FOR PUBLICATION                                          FILED
                                                       Feb 10 2012, 8:19 am


                                                              CLERK
                                                            of the supreme court,
                                                            court of appeals and
                                                                   tax court



ATTORNEY FOR APPELLANT:                       ATTORNEY FOR APPELLEE:

SUSAN E. CLINE                                ROBERT D. BROWN
LEWIS WAGNER, LLP                             KENNETH J. ALLEN & ASSOC., P.C.
Indianapolis, Indiana                         Valparaiso, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

COMMISSIONER OF THE INDIANA                   )
DEPARTMENT OF INSURANCE,                      )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )       No. 64A05-1104-CT-240
                                              )
TIM BLACK, as Husband and Personal            )
Representative of KAY BLACK, Deceased,        )
                                              )
      Appellee-Plaintiff.                     )


                   APPEAL FROM THE PORTER SUPERIOR COURT
                     The Honorable Jeffrey L. Thode, Special Judge
                           Cause No. 64D05-0904-CT-3206


                                  February 10, 2012

                             OPINION - FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

       Appellant-Defendant, the Commissioner of the Indiana Department of Insurance

(the Commissioner), appeals the trial court’s denial of his motion to dismiss and its order

granting Appellee-Plaintiff’s, Tim Black (Black), as husband and personal representative

of Kay Black, deceased, Petition for Payment of Damages from the Patient’s

Compensation Fund in an amount of $1,000,000.00.

       We reverse and remand.

                                         ISSUE

       The Commissioner raises two issues on appeal, one of which we find dispositive

and which we restate as: Whether the trial court properly denied the Commissioner’s

motion to dismiss, concluding that Black satisfied the conditions precedent for access to

the Patient’s Compensation Fund (PCF) as outlined in Ind. Code § 34-18-15-3.

                       FACTS AND PROCEDURAL HISTORY

       This appeal arises out of an underlying claim for medical malpractice in which

Black filed a complaint against his wife’s, Kay Black (Kay), health care providers for

failing to diagnose Kay’s cardiac condition. On October 26, 2000, Kay presented to the

emergency room of Porter Memorial Hospital complaining of severe chest pain radiating

down her left arm and nausea. A blood enzyme test came back as abnormal, possibly

indicating the onset of a heart attack. Dr. Fred Harris (Dr. Harris), a cardiologist, was

consulted by telephone. Dr. Harris did not come to the emergency room nor did he order

repeat enzyme testing or heart monitoring. Instead, Dr. Harris advised the emergency


                                            2
room doctor that Kay was not having, nor was she about to have, a heart attack and

agreed to admit Kay with a diagnosis of abdominal pain to the general floor without heart

monitoring equipment. At approximately 3 a.m. the following morning, Kay suffered a

severe cardiac arrest that placed her in a debilitated cardiac state, resulting in the need for

a heart transplant. On September 22, 2008, Kay died from a condition unrelated to the

malpractice.

       On November 13, 2001, Kay and Black filed a proposed complaint for damages

under the Indiana Medical Malpractice Act against Dr. Harris, Abdus Lakhani, M.D.,

Samara Kester, M.D., and Porter Memorial Hospital. The proposed complaint alleged

that the defendants had rendered negligent medical care to Kay, resulting in permanent

injury, medical expenses, lost earnings and loss of enjoyment of life. The medical review

panel unanimously concluded that Dr. Harris had failed to comply with the appropriate

standard of care.

       On March 31, 2009, Black, as husband and personal representative of Kay, filed a

Petition for Payment of Damages from the PCF, asserting that Dr. Harris had agreed “to

make payment of his liability limit in the amount of $250,000.00, thereby establishing

liability of the [PCF] under the Act.” (Appellant’s Amended App. p. 13). Responding to

the Petition, the Commissioner indicated that he did not have sufficient information to

form a belief as to the truth or falsity of the allegations in general and specifically the

assertion that Dr. Harris had agreed to make payment. In essence, the Commissioner

contended that Black had failed to satisfy all conditions precedent for access to the PCF.

