                                                                               FILED
                                                                          May 14 2020, 8:37 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Gabriel A. Hawkins                                        Stacy F. Thompson
      Indianapolis, Indiana                                     Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Frances L. Batchelder, Special                            May 14, 2020
      Administrator of the Estate of                            Court of Appeals Case No.
      John E. Batchelder, M.D.,                                 19A-CT-2569
      Deceased,                                                 Appeal from the Marion Superior
      Appellant-Plaintiff,                                      Court
                                                                The Honorable Timothy Oakes,
              v.                                                Judge
                                                                Trial Court Cause No.
      Indiana University Health Care                            49D02-1808-CT-31406
      Associates, INC, d/b/a IUHP,
      Appellee-Defendant.



      Tavitas, Judge.


                                              Case Summary
[1]   Frances L. Batchelder, special administrator of the estate (“the Estate”) of John

      E. Batchelder, M.D. (the “Decedent”), appeals from the trial court’s entry of

      Court of Appeals of Indiana | Opinion 19A-CT-2569 | May 14, 2020                             Page 1 of 15
      summary judgment in favor of Indiana University Health Care Associates, Inc.

      d/b/a IUHP (“IUHP”) regarding the Estate’s medical malpractice action. We

      reverse and remand.


                                                      Issue
[2]   The sole issue on appeal is whether the trial court erred in granting IUHP’s

      motion for summary judgment and finding that IUHP was entitled to judgment

      as a matter of law.


                                                      Facts
[3]   The Decedent, who was a practicing cardiologist, was also a paraplegic. On

      September 25, 2015, a vehicle driven by Emma Mourouzis collided with the

      Decedent’s vehicle on a Hamilton County roadway. The Decedent was

      transported to Indiana University Health North Hospital. An IUHP radiologist

      misread the Decedent’s x-rays, failed to diagnose the Decedent’s cervical spine

      fracture, and released the Decedent. On September 27, 2015, the Decedent

      sought a second opinion from another medical provider, who diagnosed the

      spine fracture and performed neurosurgery.


[4]   On April 19, 2016, the Decedent filed a complaint for damages against

      Mourouzis. The Decedent died on April 21, 2016. On June 17, 2016, the

      Estate filed an amended complaint for damages against Mourouzis. In the

      course of discovery, the Estate alleged total damages of “between six and ten

      million [dollars].” Tr. Vol. II p. 11. On March 13, 2017, Mourouzis settled all

      claims arising from the collision for $1.25 million.

      Court of Appeals of Indiana | Opinion 19A-CT-2569 | May 14, 2020        Page 2 of 15
[5]   On June 14, 2017, the Estate filed a proposed complaint for damages with the

      Indiana Department of Insurance. A medical review panel “found that the

      [IUHP] radiologist . . . violated the standard of care” when he misread the

      Decedent’s x-rays, regarded “an unstable cervical spinal fracture . . . . as a

      chronic injury that had been there for a long time[,]” and released the

      Decedent, when the Decedent’s injury warranted immediate surgery. Id.


[6]   On August 8, 2018, the Estate filed a wrongful death complaint against Indiana

      University Health, Inc., and IUHP, alleging that their provision of negligent

      medical care resulted in the Decedent’s death. 1 On June 13, 2019, IUHP

      moved for summary judgment and argued that the Estate was not entitled to

      additional damages because: (1) the Indiana Medical Malpractice Act

      (“MMA”) “cap[s]” the Estate’s damages at $1.25 million; and (2) the Estate

      already obtained $1.25 million. IUHP’s Br. p. 6.


[7]   On July 9, 2019, the Estate filed a stipulation of dismissal as to Indiana

      University Health, Inc., which the trial court approved the same day. The trial

      court conducted a hearing on IUHP’s motion for summary judgment on

      September 4, 2019. The Estate argued that the setoff for the $1.25 million

      Mourouzis settlement should be deducted from the total damages or the value

      of the case; whereas, IUHP argued that the $1.25 million setoff should be

      applied to the $1.25 million statutory limit, which would render the Estate’s




      1
          The jury trial was scheduled for April 2020.


      Court of Appeals of Indiana | Opinion 19A-CT-2569 | May 14, 2020             Page 3 of 15
      claim moot. On October 18, 2019, the trial court granted IUHP’s motion for

      summary judgment. The Estate now appeals.


