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ATTORNEYS FOR APPELLANT Elizabeth H. Knotts Rori L. Goldman Indianapolis, Indiana ATTORNEYS FOR AMICUS CURIAE INDIANA STATE MEDICAL ASSOCIATION Thomas J. Costakis Libby Y. Mote Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Steven L. Langer Tara M. Wozniak Valparaiso, Indiana

June 15 2009, 11:02 am

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

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Indiana Supreme Court
_________________________________ No. 49S04-0806-CV-344 JIM ATTERHOLT, COMMISSIONER OF THE INDIANA DEPARTMENT OF INSURANCE, AS ADMINISTRATOR OF THE INDIANA PATIENT'S COMPENSATION FUND, Appellant (Defendant below), v. GENEVA HERBST, PERSONAL REPRESENTATIVE OF THE ESTATE OF JEFFREY A. HERBST, DECEASED, Appellee (Plaintiff below). _________________________________ Appeal from the Marion Superior Court, No. 49D07-0511-PL-045446 The Honorable Gerald Zore, Judge _________________________________ On Petition for Rehearing _________________________________ June 15, 2009 Boehm, Justice. Under circumstances spelled out in the Indiana Medical Malpractice Act, the Act limits the liability of a health care provider and permits recovery of excess damages from the Patient's

In the

CLERK

Compensation Fund. In this case, our original opinion summarized our holding as follows: when a claimant seeks excess damages from the Patient's Compensation Fund after obtaining a judgment or settlement from a health care provider in a medical malpractice case, the Fund may introduce evidence of the claimant's preexisting risk of harm if it is relevant to establish the amount of damages, even if it is also relevant to liability issues that are foreclosed by the judgment or settlement. Atterholt v. Herbst, 902 N.E.2d 220, 220

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