On April 21, 2009, the Commissioner served discovery seeking additional information


                                              3
about the claim. Specifically, the Commissioner sought the production of all documents

evidencing payment received in connection with Kay’s injury, as well as a copy of all

fully executed settlement agreements entered into by Black and any health care provider

concerning the underlying medical malpractice cause.

      Nearly a year later, on March 3, 2010, Black provided an unauthenticated copy of

a check dated April 3, 2009 in the amount of $250,000.00 from the Medical Assurance

Company Co., Inc. made payable to Black and his counsel. No other annotation appears

on the check. Black objected to the production of the settlement agreement stating that

the agreement contained a confidentiality clause that prohibited him from disclosing the

document.    On May 6, 2009, Black served Requests for Admissions, asking the

Commissioner to admit, among other things, that Black and Dr. Harris had entered into a

settlement agreement and payment of Dr. Harris’ liability limit had been tendered to

Black. The Commissioner responded that he could not admit or deny the request as

Black had failed to provide a copy of the settlement agreement. On May 17 and May 20,

2010, well over a thousand additional medical records, deposition transcripts, and other

documents were disclosed but again, no settlement agreement was provided.

      Subsequently, on May 26, 2010, the Commissioner’s counsel sent correspondence

to Black pursuant to Ind. Trial Rule 26(F) in an attempt to informally resolve the

discovery disputes pertaining to the release of the settlement agreement and to the

disclosure of voluminous medical records and depositions barely a month before a

scheduled June 29, 2010 damages hearing.       In her letter, counsel asserted that the

settlement agreement was necessary to establish the identity of the settling health care


                                           4
provider and to evaluate whether Black had met the conditions precedent of the Medical

Malpractice Act to gain access to the PCF, and any additional terms which could impact

Black’s payment from the PCF. Black never responded to this letter. Thereafter, on May

28, 2010, the Commissioner moved to continue the bench trial scheduled for June 29,

2010.    The trial court granted the motion and continued the damages hearing to

November 30, 2010.

        On October 29, 2010, the Commissioner filed his verified motion to dismiss for

failure to state a claim and to vacate trial setting, asserting that by refusing to disclose the

settlement agreement in the underlying medical malpractice action, Black had failed to

satisfy the conditions precedent for access to the PCF.           By filing the motion, the

Commissioner sought to have the cause dismissed without prejudice. On November 5,

2010, Black responded, claiming that pursuant to the provisions of the Medical

Malpractice Act he was not required to provide the settlement agreement and that the

evidence tendered to date was sufficient to gain access to the PCF. Attached to Black’s

response was a copy of the unauthenticated check in the amount of $250,000.00, as

previously submitted, as well as copies of correspondence between Black’s counsel and

Dr. Harris’ counsel referencing an acceptance to the settlement amount “contingent upon

[an] agreement to a confidentiality clause and other customary settlement terms as set out

in the form of Settlement and Agreement Release[.]” (Appellant’s Amended App. p.

118). No Settlement and Agreement Release was attached.

        On November 29, 2010, a day before the scheduled bench trial on damages, the

trial court conducted a hearing on the Commissioner’s motion to dismiss. During the


                                               5
hearing, the Commissioner reiterated his position that a settlement agreement needed to

be submitted because

      [n]ot every health care provider or physician in the State of Indiana is
      covered under the Medical Malpractice Act, so there has to be a
      determination that that provider is, in fact covered. And once that
      determination is made, then did that provider meet all of the criteria, did the
      plaintiff then meet the criteria of the Act in order to make their petition to
      the [PCF] for excess damages. . . . There has to be a determination that the
      settling health care provider has paid the surcharge and has provided proof
      of financial responsibility.

