Richard L. Wallen, Individually, and as Personal Representative of the Estate of Cathy L. Wallen v. Dr. Steven Hossler, M.D., and Radiologic Associates of Northwest Indiana, P.C. ( 2019 )


Menu:
  •                                                                             FILED
    Jul 23 2019, 8:56 am
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEES
    Kenneth J. Allen                                            Michael E. O’Neill
    Robert D. Brown                                             Jeremy W. Willett
    Sarah M. Cafiero                                            Robert J. Dignam
    Kenneth J. Allen Law Group, LLC                             Kathleen M. Erickson
    Valparaiso, Indiana                                         O’Neill McFadden & Willett, LLP
    Schererville, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Richard L. Wallen, Individually,                            July 23, 2019
    and as Personal Representative                              Court of Appeals Case No.
    of the Estate of Cathy L. Wallen,                           19A-CT-40
    Deceased,                                                   Appeal from the Porter Superior
    Appellant-Plaintiff,                                        Court
    The Honorable Jeffrey W. Clymer,
    v.                                                  Judge
    Trial Court Cause No.
    Dr. Steven Hossler, M.D., and                               64D02-1609-CT-8390
    Radiologic Associates of
    Northwest Indiana, P.C.,
    Appellees-Defendants.
    Najam, Judge.
    Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019                               Page 1 of 21
    Statement of the Case
    [1]   Richard L. Wallen, Individually, and as Personal Representative of the Estate
    of Cathy L. Wallen, Deceased, (“Wallen”) filed a complaint alleging that Dr.
    Steven Hossler, M.D., and Radiologic Associates of Northwest Indiana, P.C.
    (collectively “Dr. Hossler”) committed medical malpractice in providing
    medical care to Wallen’s wife, Cathy, which resulted in injuries and her death.
    About five weeks prior to trial, Dr. Hossler offered to settle his liability for
    $250,000 with various conditions attached, which Wallen rejected. Thereafter,
    Dr. Hossler sought to force Wallen to accept the offer and filed a motion to
    enforce the Medical Malpractice Act (“the Act”). Following multiple hearings
    and memoranda filed with the court, but with no evidence submitted by either
    party, the trial court granted Dr. Hossler’s motion to enforce the Act. Wallen
    appeals and presents a single dispositive issue for our review, namely, whether
    the trial court erred when it concluded that Wallen was required to accept Dr.
    Hossler’s settlement offer and proceed against the Patient’s Compensation
    Fund for additional damages.
    [2]   We reverse and remand for further proceedings.
    Facts and Procedural History
    [3]   On November 18, 2013, Cathy was diagnosed with a pulmonary embolism and
    admitted to Porter Regional Hospital in Valparaiso. Cathy’s treating physician
    prescribed anti-coagulant therapy to treat the embolism. Cathy’s condition was
    improving until November 24, when she began to experience severe pain in the
    Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019             Page 2 of 21
    left lower quadrant of her abdomen. Cathy’s treating physician ordered an x-
    ray of Cathy’s abdomen, and a little more than an hour later, Dr. Hossler, a
    radiologist, interpreted the x-ray “as showing no evidence of bowel obstruction
    or bowel abnormality but possibly showing an enlarged spleen.” Appellant’s
    App. Vol. 2 at 20.
    [4]   When Cathy’s pain did not subside, her treating physician suspected that Cathy
    was bleeding internally and ordered a CT scan of Cathy’s abdomen. Dr.
    Hossler interpreted the CT scan as showing that Cathy’s pain was due to
    gallstones. Because Dr. Hossler did not make a diagnosis of internal bleeding,
    Cathy continued to receive doses of anti-coagulant medications. But Cathy did,
    in fact, have internal bleeding, which eventually “burst through the rectus
    abdominal muscles and sheath and resulted in acute kidney injury impairing
    her renal function and clearance of her blood thinning medications.” 
    Id. at 21.
    Thereafter, Cathy suffered “intra-abdominal hemorrhaging, hemorrhagic shock,
    multi-system organ failure, and death” on December 9. 
    Id. at 22.
