Appellate courts to listen to med-mal, disability circumstances subsequent week

The Indiana appeals courts will hear arguments next week in a medical misconduct-related case and a disability issue under Kentucky law.

The Indiana Court of Appeals will hear the Lincoln National Life Insurance Company’s case against Beverly M. Kennedy at 20A-PL-837 at 1:00 p.m. Wednesday. The state Supreme Court will then hear arguments on Thursday at 9 a.m. 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 is transferred to state judges upon request. In July, the Indiana Court of Appeals upheld the dismissal of the second round trial resulting from the medical misconduct case, and plaintiffs are now calling on the judges to investigate further.

In the second round of litigation, Santos and Fran Cortez and their law firm Norris Choplin sued Schroder IU Health and two physiotherapists. They alleged the medical records had been changed and that the changes had been concealed in the original misconduct litigation. The Marion Superior Court was dismissed for lack of factual jurisdiction under the Medical Malpractice Act and failure to state a claim.

Arguments in Cortez can be viewed online here.

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

Kennedy also received Social Security benefits for the disabled, and her Medicare Part D insurance premiums were deducted from those benefits. Lincoln National tried to offset the insurance benefits by the amount Kennedy received in SSDBs, but Kennedy objected to the set-off and asked Lincoln National to file a complaint to determine his rights under the policy.

Kennedy filed counterclaims on behalf of an alleged class alleging breach of contract and tort. The Washington Circuit Court ultimately issued a partial judgment for both parties and both parties are now appealing.

Remedies related to the Directive include:

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

The oral arguments of the COA can also be viewed online here.

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