(Transcript pp. 5-6). The Commissioner assured the trial court that he stood ready to

settle the cause for the maximum statutory amount upon confirming that Black satisfied

the condition precedent for access to the PCF. But he could “not make any payment

without the settlement agreement.” (Tr. p. 10). The following day, on November 30,

2010, and prior to the scheduled hearing, the trial court denied the Commissioner’s

motion.

      On November 30, 2010, the trial court conducted a bench trial on the issue of

damages. At the onset of trial, the Commissioner stipulated that the value of Black’s

claim was $1,000,000.00, the statutory cap for medical negligence, subject to the

submission of a settlement agreement that met the conditions precedent for access to the

PCF. At the close of Black’s case-in-chief, the Commissioner moved for judgment on

the evidence, which the trial court took under advisement. In its case-in-chief, the

Commissioner presented no evidence, he again reiterated his stipulation that Black’s

claim was valued at $1,000,000.00 subject to presentation of an appropriate settlement

agreement, and renewed his position that Black had failed to meet the conditions



                                            6
precedent for access to the PCF. On December 3, 2010, the trial court entered its Order

granting Black’s Petition for Payment of Damages from the PCF in the amount of

$1,000,000.00.

       On December 29, 2010, the Commissioner filed a motion to correct error claiming

that the trial court had erred (1) by granting Black access to the PCF without evidence

that he had met the conditions precedent of the Medical Malpractice Act; (2) by denying

the Commissioner’s motion for judgment on the evidence; and (3) by awarding damages

without evidence of an underlying settlement. On February 23, 2011, the trial court held

a hearing on the motion to correct error. During the hearing, the Commissioner again

assured the trial court and Black that he stood ready to settle the cause for the statutory

cap and asked the trial court to order production of the settlement agreement to allow the

Commissioner to confirm Black’s eligibility to access the PCF. On April 20, 2011, the

trial court denied the motion.

       The Commissioner now appeals. Additional facts will be provided as necessary.

                             DISCUSSION AND DECISION

                                  I. Standard of Review

       The Commissioner contends that the trial court erred in denying his motion to

dismiss for failure to state a claim. However, for the first time on appeal, Black disputes

the characterization of the Commissioner’s motion as a motion to dismiss pursuant to Ind.

Trial Rule 12(B)(6). He asserts that because additional supporting documents were

attached to the motion to dismiss, the Commissioner’s motion was converted into a

motion for summary judgment pursuant to T.R. 56. We agree.


                                            7
      A 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be

granted tests the legal sufficiency of a claim, not the facts supporting it. Godby v.

Whitehead, 837 N.E.2d 146, 149 (Ind. Ct. App, 2005), trans. denied. We view the

complaint in the light most favorable to the non-moving party, drawing every reasonable

inference in favor of that party. Id. In determining whether any facts will support the

claim, we look only to the complaint and may not resort to any other evidence in the

record. Id. However, if on the motion “matters outside the pleading are presented to and

not excluded by the court, the motion shall be treated as one for summary judgment and

disposed of as” a motion for summary judgment. T.R. 12(B).

      In his motion to dismiss, the Commissioner specified that Black had failed to

satisfy the conditions precedent for access to the PCF, referencing the inadequate

discovery responses and the lack of settlement agreement. Attached to the motion were

several exhibits, including, among others, correspondence indicating Black’s refusal to

disclose the settlement agreement. Black responded to the Commissioner’s motion to

dismiss with a memorandum, which included an unauthenticated copy of the check in the

amount of 250,000.00 paid by the Medical Assurance Company Co., Inc. to Black and

his counsel, as well as a copy of the letter pertaining to settlement negotiations between

Black’s counsel and counsel for Dr. Harris.

