Sec. 3. If a health care provider or its insurer has
agreed to settle its liability on a claim by payment of its policy limits
established in IC 34-18-14-3(b) and IC 34-18-14-3(d), and the claimant
is demanding an amount in excess of that amount, the following
procedure must be followed:
(1) A petition shall be filed by the claimant in the court named in
the proposed complaint, or in the circuit or superior court of
Marion County, at the claimant's election, seeking:
(A) approval of an agreed settlement, if any; or
(B) demanding payment of damages from the patient's
compensation fund.
(2) A copy of the petition with summons shall be served on the
commissioner, the health care provider, and the health care
provider's insurer, and must contain sufficient information to
inform the other parties about the nature of the claim and the
additional amount demanded.
(3) The commissioner and either the health care provider or the
insurer of the health care provider may agree to a settlement with
the claimant from the patient's compensation fund, or the
commissioner, the health care provider, or the insurer of the
health care provider may file written objections to the payment of
the amount demanded. The agreement or objections to the
payment demanded shall be filed within twenty (20) days after
service of summons with copy of the petition attached to the
summons.
(4) The judge of the court in which the petition is filed shall set
the petition for approval or, if objections have been filed, for
hearing, as soon as practicable. The court shall give notice of the
hearing to the claimant, the health care provider, the insurer of the
health care provider, and the commissioner.
(5) At the hearing, the commissioner, the claimant, the health care
provider, and the insurer of the health care provider may
introduce relevant evidence to enable the court to determine
whether or not the petition should be approved if the evidence is
submitted on agreement without objections. If the commissioner,
the health care provider, the insurer of the health care provider,
and the claimant cannot agree on the amount, if any, to be paid
out of the patient's compensation fund, the court shall, after
hearing any relevant evidence on the issue of claimant's damage
submitted by any of the parties described in this section,
determine the amount of claimant's damages, if any, in excess of
the health care provider's policy limits established in IC 34-18-14-3(b) and IC 34-18-14-3(d) already paid by the insurer
of the health care provider. The court shall determine the amount
for which the fund is liable and make a finding and judgment
accordingly. In approving a settlement or determining the amount,
if any, to be paid from the patient's compensation fund, the court
shall consider the liability of the health care provider as admitted
and established.
(6) A settlement approved by the court may not be appealed. A
judgment of the court fixing damages recoverable in a contested
proceeding is appealable pursuant to the rules governing appeals
in any other civil case tried by the court.
(7) A release executed between the parties does not bar access to
the patient's compensation fund unless the release specifically
provides otherwise.
[Pre-1998 Recodification Citation: 27-12-15-3.]
As added by P.L.1-1998, SEC.13. Amended by P.L.233-1999,
SEC.15; P.L.182-2016, SEC.11.
Notes of Decisions
Robertson v. B.O. ex rel. Ort, 977 N.E.2d 341 (Ind. 2012).
· cites it 26× “See Ind.Code § 34-18-15-3 (2008). B.O.’s parents then filed a petition for excess damages, after which the PCF disclosed five expert witnesses prepared to testify that B.”
Atterholt v. Robinson, 872 N.E.2d 633 (Ind. Ct. App. 2007).
· cites it 6× “The parties reached a settlement in May *637 2006 (the settlement agreement), which provided that North Woods would pay the Estate $250,000 and that the Estate would have “the right to pursue the collection of damages in excess [of $250,000] from [the Fund] pursuant to I.C. §…”
Atterholt v. Herbst, 879 N.E.2d 1221 (Ind. Ct. App. 2008).
· cites it 16× “Indiana Code section 34-18-15-3 (1999) controls in situations where a health care provider or its insurer agree to settle the provider’s liability on a claim by payment of its policy limits and the claimant is demanding an amount in excess of this amount.”
Robertson v. B.O. Ex Rel. Ort, 949 N.E.2d 404 (Ind. Ct. App. 2011).
· cites it 20× “O. did not incur the damages or that the damages were not caused by the conduct of the healthcare provider.”
John Green v. Stephen Robertson, Comm'r, Indiana Dep't of Ins., 56 N.E.3d 682 (Ind. Ct. App. 2016).
· cites it 4× “Recovery-of excess damages from the PCF is allowed only after the health care provider has paid the first $250,000,00, Ind. Code § 34-18-15-3 , or agreed to a settlement in which the present payment of money and the - cost of future payments exceeds $187,000.”
Atterholt v. Herbst, 902 N.E.2d 220 (Ind. 2009).
· cites it 2× “§ 34-18-15-3(4)-(5). In determining this amount, "the court shall consider the liability of the health care provider as admitted and established.”
Indiana Dep't of Ins. v. Everhart, 960 N.E.2d 129 (Ind. 2012).
· cites it 2× “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.”
McCabe v. Comm'r, Indiana Dep't of Ins. as Adm'r of the Indiana Patients Comp. Fund, 930 N.E.2d 1202 (Ind. Ct. App. 2010).
· cites it 3× “; see also I.C. § 34-18-15-3(4)-(5). [2] The issue presented in Butler was whether, under the AWDS, the amount recoverable for reasonable medical and hospital expenses necessitated by the alleged wrongful conduct is the total of the charges billed or the total amount ultimately…”
McCarty v. Sanders, 805 N.E.2d 894 (Ind. Ct. App. 2004).
· cites it 2× “The Sanders filed their petition for excess damages from the Fund under Ind. Code § 34-18-15-3 . In their petition, the Sanders alleged that their agreement to settle with the health care provider for the statutory equivalent of $100,000.”
Infectious Disease of Indianapolis, PSC v. Toney, 813 N.E.2d 1223 (Ind. Ct. App. 2004).
· cites it 4× “The statute, as amended, is currently found at Indiana Code § 34-18-15-3. 3 . Dr. Webb withdrew his first motion for summary judgment filed after the medical review panel issued its report.”
Ind. Code § 34-18-15-3(1): 2 cases
Ind. Code § 34-18-15-3(3): 1 case
Ind. Code § 34-18-15-3(4): 4 cases
Atterholt v. Herbst, 902 N.E.2d 220 (Ind. 2009).
“§ 34-18-15-3(4)-(5). In determining this amount, "the court shall consider the liability of the health care provider as admitted and established.”
Ind. Code § 34-18-15-3(5): 13 cases
Robertson v. B.O. ex rel. Ort, 977 N.E.2d 341 (Ind. 2012).
“See Ind.Code § 34-18-15-3 (2008). B.O.’s parents then filed a petition for excess damages, after which the PCF disclosed five expert witnesses prepared to testify that B.”
Atterholt v. Herbst, 879 N.E.2d 1221 (Ind. Ct. App. 2008).
“Indiana Code section 34-18-15-3 (1999) controls in situations where a health care provider or its insurer agree to settle the provider’s liability on a claim by payment of its policy limits and the claimant is demanding an amount in excess of this amount.”
Indiana Dep't of Ins. v. Everhart, 960 N.E.2d 129 (Ind. 2012).
“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.”
John Green v. Stephen Robertson, Comm'r, Indiana Dep't of Ins., 56 N.E.3d 682 (Ind. Ct. App. 2016).
“Recovery-of excess damages from the PCF is allowed only after the health care provider has paid the first $250,000,00, Ind. Code § 34-18-15-3 , or agreed to a settlement in which the present payment of money and the - cost of future payments exceeds $187,000.”
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