A TTORNEY FOR A PPELLANT A TTORNEYS FOR A MICI C URIAE

James H. Young D E FENSE T RIAL C OUNSEL O F I ND

. I ND

. T RIAL L AWYERS A SSOC

. Young & Young Indianapolis, Indiana James D. Johnson Mark A. Scott Rudolph, Fine, Porter, Johnson, LLP King & Scott, LLP A TTORN EYS FOR A PPELLEE Evansville, Indiana Kokomo, Indiana
Gregory F. Zoeller Donald B. Kite, Sr. Susan W. Rempert Attorney General o f Indiana Dean, Webster, Wright & Kite, LLP Tabor Law Firm Indianapolis, Indiana Indianapolis, Indiana Indianapolis, In diana
Robert Wagner Christine M. Marcuccilli I NSURANCE I NSTITUTE OF I ND

. I NC

. A. Richard M. Blaiklock Rothberg Logan & Warsco, LLP Stephanie L. Cassman Fort Wayne, Indiana Bryan H. Babb Lewis Wagner, LLP Kelly M. Scanlan Indianapolis, Indiana Bose McKinney & Evans, LLP Indianapolis, Indiana

______________________________________________________________________________ 

# In the 

# Indiana Supreme Court

_________________________________ No. 49S05

- 0805

- CV

- 216

J AMES B UTLER AS P ERSONA L R EPRESENTATIVE OF THE E STATE OF N ONDIS J ANE B UTLER , D ECEASED , Plaintiff/Appellant,

v.

I NDIANA D EPARTMENT OF I NSURANCE AS A DMINISTRATOR O F T HE P ATIENTS C OMPENSATION F UND , AND C LARIAN H EALTH P ARTNERS , I NC

. Defendants/Appellees

.

_______________

__________________ Appeal from the Marion Superior Court, No. 49D04

- 0512

- CT

- 49754

The Honorable Cynthia Ayers, Judge

_________________________________ On Transfer from the Indiana Court of Appeals, No. 49A05

- 0612

- CV

- 742

_________________________________

April 7, 2009
Dickson, Justice.
We hold that, under the statute governing actions for the wrongful death of unmarried adult2

persons with no dependents, Ind

. Code § 34

- 23

- 1

- 2 (1999), in the event medical providers issue statements of charges for medical, hospital, or other health care services but thereafter accept a
reduced amount in full satisfaction of the charges due to contractual arrangements with the p atient's health insurers, Medicare, or Medicaid, the amount recoverable for reasonable medical and hospital expenses necessitated by the alleged wrongful conduct is the total amount ultimately a ccepted after such contractual adjustments , not the total of charges billed.

The facts are undisputed. Nondis Jane Butler , a n unmarried adult, initiated a claim for medical negligence against Clarian Health Partners, Inc. and several individual health care provi ders pursuant to the Indiana Medical Malpractice Act. Before her claim was resolved, she died leaving no dependants . H er estate ("the Estate") cont inued to pursue the claim as a wrongful death
action. As to Clari a n's liability under the Malpractice Act, the Estate and Clarian settled in D ecember 2005 for "$250,000 .00 in a structured fashion," Appellant's App'x at 26, ¶5, thus enabl ing
the Estate to proceed with the balance of its claim for damages against the Indiana Patient Co mpensation Fund

. 1 The Fund's administrator, the Indiana Department of Insurance, is the principa l
defendant here ("the Fund")

.

The Fund sought partial summary judgment clai ming that the Estate is entitled to recover only the expenses the decedent and her e state actually incurred for medical services rather than the
total amount of medical bills received. The E state filed a cross motion seeking the converse. The parties the n entered into a written factual stipulation that the necessary medical services to the d ecedent resulted in bills from the providers totaling $410,062.46, of which $122,161.18 was paid by (a) the decedent or her estate ($25,979.75), 2 (b) the decedent's in surer ($9,971.73), (c) Medicare ($85,313.78), and (d) Medicaid ($895.92). 3 The parties also entered into a partial settlement wh e-

1 See Ind. Code § 34

- 18

- 6

- 1 to

- 7.

2 The parties' stipulation states that the decedent or her estate paid $25,979.75, but the trial court found the amount to be $2,229.75. Appellant's App'x at 7, ¶6. Neither the record nor the parties' appellate brief s challenge or explain this discrepancy. The trial court's reference to the $287,901.28 in dispute, however, necessarily resulted from using the $25,979.75 amount stated in the stipulation.