      Even though the trial court in its Order alluded to the Commissioner’s “Motion to

Dismiss Claim,” it did not explicitly exclude the exhibits and other materials attached to

the Commissioner’s motion or Black’s response. Moreover, we are hard pressed to see

how the trial court could have reached its conclusion without evaluating the submitted


                                              8
attachments. Black’s Petition for Payment merely asserted that “Harris agreed to make

payment of his liability limit in the amount of $250,000.00, thereby establishing liability

of the [PCF] under the [Medical Malpractice Act].” (Appellant’s App. p. 13). It was

only after discovery was commenced and interrogatories and requests for admissions

were sought that the lack of settlement agreement became evident. As such, we will treat

the Commissioner’s motion to dismiss as a motion for summary judgment.1

        Summary judgment is appropriate only when there are no genuine issues of

material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial

Rule 56(C). In reviewing a trial court’s ruling on summary judgment, this court stands in

the shoes of the trial court, applying the same standards in deciding whether to affirm or

reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d

604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we must determine

whether there is a genuine issue of material fact and whether the trial court has correctly

applied the law. Id. at 607-08. In doing so, we consider all of the designated evidence in

the light most favorable to the non-moving party. Id. at 608. The grant of summary

judgment must be reversed if the record discloses an incorrect application of the law to

the facts. Id.

        Here, the Commissioner’s claim is focused on Black’s inability to satisfy the

conditions precedent for access to the PCF, most notably, on the lack of a settlement

1
  We acknowledge that in the event a motion to dismiss for failure to state a claim is characterized and
treated as a motion for summary judgment, T.R. 12(B) requires that “all parties shall be given reasonable
opportunity to present all material made pertinent to such a motion by Rule 56.” However, because all
pertinent materials were submitted as supplemental documents with either the Commissioner’s motion or
Black’s response thereto, we conclude that the violation of this requirement by the trial court did not
prejudice the parties.


                                                   9
agreement. In this sense, the Commissioner is required to prove a negative, i.e., the non-

existence of the settlement.

       In Jarboe v. Landmark Cmty. Newspapers of Indiana, Inc., 644 N.E.2d 118, 123

(Ind. 1994), our supreme court declared that “[m]erely alleging that the plaintiff has

failed to produce evidence on each element [of a cause of action] is insufficient to entitle

the defendant to summary judgment under Indiana law.” Despite numerous criticism

over the years, Jarboe’s ruling “has been understood by some courts to require [the

moving party] to establish a negative proposition.” See Lenhardt Tool & Die Co., Inc. v.

Lumpe, 722 N.E.2d 824, 825 (Ind. 2000) (Boehm, J., dissenting from denial of transfer);

see also Cole v. Gohmann, 727 N.E.2d 1111 (2000) (Baker, J. dissenting). In his well-

known dissent to the denial of transfer in Lenhardt Tool & Die Co, Inc. (Shepard, C.J.,

concurring), Justice Boehm expressed his belief that Indiana courts have been too literal

in interpreting and applying Jarboe. He noted that there appears to be “a widespread

misunderstanding of how the summary judgment standard is to work under Trial Rule

56.” Lenhardt Tool & Die Co., Inc., 722 N.E.2d at 825. After a thorough review of the

methodology of the summary judgment standard in federal courts as clarified in Celotex

Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265, 272 (1986),

Justice Boehm concluded:

       Although under Indiana Trial Rule 56 Jarboe clearly rejected the view that
       a party seeking summary judgment could simply point to the opponent’s
       burden of proof at trial and prevail unless the non-movant produced
       evidence supporting its claim of defense, Jarboe did not disable summary
       judgment as a tool to resolve matters as to which there is no genuine issue
       of material fact. Rather, . . . in my view under Indiana Trial Rule 56, as
       under federal practice, it is sufficient for summary judgment to establish on


                                            10
       undisputed facts either that: (1) the non-movant will be unsuccessful as a
       matter of law or (2) the non-movant will be unable at trial to establish an
       essential fact on which the non-movant carries the burden of proof.

