Appellate courts to hear med-mal, disability cases next week

Indiana’s appellate courts are set to hear arguments next week in a case related to medical malpractice and one dealing with disability issues arising under Kentucky law.

The Indiana Court of Appeals will hear the case of The Lincoln National Life Insurance Company v. Beverly M. Kennedy, 20A-PL-837, at 1 p.m. Wednesday. The state Supreme Court will then hear arguments at 9 a.m. Thursday in Santos Cortez, Fran Fortez, and Norris Choplin Schroeder, LLP v. Indiana University Health, Inc., Sharon V. Lucich and Elizabeth Longmuir, 19A-CT-2540.

The Cortez case comes to the state justices on a petition to transfer. In July, the Indiana Court of Appeals affirmed the dismissal of the second round of litigation to arise out of the medical malpractice case, and the plaintiffs are now asking the justices for another review.

In the second round of litigation, Santos and Fran Cortez and their med-mal law firm, Norris Choplin Schroder, sued IU Health and two physical therapists, claiming medical records were altered and the alterations concealed in the original malpractice litigation. The Marion Superior Court dismissed for lack of subject matter jurisdiction under the Medical Malpractice Act and for failure to state a claim.

Arguments in Cortez can be watched online here.

The Lincoln National case in the Indiana Court of Appeals involves a long-term disability benefits policy that is governed by Kentucky law. Beverly Kennedy obtained the policy in question – issued by Lincoln National Life Insurance Company – from her employer, the University of Kentucky.

Kennedy also received Social Security disability benefits, and her Medicare Part D insurance premiums were deducted from those benefits. Lincoln National sought to offset the policy benefits by the amount Kennedy received in SSDBs, but Kennedy challenged the offset, prompting Lincoln National to file a complaint for declaratory judgment as to its rights under the policy.

Kennedy filed counterclaims on behalf of a putative class, alleging breach of contract and tort claims. The Washington Circuit Court ultimately granted partial summary judgment for both parties, and both parties now appeal.

The issues on appeal pertaining to the policy include:

• Whether the policy’s discretionary clause applies such that the Court of Appeals will review Lincoln National’s interpretation only for reasonableness.
• Whether Lincoln National can offset Kennedy’s SSDBs because they are the result of the same disability that allows her to receive the policy benefits.
• Whether the policy’s provision that Lincoln National may offset SSDBs for which an insured “is eligible” allows the insurer to offset the amount of Kennedy’s gross SSDB benefit before her Medicare premiums are deducted.

The COA oral arguments can also be viewed online here.