                                                                            FILED
                                                                      Jul 23 2019, 8:56 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEES
Kenneth J. Allen                                            Michael E. O’Neill
Robert D. Brown                                             Jeremy W. Willett
Sarah M. Cafiero                                            Robert J. Dignam
Kenneth J. Allen Law Group, LLC                             Kathleen M. Erickson
Valparaiso, Indiana                                         O’Neill McFadden & Willett, LLP
                                                            Schererville, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

Richard L. Wallen, Individually,                            July 23, 2019
and as Personal Representative                              Court of Appeals Case No.
of the Estate of Cathy L. Wallen,                           19A-CT-40
Deceased,                                                   Appeal from the Porter Superior
Appellant-Plaintiff,                                        Court
                                                            The Honorable Jeffrey W. Clymer,
        v.                                                  Judge
                                                            Trial Court Cause No.
Dr. Steven Hossler, M.D., and                               64D02-1609-CT-8390
Radiologic Associates of
Northwest Indiana, P.C.,
Appellees-Defendants.



Najam, Judge.




Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019                               Page 1 of 21
                                         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


      Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019             Page 2 of 21
      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



      1
        The Panel’s opinion is not included in the record on appeal. However, our review of the pleadings
      available on Odyssey revealed that the Panel concluded as follows:
              The evidence supports the conclusion that that the defendants, Dr. Steven Hossler, M.D.,
              & Radiologic Associates of Northwest Indiana, P.C., failed to comply with the appropriate
              standard of care as charged in the complaint.



      Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019                                Page 3 of 21
      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




              However, the conduct complained of was not a factor of the resultant outcome; nor was the
              patient denied a greater chance of survival.



      Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019                              Page 4 of 21
      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.




      Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019           Page 5 of 21
              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.[ §]
              34-18-15-3. The Plaintiff has not “accepted” the settlement offer
              for the reasons set forth below and has argued that the case
              should proceed to trial in two weeks.

              The Plaintiff asserts that I[.]C.[ §] 34-18-15-3 does not apply
              because there has been no “agreed” settlement. There has been
              no case cited by either party as to whether a Plaintiff can refuse a


      Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019             Page 6 of 21
        settlement offer of the cap and proceed to jury trial. With no
        assistance from case law (the Medical Malpractice Act could
        have stated when a settlement of the cap is “offered” instead of
        “agreed”) the Court finds that the offer triggers the application of
        the process set forth in I[.]C[. §] 34-18-15-3, and that only one
        cap applies.

        The Plaintiff also claims the Defendant’s settlement offer is
        conditional, so are all settlement offers.

        The Plaintiff contends that Defendants have cited no authority
        for forcing a settlement, neither has the Plaintiff.

                                  THE NUMBER OF CAPS

        The real issue in this case is the number of statutory caps that
        apply. Under the Indiana Medical Malpractice Act, a Plaintiff
        can receive one recovery for each distinct act of malpractice
        that results in a distinct injury, even if multiple acts of
        malpractice occur in the same procedure. Patel v. Barker, 742
        N.E.2d 28 (Ind. Ct. App. 2001)[, trans. denied]. In the instant
        case, the Plaintiff claims that Dr. Hossler was negligent by both
        omission and commission. The Plaintiff contends in the
        proposed Pre-Trial Order that Defendant’s failure to recognize,
        report, and timely communicate to the ordering physician the
        bleeding shown on Cathy’s CT was negligent and fell below the
        standard of care. Had the bleeding on Cathy’s CT exam been
        timely recognized, reported, and communicated by defendants to
        Cathy’s treating physicians, it would have acutely influenced her
        outcome. Defendant Hossler was additionally negligent and
        deviated from the standard of care in misinterpreting the
        abnormalities shown on the November 24th CT and affirmatively
        ruling out bleeding, attributing her abdominal pain instead to
        gallstones; and by doing so defendant misled Cathy’s physicians,
        delaying reversal of her anticoagulation and her resuscitation for
        hours until it was too late, resulting in massive retroperitoneal


Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019            Page 7 of 21
              and intra-abdominal hemorrhaging, hemorrhagic shock, multi-
              system organ failure and death.