Id. at 826-27 (internal citations omitted). He then further elaborated that in his view:

       [O]nce the movant has put forward evidence to (1) establish the elements of
       its claim or defense, or (2) negate an essential element of the non-movant’s
       claim or defense, or (3) prove that the non-moving party will be unable to
       present evidence to prove an essential element of its claim or defense, the
       burden shifts to the non-movant to make a showing sufficient to establish
       the existence of a genuine issue for trial on each challenged element. This
       does not mean that there is a shift of the burden of persuasion on any
       element of a claim or defense or that the non-movant must establish its
       entire case to defeat a motion for summary judgment. It does mean, as
       Trial Rule 56 provides, that, once the movant meets its burden, the non-
       movant must articulate specific facts that show an issue of material fact
       requiring a trial.

Id. at 827-28 (internal citations omitted).

       Today, we accept Justice Boehm’s views on this subject expressed in his dissent

from the denial of transfer in Lenhardt Tool & Die Co., Inc. as the better reasoned

interpretation of Indiana Trial Rule 56 and explicitly adopt it to apply it to the unique

circumstances before us. Moreover, reading our summary judgment in this light furthers

the goals of a just, speedy, and inexpensive determination of an action where it can be

established that the non-movant will be unable to produce evidence to support his claim

or defense. It not only avoids unnecessary litigation, but as a byproduct, it also prevents

the unnecessary escalation of the settlement value of a clearly flawed claim or defense

based simply on the prospect of protracted, if ultimately unsuccessful, litigation. Id. at

826. In other words, there should be no reason to go to trial or prolong a proceeding if

undisputed evidence establishes that an essential claim or defense is doomed to failure.



                                              11
Therefore summary judgment is proper if, after sufficient opportunity for discovery, the

movant can establish that the non-moving party bears the burden of proof. Id. With

these principles in mind, we now turn to the merits of the Commissioner’s appeal.

                                   II. Access to the PCF

       The Commissioner contends that Black failed to satisfy the conditions precedent

for access to the PCF as required by I.C. § 34-18-15-3. The statute, which is part of the

Medical Malpractice Act, provides specific guidance and direction as to how and when a

claim for excess damages from the PCF can be explored. Specifically, it states, in

pertinent part, that:

       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.

       (2) A copy of the petition with summons shall be served on the
       commissioner, the health care provider, and the health care provider’s
       insurer, and must contain sufficient information to inform the other parties
       about the nature of the claim and the additional amount demanded.

       ***

       (5) At the hearing, the commissioner, the claimant, the health care provider,
       and the insurer of the health care provider may introduce relevant evidence
       to enable the court to determine whether or not the petition should be
       approved if the evidence is submitted on agreement without objections. If
       the commissioner, the health care provider, the insurer of the health care


                                             12
       provider, and the claimant cannot agree on the amount, if any, to be paid
       out of the patient’s compensation fund, the court shall, after hearing any
       relevant evidence on the issue of claimant’s damage submitted by any of
       the parties described in this section, determine the amount of the claimant’s
       damages, if any, in excess of the two hundred fifty thousand dollars
       ($250,000) already paid by the insurer of the health care provider. The
       court shall determine the amount for which the fund is liable and make a
       finding and judgment accordingly.           In approving a settlement or
       determining the amount, if any, to be paid from the patient’s compensation
       fund, the court shall consider the liability of the health care provider as
       admitted and established.

I.C. § 34-18-15-3 (emphasis added). Although the statute is silent as to the existence of a

settlement agreement as a condition precedent for access to the PCF, the statutory

provisions clearly state, as an opening premise and again in its fifth paragraph, that in

order for a claimant to make a claim against the PCF, he or she must submit materials

evidencing that the medically negligent “health care provider or his insurer has agreed to

settle the issue of liability by payment of the policy limits of $250,000.” See I.C. § 34-

18-15-3.   Implicit within this provision is the premise of an underlying settlement

agreement in the medical malpractice action. Without firm evidence of the settlement,

the Commissioner and the trial court cannot be assured that the condition precedent for

access to the PCF is satisfied.