    [5]   Wallen timely filed a proposed complaint against Dr. Hossler alleging medical
    malpractice with the Indiana Department of Insurance. After a Medical
    Review Panel issued an opinion, 1 on August 29, 2016, Wallen filed a complaint
    1
    The Panel’s opinion is not included in the record on appeal. However, our review of the pleadings
    available on Odyssey revealed that the Panel concluded as follows:
    The evidence supports the conclusion that that the defendants, Dr. Steven Hossler, M.D.,
    & Radiologic Associates of Northwest Indiana, P.C., failed to comply with the appropriate
    standard of care as charged in the complaint.
    Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019                                Page 3 of 21
    against Dr. Hossler with the trial court. Wallen alleged in relevant part that, as
    a “direct and proximate result of the negligence and/or reckless acts and
    omissions of the Defendants, and each of them, Cathy suffered severe and
    painful injuries, which collectively or separately resulted in her death on
    December 9, 2013.” Appellees’ App. Vol. 2 at 4. Wallen subsequently offered
    to settle his claims with Dr. Hossler for $250,000, the applicable statutory cap
    for a single medical malpractice claim, which would allow Wallen to pursue
    additional damages from the Indiana Patient’s Compensation Fund (“the
    Fund”), but Dr. Hossler declined the offer.
    [6]   However, on November 2, 2018, approximately five weeks before the scheduled
    jury trial, Dr. Hossler offered to settle Wallen’s claims against him for $250,000,
    subject to thirteen conditions. The conditional settlement offer was not
    acceptable to Wallen, and he rejected it. On November 8, the parties appeared
    for a pretrial conference and submitted their proposed pretrial order. During
    the pretrial conference, Dr. Hossler asked the trial court to dismiss him from the
    proceedings. Dr. Hossler argued that, pursuant to the Act, the Fund was the
    “real party in interest” once Dr. Hossler had offered to pay the $250,000
    statutory cap for his liability. Tr. Vol. 2 at 5. Because Dr. Hossler had not
    previously notified Wallen that he had intended to make this argument at the
    However, the conduct complained of was not a factor of the resultant outcome; nor was the
    patient denied a greater chance of survival.
    Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019                              Page 4 of 21
    pretrial conference, the court took the matter under advisement to permit
    Wallen time to research the issue and respond.
    [7]   In the meantime, on November 12, Dr. Hossler filed a Motion to Enforce
    Indiana Medical Malpractice Act, which stated as follows:
    [Dr. Hossler] move[s] for this Court to enforce the Indiana
    Medical Malpractice Act, vacate the jury trial setting, and
    instruct Plaintiff to file and serve a petition on the Commissioner
    of Insurance in accordance with Ind. Code § 34-18-15-3. In
    support of this Motion, [Dr. Hossler] state[s] as follows:
    1. On November 8, 2018, an initial Final Pretrial Conference
    was held in this matter. At this Final Pretrial Conference,
    counsel for [Dr. Hossler] explained why a trial by jury would be
    improper based on the current posture of the case. This Court
    then requested a formal Motion and Memorandum on this issue.
    2. [Dr. Hossler has] admitted legal liability through a maximum
    payment in accordance with the Indiana Medical Malpractice
    Act, Ind. Code § 34-18-1, et seq. (“MMA”). Specifically, . . .
    [Dr. Hossler has] elected to pay the cap amount of Two Hundred
    Fifty Thousand ($250,000) for an occurrence of malpractice.
    3. Therefore, there are no longer any issues before the Court
    regarding [Dr. Hossler’s] medical negligence or medical
    causation of alleged damages.
    4. As such, the exclusive remaining issue in the case is the
    measure of Plaintiff’s alleged excess damages, which must be
    determined in a hearing or bench trial that includes
    participation by the Commissioner of Insurance as a party to
    such proceedings.
    Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019           Page 5 of 21
    5. Dr. Hossler [has] filed a Memorandum in Support of Motion
    to Enforce Indiana Medical Malpractice Act, which is
    incorporated by reference.
    WHEREFORE, [Dr. Hossler] respectfully request[s] that the
    Court enforce the applicable provisions of the Indiana Medical
    Malpractice Act, vacate the jury trial setting, and instruct
    Plaintiff to file and serve a petition on the Commissioner of
    Insurance in accordance with Ind. Code § 34-18-15-3, and
    for all further just and proper relief.
    Appellant’s App. Vol. 2 at 34-35.
