Appeal from the Marion Superior Court, No. 49D06-1108-CC-32645. The Honorable Thomas J. Carroll, Judge. On Transfer from the Indiana Court of Appeals, No. 49A05-1207-CC-340.
ATTORNEY FOR APPELLANT: Susan E. Cline, Lewis Wagner, LLP, Indianapolis, Indiana.
ATTORNEY FOR AMICUS CURIAE INDIANA TRIAL LAWYERS ASSOCIATION: Robert W. Johnson, Johnson Jensen LLP, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: George C. Gray, Daniel L. Robinson, Gray Robinson Ryan & Fox, P.C., Indianapolis, Indiana.
Rush, C.J., and Rucker, David, and Massa, JJ., concur.
This case presents a question of first impression: whether Indiana's Medical Mal-practice Act's cap on attorney fees from a Patient Compensation Fund award also applies to reduce the Fund's liability. In this adult wrongful death medical malpractice case, the trial court ordered payment by the Fund to the Estate, without any reduction to reflect the limitation on attorney fees. In a divided opinion, the Court of Appeals reversed and re-manded. Ind. Patient's Comp. Fund v. Holcomb, 998 N.E.2d 989 (Ind.Ct.App. 2013).
We granted transfer and now affirm the trial court. Mable Louise Cochran died on January 8, 2011. Her daughter, Judy Holcomb, as personal representative of her mother's estate, commenced an adult wrongful death medical malpractice action against Careage of Logansport, Inc., alleging negligent care by the defendant nursing home, a
qualified health care provider under Indiana's Medical Mal-practice Act (MMA). See Ind. Code § 34-18 et seq. The Estate settled its claim against the nursing home for $250,000, the maximum liability of the health care provider under the MMA. This settlement was approved by Judge Thomas C. Perrone, Cass Superior Court No. 1. The Estate thereafter initiated this action by filing a petition to determine the amount of excess damages due to the Estate from the Indiana Patient's Compensation Fund pursuant to Indiana Code section 34-18-15-3. The Estate and the Fund quickly reached an accord as to an itemized list of most of the Estate's damages recoverable under the Adult Wrongful Death Statute (AWDS), Ind. Code § 34-23-1-1, but left the attorney fee component of damages for determination by the court. The Fund paid the Estate $101,166.89 to settle these damages. The Estate has argued that the Fund should pay an additional $50,440 for attorney fees. The Fund has not disputed the reasonableness of this amount but has argued that the 15% limit on attorney fees imposed by the MMA, see Ind. Code § 34-18-18-1 (the " Fee Cap Provision" ), should be judicially expanded to directly apply to the Fund and to limit its liability on a basis unrelated to the specific attorney fee claim. Following a hearing, the trial court entered judgment accepting the Estate's position and ordered the Fund to pay the Estate $50,440 as the Fund's remaining liability for excess wrongful death damages.
On appeal, the Fund argues that, in an action to recover for the wrongful death of an adult, the Fee Cap Provision should be construed and applied such that the Fund should not be required to pay to a claimant an amount for attorney fees that exceeds the 15% Fee Cap Provision. The Fund requests that we reduce the trial court's award to the Estate from $50,440 to $17,852.98. The Estate responds that the plain, clear, and unambiguous language of the Fee Cap Provision " merely limits what an attorney can charge a claimant from a recovery of excess damages from the [Fund], and does not limit or even address the assessment of attorney's fees as a damage caused by a tortfeasor; and does not address the calculation of excess damages payable by the [Fund]." Appellee's Br. at 8.
The principal statutory provision at issue, the Fee Cap Provision, states as follows:
When a plaintiff is represented by an attorney in the prosecution of the plaintiff's claim, the plaintiff's attorney's fees from any award made from the patient's compensation fund may not exceed ...