Smith v. Pancner

OPINION

SULLIVAN, Judge.

Terry Smith appeals from the trial court's grant of summary judgment in favor of the Insurance Commissioner of the State of Indiana, We affirm.

Between June of 1990 and October of 1990, Ronald Panener, M.D. and Richard Thompson, M.D. provided psychiatric care and treatment to Terry Smith. Smith filed a proposed medical malpractice claim with the Indiana Department of Insurance against Panener, Thompson and Panener Psychiatric Services (PPS). A medical review panel issued a unanimous opinion that Panener, Thompson and PPS were negligent in their care and treatment of Smith and that their negligence was a factor in his resulting damages. Smith thereafter filed a complaint for damages in the Allen Superior Court and eight days prior to trial, entered into a settlement of his claim. The settlement agreement provided that Summit Psychiatric Services, P.C. (Summit), be added as a defendant in the action and that the other defendants, Pancner, Thompson and PPS, would be dismissed with prejudice. In exchange, Smith received $50,000 in cash plus an annuity costing in excess of $25,001.¹ Smith thereafter filed a petition, in the Marion County Cireuit Court, for payment from the Patient's Compensation Fund, pursuant to I.C. 27-12-1538 (Burns Code Ed.Rep!l. 1994).

The Insurance Commissioner filed a motion for summary judgment on the basis that Summit was not a qualified health care provider under the Indiana Medical Malpractice Act and therefore Smith was not entitled to seek payment from the Patient's Compensation Fund. Smith filed a response, with affidavits and exhibits, requesting denial of the Commissioner's motion for summary judgment and granting of Smith's own motion for summary judgment. The trial court granted summary judgment for the Insurance Commissioner.

In Indiana, a medical malpractice claim against a qualified health care provider is governed by the Indiana Medical Malpractice Act, Ind.Code 27-12-1-1 to 27-12-18-2 (Burns Code Ed.Repl.1994). A health care provider has the option of becoming "qualified" under the Act, and thereby receiving the benefit of the Act, or choosing not to "qualify". To qualify under the Act, a health care provider or the health care provider's insurance carrier must file proof of financial responsibility with the Insurance Commissioner and pay a surcharge. LC. 27-12-3-2. In exchange, the health care provider's liability is limited to $100,000 per occurrence of malpractice. I.C. 27-12-14-8. Victims of medical malpractice committed by qualified health care providers whose damages exceed $100,000 may petition the Patient's Compensation Fund for payment of their excess damages, with a current cap of $750,000. I.C. 27-12-14-8. Health care providers who choose not to qualify fall outside the coverage of the Act. 1.C. 27-12-38-1. Summit did not file proof of financial responsibility with the Insurance Commissioner or pay a surcharge. Thus, Summit was not a qualified health care provider under the Act.

Smith acknowledges that Summit was the entity identified in the Settlement Agreement, and that he knew Summit was not a qualified health care provider. He maintains that access to the fund is nevertheless available because the settlement was made on behalf of Panener and Thompson, both of whom were qualified health care providers. The Commissioner contends that because the written settlement agreement was between Summit and Smith, it is conclusive evidence that the settlement was with a non-qualified health care provider.

Indiana Code 27-12-15-3 contains the statutory prerequisites to admission to the Patient's Compensation Fund. Eakin v. Reed (1991) Ind.App., 567 N.E.2d 148, 149, trans. denied. The first sentence of .C. 27-12-15-3 provides:

If a health care provider or its insurer has agreed to settle its liability on a claim by payment of its policy limits of one hundred thousand dollars ($100,000), and the claimant is demanding an amount in excess of that amount, the following procedure must be followed:

Under the circumstances of this case, access to the Patient's Compensation Fund depends upon a settlement with a qualified health care provider. The only evidence of any settlement in this case is the settlement agreement entered into between Summit² and Smith.³ There were no other parties to the agreement. Therefore, there were no other parties to the settlement, even though the agreement with Summit contemplated, and resulted in, dismissal as to all defendants.

Panener and Thompson, the only qualified health care providers, were not parties to the settlement agreement. They did not enter into any agreement. They did not admit liability. They did not settle any claim of liability.⁴

The position taken in the dissenting opinion here, presupposes that the equivalent of the $100,000 settlement payment was made on behalf of one or more qualified health care providers. It concludes that the payment was made solely on behalf of Panener, Thompson and PPS. This ignores that the settlement proposal letter was sent on behalf of Summit, that Summit was the only party to the actual settlement agreement, and that the Medical Protective Company, the insurer which made the payment, insured Summit. Even under the scenario most favorable to the reasoning of the dissent, the $100,000 equivalent was paid on behalf of four entities, only two of whom were qualified health care providers. The payment amount therefore does not fall within the provisions of I.C. 27-12-15-3.⁵ Because at least a portion of the settlement payment was on behalf of Summit, any payment amount attributable to Panener and/or Thompson would not reach the $100,000 threshold requirement or its equivalent.

The trial court properly entered summary judgment in favor of the Insurance Commissioner. That judgment is affirmed.

SHARPNACK, C.J., concurs. BARTEAU, J., dissents with separate opinion.

1 . A structured settlement in this amount is the equivalent of a payment of $100,000 for purposes of access to the Patient's Compensation Fund. I.C. 27-12-14-4(b) (Burns Code Ed.Repl.1994).

2 , Summit was incorporated in July of 1990, during Smith's treatment, with Pancner and Thompson as 50/50 owners. It appears that the unincorporated entity, PPS, merged into Summit. At the time of settlement, Summit was wholly owned by Pancner. Pancner, Thompson, PPS and Summit wee all represented by the same attorney, John M. Clifton, Jr., and insured by The Medical Protective Company.

3 . During oral argument before this court, it was made clear that at the time of settlement, Smith knew that Summit was not a qualified health care provider and that this fact would be an issue with respect to any claim against the Patient's Compensation Fund.

4 . The fact that Pancner's attorney, who also represented Summit, wrote a letter on August 8, 1994, on behalf of Summit, setting forth a proposal for settlement does not alter the fact that Pancner was not a party to the settlement itself.

5 . Access to the Patient's Compensation Fund requires that "a health care provider or its insurer has agreed to settle liability on a claim by payment of its policy limits of one hundred thousand dollars ($100,000)...." I.C. 27-12~15-3. The statutory provision is clearly focused upon payment of the policy limits with respect to a single health care provider. It does not contemplate settlement in an aggregate sum of $100,000 for multiple health care providers.