    [8]   Wallen filed a memorandum in opposition to Dr. Hossler’s motion, and the
    trial court held a hearing on November 20. At the conclusion of the hearing,
    the court requested that the parties file supplemental briefs on the issues raised
    in Dr. Hossler’s motion. After the parties filed their supplemental briefs, the
    trial court held a second hearing by telephone. At the conclusion of that
    telephonic hearing, the court granted Dr. Hossler’s motion to enforce the Act,
    and the court subsequently issued a written order. In its order, the court stated
    as follows:
    The Defendants have made a settlement offer of $250,000 to
    settle and pay one cap and have the case proceed under I[.]C.[ §]
    34-18-15-3. The Plaintiff has not “accepted” the settlement offer
    for the reasons set forth below and has argued that the case
    should proceed to trial in two weeks.
    The Plaintiff asserts that I[.]C.[ §] 34-18-15-3 does not apply
    because there has been no “agreed” settlement. There has been
    no case cited by either party as to whether a Plaintiff can refuse a
    Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019             Page 6 of 21
    settlement offer of the cap and proceed to jury trial. With no
    assistance from case law (the Medical Malpractice Act could
    have stated when a settlement of the cap is “offered” instead of
    “agreed”) the Court finds that the offer triggers the application of
    the process set forth in I[.]C[. §] 34-18-15-3, and that only one
    cap applies.
    The Plaintiff also claims the Defendant’s settlement offer is
    conditional, so are all settlement offers.
    The Plaintiff contends that Defendants have cited no authority
    for forcing a settlement, neither has the Plaintiff.
    THE NUMBER OF CAPS
    The real issue in this case is the number of statutory caps that
    apply. Under the Indiana Medical Malpractice Act, a Plaintiff
    can receive one recovery for each distinct act of malpractice
    that results in a distinct injury, even if multiple acts of
    malpractice occur in the same procedure. Patel v. Barker, 
    742 N.E.2d 28
    (Ind. Ct. App. 2001)[, trans. denied]. In the instant
    case, the Plaintiff claims that Dr. Hossler was negligent by both
    omission and commission. The Plaintiff contends in the
    proposed Pre-Trial Order that Defendant’s failure to recognize,
    report, and timely communicate to the ordering physician the
    bleeding shown on Cathy’s CT was negligent and fell below the
    standard of care. Had the bleeding on Cathy’s CT exam been
    timely recognized, reported, and communicated by defendants to
    Cathy’s treating physicians, it would have acutely influenced her
    outcome. Defendant Hossler was additionally negligent and
    deviated from the standard of care in misinterpreting the
    abnormalities shown on the November 24th CT and affirmatively
    ruling out bleeding, attributing her abdominal pain instead to
    gallstones; and by doing so defendant misled Cathy’s physicians,
    delaying reversal of her anticoagulation and her resuscitation for
    hours until it was too late, resulting in massive retroperitoneal
    Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019            Page 7 of 21
    and intra-abdominal hemorrhaging, hemorrhagic shock, multi-
    system organ failure and death.
    The questions based on the medicine: Whether Dr. Hossler
    committed two distinct acts of malpractice and whether Cathy
    Wal[len] suffered two distinct injuries as a result of the claimed
    negligent acts. Based on these allegations, the Plaintiff claims
    that there are questions of fact, similar to a Motion for Summary
    Judgment, that must be decided by a jury. Further, because the
    Defendants’ offer of just one cap, not two, which has not been
    “accepted” the case must go to a jury trial against the named
    Defendants, not the . . . Fund.
    In [Patel], the Plaintiff suffered injuries to two distinct body parts;
    her colon and her ureter and she survived having three surgeries.
    Two surgeries were required to repair the negligent treatments.
    In the instant case, Dr. Hossler reviewed CT images once and
    wrote one report. See the Plaintiff’s contentions in the proposed
    Pre-Trial Order. Based on Patel v. Barker, 
    742 N.E.2d 28
    (Ind. Ct.
    App. 2001) and Atterholt v. Robinson, 
    872 N.E.2d 633
    (Ind. Ct.
    App. 2007) the Court finds that there was one distinct act of
    negligence, misreading the diagnostic image, and one distinct
    injury, the Plaintiff’s death which resulted from the continued use
    of blood thinners after the misdiagnosis. Accordingly, the
    Medical Malpractice Act applies and this matter should proceed
    against the Patient Compensation Fund. . . .
