PCF can introduce evidence of preexisting risk of harm even where issue of liability is foreclosed

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Boehm, Justice

We hold that when a claimant seeks excess damages from the Patient’s Compensation Fund after obtaining a judgment or settlement from a health care provider in a medical malpractice case, the Fund may introduce evidence of the claimant’s preexisting risk of harm if it is relevant to establish the amount of damages, even if it is also relevant to liability issues that are foreclosed by the judgment or settlement.

Conclusion (slip op. at 8):  Because the statement of law sought by the Estate at summary judgment was correct on its face, we affirm the trial court’s grant of partial summary judgment. The case is remanded for a determination of the extent of the Fund’s liability consistent with the law as explained in this opinion.

Key Analysis (slip op. at 7):  Here, the settlement between the Fund and the health care providers precluded consideration of causation, but left open the amount of damages. The trial court therefore correctly granted partial summary judgment restating the statute and the Glover holding, but erred in excluding the Fund’s evidence regarding Herbst’s risk of death before any malpractice . . . We disagree that providers’ resistance to settlement provides an adequate safeguard against invasion of the Fund . . . Even though liability is capped at $250,000, a provider has substantial incentive to settle for that amount, and even more to enter into a settlement for periodic payments costing $187,000.

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

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