       While not directly on point, our supreme court in Wisniewski v. Bennett, 716

N.E.2d 892, 895 (Ind. 1999) opined that “[t]he Act does not by its terms require any

formality to an agreement to settle and we are not prepared to import one.” The supreme

court analyzed whether the insurer of a non-qualified health care provider could

contribute to a settlement in order to gain access to the PCF.            Id.   The court

acknowledged that settlement agreements for access to the PCF could be oral, but also


                                            13
looked at the terms of an attorney’s affidavit and the “release documents” to determine

whether there was sufficient evidence for the trier of fact to infer an agreement to settle

the dispute. Id. Ultimately, the Wisniewski court looked at the totality of the materials

and facts before it to determine whether the provider had agreed to the settle. Id.

       In his Petition for Payment of Damages, Black alleged that “Harris agreed to make

payment of his liability limit in the amount of $250,000.00, thereby establishing liability

of the [PCF] under the Act.” (Appellant’s Amended App. p. 13). The Commissioner

tendered a Request for Production for Documents to Black seeking, among other things,

proof of the purported underlying settlement, including a copy of “all fully executed

settlement agreements entered into by [Black] and any health care provider concerning

this cause of action.” (Appellant’s Amended App. p. 74). Despite an attempt by the

Commissioner to informally solve the discovery dispute, no settlement agreement has

been submitted to date. Instead, Black provided an unauthenticated copy of a purported

settlement check in the amount of $250,000 paid by The Medical Assurance Company

Co., Inc. to Black and his counsel. No other annotation as to what the check pertained to

or on whose behalf the payment was made was included on the check. Together with the

unauthenticated copy of the check, Black submitted a copy of a letter from Dr. Harris’

counsel to Black’s counsel accepting a settlement demand of $250,000.00 “contingent

upon [Black’s] agreement to a confidentiality clause and other customary settlement

terms as set out in the form of Settlement and Agreement Release, attached.”

(Appellant’s App. p. 118). The Settlement and Agreement Release was not attached nor

was it ever provided in discovery.


                                            14
       Relying on the confidentiality provision included in the purported settlement

agreement, Black asserts that he is prohibited from tendering it to the Commissioner for

review. Indiana Trial Rule 26(B)(1) provides that

       [p]arties may obtain discovery regarding any matter, not privileged, which
       is relevant to the subject-matter involved in the pending action, whether it
       relates to the claim or defense of the party seeking discovery or the claim or
       defense or any other party, including the existence, description, nature,
       custody, condition and location of any books, documents, or other tangible
       things and the identity and location of persons having knowledge of any
       discoverable matter. It is not ground for objection that the information
       sought will be inadmissible at the trial if the information sought appears
       reasonably calculated to lead to the discovery of admissible evidence.

Because Trial Rule 26 was adopted from the Federal Rules of Civil Procedure, federal

authorities are relevant to our discussion. See Riggin v. Rea Riggin & Sons, 738 N.E.2d

292, 309 (Ind. Ct. App. 2000). In DirecTV, Inc. v. Puccinelli, 224 F.R.D. 677, 683 (D.

Kansas 2004), the Kansas district court evaluated, among others, the assertion that

settlement negotiations and agreements should not be discoverable because of

confidentiality and concluded that

       A general concern for protecting confidentiality does not equate to
       privilege. Thus information and documents are not shielded from
       discovery merely because they are confidential. Moreover this [c]ourt has
       held that in the context of settlement agreements the mere fact that the
       settling parties agree to maintain the confidentiality of their agreement does
       not serve to shield the agreement from discovery. Simply put, litigants may
       not shield otherwise discoverable information from disclosure to others
       merely by agreeing to maintain its confidentiality.