                                                   Analysis
[8]   The Estate argues that the trial court erred in entering summary judgment in

      favor of IUHP. Specifically, the Estate argues that: (1) setoff should be applied

      to the verdict; and (2) the trial court’s decision to apply the Mourouzis

      settlement setoff to a possible judgment against IUHP “conflicts with

      controlling precedent as well as the policy considerations that gave rise to such

      precedent[.]” Estate’s Br. p. 7. IUHP counters that a jury verdict in excess of

      the $1.25 million statutory cap must be reduced to the statutory cap prior to

      becoming a judgment; and “[o]nce reduced, the judgment should then be

      reduced by the amount of any payments received in settlement from another

      joint tortfeasor.” Estate’s App. Vol. II p. 26. IUHP maintains that, doing so,

      renders the Estate’s claim against IUHP moot because the Estate has already

      recovered $1.25 million.


[9]   In reviewing a grant or denial of a motion for summary judgment, we “stand in

      the shoes of the trial court.” Murray v. Indianapolis Public Schools, 128 N.E.3d

      450, 452 (Ind. 2019) (quoting Campbell Hausfeld/Scott Fetzer Company v. Johnson,

      109 N.E.3d 953, 955-56 (Ind. 2018)). We consider “whether there is a genuine

      issue of material fact, and whether the moving party is entitled to judgment as a

      matter of law.” Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384, 386

      (Ind. 2016) (citation omitted); Ind. Trial Rule 56(C) (Summary judgment is

      appropriate if the designated evidence “shows that there is no genuine issue as
      Court of Appeals of Indiana | Opinion 19A-CT-2569 | May 14, 2020            Page 4 of 15
       to any material fact and that the moving party is entitled to a judgment as a

       matter of law.”).


[10]   The party moving for summary judgment bears the burden of making a prima

       facie showing that there is no genuine issue of material fact and that the moving

       party is entitled to judgment as a matter of law. Goodwin, 62 N.E.3d at 386; Tr.

       R. 56(C). The burden then shifts to the non-moving party to show the existence

       of a genuine issue of material fact. Id. On appellate review, we resolve “[a]ny

       doubt as to any facts or inferences to be drawn therefrom . . . in favor of the

       non-moving party.” Id.


[11]   This matter is a medical malpractice action for wrongful death and is subject to

       the MMA.


               The [MMA] allows a “patient or the representative of a patient”
               to bring a malpractice claim “for bodily injury or death.” Goleski
               v. Fritz, 768 N.E.2d 889, 891 (Ind. 2002) (citing Ind. Code § 34-
               18-8-1). The [MMA] was designed to curtail liability for medical
               malpractice. It does not create substantive rights or new causes
               of action and, instead, “merely requires that claims for medical
               malpractice that are otherwise recognized under tort law and
               applicable statutes be pursued through the procedures of the
               [MMA].” The [MMA] provides that for an act of malpractice
               occurring after June 30, 1999[, and before July 1, 2017,] the total
               amount recoverable for an injury or death of a patient may not
               exceed $1,250,000. I.C. § 34-18-14-3. A qualified healthcare
               provider[ ] is liable for the initial $250,000 of damages, and the
               remainder of the judgment or settlement amount shall be paid
               from the [Patient Compensation] Fund. Id.




       Court of Appeals of Indiana | Opinion 19A-CT-2569 | May 14, 2020          Page 5 of 15
       Wallen v. Hossler, 130 N.E.3d 138, 144 (Ind. Ct. App. 2019), trans. denied,

       (quoting Atterholt v. Robinson, 872 N.E.2d 633, 639-40 (Ind. Ct. App. 2007))

       (footnote omitted).


[12]   The Estate alleges that Mourouzis and IUHP are joint tortfeasors whose acts or

       omissions caused the Estate to suffer injury—namely, the Decedent’s death.

