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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 ATTORNEYS FOR AMICUS CURIAE INDIANA TRIAL LAWYERS ASSOCIATION Steven L. Langer Valparaiso, Indiana Tara M. Worthley Indianapolis, Indiana

FILED
Jan 20 2012, 10:03 am
of the supreme court, court of appeals and tax court

In the

CLERK

Indiana Supreme Court
No. 84S01-1105-CV-282 INDIANA DEPARTMENT OF INSURANCE, INDIANA PATIENT'S COMPENSATION FUND, Appellant (Defendant below), v. ROBIN EVERHART, PERSONAL REPRESENTATIVE OF THE ESTATE OF JAMES K. EVERHART, JR., Appellee (Plaintiff below).

Appeal from the Vigo Superior Court, No. 84D01-0410-CT-10001 The Honorable Phillip I. Adler, Judge On Petition to Transfer from the Indiana Court of Appeals, No. 84A01-0912-CV-614

January 20, 2012 Shepard, Chief Justice.

Robin Everhart filed suit against the Indiana Patient's Compensation Fund (PCF) to recover excess damages after settling a wrongful death claim against an emergency room physician in whose care her husband died. The PCF asked the trial court to reduce its award of damages to account for the twenty percent chance that Robin's husband would have died anyway, even in the absence of the physician's negligence. The trial court declined to do so, awarding Robin the statutory maximum $1 million in excess damages. We affirm, but on slightly different grounds.

Facts and Procedural History

Around 2 p.m. on October 4, 2004, James K. Everhart, Jr. was riding his motorcycle on Margaret Avenue in Terre Haute, Indiana. Tragically, Larry B. Perkins, an employee of Standard Forwarding Company, Inc., crashed his semi-truck into Everhart's motorcycle and ran over Everhart.

Because the accident occurred so close to a fire station and a bystander ran in to personally alert the paramedics, the paramedics arrived on the scene almost exactly as the first call came into the emergency dispatch. control his bleeding. (Appellant's App. at 16.) Paramedic James Henderson and EMT Norm

Loudermilk both testified that Everhart sustained massive injuries but that they were able to

Henderson and Loudermilk both later came to expect Everhart would survive. (Appellant's App. at 17.) Although Everhart appeared unconscious when the paramedics loaded him into the ambulance, he opened his eyes and started speaking to Loudermilk after receiving an intravenous drip and oxygen. (Appellant's App. at 16.) Initially, Everhart registered only a six on the Glasgow Coma Scale (GCS), but he improved to an eleven and then a thirteen on the GCS during the ambulance ride to the hospital. (Appellant's App. at 17.) Although the

paramedics could not pick up a blood pressure reading for Everhart, Henderson testified that

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their equipment would not have been sensitive enough to pick up a blood pressure of less than 80/40 mmHg. (Appellant's App. at 18.)

The paramedics transferred Everhart to the care of Dr. C. Bilston Clarke, a physician in the emergency room at Terre Haute Regional Hospital. Despite Everhart's severe bleeding at the scene, Dr. Clarke did not immediately administer a blood transfusion to Everhart. Everhart later died of a cardiac arrest while still in Dr. Clarke's care. Everhart left behind his wife and son, Robin and Troy Everhart.

Robin filed a wrongful death suit against Perkins and Standard Forwarding in October 2004. The parties settled for $1.9 million. Robin amended her complaint in October 2005, adding a wrongful death claim against Dr. Clarke. Again, the parties settled out of court, this time for a lump-sum payment and future payments with a total present value of $187,001. Robin then filed a third amended complaint on June 17, 2008, adding a claim against the PCF that sought to recover excess damages over and above her settlement with Dr. Clarke.

At trial, the parties disputed whether Everhart suffered a cardiac arrest in the ambulance or after arriving at the hospital. Robin's expert witness, Dr. Frank Miller, testified that if Everhart had suffered a cardiac arrest after arriving at the hospital, then he would still have stood an eighty percent chance of surviving his injuries if he had received proper medical care. (Appellant's App. at 19

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