    
    Id. at 15-17
    (emphasis original). The trial court subsequently certified the order
    as a final appealable order under Trial Rule 54(B). This appeal ensued.
    Discussion and Decision
    [9]   Wallen contends that the trial court erred when it granted Dr. Hossler’s motion
    to enforce the Act. In particular, Wallen maintains that nothing in the Act
    Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019               Page 8 of 21
    requires that he accept Dr. Hossler’s conditional settlement offer and forego a
    jury trial against Dr. Hossler. Wallen further asserts that whether Dr. Hossler
    committed two separate acts of medical malpractice with two distinct injuries to
    Cathy, which would support damages of up to $500,000 in his claims against
    Dr. Hossler, are questions of fact reserved for a fact-finder. We address each
    contention in turn. Our standard of review on both issues is de novo.
    Overview: Indiana’s Medical Malpractice Act
    [10]   As we have explained,
    [t]he [Act] allows a “patient or the representative of a patient” to
    bring a malpractice claim “for bodily injury or death.” Goleski v.
    Fritz, 
    768 N.E.2d 889
    , 891 (Ind. 2002) (citing Ind. Code § 34-18-
    8-1). The [Act] was designed to curtail liability for medical
    malpractice. Chamberlain v. Walpole, 
    822 N.E.2d 959
    , 963 (Ind.
    2005). It does not create substantive rights or new causes of
    action and, instead, “merely requires that claims for medical
    malpractice that are otherwise recognized under tort law and
    applicable statutes be pursued through the procedures of the
    [Act].” 
    Id. The [Act]
    provides that for an act of malpractice
    occurring after June 30, 1999,[ and before July 1, 2017,] the total
    amount recoverable for an injury or death of a patient may not
    exceed $1,250,000. I.C. § 34-18-14-3. A qualified healthcare
    provider[] is liable for the initial $250,000 of damages, and the
    remainder of the judgment or settlement amount shall be paid
    from the Fund. 
    Id. Court of
    Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019            Page 9 of 21
    
    Atterholt, 872 N.E.2d at 639-40
    . 2
    [11]   The Act “creates a bifurcated procedure for determining medical malpractice
    claims against a qualified healthcare provider.” Robertson v. B.O., 
    977 N.E.2d 341
    , 343 (Ind. 2012). This process is correlated to the separate damages caps
    imposed by the Act. 
    Id. If a
    judgment or settlement fixes damages in excess of
    a qualified health care provider’s liability, then a plaintiff may recover excess
    damages from the Fund. 
    Id. (citing I.C.
    § 34-18-14-3(c)). An injured plaintiff
    thus proceeds first against the healthcare provider and then against the Fund.
    
    Id. [12] Further,
    as our Supreme Court has held,
    [t]he Medical Malpractice Act’s limitations apply to “any injury
    or death of a patient” and “for an occurrence of malpractice.”
    Ind. Code § 16-9.5-2-2(a) and (b). It authorizes only one
    recovery in those cases where a single injury exists, irrespective of
    the number of acts causing the injury. See Bova v. Roig, 
    604 N.E.2d 1
    (Ind. Ct. App. 1992); St. Anthony Med. Center v. Smith,
    
    592 N.E.2d 732
    (Ind. Ct. App. 1992). Conversely, there is no
    dispute that, if there are two separate and distinct injuries caused
    by two separate occurrences of malpractice, the statute does not
    preclude two separate recoveries (each separately limited in
    accordance with the Act).
    2
    Indiana Code Section 34-18-14-3 has since been amended and provides higher limits for both the total
    amount recoverable for an injury or death of a patient and a health care provider’s maximum liability for
    occurrences after June 30, 2017. There is no dispute that the amended statutory language does not apply
    here.
    Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019                                 Page 10 of 21
    Miller by Miller v. Mem’l Hosp. of South Bend, Inc., 
    679 N.E.2d 1329
    , 1331-32 (Ind.
    1997).
    Indiana Code Section 34-18-15-3
    [13]   Here, again, in his motion to enforce the Act, Dr. Hossler argued that, because
    he had offered to settle with Wallen for the statutory cap of $250,000, Wallen
    was required to accept that offer and forego a jury trial. In support of his
    contention, Dr. Hossler relied on Indiana Code Section 34-18-15-3 (2013) (“the
    statute”), which provides 3 in relevant part as follows:
    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.
