Trial Court Ruling Saves Over $300,000.00 for Indiana Department of Insurance

Trial Court Ruling Saves Over $300,000.00 for Indiana Department of Insurance

In June 2010, Jim Bleeke tried a bench trial on behalf of the Indiana Department of Insurance Patient’s Compensation Fund before The Honorable Heather Welch in Marion Superior Court. The case involved a claim for excess damages from the Patient’s Compensation Fund on behalf of the widow of a 59-year-old male who died after misplacement of a G tube following bariatric surgery. The maximum exposure for the Patient’s Compensation Fund was $1,000,000.00; and Plaintiff’s counsel had only reduced their demand to $999,000.00 at mediation. The day prior to trial, Plaintiff’s counsel reduced that demand to $900,000.00, but the case proceeded to trial. Judge Welch awarded $578,144.66, thereby saving the Fund over $300,000.00 from Plaintiff’s lowest demand.

The medical issues involved at trial hinged upon the reasonable value of medical services associated with the patient’s care prior to his death and his reasonable life expectancy. The decedent weighed between 685 and 850 pounds prior to his bariatric surgery. However, his treating surgeon testified that if the bariatric surgery had been successful, without the misplacement of the G-tube, the patient would have been likely to reduce his weight to below 300 pounds and could have anticipated a normal life expectancy. On behalf of the Patient’s Compensation Fund, we presented expert testimony that very few super-obese patients live to age 60 and that even with successful bariatric surgery, the patient would have been lucky to live another five or six years.

Judge Welch concluded that our expert’s testimony was more realistic, but chose a 9.7 life expectancy if the patient’s surgery had been successful, based upon literature we submitted showing a reduction in life expectancy due to morbid obesity. Judge Welch also adopted the Patient’s Compensation Fund’s position that Plaintiff was only entitled to recover the amounts of medical bills actually paid, as opposed to the higher amounts that had been billed but had been written off by Medicare. Adding the medical bills, funeral and burial expenses and compensation for loss, love and companionship, Judge Welch awarded an additional $578,144.66, beyond the previous $250,000 settlement. Plaintiff chose not to appeal Judge Welch’s Judgment and agreed to have the award paid through the Patient’s Compensation Fund in the current pay period.

We are hopeful that Judge Welch’s well-reasoned decision will provide us with some ammunition when negotiating with Plaintiffs’ counsel who often believe that every death case is worth more than the $1.25 million cap on damages.
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