agree with you on the merits of the nd question that mr hutchinson scrying falls within the scope of the act then do we clinic absolutely your honor if you agree with me on either issue i believe the only thing that remains is for the trial court to determine the amount of damages here the nd question goes to the breadth of the act the st question procedurally would also preclude the fun's argument here by state by simply following the letter of the law which says that when a settlement is reached with a qualified provider the only thing that remains is the determination of access damages briefly the facts are not on are not contested here sylvia lawson who for many years was the patient of an anonymous health care provider in the act one of the benefits of the act is that the doctors get to remain anonymous sylvia watson was treated by this doctor who prescribed not fewer than eight different prescriptions for of a variety of medical maladies which she suffered one of those prescriptions was an opioid several  prescriptions were muscle relaxants shortly before this accident sylvia watson's granddaughter brandy mayer what witnessed her grandmother take two of these pills from a prescription bottle and then get in the car and begin to drive as they approach the intersection sylvia watson screamed that she could not stop and brandi mayer watched her grandmother attempt to physically lift her foot off of the accelerator which she was unable to do she bro oh we we know from was new schemes that there are at least some things in which a position and his insure is most closely on the facts here the fact is was news he provides absolutely no support to the fund and there is no case since one thousand nine hundred and seventy five no case nor any language in the act which supports their position was news he said this and i quote an agreement to settle by payment with an entity who has not paid into the phone and is not an insurer as defined by the act does not meet the requirements for access to the fund was new scheme was a settlement with a non qualified provider a insurance company who have not paid the surcharge or the premium if you will for excess insurance coverage it provides no support for the fund his position here the fund cannot cite to you a case where a claim was brought under the act processed according to the act settled with qualified provider under the act with medical protective insurance for a qualified insurance company under the act which had paid a surcharge for excess coverage and then the fund was allowed after the settlement was concluded and the doctor enjoyed all of the benefits of the medical malpractise x protections the fund would now say to you it can litigate the a political bill of the act that is impossible it would place every plaintiff in a box we accept the two hundred and fifty thousand dollars and payment must be made indiana coach eight cases are very clear you can't take the payment under a loan receipt and say well let's see if the act applies payment has to be made releases are exchanged the dismissal of the doctor is accomplished and now we're told well you've got a negligence case but the one million dollars excess is not available it simply can't operate that way so that your bottom line your absolute bottom line would be that the fund was allowed to intervene in this case and the fund the other insurers could have pursued that prior to any settlement in justice apart instead of in the west case so that's that's where you are precisely your honor and the fact the west case is most illustrative of that point there are hundreds of cases where the plaintiff does not want to be bound by the acts cap where the fund and the plaintiff joined together where the defendants the medical insurers do not want to pay out they believe it's a case for the general liability carriers the fund in the general liable then the medical malpractise insurers join and bring actions you seek your honor the fund is on on notice and aware of every claim filed under the act because the complaint has to be filed with the department of insurance if the medical thousand dollars the fund has ample notice to protect itself what it cannot do is allow the insurer to settle for the act to operate for the two hundred and fifty thousand dollars to be the health care providers and sure to do anything right that the funds doesn't control the health care providers and sure and what you're happy to do is check step the proposition that the health care providers and sure and the plaintiffs can and find the funds to be a click ability of the access to this fact pattern when the family has asserted found the get go that the act does not apply and i don't know that there is any order in indiana law for that proposition but that's what you're asking us to except that there's all kind of support in indiana law for that proposition and that is precisely the way the fund operates the complaint is filed with the department the medical insurers then are served by the department of insurance medical panels are are formed the doctors have the benefit of a review by three doctors of like practice at which time there is a finding of whether there is malpractise or not and then the insurance companies and their doctors have the right to go to court and contest it but the point you make in river more tell the fund argued the unfairness of the claimants and the providers and the malpractise insurance quote being able to unilaterally bond the fund to make excess payments by entering into settlements the court said despite our sympathy for that position those arguments should be directed to the legislature because there's a tradeoff here in exchange for limited coverage which for caps on damages for the sort of character are all the other respect balance and the law provides that when the department receives a complaint against filed with the insurance department it may pay for council out of the surcharge it may go to court for preliminary determinations of law it has done that many times if the fund wished to contest that this was not a case under the malpractise act they had ample time to do that all the way up to the point where they did not object to the settlement here they could have contested that in a declaratory judgment at any time they cannot once liability is established and that is the one approving a settlement or determine the amount if any to be paid from the patient's compensation fund the court struck considered the liability of the health care provider as admitted in established that's the liability funds took no action to preclude that settlement there is no provision in this act that allows them as a separate entity to contest liability they can only it's like any primary and access once primary liabilities established excesses triggered liability is no longer a consideration i did good at the court sort of kept the fund in the background during all of this you  know litigation early on in and i know that it went to a magistrate judge for a mediation attack route but you know it seems like the plan kept say you know this is not under the act and kept urging that argument and moment before the money was to change hands before the