    3
    This statute was amended effective July 1, 2017, to account for the higher policy limits applicable to
    medical negligence that occurred after June 30, 2017.
    Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019                                  Page 11 of 21
    (Emphasis added.)
    [14]   The parties dispute the meaning of the phrase “agreed to settle” in the statute,
    which presents an issue of first impression for this Court. Dr. Hossler
    maintains that, because he offered to settle his liability for $250,000, Wallen
    was required by statute to accept that offer and proceed against the Fund to
    seek additional damages. But Wallen maintains that the statute only requires
    him to release Dr. Hossler and proceed against the Fund after Wallen has
    entered into a settlement agreement with Dr. Hossler, which has not yet
    occurred.
    [15]   It is well settled that, if a statute is unambiguous, we may not interpret it but
    must give the statute its clear and plain meaning. Med. Assur. of Ind. v. McCarty,
    
    808 N.E.2d 737
    , 741 (Ind. Ct. App. 2004). Moreover, “in interpreting a statute,
    we must consider not only what the statute says but what it does not say.”
    Curley v. Lake Cty. Bd. of Elections & Registration, 
    896 N.E.2d 24
    , 37 (Ind. Ct.
    App. 2008), trans. denied. In other words, “we are obliged to suppose that the
    General Assembly chose the language it did for a reason.” State v. Prater, 
    922 N.E.2d 746
    , 750 (Ind. Ct. App. 2010), trans. denied. Further, we note that,
    “because the Act is in derogation of common law, it must be strictly
    construed.” Med. Assur. of 
    Ind., 808 N.E.2d at 743
    . When the legislature enacts
    a statute in derogation of common law, we presume that the legislature does
    not intend to make any change beyond what is declared in express terms or by
    unmistakable implication. 
    Id. Court of
    Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019            Page 12 of 21
    [16]   Here, the parties agree that the statute is unambiguous, albeit to support
    opposing interpretations. We hold that the statute unambiguously sets out a
    procedure whereby a plaintiff, who has in fact settled with a defendant health
    care provider, may pursue excess damages from the Fund. Dr. Hossler would
    have us define “agreed to settle” to mean “offered to settle.” But the legislature
    did not write the statute to say, “If a health care provider has offered a plaintiff
    $250,000, the plaintiff must accept that settlement offer and proceed against the
    Fund for excess damages.” The statute clearly contemplates that a plaintiff
    shall proceed against the Fund only after the plaintiff has affirmatively entered
    into a settlement agreement with a defendant health care provider or insurer in
    lieu of trial. An offer is not an agreement. A settlement agreement requires at
    least two parties.
    [17]   In the alternative, Indiana Code Section 34-18-14-3(c) provides in relevant part
    that “[a]ny amount due from a judgment . . . that is in excess of the total liability
    of all liable health care providers . . . shall be paid from the [Fund].” Thus, a
    plaintiff is always entitled to reject a defendant health care provider’s settlement
    offer and proceed to trial to determine his total damages, including damages to
    be paid by the Fund.
    [18]   Finally, we note that our courts have consistently addressed Indiana Code
    Section 34-18-15-3 as being applicable only in the event of an actual settlement
    agreement between the parties. For example, in Smith v. Pancner, our Supreme
    Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019             Page 13 of 21
    Court considered whether, under a former version of the statute, 4 an
    “agreement with a qualified provider who is one of multiple jointly liable
    providers is sufficient to [permit a plaintiff to] access the Fund.” 
    679 N.E.2d 893
    , 896 (Ind. 1997). The Court’s analysis included its determination that,
    under the statute, there is “no requirement that the parties cannot ‘agree to
    settle’ orally or only partially in writing.” 
    Id. at 895.
    And the Court stated that
    “it is clear that the Act contemplates the prospect that more than one provider
    may be liable for the same occurrence and may contribute to a settlement that
    gives access to the Fund.” 
    Id. at 896
    (emphasis added). In sum, throughout Smith,
    the Court makes clear that “agreed to settle” in the statute means that the
    parties must have entered into a settlement agreement before the plaintiff can
    access the Fund.