Id. at 684-85. See also State v. Hogan, 588 N.E.2d 560, 563 (Ind. Ct. App. 1992) (where

we held with respect to a claim of privilege that absent an articulation of specific reasons

why the documents sought are privileged, the information is discoverable).



                                            15
       Our discovery rules are designed to allow a liberal discovery procedure, the

purposes of which are to provide parties with information essential to the litigation of all

relevant issues, to eliminate surprise and to promote settlement, with a minimum of court

involvement in the process. Canfield v. Sandock, 563 N.E.2d 526, 527 (Ind. 1990), reh’g

denied. Mindful of this premise, we agree with the Commissioner that simply because

Black and counsel for Dr. Harris may have agreed to confidentiality, that does not

eliminate the fact that the underlying settlement agreement is relevant and necessary to

the examination of Black’s Petition for Damages and resulting access to the PCF.

       Based on the facts before us, we conclude that there is a genuine issue of material

fact whether Black has satisfied his condition precedent to warrant him access to the

PCF. By submitting his discovery requests and correspondence indicating an attempt to

informally solve a discovery dispute, the Commissioner presented sufficient evidence

establishing that Black was unwilling or unable to present evidence which conclusively

determined that Dr. Harris had settled the underlying medical malpractice claim pursuant

to the statutory requirements of I.C § 34-18-15-3. At that point, the burden shifted to

Black to present sufficient evidence to establish the existence of the settlement agreement

in order to be granted summary judgment in his favor. To satisfy this burden, Black

merely disclosed an unauthenticated copy of a check and correspondence purporting to be

between Black counsel and counsel for Dr. Harris, alluding to settlement negotiations.

However, this evidence is insufficient to establish that the amount was paid out on behalf

of Dr. Harris and not on behalf of any other health care provider originally sued in the

underlying medical malpractice action. It is also inadequate to ascertain whether the


                                            16
terms of the settlement agreement allow access to the PCF. More specifically, the

settlement agreement will indicate the theory of settlement—whether the cause was

defined as a survival action or a wrongful death action;—any limitations placed on the

amount recoverable from the PCF; whether the health care provider is qualified under the

Medical Malpractice Act; or other contingencies which would impact the PCF’s ability to

pay. Thus, while we are not seeking to import a formality requirement into the Act, we

find that based on the evidence before us, the trier of fact cannot reasonably conclude that

a settlement agreement existed that would satisfy the conditions precedent of I.C. § 34-

18-15-3 and would entitle Black to excess damages from the PCF.              However, the

evidence is sufficient to raise a genuine issue of material fact.

       Moreover, accepting Black’s argument that an allusion to a settlement agreement

in the Petition for Damages and an unauthenticated check is sufficient to grant him access

to the PCF would frustrate the purpose of the Medical Malpractice Act. To preserve an

acceptable standard of health care and an adequate number of providers in Indiana, the

General Assembly established a state sponsored liability insurance program. See Johnson

v. St. Vincent Hospital, Inc., 404 N.E.2d 585, 589-90 (1990). This program includes a

limit on liability exposure for health care providers who elect to participate and grants

them coverage for excess liability via the PCF. See Wisniewski, 716 N.E.2d at 590. Thus

if health care providers and claimants comply with the provisions of the Medical

Malpractice Act, the Act is available to cap liability for those providers who have

qualified under the Act and the PCF is responsible for paying the excess damages to

those persons injured as a result of medical negligence. However, if unfettered reliance


                                              17
on the PCF is allowed without regard to whether a claimant has sustained the conditions

precedent for access, the PCF becomes exposed and its financial viability might be

undermined. We therefore reverse the trial court’s decision and remand for further

proceedings.

                                    CONCLUSION

      Based on the foregoing, we hold that a genuine issue of material fact exists

whether Black has satisfied the condition precedent for access to the PCF pursuant to I.C.

§ 34-18-15-3.

      Reversed and remanded for further proceedings.

FRIEDLANDER, J. and MATHIAS, J. concur




                                           18