3 The stipulation expressly declined to resolve the issue of whether these expenses were relevant or admis sible. Appellant's App'x at 60, ¶6.3

reby the Fund would pay the Estate $188,046.88 4 to settle all damage claims against the Fund e xcept the E state's claims for "a dditional medical expenses that were not paid but were billed" to the
decedent or the E state. Appellant's App'x at 64 , ¶2 (Partial Settlement Agreement). The E state agreed that it had "satisfied or will satisfy and discharge all liens or claims" on the se ttlement proceeds. Id. at 65, ¶ 9. Although neither the stipulation nor the Partial Settlement Agreement explicitly provide, the parties do not dispute the trial court's conclusion that all medical providers have been fully paid for the ir services to the decedent, and that the amount paid to the providers
was not the amount billed "but a reduced amount

. . . based on agreements with the decedent's i nsurer, Medicare, and Medicaid." Id. at 8 , ¶ 10

- 11. Likewise the parties do not challenge the trial
court' s findings that the difference between the bills received and the payments made for medical
services
, which the plaintiff seeks in damages
, would not be used to pay for medical services for
the decedent. Id. at 8 , ¶ 12

- 13. 5 The trial court approved the a greement, Appellant's App'x at 4, which provided that the trial court "will continue to hear evidence and arguments to determine the matter of the reasonable medical and hospital expenses necessitated by the negligent act of [Cl arian], which resulted in th e death of [plaintiff's decedent]
, over and above, if any, the amount agreed upon and paid herein
, " Appellant's App'x at 64, ¶4. The remaining issue thus presented by the Fund's motion for summary judgment was the legal question of whether the Estate was entitled
to receive the difference between the total medical expenses charged and the total payments a ccepted in full satisfaction of the claims by the medical providers. T he remaining issues before the
trial court as to the Estate's motion for summary ju dgment were, first, the same legal issue, and
second , in the event it prevailed, the factual issue of how much in damages it was entitled to r eceive beyond the agreed settlement amount.

4 This is $65,885.38 more than the $122,161.38 total paid in full satisfaction of the medical and hospital services to the plaintiff's decedent. It appears that $50,0 00 of this difference represents damages for loss of love and companionship. Such $50,000, coupled with the $250,000 structured settlement from Clarian, equals the $300,000 statutory maximum recovery for loss of "the adult person's love and companionship" under the wrongful death statute, Ind. Code § 34

- 23

- 1

- 2(e). See Appellant's App'x at 9, ¶ 15 (Finding of Fact); id. at 37 (Plaintiff's Summary Judgment Brief); and Br. of Appellee at 3.

5 The record does not disclose whether, and if so to what extent, contractual subrogation obligations or ot her liens apply to require the Estate to repay the decedent's insurer, Medicare, or Medicaid, nor the extent to which any such repayment obligations have been resolved. We note that counsel for the Estate argued at trial that "Medicare has subrogation interests that they'll be making, whatever right that is." Appellee's App'x at 71.4

Following a bench proceeding that considered the pleadings, the stip ulation, two affidavits,
and the parties ' briefs and arguments, Judge Ayers issued thoughtful and extensive findings of fact
and conclusions of law and entered judgment for the Fund
, conclud ing that the Estate "is not e ntitled to recover $287,901.28 for me dical bills that have been received by the Plaintiff," id . at 16, ¶ 36, and that it was not entitled to recover "for medical bills that it will not have to pay," id . at 20 , that is, the difference between the total of medical bills received and the amounts actually paid and accepted as full satisfac tion by the medical providers. The trial court's final judgment represented its disposition of the parties ' opposing motions for summary judgment, granting the Fund 's motion and denying that of the Estate. The Court of Appeals affirmed. Butler v. Ind. Dep't of Ins. , 875 N.E.2d 235 (Ind. Ct. App . 2007). We granted transfer

.

The E state's appeal presents two contentions : (1) recovery for reasonable and necessary medical expenses under the applicable wrongful de ath statute was erroneously limited to the amounts paid and should instead include the total amounts billed; and (2) the trial court erred in admitting evidence of amounts paid by the decedent's private insurance coverage
, Medicare
, and Medicaid, contrary to the Indiana Collateral Source Statute. T he latter issue is moot, however, in light of the parties' Partial Settlement Agreement declar ing the parties' agreement on issues "e xcept for any claims for additional medical expenses that were not paid but wer e billed to the dec edent and/or Estate," and that the trial court would " determine the matter of the reasonable medical necessitated by the negligent act . . . over and above, if any, the amount agreed upon and paid
herein." Appellant's App'x at 64, ¶ ¶ 2 , 4

. Thus only the Estate, not the Fund, had any further o bligation to present evidence to establish the amount of damages appropriate to the resolution of the disputed legal question. The Estate's claim that the trial court in correctly admitted evidence sho wing the amounts actually paid and accepted for the decedent's medical expenses is therefore irrel evant, and we address only the first contention in the Estate's appeal. 6

The Estate contends that the statute allows for recovery of reasonable and nec essary med ical expenses whether they were paid or not . T he Fund argues that the plain language of the statute permits recovery only for expenses actually paid.

6 Issues related to the Collateral Source Statute are before this Court in Stanley v. Walker
, 888 N.E.2d 222 (Ind. Ct. App. 200 8 ), in which transfer has been granted.5

Indiana Code § 34

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- 1

- 2, the statute governing actions for the wrongful death of unma rrie d adult persons without dependents, delineates the available damages as follows : (c) In an action to recover damages for the death of an adult person, the damages:

. . . . (2) may not include: (A) damages award for a person's grief; or (B) punitive damages; and (3) may include but are not limited to the following: (A) Reasonable medical, hospital, funeral and burial expenses necessitated by the wrongful act or omission that caused the adult person's death. (B) Loss of the adult person's love and comp anionship. (d) Damages awarded under subsection (c)(3)(A) for medical, hospital, funeral, and burial expenses inure to the exclusive benefit of the adult person's estate for the payment of the expenses . The remainder of the damages inure to the exclusive benefit of a nondependent parent or nondependent child of the adult person. I.C. § 34

- 23

- 1

- 2(c), (d) (emphas e s added).

