ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DAVID C. JENSEN MARY A. FINDLING
Eichhorn & Eichhorn JERRY GARAU
Hammond, Indiana Findling Garau Germano & Pennington, P.C.
EMERGENCY PHYSICIANS OF ) INDIANAPOLIS, W. LARRY CORBETT, M.D., ) METHODIST HEALTH CARE CENTER d/b/a ) METHODIST OCCUPATIONAL HEALTH ) CENTERS, INC., JOHN W. TIMOTHY, JR., ) M.D., and MICHAEL A. KENNEDY, M.D., ) ) Appellants-Defendants, ) ) vs. ) No. 49A02-9805-CV-416 ) JAMES PETTIT, ) ) Appellee-Plaintiff. )
trial motion Pettit sought prejudgment interest pursuant to Ind. Code § 34-4-37-1 et seq.See footnote
Alleging that Dr. Timothy pursued defenses at trial that were frivolous, unreasonable, or
groundless, Pettit also filed a motion seeking attorney's fees and costs against Dr. Timothy
pursuant to Ind. Code § 34-1-32-1.See footnote
The trial court granted both motions awarding Pettit
$134,383.92 in prejudgment interest and $13,305.00 in costs including attorney's fees.
Providers now appeal. Additional facts are set forth below where relevant.
(b) A health care provider qualified under this article is not liable for an
amount in excess of one hundred thousand dollars ($100,000) for an
occurrence of malpractice.
Ind. Code § 27-12-14-3 (emphasis added). According to Providers the trial court erred in awarding prejudgment interest because the Act creates a limit that may be paid to a victim of medical malpractice. Here, the jury awarded Pettit $750,000.00. Providers maintain this amount was the statutory limit that Pettit could recover, and the trial court's award of an additional amount in the form of prejudgment interest was contrary to the statute. Pettit counters (a) the recovery limitation applies only to an "amount recovered for an injury or
death" and "for an occurrence of malpractice"; and (b) the prejudgment interest statute
applies "to any civil action arising out of tortious conduct." I.C. §§ 27-12-14-3 and 34-51-4-
1 (emphasis added). According to Pettit an award of prejudgment interest is neither an award
for an occurrence of malpractice nor an amount recovered for an injury or death; and further
acts of medical negligence are not excluded from the prejudgment interest statute.
We have no quarrel with the general proposition that prejudgment interest may be awarded on a judgment entered on a claim of medical malpractice. The only limitation the prejudgment interest statute places on medical malpractice actions is that prejudgment interest does not apply to claims against the patient's compensation fund. Ind. Code § 34-51- 4-2. Otherwise, a party who complies with the procedures outlined under the statute may be entitled to prejudgment interest as a part of the judgment. Ind. Code § 34-51-4-7. However, the general proposition notwithstanding the question remains whether prejudgment interest may be awarded where a party receives a judgment in the maximum amount recoverable under the Medical Malpractice Act.
Prejudgment interest represents an element of complete compensation. Layden v. New Era Corp., 575 N.E.2d 638, 641(Ind. Ct. App. 1990); Bd. Of Public Works v. L. Cosby Bernard, 528 N.E.2d 93, 95 (Ind. Ct. App. 1988). As such, prejudgment interest is not simply an award of interest on a judgment, but rather is recoverable as "additional damages to accomplish full compensation." Harlan Sprague Dawley v. S.E. Lab Group, 644 N.E.2d 615, 619 (Ind. Ct. App. 1994), trans. denied. In the context of a medical malpractice action, the "additional damages" aspect of prejudgment interest compels the conclusion that such
interest is necessarily a part of the award for an occurrence of medical negligence or an
amount recovered for an injury or death. Stated differently the interest is a part of the
judgment to which it is attached. Thus, a party cannot recover prejudgment interest if it will
result in the party recovering more than the statutory limit. In the case before us Pettit was
awarded the maximum amount allowable under the Medical Malpractice Act. Because the
award of prejudgment interest results in Pettit recovering more than the Act allows, the
award cannot stand.
