals erred in Palmer. (Appellant's Br. at 23; Appellee’s Br. at 8.)
. In theory, the PCF could have fared even worse if the Comparative Fault Act applied. In
Mendenhall,
we held that a joint tortfeasor who failed to plead a nonparty defense in accordance with the Act could not оbtain a set-off in the amount of an earlier joint tort-feasor's settlement at all.
Mendenhall,
. Actually, the PCF actively advances this theory at the very end of its brief, not so much to point us to the appropriate rules for calculating a set-off, but rather merely to establish that it is entitled to some set-off, before going on to argue that the common fund doctrine should not reduce that set-off. (Appellant’s Br. at 23-24.)
. This very well may have been the thought process of the appellee’s counsel when, in his proposed findings of fact, he asked the trial court to find injuries of "at least $3,150,000," an otherwise odd number given evidence and аrgument that Robin and Troy suffered injuries as high as $54,120,000. (Appellant’s App. at 14.) This very well may also have been the court’s thought process when it adopted the appellee’s counsel’s proposed findings of facts with very few changes. (Appellant’s App. at 15-32.) Our inability to know for sure, however, is one reason why we do not encourage trial courts to adopt proposed findings of fact wholesale.
See Cook v. Whitsell-Sherman,