              The questions based on the medicine: Whether Dr. Hossler
              committed two distinct acts of malpractice and whether Cathy
              Wal[len] suffered two distinct injuries as a result of the claimed
              negligent acts. Based on these allegations, the Plaintiff claims
              that there are questions of fact, similar to a Motion for Summary
              Judgment, that must be decided by a jury. Further, because the
              Defendants’ offer of just one cap, not two, which has not been
              “accepted” the case must go to a jury trial against the named
              Defendants, not the . . . Fund.

              In [Patel], the Plaintiff suffered injuries to two distinct body parts;
              her colon and her ureter and she survived having three surgeries.
              Two surgeries were required to repair the negligent treatments.

              In the instant case, Dr. Hossler reviewed CT images once and
              wrote one report. See the Plaintiff’s contentions in the proposed
              Pre-Trial Order. Based on Patel v. Barker, 742 N.E.2d 28 (Ind. Ct.
              App. 2001) and Atterholt v. Robinson, 872 N.E.2d 633 (Ind. Ct.
              App. 2007) the Court finds that there was one distinct act of
              negligence, misreading the diagnostic image, and one distinct
              injury, the Plaintiff’s death which resulted from the continued use
              of blood thinners after the misdiagnosis. Accordingly, the
              Medical Malpractice Act applies and this matter should proceed
              against the Patient Compensation Fund. . . .


      Id. at 15-17 (emphasis original). The trial court subsequently certified the order

      as a final appealable order under Trial Rule 54(B). This appeal ensued.


                                       Discussion and Decision
[9]   Wallen contends that the trial court erred when it granted Dr. Hossler’s motion

      to enforce the Act. In particular, Wallen maintains that nothing in the Act

      Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019               Page 8 of 21
       requires that he accept Dr. Hossler’s conditional settlement offer and forego a

       jury trial against Dr. Hossler. Wallen further asserts that whether Dr. Hossler

       committed two separate acts of medical malpractice with two distinct injuries to

       Cathy, which would support damages of up to $500,000 in his claims against

       Dr. Hossler, are questions of fact reserved for a fact-finder. We address each

       contention in turn. Our standard of review on both issues is de novo.


                             Overview: Indiana’s Medical Malpractice Act

[10]   As we have explained,


               [t]he [Act] 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 [Act] was designed to curtail liability for medical
               malpractice. Chamberlain v. Walpole, 822 N.E.2d 959, 963 (Ind.
               2005). 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
               [Act].” Id. The [Act] 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 Fund. Id.




       Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019            Page 9 of 21
       Atterholt, 872 N.E.2d at 639-40. 2


[11]   The Act “creates a bifurcated procedure for determining medical malpractice

       claims against a qualified healthcare provider.” Robertson v. B.O., 977 N.E.2d

       341, 343 (Ind. 2012). This process is correlated to the separate damages caps

       imposed by the Act. Id. If a judgment or settlement fixes damages in excess of

       a qualified health care provider’s liability, then a plaintiff may recover excess

       damages from the Fund. Id. (citing I.C. § 34-18-14-3(c)). An injured plaintiff

       thus proceeds first against the healthcare provider and then against the Fund.

       Id.

[12]   Further, as our Supreme Court has held,


                [t]he Medical Malpractice Act’s limitations apply to “any injury
                or death of a patient” and “for an occurrence of malpractice.”
                Ind. Code § 16-9.5-2-2(a) and (b). It authorizes only one
                recovery in those cases where a single injury exists, irrespective of
                the number of acts causing the injury. See Bova v. Roig, 604
                N.E.2d 1 (Ind. Ct. App. 1992); St. Anthony Med. Center v. Smith,
                592 N.E.2d 732 (Ind. Ct. App. 1992). Conversely, there is no
                dispute that, if there are two separate and distinct injuries caused
                by two separate occurrences of malpractice, the statute does not
                preclude two separate recoveries (each separately limited in
                accordance with the Act).




       2
         Indiana Code Section 34-18-14-3 has since been amended and provides higher limits for both the total
       amount recoverable for an injury or death of a patient and a health care provider’s maximum liability for
       occurrences after June 30, 2017. There is no dispute that the amended statutory language does not apply
       here.



       Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019                                 Page 10 of 21
       Miller by Miller v. Mem’l Hosp. of South Bend, Inc., 679 N.E.2d 1329, 1331-32 (Ind.

       1997).