(2) continued to litigate the action or defense after the party's claim or
defense clearly became frivolous, unreasonable, or groundless; or
(3) litigated the action in bad faith.
Ind. Code § 34-52-1-1. As for Providers' first argument, we do not agree that the Act sets an absolute cap on all liability whatsoever. As indicated earlier the limitation applies only
to an occurrence of medical negligence or an amount recovered for an injury or death. An
award of costs and attorney's fees represents neither. In addition, one of the familiar tenets
of statutory construction is that we must construe statutes to avoid an absurd result or a result
that the legislature, as a reasonable body, could not have intended. Raider v. Pea, 613 N.E.2d
870, 872 (Ind. Ct. App. 1993). If we were to apply the Medical Malpractice Act as argued
by Providers, then a party who engages in conduct that would otherwise warrant an award
of attorney's fees could escape accountability for his conduct by alleging that the award
would exceed the statutory limit. We do not believe the legislature intended such a result.
The issue here is whether Providers engaged in conduct justifying an award of attorney's
In support of his claim for fees Pettit argued before the trial court that Dr. Timothy advanced two defenses at trial that were frivolous, unreasonable, or groundless. More specifically, according to Pettit, Dr. Timothy contended (1) that his conduct did not fall below the applicable standard of care and (2) that Pettit was contributorily negligent. According to Pettit "the only way that Dr. Timothy could establish that his care was within the standard of care was by presenting expert testimony on that issue." R. at 620. Because he failed to introduce such evidence, Pettit contends that this defense was frivolous, unreasonable, or groundless. As for the defense of contributory negligence, Pettit argued that "Dr. Timothy presented absolutely no evidence that Mr. Pettit was in any way contributorily
negligent. Even Dr. Timothy's attorney recognized this fact by withdrawing the defense at
the conclusion of evidence." R. at 621.See footnote
An award of attorney's fees under I.C. 34-52-1-1 is afforded a multi-step review. First, we review the trial court's findings of fact under the clearly erroneous standard, and second we review de novo the trial court's legal conclusions. St. Mary Medical Center v. Baker, 611 N.E.2d 135, 137 (Ind. Ct. App. 1993), trans. denied. Finally, we review the trial court's decision to award attorney's fees and the amount thereof under an abuse of discretion standard. Id. Here, the trial court did not enter findings. In fact the trial court did not expressly indicate the legal conclusion on which its award of attorney's fees was based. Rather, the trial court entered an order granting Pettit's request for fees. Because Pettit's request was based on three grounds, we view the trial court's order as an implicit conclusion that Timothy's defenses were frivolous, unreasonable, and groundless. Thus we review this conclusion de novo. Id. A defense is "frivolous" (a) if it is made primarily to harass or maliciously injure another, (b) if counsel is unable to make a good faith and rational argument on the merits of the action, or (c) if counsel is unable to support the action by a good faith and rational argument for extension, modification, or reversal of existing law. Fisher v. Estate of Haley, 695 N.E.2d 1022, 1029 (Ind. Ct. App. 1998). A defense is "unreasonable" if, based upon the totality of the circumstances, including the law and facts known at the time, no reasonable attorney would consider the defense justified or worthy of
litigation. Id. A defense is "groundless" if no facts exist which support the defense relied
upon and supported by the losing party. Id.