       The Indiana Comparative Fault Act, which replaced the common law defense

       of contributory negligence with a system for providing for the reduction of a

       plaintiff’s recovery in proportion to the plaintiff’s fault, “expressly exempted

       medical malpractice claims from its ambit[.]” Indiana Dept. of Ins. v. Everhart,

       960 N.E.2d 129, 138 (Ind. 2012); see Palmer v. Comprehensive Neurologic Services,

       P.C., 864 N.E.2d 1093, 1099-1100 (Ind. Ct. App. 2007), trans. denied. Thus, the

       historic common law rule of joint and several liability 2 “remains available to

       defendants in cases alleging medical malpractice.” Palmer, 864 N.E.2d at 1099.


[13]            When the actions of multiple defendants cause a single injury to
                a plaintiff, a defendant against whom judgment is rendered at
                trial is entitled to a setoff against the assessed damages in the
                amount of any funds the plaintiff received from any settling joint
                tortfeasor. [ ] This credit is allowed in order to prevent a plaintiff
                from recovering twice for the same injury. As our Supreme
                Court outlined in [Mendenhall v. Skinner & Broadbent Co., 728
                N.E.2d 140, 141 (Ind. 2000)], Indiana courts have traditionally
                followed the “one satisfaction” principle, meaning that courts
                should take account of settlement agreements and credit the



       2
         Under a theory of joint and several liability, “each defendant whose negligence contributed to the plaintiff’s
       loss was liable for the entire amount of damages.” Shelton v. Kroger Ltd. Partnership I, 58 N.E.2d 229, 233
       (Ind. Ct. App. 2016).

       Court of Appeals of Indiana | Opinion 19A-CT-2569 | May 14, 2020                                    Page 6 of 15
               funds received by the plaintiff through such agreements, pro
               tanto[ 3], toward the judgment against the co-defendants.


       Id. at 1100-01 (emphasis in original) (citations omitted).


[14]   Stated differently, “[u]nder the one satisfaction rule, where a plaintiff asserts

       that the wrongful acts of two or more joint tortfeasors caused a single injury,

       satisfaction of the loss by one tortfeasor releases all other joint tortfeasors.”

       Minix v. Canarecci, 956 N.E.2d 62, 74 (Ind. Ct. App. 2011). The Restatement

       (Third) of Torts: Apportionment of Liability § 25(a) (2000) summarizes the one

       satisfaction rule as follows:

                        When a judgment includes a determination of the entirety of
                        recoverable damages suffered by the plaintiff for an indivisible
                        injury and provides for their recovery by the plaintiff
                        against one or more of the defendants, payment of the full
                        amount of recoverable damages constitutes a satisfaction
                        of the plaintiff’s rights against all tortfeasors legally
                        responsible for the plaintiff’s indivisible injury.


               (emphasis added). Comment c to that section further provides
               that “[w]hen a plaintiff obtains a judgment for all recoverable damages,
               discharge of the judgment bars any further action against other
               potential tortfeasors. . . . By obtaining the full amount of recoverable
               damages, the plaintiff’s legal rights are satisfied, and the plaintiff
               may not pursue any others for further recovery.” (emphases
               added). See also Restatement (Second) of Judgments § 50 cmt. d
               (1982) (“[W]hen a judgment is based on actual litigation of the measure



       3
         “Pro tanto” means “[t]o that extent; for so much; as far as it goes[.]” See BLACK’S LAW DICTIONARY
       (11th ed. 2019).



       Court of Appeals of Indiana | Opinion 19A-CT-2569 | May 14, 2020                         Page 7 of 15
                of a loss, and the judgment is thereafter paid in full, the injured
                party has no enforcible [sic] claim against any other obligor who
                is responsible for the same loss.” (emphasis added)).


       Id. at 74 (emphasis in original).


