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ATTORNEYS FOR APPELLANTS Susan E. Cline Meggan Brumbaugh Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Robert L. Thompson F. John Rogers Fort Wayne, Indiana Richard L. Schultheis Indianapolis, Indiana

ATTORNEYS FOR AMICUS CURIAE THE INDIANA TRIAL LAWYER'S ASSOCIATION Steven L. Langer Tara M. Worthley Valparaiso, Indiana ATTORNEY FOR AMICUS CURIAE THE INDIANA STATE MEDICAL ASSOCIATION Libby Y. Goodknight Indianapolis, Indiana

In the

FILED
Oct 31 2012, 2:20 pm
of the supreme court, court of appeals and tax court

Indiana Supreme Court
No. 49S04-1111-CT-671 STEPHEN W. ROBERTSON, INDIANA COMMISSIONER OF INSURANCE, AS ADMINISTRATOR OF THE INDIANA PATIENT'S COMPENSATION FUND AND THE INDIANA PATIENT'S COMPENSATION FUND,

CLERK

Appellants (Defendants below), v. B.O., A MINOR, BY HIS PARENTS AND NEXT FRIENDS, LISA A. ORT AND KEVIN C. ORT, Appellee (Plaintiff below).

Appeal from the Marion Superior Court, No. 49D14-0706-CT-23482 The Honorable S.K. Reid, Judge On Petition to Transfer from the Indiana Court of Appeals, No. 49A04-1009-CT-528

October 31, 2012 Massa, Justice.

In defending against a petition to recover excess damages arising from a medical malpractice action, may the Indiana Patient's Compensation Fund--after the healthcare provider settles with the plaintiff and admits liability--present evidence to dispute the existence or cause of the plaintiff's injury? In some types of cases, we have previously said yes. In the type of case before us today, however, we say no.

Facts and Procedural History

At age four, B.O. was diagnosed with a mild form of cerebral palsy known as spastic diplegia. Subsequently, his parents filed a complaint under the Indiana Medical Malpractice Act, claiming that the healthcare providers who attended B.O.'s birth were negligent. Specifically, they asserted that the healthcare providers failed to adequately monitor his condition during labor and delivery and then failed to respond when signs of fetal distress appeared. That fetal distress, they maintained, lasted for nearly two hours before his delivery and resulted in the development of his condition. Shortly before trial, B.O.'s healthcare providers settled for a sum allowing B.O. to seek excess damages from the Indiana Patient's Compensation Fund (PCF). See Ind. Code

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Indiana Law