                                       Indiana Code Section 34-18-15-3

[13]   Here, again, in his motion to enforce the Act, Dr. Hossler argued that, because

       he had offered to settle with Wallen for the statutory cap of $250,000, Wallen

       was required to accept that offer and forego a jury trial. In support of his

       contention, Dr. Hossler relied on Indiana Code Section 34-18-15-3 (2013) (“the

       statute”), which provides 3 in relevant part as follows:


                If a health care provider or its insurer has agreed to settle its liability
                on a claim by payment of its policy limits of two hundred fifty
                thousand dollars ($250,000), and the claimant is demanding an
                amount in excess of that amount, the following procedure must
                be followed:

                         (1) A petition shall be filed by the claimant in the
                         court named in the proposed complaint, or in the
                         circuit or superior court of Marion County, at the
                         claimant’s election, seeking:

                                  (A) approval of an agreed settlement, if
                                  any; or

                                  (B) demanding payment of damages
                                  from the patient’s compensation fund.




       3
        This statute was amended effective July 1, 2017, to account for the higher policy limits applicable to
       medical negligence that occurred after June 30, 2017.



       Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019                                  Page 11 of 21
       (Emphasis added.)


[14]   The parties dispute the meaning of the phrase “agreed to settle” in the statute,

       which presents an issue of first impression for this Court. Dr. Hossler

       maintains that, because he offered to settle his liability for $250,000, Wallen

       was required by statute to accept that offer and proceed against the Fund to

       seek additional damages. But Wallen maintains that the statute only requires

       him to release Dr. Hossler and proceed against the Fund after Wallen has

       entered into a settlement agreement with Dr. Hossler, which has not yet

       occurred.


[15]   It is well settled that, if a statute is unambiguous, we may not interpret it but

       must give the statute its clear and plain meaning. Med. Assur. of Ind. v. McCarty,

       808 N.E.2d 737, 741 (Ind. Ct. App. 2004). Moreover, “in interpreting a statute,

       we must consider not only what the statute says but what it does not say.”

       Curley v. Lake Cty. Bd. of Elections & Registration, 896 N.E.2d 24, 37 (Ind. Ct.

       App. 2008), trans. denied. In other words, “we are obliged to suppose that the

       General Assembly chose the language it did for a reason.” State v. Prater, 922

       N.E.2d 746, 750 (Ind. Ct. App. 2010), trans. denied. Further, we note that,

       “because the Act is in derogation of common law, it must be strictly

       construed.” Med. Assur. of Ind., 808 N.E.2d at 743. When the legislature enacts

       a statute in derogation of common law, we presume that the legislature does

       not intend to make any change beyond what is declared in express terms or by

       unmistakable implication. Id.



       Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019            Page 12 of 21
[16]   Here, the parties agree that the statute is unambiguous, albeit to support

       opposing interpretations. We hold that the statute unambiguously sets out a

       procedure whereby a plaintiff, who has in fact settled with a defendant health

       care provider, may pursue excess damages from the Fund. Dr. Hossler would

       have us define “agreed to settle” to mean “offered to settle.” But the legislature

       did not write the statute to say, “If a health care provider has offered a plaintiff

       $250,000, the plaintiff must accept that settlement offer and proceed against the

       Fund for excess damages.” The statute clearly contemplates that a plaintiff

       shall proceed against the Fund only after the plaintiff has affirmatively entered

       into a settlement agreement with a defendant health care provider or insurer in

       lieu of trial. An offer is not an agreement. A settlement agreement requires at

       least two parties.


[17]   In the alternative, Indiana Code Section 34-18-14-3(c) provides in relevant part

       that “[a]ny amount due from a judgment . . . that is in excess of the total liability

       of all liable health care providers . . . shall be paid from the [Fund].” Thus, a

       plaintiff is always entitled to reject a defendant health care provider’s settlement

       offer and proceed to trial to determine his total damages, including damages to

       be paid by the Fund.


[18]   Finally, we note that our courts have consistently addressed Indiana Code

       Section 34-18-15-3 as being applicable only in the event of an actual settlement

       agreement between the parties. For example, in Smith v. Pancner, our Supreme




       Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019             Page 13 of 21
       Court considered whether, under a former version of the statute, 4 an

       “agreement with a qualified provider who is one of multiple jointly liable

       providers is sufficient to [permit a plaintiff to] access the Fund.” 679 N.E.2d

       893, 896 (Ind. 1997). The Court’s analysis included its determination that,

       under the statute, there is “no requirement that the parties cannot ‘agree to

       settle’ orally or only partially in writing.” Id. at 895. And the Court stated that

       “it is clear that the Act contemplates the prospect that more than one provider

       may be liable for the same occurrence and may contribute to a settlement that

       gives access to the Fund.” Id. at 896 (emphasis added). In sum, throughout Smith,

       the Court makes clear that “agreed to settle” in the statute means that the

       parties must have entered into a settlement agreement before the plaintiff can

       access the Fund.


