ATTORNEY FOR APPELLANT ATTORNEYS FOR AMICI CURIAE
James H. Young DEFENSE TRIAL COUNSEL OF IND. IND. TRIAL LAWYERS ASSOC.
Young & Young
Indianapolis, Indiana James D. Johnson Mark A. Scott
Rudolph, Fine, Porter, Johnson, LLP King & Scott, LLP
ATTORNEYS FOR APPELLEE Evansville, Indiana Kokomo, Indiana
Gregory F. Zoeller Donald B. Kite, Sr. Susan W. Rempert
Attorney General of Indiana Dean, Webster, Wright & Kite, LLP Tabor Law Firm
Indianapolis, Indiana Indianapolis, Indiana Indianapolis, Indiana
Robert Wagner Christine M. Marcuccilli INSURANCE INSTITUTE OF IND. INC.
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 FILED
Indiana Supreme Court Apr 07 2009, 12:36 pm
_________________________________ CLERK
of the supreme court,
court of appeals and
tax court
No. 49S05-0805-CV-216
JAMES BUTLER AS PERSONAL REPRESENTATIVE
OF THE ESTATE OF NONDIS JANE BUTLER, DECEASED, Plaintiff/Appellant,
v.
INDIANA DEPARTMENT OF INSURANCE AS ADMINISTRATOR
OF THE PATIENTS COMPENSATION FUND, AND
CLARIAN HEALTH PARTNERS, INC. 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 adult
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 pa-
tient'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 ac-
cepted after such contractual adjustments, not the total of charges billed.
The facts are undisputed. Nondis Jane Butler, an unmarried adult, initiated a claim for
medical negligence against Clarian Health Partners, Inc. and several individual health care provid-
ers pursuant to the Indiana Medical Malpractice Act. Before her claim was resolved, she died
leaving no dependants. Her estate ("the Estate") continued to pursue the claim as a wrongful death
action. As to Clarian's liability under the Malpractice Act, the Estate and Clarian settled in De-
cember 2005 for "$250,000.00 in a structured fashion," Appellant's App'x at 26, ¶5, thus enabling
the Estate to proceed with the balance of its claim for damages against the Indiana Patient Com-
pensation Fund.1 The Fund's administrator, the Indiana Department of Insurance, is the principal
defendant here ("the Fund").
The Fund sought partial summary judgment claiming that the Estate is entitled to recover
only the expenses the decedent and her estate actually incurred for medical services rather than the
total amount of medical bills received. The Estate filed a cross motion seeking the converse. The
parties then entered into a written factual stipulation that the necessary medical services to the de-
cedent 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 insurer ($9,971.73), (c) Medicare
($85,313.78), and (d) Medicaid ($895.92).3 The parties also entered into a partial settlement whe-
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 briefs
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 admiss-
ible. Appellant's App'x at 60, ¶6.
2
reby the Fund would pay the Estate $188,046.884 to settle all damage claims against the Fund ex-
cept the Estate's claims for "additional medical expenses that were not paid but were billed" to the
decedent or the Estate. Appellant's App'x at 64, ¶2 (Partial Settlement Agreement). The Estate
agreed that it had "satisfied or will satisfy and discharge all liens or claims" on the settlement
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 their 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 in-
surer, 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 agreement, 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 [Cla-
rian], which resulted in the 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 ac-
cepted in full satisfaction of the claims by the medical providers. The remaining issues before the
trial court as to the Estate's motion for summary judgment 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 re-
ceive 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 $50,000 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 oth-
er 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.
3
Following a bench proceeding that considered the pleadings, the stipulation, 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, concluding that the Estate "is not en-
titled to recover $287,901.28 for medical 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 satisfaction 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 Estate's appeal presents two contentions: (1) recovery for reasonable and necessary
medical expenses under the applicable wrongful death 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. The latter issue is moot, however, in
light of the parties' Partial Settlement Agreement declaring the parties' agreement on issues "ex-
cept for any claims for additional medical expenses that were not paid but were billed to the dece-
dent 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 ob-
ligation 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 incorrectly admitted evidence show-
ing the amounts actually paid and accepted for the decedent's medical expenses is therefore irrele-
vant, 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 necessary medi-
cal expenses whether they were paid or not. The 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. 2008), in which transfer has been granted.
4
Indiana Code § 34-23-1-2, the statute governing actions for the wrongful death of unmar-
ried 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 companionship.
(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) (emphases added).
The Estate emphasizes the statutory language referring to "reasonable" expenses and the
open-ended phrase "but are not limited to." Citing several cases, the Estate 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
whether they were rendered gratuitously. Under 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) (gra-
tuitous 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) (collecting 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 bills for med-
ical 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 sta-
tutory cause of action that the common law did not recognize. At common law, there was no right
to recover damages for a death resulting from the tortious acts of another. Bolin v. Wingert, 764
5
N.E.2d 201, 203 (Ind. 2002); Durham v. U-Haul Int'l, 745 N.E.2d 755, 758 (Ind. 2001). Because
this statute is 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 Highway 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 Comm'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 ex-
pansion 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 sta-
tute its clear and plain meaning." Elmer Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939, 942
(Ind. 2001). "Where 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 construction 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 specifies that damages
are allowable for "[r]easonable medical, hospital . . . expenses necessitated by" the wrongful con-
duct that caused the death. The statutory language does not employ the common law standard to
generally authorize recovery for the reasonable 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 sta-
tutory wrongful death action authorizes recovery only of reasonable medical "expenses necessi-
tated" by another's wrongful conduct. Where charges for medical services are initially billed but
thereafter settled for a lower amount pursuant to agreements with health insurers or government
agencies, the difference is not a "necessitated" expense.
This conclusion is not affected by the introductory language of Subsection (c)(3), which
states that damages "may include but are not limited to the following." This open-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) and
6
(B). The "include but not limited to" phrase does not expand the class of such necessitated ex-
penses.
We hold that, with respect to damages pursuant to Indiana Code § 34-23-1-2(c)(3)(A),
when medical providers provide statements of charges for health care services to the decedent but
thereafter accept 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 wrongful 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.
7