The Indiana Comparative Fault Act, which replaced the common law defense of contributory negligence with a system for providing for the reduction of a plaintiff's recovery in proportion to the plaintiff's fault, "expressly exempted medical malpractice claims from its ambit[.]" Indiana Dept. of Ins. v. Everhart , 960 N.E.2d 129, 138 (Ind. 2012) ; seePalmer v. Comprehensive Neurologic Services, P.C. , 864 N.E.2d 1093, 1099-1100 (Ind. Ct. App. 2007), trans. denied . Thus, the historic common law rule of joint and several liability "remains available to defendants in cases alleging medical malpractice." Palmer , 864 N.E.2d at 1099.
Ind.Code § 34–18–14–3(b). 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 PCF. Ind.Code § 34–18–14–3(c).Ind. Dep't of Ins. v. Everhart, 960 N.E.2d 129, 133 (Ind.2012). An injured plaintiff thus proceeds first against the healthcare provider, Ind.Code §§ 34–18–8–1 to –8 (2008), and then against the PCF, Ind.Code § 34–18–15–3 (2008).
Moreover, our supreme court has recently explained that Mayhue "established an alternative means of proving causation where traditional means are inadequate" and " ‘reflects a special concern for plaintiffs who stood a fifty percent or worse chance of recovering before suffering some form of medical negligence.’ " Robertson v. B.O., 977 N.E.2d 341, 346 (Ind.2012) (quoting Indiana Dep't of Ins. v. Everhart, 960 N.E.2d 129, 134 (Ind.2012) ). The Robertson court referred to three wrongful death cases in which the decedents had less than a fifty percent chance of survival even prior to the claimed malpractice and explained, "[f]or these types of cases—and only these types of cases—in Mayhue we adopted the Restatement (Second) of Torts § 323 (1965) increased risk of harm approach."
Because counsel elected to forego closing argument at trial and instead chose to submit proposed findings and conclusions, we find that Dallas' argument, contesting the joint and several liability, was properly raised by way of his proposed findings and conclusions, and therefore not waived. Dallas contends that the trial court erred when it imposed joint and several liability following the intentional tort he committed on Cessna. Referencing our supreme court's opinion in Ind. Dept. of Ins. v. Everhart, 960 N.E.2d 129 (Ind.2012), Dallas asserts that the enactment of the Comparative Fault Act abrogated the old rule of joint and several liability in suits to which the Act applies. As such, Dallas requests us to reverse the trial court's judgment against him and to remand for determination of his share of the nominal damages. Indiana's Comparative Fault Act governs “any action based on fault that is brought to recover damages for injury or death to a person or harm to property.”
But this Court has recently declared “the [Comparative Fault] Act abrogates the old rule of joint and several liability in suits to which the Act applies.” Ind. Dept. of Ins. v. Everhart, 960 N.E.2d 129, 138 (Ind.2012). We determined that the elimination of joint and several liability was a reasonable trade-off for the benefits plaintiffs receive under the Act, namely: the removal of the contributory negligence bar to recovery.
[11] For its part, Kroger argues that the trial court properly granted its motion for partial summary judgment because the Comparative Fault Act does not apply to cases involving claims of medical malpractice. In support, Kroger cites to the Indiana Supreme Court's decision in Indiana Department of Insurance v. Everhart, 960 N.E.2d 129 (Ind.2012) and our opinion in Palmer v. Comprehensive Neurologic Services, P.C., 864 N.E.2d 1093 (Ind.Ct.App.2007). As is discussed in both Everhart and Palmer, Indiana Code section 34–51–2–1(b)(1) expressly states that the Comparative Fault Act does not apply to an action brought against a qualified health care provider for medical malpractice.
We recognize that our Supreme Court has held that "the Act abrogates the old rule of joint and several liability in suits to which the Act applies." Ind. Dept. of Ins. v. Everhart, 960 N.E.2d 129, 138 (Ind.2012) (citing Huber v. Henley, 656 F.Supp. 508 (S.D.Ind.1987) ); but see, Control Techniques, Inc. v. Johnson, 762 N.E.2d 104 (Ind.2002) (Dickson, J., dissenting). The joint and several liability component of § 14, however, is different.
The liability of the Anonymous Defendants and Ethicon alleged in the complaint is joint and several because the complaint seeks to recover from those defendants for the same injury- Plaintiff's injuries arising out of his surgery. See Ind. Dep't of Ins. v. Everhart, 960 N.E.2d 129, 137 (Ind. 2012) (“Two or more co-defendants constitute joint tortfeasors if their independent negligent conduct proximately caused some indivisible harm.”); Hill v. Rhinehart, 45 N.E.3d 427, 438 (Ind. App. 2015) (“At common law, joint tortfeasors are two or more persons jointly or severally liable in tort for the same injury to person or property.
IC 34-51-2-1. IC 34-51-2-7; IC 34-51-2-8, Dallas v. Cessna, 968 N.E. 2d 291, 297-98 (Ind. Ct. App. 2012) (citing Ind. Dept. of Ins. v. Everhart, 960 N.E.2d 129, 138 (Ind. 2012)). IC 34-51-2-12. In 1972, the Louisiana Supreme Court held that the manufacturer and seller of a thing containing a redhibitory defect were solidarily liable to the purchaser.
]” Mayhue held that once a medical malpractice plaintiff proves the defendant's negligence and an increase in the risk of harm, a jury should decide whether the negligence was a substantial factor in causing the harm suffered by the plaintiff; this was a departure from the typical method of proving causation in these cases—that but for a doctor's negligence, the plaintiff would have survived. Courts have since noted that the standard announced in Mayhue is only applicable in a narrow subset of medical malpractice cases. See, e.g., Laycock v. Sliwkowski, 12 N.E.3d 986 (Ind.Ct.App.2014) (“Thus, it is clear that our supreme court intended for Mayhue to alter the standard of causation only in cases where a patient has a fifty percent or worse chance of recovering, not in all cases in which a plaintiff alleges an increased risk of harm.”); Indiana Dep't of Ins. v. Everhart, 960 N.E.2d 129, 134 (Ind.2012) (“Other courts that based their loss-of-chance doctrines on Section 323 likewise made clear that their purpose in adopting a loss-of-chance doctrine was to ensure that patients with a fifty-percent or worse chance of recovering would still receive the same care as healthier patients by preventing physicians from claiming a blanket release from liability under the label of cause-in-fact.”).While Mayhue has been read as developing a new method of causation in medical malpractice cases, Alexander v. Scheid addressed the question of whether the “loss of chance” itself was compensable as an injury in medical malpractice cases.