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Wallen v. Hossler

Court of Appeals of Indiana

July 23, 2019

Richard L. Wallen, Individually, and as Personal Representative of the Estate of Cathy L. Wallen, Deceased, Appellant-Plaintiff,
v.
Dr. Steven Hossler, M.D., and Radiologic Associates of Northwest Indiana, P.C., Appellees-Defendants.

          Appeal from the Porter Superior Court No. 64D02-1609-CT-8390. The Honorable Jeffrey W. Clymer, Judge.

          Attorneys for Appellant Kenneth J. Allen Robert D. Brown Sarah M. Cafiero Kenneth J. Allen Law Group, LLC Valparaiso, Indiana

          Attorneys for Appellees Michael E. O'Neill Jeremy W. Willett Robert J. Dignam Kathleen M. Erickson O'Neill McFadden & Willett, LLP Schererville, Indiana

          NAJAM, JUDGE.

         Statement of the Case

         [¶1] Richard L. Wallen, Individually, and as Personal Representative of the Estate of Cathy L. Wallen, Deceased, ("Wallen") filed a complaint alleging that Dr. Steven Hossler, M.D., and Radiologic Associates of Northwest Indiana, P.C. (collectively "Dr. Hossler") committed medical malpractice in providing medical care to Wallen's wife, Cathy, which resulted in injuries and her death. About five weeks prior to trial, Dr. Hossler offered to settle his liability for $250, 000 with various conditions attached, which Wallen rejected. Thereafter, Dr. Hossler sought to force Wallen to accept the offer and filed a motion to enforce the Medical Malpractice Act ("the Act"). Following multiple hearings and memoranda filed with the court, but with no evidence submitted by either party, the trial court granted Dr. Hossler's motion to enforce the Act. Wallen appeals and presents a single dispositive issue for our review, namely, whether the trial court erred when it concluded that Wallen was required to accept Dr. Hossler's settlement offer and proceed against the Patient's Compensation Fund for additional damages.

         [¶2] We reverse and remand for further proceedings.

         Facts and Procedural History

         [¶3] On November 18, 2013, Cathy was diagnosed with a pulmonary embolism and admitted to Porter Regional Hospital in Valparaiso. Cathy's treating physician prescribed anti-coagulant therapy to treat the embolism. Cathy's condition was improving until November 24, when she began to experience severe pain in the left lower quadrant of her abdomen. Cathy's treating physician ordered an x-ray of Cathy's abdomen, and a little more than an hour later, Dr. Hossler, a radiologist, interpreted the x-ray "as showing no evidence of bowel obstruction or bowel abnormality but possibly showing an enlarged spleen." Appellant's App. Vol. 2 at 20.

         [¶4] When Cathy's pain did not subside, her treating physician suspected that Cathy was bleeding internally and ordered a CT scan of Cathy's abdomen. Dr. Hossler interpreted the CT scan as showing that Cathy's pain was due to gallstones. Because Dr. Hossler did not make a diagnosis of internal bleeding, Cathy continued to receive doses of anti-coagulant medications. But Cathy did, in fact, have internal bleeding, which eventually "burst through the rectus abdominal muscles and sheath and resulted in acute kidney injury impairing her renal function and clearance of her blood thinning medications." Id. at 21. Thereafter, Cathy suffered "intra-abdominal hemorrhaging, hemorrhagic shock, multi-system organ failure, and death" on December 9. Id. at 22.

         [¶5] Wallen timely filed a proposed complaint against Dr. Hossler alleging medical malpractice with the Indiana Department of Insurance. After a Medical Review Panel issued an opinion, [1] on August 29, 2016, Wallen filed a complaint against Dr. Hossler with the trial court. Wallen alleged in relevant part that, as a "direct and proximate result of the negligence and/or reckless acts and omissions of the Defendants, and each of them, Cathy suffered severe and painful injuries, which collectively or separately resulted in her death on December 9, 2013." Appellees' App. Vol. 2 at 4. Wallen subsequently offered to settle his claims with Dr. Hossler 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 ("the Fund"), but Dr. Hossler declined the offer.

         [¶6] However, on November 2, 2018, approximately five weeks before the scheduled jury trial, Dr. Hossler offered to settle Wallen's claims against him for $250, 000, subject to thirteen conditions. The conditional settlement offer was not acceptable to Wallen, and he rejected it. On November 8, the parties appeared for a pretrial conference and submitted their proposed pretrial order. During the pretrial conference, Dr. Hossler asked the trial court to dismiss him from the proceedings. Dr. Hossler argued that, pursuant to the Act, the Fund was the "real party in interest" once Dr. Hossler had offered to pay the $250, 000 statutory cap for his liability. Tr. Vol. 2 at 5. Because Dr. Hossler had not previously notified Wallen that he had intended to make this argument at the pretrial conference, the court took the matter under advisement to permit Wallen time to research the issue and respond.

         [¶7] In the meantime, on November 12, Dr. Hossler filed a Motion to Enforce Indiana Medical Malpractice Act, which stated as follows:

[Dr. Hossler] move[s] for this Court to enforce the Indiana Medical Malpractice Act, vacate the jury trial setting, and instruct Plaintiff to file and serve a petition on the Commissioner of Insurance in accordance with Ind. Code § 34-18-15-3. In support of this Motion, [Dr. Hossler] state[s] as follows:
1. On November 8, 2018, an initial Final Pretrial Conference was held in this matter. At this Final Pretrial Conference, counsel for [Dr. Hossler] explained why a trial by jury would be improper based on the current posture of the case. This Court then requested a formal Motion and Memorandum on this issue.
2. [Dr. Hossler has] admitted legal liability through a maximum payment in accordance with the Indiana Medical Malpractice Act, Ind. Code § 34-18-1, et seq. ("MMA"). Specifically, . . . [Dr. Hossler has] elected to pay the cap amount of Two Hundred Fifty Thousand ($250, 000) for an occurrence of malpractice.
3. Therefore, there are no longer any issues before the Court regarding [Dr. Hossler's] medical negligence or medical causation of alleged damages.
4. As such, the exclusive remaining issue in the case is the measure of Plaintiff's alleged excess damages, which must be determined in a hearing or bench trial that includes participation by the Commissioner of Insurance as a party to such proceedings.
5. Dr. Hossler [has] filed a Memorandum in Support of Motion to Enforce Indiana Medical Malpractice Act, which is incorporated by reference.
WHEREFORE, [Dr. Hossler] respectfully request[s] that the Court enforce the applicable provisions of the Indiana Medical Malpractice Act, vacate the jury trial setting, and instruct Plaintiff to file and serve a petition on the Commissioner of Insurance in accordance with Ind. Code § 34-18-15-3, and for all further just and proper relief.

Appellant's App. Vol. 2 at 34-35.

         [¶8] Wallen filed a memorandum in opposition to Dr. Hossler's motion, and the trial court held a hearing on November 20. At the conclusion of the hearing, the court requested that the parties file supplemental briefs on the issues raised in Dr. Hossler's motion. After the parties filed their supplemental briefs, the trial court held a second hearing by telephone. At the conclusion of that telephonic hearing, the court granted Dr. Hossler's motion to enforce the Act, and the court subsequently issued a written order. In its order, the court stated as follows:

The Defendants have made a settlement offer of $250, 000 to settle and pay one cap and have the case proceed under I[.]C.[ ยง] 34-18-15-3. The Plaintiff has not "accepted" the settlement offer for the reasons set forth below and has argued ...

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