[15]   Palmer and Everhart are the seminal cases pertinent to our review of the Estate’s

       argument. In Palmer, medical providers—CNS and Dr. Muckway—diagnosed

       the decedent with multiple sclerosis, breached the standard of care regarding

       treatment of the decedent’s seizures, and failed to diagnose the decedent’s viral

       encephalopathy. After the decedent died, his widow, Palmer, sued the medical

       providers, as well as certain non-health care providers, on a theory of joint and

       several liability for medical malpractice resulting in the decedent’s wrongful

       death. Palmer settled with the non-health care providers before the matter

       proceeded to trial against the two medical providers; the combined settlements

       from the non-health care providers exceeded $375,000.00. 4 The jury awarded

       Palmer $375,000.00 in damages. The two medical providers subsequently

       sought setoffs in the amounts that Palmer received in settlement from the non-

       health care providers, which the trial court granted. The trial court stated: “The

       jury having found for [Palmer] and against the [medical providers] in the

       amount of $375,000 and the settlement contributions having exceed[ed] that amount,

       the Court must deny [Palmer]’s Motions and enter a judgment [for] Plaintiff




       4
         “The appeal was filed under seal, so the settling parties and the terms of their settlements [were] omitted
       from [our] opinion.” Palmer, 864 N.E.2d at 1104 n.2.

       Court of Appeals of Indiana | Opinion 19A-CT-2569 | May 14, 2020                                    Page 8 of 15
       and award damages of $0.” Palmer, 864 N.E.2d at 1101 (emphasis added). On

       appeal, this Court affirmed, reasoning:


               . . . [T]he common law permitting setoffs remains, and the trial
               court [ ] in permitting setoff, determined that the settlement
               payments served as the same compensation of damages as the
               jury’s verdict. It is the trial court’s duty to reduce jury verdicts by
               amounts received in settlement to ensure that a plaintiff not receive more
               than a full recovery. As the record in this case supports the trial court’s
               conclusion that both the settlements and the verdict covered the injury of
               Mr. Palmer’s death, we cannot say that the trial court erred in
               determining that [the medical providers] met their burden . . . .


       Id. at 1102 (emphasis added). The holding in Palmer, thus, reflected this Court’s

       determination that Palmer received payment of the full amount of recoverable

       damages, which constituted satisfaction of Palmer’s legal rights against the

       various joint tortfeasors.


[16]   In the same vein, in Everhart, the decedent was injured in a motor vehicle

       collision with a semi-truck owned by Standard Forwarding Company (“SFC”).

       A medical provider failed to administer a vital blood transfusion, and the

       decedent died. The decedent’s survivors, Robin and Troy Everhart, sued the

       truck driver, SFC, and the medical provider for the decedent’s wrongful death.

       The Everharts settled with SFC for $1.9 million and with the medical provider

       “for a lump-sum payment and future payment with a total present value of

       $187,001.” Everhart, 960 N.E.2d at 132. The Everharts then sought excess

       damages from the Patient Compensation Fund (“PCF”). As noted above,

       Indiana Code Section 34-18-14-3 provides that a qualified healthcare provider is

       Court of Appeals of Indiana | Opinion 19A-CT-2569 | May 14, 2020                      Page 9 of 15
       liable for the initial $250,000.00 of damages, with the remainder of the

       judgment or settlement amount to be paid from the PCF. After a bench trial,

       the trial court found that the Everharts suffered damages of at least $3.15

       million and awarded the PCF statutory maximum of $1 million to the

       Everharts. The PCF filed a motion for setoff, arguing that the $1.9 million

       settlement from SFC satisfied the Everharts’ legal claims. The trial court denied

       the PCF’s request to reduce the award.


[17]   In affirming the trial court, our Supreme Court observed: “The [trial] court

       found that [the Everharts’] total injuries exceeded the sum of all distinct, legally

       allowable awards of damages. A double recovery would therefore have been

       impossible under a correct application of the setoff rules.” Everhart, 960 N.E.2d

       at 137. Further, our Supreme Court held:


               . . . [A] trial court has the power and duty to reduce a jury verdict
               by an amount already received in an earlier settlement to ensure
               that a plaintiff does not receive more than one recovery. Indeed,
               we had already held that when a jury returned a verdict against a
               jointly and severally liable defendant after another jointly and
               severally liable defendant had already settled in exchange for a
               covenant not to sue, a court should adjust pro tanto the amount of
               any damages determined by the jury verdict by subtracting any
               consideration received from the amount of any damages
               determined by the jury verdict.