[19]   Here, the trial court erred when it concluded that Dr. Hossler’s “offer

       trigger[ed] the application of the process set forth in” the statute and, in effect,

       that Wallen was required to accept Dr. Hossler’s settlement offer. Appellant’s

       App. Vol. 2 at 16. A settlement is, by definition, a voluntary agreement to

       resolve contested issues. In other words, a settlement cannot be compelled.

       That is especially true here, where Dr. Hossler’s offer was encumbered by

       thirteen conditions, which were unacceptable to Wallen. Wallen may agree to




       4
         Indiana Code Section 34-18-15-3 was formerly codified at Indiana Code Section 27-12-15-3 and included
       the same “agreed to settle” language relevant to the issue here.



       Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019                             Page 14 of 21
       settle with Dr. Hossler, or Wallen may choose to proceed to trial. Accordingly,

       we reverse and remand for further proceedings.


                                           One or Two Statutory Caps

[20]   The trial court also found that the “real issue in this case is the number of

       statutory caps that apply.” Appellant’s App. Vol. 2 at 16. Because this issue is

       likely to recur on remand, we address the trial court’s conclusion that Dr.

       Hossler committed a single act 5 of malpractice which resulted in Cathy’s death.

       The trial court resolved this issue as a matter of law, without having heard any

       evidence from either party. 6 Wallen asserts that whether Dr. Hossler

       committed two separate acts of malpractice that resulted in two separate

       injuries to Cathy is a question of fact for a jury. Accordingly, Wallen maintains

       that the trial court erred when it resolved this issue as a matter of law.


[21]   It is well settled that the Act “allows for one recovery for each distinct act of

       malpractice that results in a distinct injury, even if the multiple acts of

       malpractice occur in the same procedure.” Patel, 742 N.E.2d at 33. And, more

       specifically, “a doctor who commits two or more negligent acts in treating a

       patient and thereby causes two or more distinct injuries is liable for the




       5
        Our courts treat the word “occurrence” as interchangeable with the word “act” in describing instances of
       medical malpractice. See Medical Assur. of Ind., 808 N.E.2d at 744.
       6
          Wallen contends that the trial court, in essence, entered summary judgment in favor of Dr. Hossler on this
       issue, sua sponte. We cannot agree. Nothing in the record indicates that either the trial court or the parties
       considered Dr. Hossler’s Motion to Enforce the Act to be a summary judgment motion. Indeed, neither
       party submitted evidence to the trial court.



       Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019                                  Page 15 of 21
       maximum statutory payment for each compensable injury.” Medical Assur. of

       Ind., 808 N.E.2d at 745.


[22]   Issues of negligence, causation, and reasonable care are generally a

       determination for a trier of fact. See Kader v. Dep’t of Corr., 1 N.E.3d 717, 726

       (Ind. Ct. App. 2013). And in a medical malpractice proceeding, expert medical

       testimony is usually required to determine whether a physician’s conduct fell

       below the applicable standard of care. Bader v. Johnson, 732 N.E.2d 1212, 1217

       (Ind. 2000). Expert testimony is also generally required to prove proximate

       cause in medical malpractice actions. See Singh v. Lyday, 889 N.E.2d 342, 357

       (Ind. Ct. App. 2008), trans. denied. It follows, then, that whether a physician

       committed multiple breaches of the applicable standard of care during his

       treatment of a patient that resulted in multiple, distinct injuries also typically

       requires expert opinion and a determination by a trier of fact.


[23]   Here, however, Wallen has not alleged, and he cannot prove, that Dr. Hossler

       committed two distinct acts of medical malpractice. Wallen’s claims arise from

       a single act by Dr. Hossler, namely, his interpretation of a CT scan of Cathy’s

       abdomen. In response to Dr. Hossler’s motion, Wallen characterized that

       single act as consisting of two acts of malpractice: a misdiagnosis and,

       separately, a failure to diagnose. In particular, Wallen argued that Dr. Hossler

       misdiagnosed Cathy as having gallstones when he read the CT scan and he

       failed to diagnose the internal bleeding when he read the same CT scan.




       Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019            Page 16 of 21
[24]   The factual predicate for a medical malpractice claim is a negligent act or

       omission. A single negligent act or omission supports a single malpractice

       claim and cannot support multiple claims where, for example, as here, the

       misdiagnosis and the failure to diagnose are not freestanding but arise from the

       same act or omission. We agree with the trial court that Dr. Hossler’s alleged

       misdiagnosis and failure to diagnose comprise “one distinct act of negligence,”

       namely, “misreading the [CT scan.]” Appellant’s App. Vol. 2 at 17. Dr.

       Hossler’s misdiagnosis and failure to diagnose, under the facts as alleged here,

       occurred simultaneously when he interpreted the CT scan and wrote his report.

       In contrast, in Patel, while the alleged malpractice occurred during one surgery,

       there were “two distinct acts of malpractice to two separate body systems, [the

       patient’s] digestive system and her urinary system,” and the acts occurred at

       different times during the surgery. 742 N.E.2d at 33. In particular, the

       defendant “fail[ed] to close her colon correctly and [left] a hemoclip in place”

       on her ureter. Id. at 31. Further, in Miller, two defendant providers each

       allegedly committed a separate, distinct act of malpractice—one that occurred

       while the patient was still in his mother’s womb and one that occurred after his

       birth. 679 N.E.2d at 1332. Wallen does not cite to any Indiana case, and our

       research reveals none, where a single act by a health care provider was

       construed as two distinct acts of medical malpractice.


[25]   In sum, Wallen attempts to create two distinct acts of malpractice out of a

       single act by Dr. Hossler—misinterpreting the CT scan—by alleging that he

       both misdiagnosed and failed to diagnose the internal bleeding. While, on


       Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019         Page 17 of 21
       another set of facts, a misdiagnosis and a failure to diagnose might constitute

       two distinct acts of medical negligence, in this case the two are one and the

       same. Here, assuming that the evidence will show that Dr. Hossler both

       misdiagnosed Cathy’s condition and failed to diagnose her internal bleeding,

       we hold, as a matter of law, that Dr. Hossler committed a single act of medical

       malpractice when he misinterpreted the CT scan and wrote one report.

       Accordingly, the trial court did not err when it concluded that Wallen is not

       entitled to recover more than one statutory cap in his claims against Dr.

       Hossler. 7


                                                     Conclusion

[26]   Under the express provisions of the Act, Wallen may pursue excess damages

       from the Fund either after a jury trial or after he has entered into a settlement

       agreement with Dr. Hossler. Nothing in the Act requires Wallen to accept Dr.

       Hossler’s offer to settle his liability. And, while whether a defendant health

       care provider has committed more than one act of medical malpractice is

       generally a question of fact, here, where Wallen’s allegations cannot be

       construed as alleging more than one act, we hold as a matter of law that Wallen

       is only entitled to one statutory cap in his complaint against Dr. Hossler.


[27]   Reversed and remanded for further proceedings.




       7
         Because we remand for further proceedings, we need not address Wallen’s contention that the trial court
       erred when it did not award him prejudgment interest.



       Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019                               Page 18 of 21
Robb, J., concurs.

Baker, J., concurs in part and concurs in result in part with separate opinion.




Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019         Page 19 of 21
                                                    IN THE
            COURT OF APPEALS OF INDIANA

       Richard L. Wallen, Individually,                            Court of Appeals Case No.
       and as Personal Representative                              19A-CT-40
       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.



       Baker, Judge, concurring and concurring in result.


[28]   I concur in the result reached by the majority and I fully concur in its analysis

       regarding whether a settlement can be compelled. I respectfully part ways,

       however, with its analysis regarding the number of statutory caps at issue. In

       my view, there were two different acts of medical malpractice. But I do not

       think that it matters, inasmuch as there was only one injury—Cathy’s death.

       Because it is without dispute that she sustained only a single injury, I agree with

       Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019                         Page 20 of 21
the majority that Wallen is not entitled to recover more than one statutory cap

in his claims against Dr. Hossler.




Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019       Page 21 of 21