plaintiff's remedy was locked into the act the fund said and i quote the p f c has no objection to the  proviso right well it doesn't say that the fund always maintained like any defendant would always maintain that i have a great defense that unbind anybody but simply them can i believe we're inside little  million dollars they may think we're only in time do another two hundred thousand dollars that's a claim it has no force and effect the bar anyone the act operates independent of what they may claim they could have stopped the settlement but they can't stop it once my rights my client's rights against that doctor are gone your honor we've released that doctor under the parameters of this act and i get that with twenty seconds to go let me say if we don't believe you even need to get to the nd issue but if you get to the nd issue the text of this act the definitions of this act the definition of patient and the spangler vs bechtel case where the supreme court of indiana said it is grounds for an expansive interpretation to control malpractise claims you should bring everything under the act not claims outside why would the funds argument i guess my time is out here but the funds argument would be this if sylvia watson sues the doctor who was released here she's limited to a one million dollars a rd party injured by the same conduct can get fifteen million dollars because that claims not limited that flies into the face of the policy of the act it flies into the language of the act and it's against common sense thank you thank you well mr showalter see you ended with an answer to my st question fifty three or the memorandum of settlement nd as tragic as the accident was mr catchin in his late wife and daughter were not patients within the meaning of the indiana medical malpractise act and as such they did not satisf statutory prerequisites for accessing the fund for excess damages and then lastly in a new argument raised in the reply brief the p c f is not an excess insurer in the traditional sense and so is not bound by the settlement under that analogy oddie as a jurisdictional question but isn't it really a question that goes to the existence of liability and therefore the merits of that now practice  rd party and public policy considerations but those are matters that are intertwined with liability and under the expressed terms of the statu just the settlement between the plaintiffs and the physician for closing any further inquiry into liability and just let me a because i want to watch your body language yes think i think to make sure i understand the question if there is a qualified provider who settled a claim that falls within the purview of the act which is not what happened here and there was a settlement agreement then yes liability is established causation and proximate cause there is some you know there are some nuances to that but as a general proposition i would say yes but much like in several of the cases that we've cited and i'll talk about the mortel case here a little bit we have the ability to challenge whether or not the statutory requirements are met in the st instance when we were a subject matter  jurisdiction there are cases for example if a case falls under medical malpractise or had any point to files in court and tries to pursue the case there the the trial court in this case the district court does not have subject honor i believe that's exactly what we did we move to intervene we said we learned about the case after the amended complaint was filed the notion that we have an obligation to monitor and intervene  hundreds of cases that are filed every year is just not realistic or or what happens we learned about this case after the amended complaint was filed we then found out what the position of both parties was and said we're we're going to intervene in our intervention we said we don't believe that the act applies right on the heels of that was a settlement conference we move the court to be excused from the settlement conference because we don't believe we have the statutory ability to even make a payment you know our view is if the statute doesn't authorize it we can't do it and the statute doesn't authorize it because it's not a patient so that the judge overruled that we went to the settlement conference by order of the court we said we signed and all the district court correctly says we have knowledge the memorandum of settlement i'm not allowed to tell you what transpired at the side of a conference but hypothetically we don't agree that this was covered with the act we were there all day and we didn't sit silent so we acknowledge the settlement there is not a single thing in the statute that requires us to affirmatively stop a settlement if we don't believe these are covered by the act the mortel case which of i was going to the murphy versus mortel and and this is i think instructive st of all there are a lot of cases where the p c f is challenge the book ability of the act after a settlement agreement there is not a single case under indiana law that said we can't do it which is this would be the st court to do so in murphy more verses more tell a child was molested while in the hospital there was a settlement agreement with a qualified provider now mr the plaintiff's counsel would say wait a minute it was under a general liability policy and that is correct but the court analyzed the issue as if it was a medical f period but the court in murphy allowed the piece you have to challenge its obligation to pay and what the court did is it looked at the definition of health care in the act which is a you know one of the multiple definitions in here and it's an important definition for purposes of our analysis because health care is defined as follows it means an act or treatment performed or furnished where that should have been performed or furnished by health care provider to or on behalf  but that ruling rests on only one part of the definition of health care the definition as i just mentioned requires it to be against a patient so what murphy teaches us is that a court can evaluate whether the health care is  issue after a settlement between a plaintiff and a qualified provider and for there to be health care that brings a claim within the act there's got to be a patient and there isn't one here so what really happened subject to the caps on damages for example but having settled with the decision clinic he shouldn't have to start from scratch and establish liability in order to recover from the challenge liability but neither but mr couch it is not a patient and i want to sort of bring back again to murphy versus mortel the analysis is the same was there health care that's what was issue in murphy versus mortel it was just a different part of the definition we focused on the definition of patient and that there was no patient and i can get into the details of that but the nd point in dillon versus callaway that case did involve a plaintiff settling with a qualified provider and the p c up was allowed to challenge whether or not it was quote health care part of that definition and the court concluded it was so when plaintive says we can't point to a case in which those challenges