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FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ELIZABETH H. KNOTTS RORI L. GOLDMAN Indianapolis, Indiana ATTORNEYS FOR APPELLEE: JAMES O. McDONALD Terre Haute, Indiana JOHN P. YOUNG

Indianapolis, Indiana

FILED
Dec 21 2010, 2:50 pm
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
INDIANA DEPARTMENT OF INSURANCE, INDIANA PATIENTS COMPENSATION FUND, Appellant-Defendant, vs. ROBIN EVERHART, Personal Representative of the Estate of James K. Everhart, Jr., Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) ) ) ) )

CLERK

No. 84A01-0912-CV-614

APPEAL FROM THE VIGO SUPERIOR COURT The Honorable Philip I. Adler, Judge Cause No. 84D02-0410-CT-10001

December 21, 2010

DISSENT TO ORDER DENYING PETITION FOR REHEARING - FOR PUBLICATION ROBB, Judge

In Indiana Dept of Ins. v. Everhart, 932 N.E.2d 684 (Ind. Ct. App. 2010), we addressed the issue of whether the Indiana Patients Compensation Fund (the "Fund") was liable for the full amount of excess damages when in the absence of a doctors negligence, the decedent would have had a "better than 80% chance" of surviving injuries incurred in an automobile accident. The trial court awarded to the Estate of James Everhart the statutory maximum damages of $1,000,000 and the Fund appealed. We reversed, holding the trial court should have awarded damages only in proportion to the increase in risk of harm that was caused by the malpractice, relying on the approach set forth in Restatement (Second) of Torts

Download Indiana Dept. of Insurance, et al. v. Robin Everhart.pdf

Indiana Law