Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019 Page 1 of 21

ATTORNEYS FOR APPELLANT

Kenneth J. Allen

Robert D. Brown

Sarah M. Cafiero

Kenneth J. Allen Law Group, LLC

Valparaiso, Indiana

ATTORNEYS FOR APPELLEES

Michael E. O’Neill

Jeremy W. Willett

Robert J. Dignam

Kathleen M. Erickson

O’Neill McFadden & Willett, LLP

Schererville, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Richard L. Wallen, Individually, 

and as Personal Representative 

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. 

July 23, 2019

Court of Appeals Case No.

19A-CT-40 

Appeal from the Porter Superior 

Court

The Honorable Jeffrey W. Clymer, 

Judge

Trial Court Cause No.

64D02-1609-CT-8390 

Najam, Judge. 
Court of Appeals of Indiana | Opinion 19A-CT-40 | July 23, 2019 Page 2 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 
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left lower quadrant of her abdomen. Cathy’s treating physician ordered an xray 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.
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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.
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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.
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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 7 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 
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and intra-abdominal hemorrhaging, hemorrhagic shock, multisystem 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 
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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.
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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. 
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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 provides3 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.
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(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.
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[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 
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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.
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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 act5 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.
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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.
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[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 
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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.
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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 20 of 21

IN THE

COURT OF APPEALS OF INDIANA

Richard L. Wallen, Individually, 

and as Personal Representative 

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.

Court of Appeals Case No.

19A-CT-40

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 21 of 21

the majority that Wallen is not entitled to recover more than one statutory cap 

in his claims against Dr. Hossler.