dissenting.
I respectfully dissent. The 1975 General Assembly enacted the Indiana Medical Malpractice Act, IC 16-9.5-1-1 et seq. The Act provided, inter alia, recovery limits against health care providers who elected to be covered. IC 16-9.5-2-2. It also sought to insure recoveries for the victims of malpractice from covered providers. The statutory scheme provided that each health care provider should be responsible for the first $100,000 of damages to an injured person and additional damages up to the maximum allowable recovery would then be paid from a patient’s compensation fund established by the Act. IC 16-9.5-2-7, IC 16-9.5-4-1.
Concerning this procedure and access to the patient’s compensation fund, IC 16-9.5-4-3 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 $100,000, and claimant is demanding an amount in excess thereof, then the following procedure must be followed.... Additionally, a subsection of the same
provision, IC 16-9.5-4-3(5) states:
If the commissioner ... and the claimant cannot agree on the amount ... to be paid out of the patient’s compensation fund, then the court, after hearing any relevant evidence on the issue of claimant’s damage, ... shall determine the amount of claimant’s damages, if any, in excess of the one hundred thousand dollars [$100,000] already paid by the insurer of the health care provider.... (emphasis added)
It appears to me that when the precondition language of IC 16-9.5-4-3 is considered in context and in view of the clear legislative intent, the statute clearly and unambiguously requires that the health care provider or its insurer shall have paid the maximum $100,000 (present value) before access may be had to the fund. The common and ordinary meaning of payment is cash or its equivalent in full. Not, as in the case of Mitchell-Leech, payment of $10,000 and the promise to pay another $90,000 forty-six (46) years later in 2033.
There being no ambiguity, there is no room for administrative (mis)interpretation to have persuasive effect on the courts. Additionally, unlike the majority I consider the 1985 amendment to recognize structured settlements so long as a present value of $75,000 is achieved to be a legislative response permitting such agreements to permit access to the fund for the first time.
I would reverse all the decisions. In none of these eases did the claimant meet the condition to have access to the fund. To hold otherwise only rewards the insurers of the health care providers for refusing to meet their obligations.
I dissent.