Pre-Judgment Interest Medical Malpractice Case

The Indiana Supreme Court sent back to the trial court last week a wrongful death medical malpractice action involving the tragic death of a child after surgery for an undescended left testicle. The boy was just 13 months old. Just awful.

The issue in Alsheik v. Guerrero was something far less sad: prejudgment interest. This case went to trial and the jury awarded $1.165 million. The trial judge denied the plaintiff’s attorney’s request for pre-judgment interest. The plaintiff appealed this ruling.

In Indiana, for civil cases to qualify for prejudgment interest, the plaintiff must send a settlement letter. The purpose of the settlement letter is to give the defendant “notice of a claim and provide them with an opportunity to engage in meaningful settlement.”
In this case, plaintiff’s lawyer did just this:

As a follow-up to our telephone conversation, please be advised my client has authorized me to tender a settlement offer in the amount of the minimum structure of $250,000.00 with a present value of $187,001.00 which would qualify us to proceed into the Patients Compensation Fund pursuant to I.C. [§] 34-18-14-4. Would you kindly talk to [the doctor] to obtain his consent and approval and in return, we will naturally agree to keep the terms of the settlement confidential so
as not to cause any unnecessary embarrassment or inconvenience to your client.

You are hereby advised that said offer shall remain open for fifteen (15) days from the date of this letter and thereafter, will be withdrawn and not reinstated and we will proceed to a trial on the merits for the wrongful death of my client’s minor son. I will await your response.

The Indiana Supreme Court held that the settlement letter sent to the doctor prior to filing the complaint was in compliance with Indiana Code Section 34-51-4-6.

“As we have held, Guerrero’s settlement letter did comply with Indiana Code section 34-51-4-6,” Justice Steven H. David wrote for the court. “However, the award of prejudgment interest is neither automatic nor required, and is left to the discretion of the trial court. We remand with instructions to the trial court to determine whether or not Guerrero should be entitled to prejudgment interest.”

You can find the court’s opinion in Alsheik v. Guerrero here. You can also find the intermediate appellate opinion here.

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