The E state emphas izes the statutory language referring to "reasonable" expenses and the

open

- ended phrase "but are not limited to." Citing several cases, the E state correctly asserts that in
common law tort actions Indiana has long recognized that a plaintiff may recover the reasonable
value of medical services
, regardless of whether the plaintiff is personally liable for them or
whet her they were rendered gratuitously. U nder well

- established principles of Indiana tort law, the extent of recovery by an injured plaintiff for medical expenses depends not upon what the plaintiff paid for such services but rather their reasonable value. Brosnan v. Sweetser , 127 Ind. 1, 9, 26 N.E. 555, 557 (1891) ; see also Penn. Co. v. Marion , 104 Ind. 239, 3 N.E. 874 (1885 ) (gr atuitous medical services); City of Indianapolis v. Gaston , 58 Ind. 224 (Ind. 1877) (same); Herrick v. Sayler , 160 F. Supp. 25, 27

- 30 (N.D. Ind. 1958) (c ollecting cases and finding it " apparent that the law of Indiana will allow a plaintiff in a personal injury action to recover . . . the reasonable
and fair value of medical expenses" )

. And Indiana Evidence Rule 413 provides that bi lls for me dical diagnosis and treatment are deemed "prima facie evidence that the charges are reasonable."

The present case, however, does not present a common law claim but rather arises as a st atutory cause of action that the common law d id no t recognize . At common law, there was no right

to recover damages for a death resulting from the tort i ous acts of another

. Bolin v. Wingert , 7646

N.E.2d 201, 203 (Ind. 2002); Durham v. U

- Haul Int'l , 745 N.E.2d 755, 758 (Ind. 2001). Because
this statute i s in derogation of the common law, we must construe its provisions narrowly. State
Farm Fire & Cas

. Co. v. Structo Div., King Seeley Thermos Co. , 540 N.E.2d 597, 598 (Ind. 1989);
Ind. State H ighway Comm'n v. Morris , 528 N.E.2d 468, 474 (Ind. 1988). This is true even if the statutory enactment creates remedies not available at common law. See Shake v. Bd. of Com m 'rs , 1 N.E.2d 132, 133 (Ind. 1936) (holding that "[s]tatutes creating rights not given by the common law are strictly construed"). In particular , such a statute is to be construed "strictly against the e xpansion of liability." Bolin , 764 N.E.2d at 207 (emphasis added).

When interpreting a statute that is unambiguous, courts must give it its clear and plain meaning. Id. at 204. "If a statute is unambiguous, we may not interpret it, but must give the st atute its clear and plain meaning." Elmer Buchta Trucking, Inc. v. Stanley , 744 N.E.2d 939, 942 (Ind. 2001). " W here the statute is unambiguous, the Court will read each word and phrase in [its] plain, ordinary, and usual sense, without having to resort to rules of co nstruction to decipher meanings. " Porter Dev., LLC v. First Nat' l Bank , 866 N.E.2d 775, 778 (Ind. 2007).

We find the language in Section 2(c)(3)(A) to be unambiguous. It s pecifies that damages are allowable for "[r]easonable medical, hospital . . . expenses necessitated by" the wrongful co nduct that caused the death. The statutory language does not employ the common law standard to generally authorize recovery for the reas onable value of medical care and treatment. Nor is the scope of permissible damages merely "reasonable expenses, " which in conjunction with Evidence Rule 413 could be understood to include the total amounts billed. Rather, the language of this st atutory wrongful death action authorizes recovery only of reasonable medical " expenses necess itated" by another's wrongful conduct. Where charges for medical services are initially billed but
thereafter settled for a lower amount pursuant to agreements with healt h insurers or government agencies, the difference is not a "necessitated" expense.

This conclusion is not affected by the introductory language of Subsec tion (c)(3), which states that damages "may include but are not limited to the following." This op en

- ended phrase permits recovery of damages other than those items designated in subsections (c)(3)(A) and (c)(3)(B), but does not direct the expansion of the circumscribed damages defined within (A) and7

(B). The " include but not limited to" phrase does n ot expand the class of such necessitated e xpenses.

We hold that, with respect to damages pursuant to Ind iana Code § 34

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- 1

- 2(c)(3)(A),
when medical providers provide statements of charges for health care services to the decedent but thereafter accep t a reduced amount adjusted due to contractual arrangements with the insurers or government benefit providers
, in full satisfaction the charges, the amount recoverable under the

statute for the "[ r ] easonable medical . . . expenses necessitated " by the wron gful act is the portion
of the billed charges ultimately accepted pursuant to such contractual adjustments.

We affirm the trial court 's grant of summary judgment in favor of the Fund.

Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.