News - Trial Court Decisions Reached

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Foley & Small is pleased to report that we have obtained decisions from the St. Joseph Superior Court and from the Elkhart Superior Court in the litigation that has been brought against the South Bend Clinic and OSMC arising from contaminated epidural injections purchased from the New England Compounding Center. An initial issue for resolution is whether the claims brought in the cases are covered under the Indiana Medical Malpractice Act (“MMA”) or are general litigation claims. It is necessary that this issue be first decided as different legal rules and procedures would apply, depending on whether the claims are medical malpractice or general negligence, and different insurance carriers would be responsible for payment of the claims depending upon how they are classified.

Plaintiffs in both state court proceedings, and Foley & Small represents the majority of them, took the position that the claims were covered under the MMA. The Clinic defendants took the same position. The State of Indiana, specifically the Department of Insurance, took the position the claims involved general negligence and were not controlled by the MMA.

Judge David Chapleau in South Bend and Judge Evan Roberts in Elkhart each made a determination that plaintiffs’ claims were subject to the provisions of the MMA. Under the MMA, a healthcare provider is subject to a maximum per claim limit of $250,000.00 and a maximum multi-claim limit of $750,000.00 in a single year. Further, under the MMA, the total recovery available to a plaintiff is capped at $1,250,000.00. Any payment of this amount above the $250,000.00 that would otherwise be covered by the insurer for the healthcare provider, must be paid from the Patients’ Compensation Fund (“PCF”), which is administered by the Indiana Department of Insurance.

A copy of Judge Chapleau’s Order can be obtained by clicking here. A copy of Judge Robert’s Order can be reviewed by clicking here.

The Patients’ Compensation Fund has taken steps to initiate an appeal of Judge Chapleau’s order to the Indiana Court of Appeals. The PCF will also be taking steps to appeal the decision of Judge Roberts. We will be providing you with updates as those appeals progress.

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