                                                      *****


               Here, the PCF belatedly concedes that [the truck driver and
               medical provider] constitute joint tortfeasors. [The truck driver’s]
               negligent driving and [the medical provider]’s negligent medical

       Court of Appeals of Indiana | Opinion 19A-CT-2569 | May 14, 2020           Page 10 of 15
        care both caused a single indivisible harm: Everhart’s death.
        Under the pure common law rule of joint and several liability,
        Robin could have sued either [the truck driver] or [the medical
        provider] and recovered from the defendant of her choice
        damages in the entire amount of the injuries she and Troy
        suffered. The second defendant, however, would have been
        entitled to a set-off from the total judgment against him in the
        amount of any settlement Robin reached with the first. Because
        the PCF assumes [the medical provider]’s liability over and
        above the statutory cap in the [MMA], the PCF is entitled to the
        same set-off and no more.


        The trial court found that Robin and Troy suffered injuries of at
        least $3.15 million. . . . [T]he court should have reduced its
        finding on total injuries by $1.9 million on account of the
        settlement with [SFC]. The court should have further reduced
        that amount by another $250,000 on account of the settlement
        with [the medical provider]’s insurance company. The
        convenient result: $1 million in uncompensated damages, which
        is precisely equal to the statutory limit of the PCF’s liability for
        excess damages.


                                               *****


        The PCF concedes that [the medical provider] caused eighty
        percent of the plaintiffs’ injuries. Because the only possible
        causes of Everhart’s death are two known joint tortfeasors,
        however, this concession is tantamount to conceding that [SFC]
        caused the remaining twenty percent. Initially, the PCF would
        be responsible for $2,520,000 [or 80% of $3.15 million] in
        damages, whereas [SFC] would be responsible for $630,000 [or
        20% of $3.15 million]. At most, the PCF would therefore only be
        entitled to a set-off on account of the settlement with [SFC] to the
        extent that it exceeded [SFC]’s liability. Giving the PCF the



Court of Appeals of Indiana | Opinion 19A-CT-2569 | May 14, 2020           Page 11 of 15
                benefit of this set-off in the amount of $1,270,000[ 5] and a further
                $250,000 set-off on account of the settlement with [the medical
                provider]’s insurance company would still leave a remaining $1
                million [$2,520,000 - $1,270,000 - $250,000] in uncompensated
                damages for the PCF to cover in excess damages payable to
                Robin and Troy.


                Reducing the finding on injuries by twenty percent and then
                subtracting the full $1.9 million from the remainder, and then
                another $250,000, as the PCF asks, effectively ignores that [SFC],
                not Robin and Troy, should bear the remaining loss. Indeed,
                doing so would magically wipe out $630,000 of Robin and Troy’s
                total recovery and leave the PCF with a windfall in the same
                amount. In essence, the PCF would succeed in turning the one-
                satisfaction doctrine from a shield into a sword. The purpose of
                the one-satisfaction doctrine is to prevent a plaintiff from
                realizing more than one recovery. It is plainly not to reduce a
                plaintiff to realizing less than one full recovery.


       Id. at 138, 139-40 (citations and footnotes omitted) (emphasis in original). The

       Everhart Court, thus, upheld the Everharts’ $1 million excess damages award

       because the Everharts did not receive the full amount of recoverable damages

       from SFC and, therefore, were entitled to seek excess damages from the PCF in

       pursuit of the “one satisfaction” to which they were entitled.


[18]   Here, in its order granting summary judgment for IUHP, the trial court found:

       “[T]here are no genuine issues as to any material fact, and [IUHP] is entitled to




       5
        SFC caused twenty percent of the Everharts’ damages or $630,000.00; however, SFC settled with the
       Everharts for $1,900,000. Thus, the Everhart court applied a setoff of $1,270,000.00, or the difference
       between the amount of SFC’s settlement and SFC’s liability.