    [19]   Here, the trial court erred when it concluded that Dr. Hossler’s “offer
    trigger[ed] the application of the process set forth in” the statute and, in effect,
    that Wallen was required to accept Dr. Hossler’s settlement offer. Appellant’s
    App. Vol. 2 at 16. A settlement is, by definition, a voluntary agreement to
    resolve contested issues. In other words, a settlement cannot be compelled.
    That is especially true here, where Dr. Hossler’s offer was encumbered by
    thirteen conditions, which were unacceptable to Wallen. Wallen may agree to
    4
    Indiana Code Section 34-18-15-3 was formerly codified at Indiana Code Section 27-12-15-3 and included
    the same “agreed to settle” language relevant to the issue here.
    Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019                             Page 14 of 21
    settle with Dr. Hossler, or Wallen may choose to proceed to trial. Accordingly,
    we reverse and remand for further proceedings.
    One or Two Statutory Caps
    [20]   The trial court also found that the “real issue in this case is the number of
    statutory caps that apply.” Appellant’s App. Vol. 2 at 16. Because this issue is
    likely to recur on remand, we address the trial court’s conclusion that Dr.
    Hossler committed a single act 5 of malpractice which resulted in Cathy’s death.
    The trial court resolved this issue as a matter of law, without having heard any
    evidence from either party. 6 Wallen asserts that whether Dr. Hossler
    committed two separate acts of malpractice that resulted in two separate
    injuries to Cathy is a question of fact for a jury. Accordingly, Wallen maintains
    that the trial court erred when it resolved this issue as a matter of law.
    [21]   It is well settled that the Act “allows for one recovery for each distinct act of
    malpractice that results in a distinct injury, even if the multiple acts of
    malpractice occur in the same procedure.” 
    Patel, 742 N.E.2d at 33
    . And, more
    specifically, “a doctor who commits two or more negligent acts in treating a
    patient and thereby causes two or more distinct injuries is liable for the
    5
    Our courts treat the word “occurrence” as interchangeable with the word “act” in describing instances of
    medical malpractice. See Medical Assur. of 
    Ind., 808 N.E.2d at 744
    .
    6
    Wallen contends that the trial court, in essence, entered summary judgment in favor of Dr. Hossler on this
    issue, sua sponte. We cannot agree. Nothing in the record indicates that either the trial court or the parties
    considered Dr. Hossler’s Motion to Enforce the Act to be a summary judgment motion. Indeed, neither
    party submitted evidence to the trial court.
    Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019                                  Page 15 of 21
    maximum statutory payment for each compensable injury.” Medical Assur. of
    
    Ind., 808 N.E.2d at 745
    .
    [22]   Issues of negligence, causation, and reasonable care are generally a
    determination for a trier of fact. See Kader v. Dep’t of Corr., 
    1 N.E.3d 717
    , 726
    (Ind. Ct. App. 2013). And in a medical malpractice proceeding, expert medical
    testimony is usually required to determine whether a physician’s conduct fell
    below the applicable standard of care. Bader v. Johnson, 
    732 N.E.2d 1212
    , 1217
    (Ind. 2000). Expert testimony is also generally required to prove proximate
    cause in medical malpractice actions. See Singh v. Lyday, 
    889 N.E.2d 342
    , 357
    (Ind. Ct. App. 2008), trans. denied. It follows, then, that whether a physician
    committed multiple breaches of the applicable standard of care during his
    treatment of a patient that resulted in multiple, distinct injuries also typically
    requires expert opinion and a determination by a trier of fact.
    [23]   Here, however, Wallen has not alleged, and he cannot prove, that Dr. Hossler
    committed two distinct acts of medical malpractice. Wallen’s claims arise from
    a single act by Dr. Hossler, namely, his interpretation of a CT scan of Cathy’s
    abdomen. In response to Dr. Hossler’s motion, Wallen characterized that
    single act as consisting of two acts of malpractice: a misdiagnosis and,
    separately, a failure to diagnose. In particular, Wallen argued that Dr. Hossler
    misdiagnosed Cathy as having gallstones when he read the CT scan and he
    failed to diagnose the internal bleeding when he read the same CT scan.
    Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019            Page 16 of 21
    [24]   The factual predicate for a medical malpractice claim is a negligent act or
    omission. A single negligent act or omission supports a single malpractice
    claim and cannot support multiple claims where, for example, as here, the
    misdiagnosis and the failure to diagnose are not freestanding but arise from the
    same act or omission. We agree with the trial court that Dr. Hossler’s alleged
    misdiagnosis and failure to diagnose comprise “one distinct act of negligence,”
    namely, “misreading the [CT scan.]” Appellant’s App. Vol. 2 at 17. Dr.
    Hossler’s misdiagnosis and failure to diagnose, under the facts as alleged here,
    occurred simultaneously when he interpreted the CT scan and wrote his report.
    In contrast, in Patel, while the alleged malpractice occurred during one surgery,
    there were “two distinct acts of malpractice to two separate body systems, [the
    patient’s] digestive system and her urinary system,” and the acts occurred at
    different times during the 
    surgery. 742 N.E.2d at 33
    . In particular, the
    defendant “fail[ed] to close her colon correctly and [left] a hemoclip in place”
    on her ureter. 
    Id. at 31.
    Further, in Miller, two defendant providers each
    allegedly committed a separate, distinct act of malpractice—one that occurred
    while the patient was still in his mother’s womb and one that occurred after his
    
    birth. 679 N.E.2d at 1332
    . Wallen does not cite to any Indiana case, and our
    research reveals none, where a single act by a health care provider was
    construed as two distinct acts of medical malpractice.
    [25]   In sum, Wallen attempts to create two distinct acts of malpractice out of a
    single act by Dr. Hossler—misinterpreting the CT scan—by alleging that he
    both misdiagnosed and failed to diagnose the internal bleeding. While, on
    Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019         Page 17 of 21
    another set of facts, a misdiagnosis and a failure to diagnose might constitute
    two distinct acts of medical negligence, in this case the two are one and the
    same. Here, assuming that the evidence will show that Dr. Hossler both
    misdiagnosed Cathy’s condition and failed to diagnose her internal bleeding,
    we hold, as a matter of law, that Dr. Hossler committed a single act of medical
    malpractice when he misinterpreted the CT scan and wrote one report.
    Accordingly, the trial court did not err when it concluded that Wallen is not
    entitled to recover more than one statutory cap in his claims against Dr.
    Hossler. 7
    Conclusion
    [26]   Under the express provisions of the Act, Wallen may pursue excess damages
    from the Fund either after a jury trial or after he has entered into a settlement
    agreement with Dr. Hossler. Nothing in the Act requires Wallen to accept Dr.
    Hossler’s offer to settle his liability. And, while whether a defendant health
    care provider has committed more than one act of medical malpractice is
    generally a question of fact, here, where Wallen’s allegations cannot be
    construed as alleging more than one act, we hold as a matter of law that Wallen
    is only entitled to one statutory cap in his complaint against Dr. Hossler.
    [27]   Reversed and remanded for further proceedings.
    7
    Because we remand for further proceedings, we need not address Wallen’s contention that the trial court
    erred when it did not award him prejudgment interest.
    Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019                               Page 18 of 21
    Robb, J., concurs.
    Baker, J., concurs in part and concurs in result in part with separate opinion.
    Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019         Page 19 of 21
    IN THE
    COURT OF APPEALS OF INDIANA
    Richard L. Wallen, Individually,                            Court of Appeals Case No.
    and as Personal Representative                              19A-CT-40
    of the Estate of Cathy L. Wallen,
    Deceased,
    Appellant-Plaintiff,
    v.
    Dr. Steven Hossler, M.D., and
    Radiologic Associates of
    Northwest Indiana, P.C.,
    Appellees-Defendants.
    Baker, Judge, concurring and concurring in result.
    [28]   I concur in the result reached by the majority and I fully concur in its analysis
    regarding whether a settlement can be compelled. I respectfully part ways,
    however, with its analysis regarding the number of statutory caps at issue. In
    my view, there were two different acts of medical malpractice. But I do not
    think that it matters, inasmuch as there was only one injury—Cathy’s death.
    Because it is without dispute that she sustained only a single injury, I agree with
    Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019                         Page 20 of 21
    the majority that Wallen is not entitled to recover more than one statutory cap
    in his claims against Dr. Hossler.
    Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019       Page 21 of 21