happened with a qualified provider in a qualifying plaintiff that's not accurate don't versus callaway it is that case we get to challenge that we challenge it pretty regularly and i would say the notion that we sat on our rights and are somehow bound by this settlement agreement appoint the court to prefer professional insurance versus west in which in that the the court of appeals in indiana was reciting some of the procedural background and one of the issues was could the declaratory judgment is necessary in order for any possible resolution by settlement to occur so that's out there so we intervene we say we don't think this is covered by medical malpractise we don't want to participate in the settlement agreement under those circumstances the plaintiff made the decision to settle while this question was pending not us and we can't be sort of say gotcha but we can't be bound by the settlement agreement to which we consistently said is not covered by the act so i recognize the predicament they're in but it was not one of our creation and we have no affirmative obligation in any statute to object to a settlement between a plaintiff and a  whether the act applied i mean that that's one way to look at it yes i mean we came in we said this doesn't apply we i mean the didn't take a district court terribly long to resolve the issue once we litigated it but you know then we find ourselves saying that were we expressly assented and that's what the argument is by connection to the memorandum of settlement we did no such thing we acknowledged it and we have absolutely no statutory right to stop a settlement we have absolutely no statutory duty to object to a settlement at that point in time we don't usually and this is a prime example we don't usually know about anything that's happened with the case we get delivered judgments based went to trial was a judgment we get delivered settlements or i'm sorry we get delivered new petitions there's a claim for access to images we cannot possibly monitor ope we know in our brief seven hundred and seventy seven dollars cases filed in two thousand and eighteen we would have to staff up and intervene in all these cases in discovery as we go along if we don't think they're covered that would increase costs and the medical malpractise but ordinarily happens in indiana state court and when there's that sort of a categorical question like the one presented here it's not a question about whether the provider was medically negligent under the standard of care it's a question of whether the act applies at all how interesting ideological or theoretical question here is if it doesn't fall under malpractise do you have the right to bring it under that section but usually that's how it comes about the other way it comes about is as it came about in the west as it came down in g i f as a came about a lot of other cases where somebody will file a declaratory judgment we got an e mail in a case the other day from a point of saying i've got a case i'm about to settle should i settle will you contend this is not malpractise those things happen we found about about this case  incidentally after the man you can play with and well you know we need to intervene that's the most efficient way for us to do it we want to get these issues result it seems clear to me ok from cases like crane and manly that corrections claim is a claim for medical malpractise every rd party case like this one turns on its own facts but the factual cirith the factual scenario here seems quite close to the facts at issue in those cases if we treat this as a medical malpractise there ought it not fall within the x claim of any kind language i mean when the legislature meant for any claim of medical malpractise to fall within the scope of the act respectfully no it on a personal cram didn't address the issue of whether this was covered under the indiana medical malpractise i just talked about the issue of duty manley the only reason that the court concluded this was medical malpractise is because they found the plaintiff waived the issue because they think they followed through the medical malpractise act until the point that they thought they had a statue of limitation issue and then changed course manley's holding has been distinguished for them as it's holding it in both west and the g have case in so looking at west case and for example the court expressly rejected respectfully judge the point that you just made it used to say if you say or otherwise language or claim of any nature is the guiding principle you can wipe out the rest of that definition ation because it doesn't matter if you're derivative it doesn't matter anything all that you have to have is any act of malpractise and that's not what the cases say w controversial proposition is unknown rd parties and in this situation it's unfortunately the conscience in west it was west and in gaol it was a probation officer who was shot by somebody receiving medical mental health treatment thank you roger we would have sounds and you know what facts are so different the court there are no matter what agreed with the quickly thank you your honor starting with the last comment certainly west is an outlier based upon the text the text of the act which defines a patient as a person not a patient a person who has a claim of any kind contending that a doctor is guilty of substandard care that's what the definition says and that's what jeff touches cases so there is usually language that comes before that that refers to receipt of  health care from a health care provider under a contract expressed or implied in your client doesn't stand in that position it we have to read the language as a whole it says and includes a person adding a claim of any kind whether derivative or otherwise so it would say the patient includes a person having a claim of any col may believe the text couldn't be clearer in the language is unequivocal that's number one number two the invitation to cite you one case where a doctor any qualified insurance company settled and the court allowed the fund to contest the a plink ability act was not satisfied here the closest is dylan versus galloway and their judge shields in a concurring opinion said this is easy once there's a settlement there's no contesting the act because a liability under the it unequivocal language of the statute is established that is liability under this act is established when the two hundred and fifty thousand dollars is paid that happened here what the fund invites you to do is to make every plaintiff in those seven hundred and seventy seven cases come to the court and ask for a declaratory judgment on the off chance that before they release that d there could be some claim that they can't get to the one million dollars for the damages that's what the fund is asking you to do is build into this act where you will not find it a requirement that we get the court to sign off on the accept like ability it is not here they are an excess insurer their liability is fixed when the primary insurer pays thank you thank you very much ok thanks to both counsel the case is taking under advisement and before we move to our rd case this morning we will take a ten minute