       Court of Appeals of Indiana | Opinion 19A-CT-2569 | May 14, 2020                                Page 12 of 15
       judgment as a matter of law[.]” Estate’s App. Vol. II p. 11. The record reveals

       that, at the hearing on IUHP’s motion for summary judgment, the Estate

       asserted that “the value of this case is between six and ten million [dollars].”

       Tr. Vol. II p. 11. Counsel for the Estate further argued:


               [M]y first argument, Your Honor, is that the overall value of this
               case needs to be established first, that the issue is not ripe for
               decision-making because we don’t know what the value is. We
               know what the facts are and the allegations are. [Mourouzis]
               and [IUHP] are joint tortfeasors in this case. And the court in
               Everhart [ ] talks about the one satisfaction rule, and that is you
               can have joint tortfeasors but you can’t collect more than the case
               is worth. That’s the issue and that has been the law in Indiana
               forever, that you can’t collect more than the value of the case.
               My point is we don’t know the value of this case till we try it.
               This is way premature to try to establish the value of the case
               now before it’s even been tried.


       Id. at 12-13.


[19]   The Palmer and Everhart decisions highlight a crucial omission in the instant

       case. In those cases, the jury or trial court determined the value of the case or

       the entirety of the recoverable damages incurred by the plaintiffs before the trial

       court applied any setoffs. See Palmer, 864 N.E.2d at 1101 (“The jury having

       found for [Palmer] and against the [medical providers] in the amount of

       $375,000 . . . .”); see Everhart, 960 N.E.2d at 139 (“The trial court found that

       Robin and Troy suffered injuries of at least $3.15 million.”).


[20]   In the instant case, however, the trial court applied the setoff without first

       determining: (1) the value of the case or the extent of the Estate’s injury; and (2)

       Court of Appeals of Indiana | Opinion 19A-CT-2569 | May 14, 2020          Page 13 of 15
       whether the Mourouzis settlement satisfied the Estate’s injury and made the

       Estate whole. Forgoing this threshold determination, the trial court found that

       the Mourouzis settlement satisfied the Estate’s losses such that the Estate was

       not entitled to pursue additional damages from IUHP. We have found no

       support for this conclusion.


[21]   Assuming arguendo that the Estate correctly valued its injury at between six

       and ten million dollars: (1) the $1.25 million Mourouzis settlement left

       remaining several million dollars in uncompensated damages and did not make

       the Estate whole; (2) the Estate would be entitled to seek the remaining balance

       of the uncompensated damages, up to an additional $1.25 million, from IUHP

       and the PCF; and (3) there would be no danger of the Estate receiving a double

       recovery because, as the Everhart Court found, even if the Estate received an

       additional $1.25 million from IUHP, the combined Mourouzis and IUHP

       settlements would still fall short of the Estate’s “one satisfaction.”


[22]   By prematurely applying the Mourouzis setoff to the statutory limit and

       offsetting the IUHP judgment to zero, without first determining the value of

       Estate’s case, the trial court denied the Estate the potential full recovery to

       which it is legally entitled. See Everhart, 960 N.E.2d at 140 (“The purpose of the

       one-satisfaction doctrine is to prevent a plaintiff from realizing more than one

       recovery. It is [ ] not to reduce a plaintiff to realizing less than one full

       recovery.”). Accordingly, we find that genuine issues of material fact exist;

       and, thus, as to the amount of damages, IUHP was not entitled to judgment as

       a matter of law.

       Court of Appeals of Indiana | Opinion 19A-CT-2569 | May 14, 2020                Page 14 of 15
[23]   For these reasons, the trial court erred in granting IUHP’s motion for summary

       judgment and finding that IUHP was entitled to judgment as a matter of law;

       we must, therefore, reverse the entry of summary judgment in favor of IUHP

       and remand for further proceedings.


                                                  Conclusion
[24]   The trial court erred in granting IUHP’s motion for summary judgment. We

       reverse and remand.


[25]   Reversed and remanded.


       Najam, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CT-2569 | May 14, 2020     Page 15 of 15