Pettit contends that Dr. Timothy's standard of care defense was frivolous, unreasonable and groundless because Dr. Timothy failed to present expert testimony on the question of the applicable standard of care. Medical malpractice cases are no different than other kinds of negligence actions regarding that which must be proven. Malooley v. McIntyre, 597 N.E.2d 314, 316 (Ind. Ct. App. 1992). The complainant must establish (1) that the health care provider owed a duty, (2) which was breached by virtue of conduct which fell below the applicable standard of care, and (3) which proximately caused a compensable injury. Id. We disagree with Pettit's contention that the only way Dr. Timothy could establish that his care fell within the applicable standard of care was by presenting expert testimony on that issue. The case authority discussing the need for expert testimony on the question of standard of care arises in the context of the grant or denial of a motion for summary judgment. See, e.g., Basset v. Glock, 174 Ind. App. 439, 368 N.E.2d 18 (1977); Stackhouse v. Scanlon, 576 N.E.2d 635 (Ind. Ct. App. 1991), trans. denied; Simmons v. Egwu, 662 N.E.2d 657 (Ind. Ct. App. 1996), trans. denied; Slease v. Hughbanks, 684 N.E.2d 496 (Ind. Ct. App. 1997). Here the case proceeded to trial by jury. More importantly the existence of the appropriate standard of care is not a defense. Rather, it is an element of proof, the burden of which rests with the plaintiff. Stated differently, Dr. Timothy was not required to introduce any evidence proving that his conduct fell within the applicable standard of care. Instead, it was Pettit's obligation to convince the jury that Dr. Timothy's
conduct in fact did not meet the applicable standard of care. Apparently Pettit carried his
burden in that the jury returned a verdict in his favor.
We also note that Pettit's allegation that Dr. Timothy "asserted" a so-called "standard of care" defense is somewhat misleading. In support of this allegation Pettit directs our attention to portions of the record containing the trial court's preliminary instructions. The instructions included Dr. Timothy's contention that he was not negligent in his treatment of Pettit. R. at 252, 797. First, the denial of negligence is not the same as asserting a defense. Second, even if it were the same Pettit still could not prevail. To support his negligence claim Pettit had the burden of proving duty, breach, and causation. See Malooley, supra. The failure to prove any one of the three elements would have been fatal to his claim. The record shows that Dr. Timothy believed his treatment or lack thereof, was not the cause of Pettit's injury. Thus by declaring that he was "not negligent", Dr. Timothy was merely taking the position that Pettit could not show at least one element of his claim, namely, causation. Obviously the jury thought otherwise. However, an award of attorney's fees is not justified merely because a party loses on the merits. Chrysler Motor Corp. v. Resheter, 637 N.E.2d 837, 840 (Ind. Ct. App. 1994), trans. denied. We conclude that Pettit is not entitled to an award of attorney's fees on the grounds that Dr. Timothy failed to introduce expert testimony on the question of standard of care.
Pettit also sought an award of attorney's fees on the basis that Dr. Timothy's defense of contributory negligence was frivolous, unreasonable, and groundless. According to Pettit Dr. Timothy introduced no evidence to support the defense. We disagree. The record shows
that after conducting a physical examination, Dr. Timothy advised Pettit that he needed a
vascular examination in order to rule out a blood clot. Dr. Timothy instructed Pettit to
contact his family physician to arrange the evaluation. Pettit did not do so deciding instead
to go the emergency room of a local hospital. There, he was examined by one of the co-
defendants in this case, Dr. W. Larry Corbett, who also suggested that Pettit see another
physician for further evaluation. Again Pettit did not do so. A patient may be contributorily
negligent by failing to follow a physicians instructions. Harris v. Cacdac, 512 N.E.2d 1138,
1139 (Ind. Ct. App. 1987), trans. denied. In this case the jury was not persuaded by Dr.
Timothy's contributory negligence defense. Again, however, an award of attorney's fees is
not justified merely because a party loses on the merits. Chrysler Motor Corp., 637 N.E.2d
at 840. Upon de novo review we disagree with the trial court's legal conclusion that Dr.
Timothy's defense of contributory negligence was frivolous, unreasonable, and groundless.
In conclusion we hold that in a medical negligence action a party is not entitled to an award of prejudgment interest where such an award results in the party recovering more than the maximum amount allowable under the Medical Malpractice Act. Also we conclude that Pettit is not entitled to an award of attorney's fees on grounds that Dr. Timothy failed to introduce expert testimony on the question of standard of care. In addition, we disagree with the trial court's legal conclusion concerning Dr. Timothy's defense of contributory negligence. Accordingly we reverse the judgment of the trial court.
DARDEN, J., and SULLIVAN, J., concur.
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