Indiana Injury Lawyer Blog

Last month, Indiana Injury Blog detailed many of the potential dangers and harms that come with texting and driving. To summarize, Indiana is one of 39 states to ban texting while driving.

Statistics are revealing some facts about texting and driving safety, which are somewhat surprising and counter-intuitive. Mary Allen, Director of the Indiana Criminal Justice Institute has recommended police raise their vigilance this summer as a result of the prevalence of driving while texting since her institute released their alarming study. Their study analyzed driving habits and accident rates and concluded that drivers who text are twenty-three percent more likely to be involved in an accident. In addition, their findings uncovered that adults are actually more likely than teens to be texting behind the wheel. But despite a lower rate, teens tend to suffer more as their driving experience requires the utmost attention, and 16 year-olds happen to have the highest accident rate of any age driver.

Drivers must beware of a false sense of safety while driving. A recent study conducted through A&M University revealed that voice-to-text technology actually provides no less distraction than standard texting methods. The study involved drivers on a track distraction-free, then creating texts using voice-to-text devices, then typing texts. The reaction time nearly doubled in both texting scenarios, regardless of methodology. Researchers described that when using voice-to-text software the participants needed to proofread more carefully and browse through their text to correct unforeseen errors.

Texters behind the wheel lead to an obvious danger to other drivers and expose themselves to legal liability but, unlike ever before, at-home texters may find themselves in court for their irresponsible distractions.

Soon, the New Jersey Appeals Court will be hearing an initially dismissed claim filed against a texter who was not physically behind the wheels of the accident-causing vehicle. New Jersey, like Indiana, also prohibits texting while driving. So when a texting teen driver hit a couple riding a motorcycle, most expected liability to end at the driver. The couple was severely hurt in the accident, both losing a leg. The drivers were able to settle with the teen's insurance for $500,000, but costs still remained. This is when the lawyers for the plaintiffs developed a new methodology to attack the epidemic of texting – sue the "remote" texter for "aiding and abetting", provided she knew her texts were being read and responded to by a driving recipient.

In this case, the texters had exchanged upwards of sixty text messages leading up to the accident. In the opening oral arguments for the plaintiffs, it was argued that the texter knew she was distracting a driver and knew of the dangers of distracted driving. Attorneys for the defense denied any evidence of such knowledge and denied that the texter had insisted on and intended for the driver read her texts while he was driving.

Continue reading "Indiana Drivers Beware the Perils of Texting, Pt 2" »

In February, we covered a recent case involving a motorcyclist and uninsured motorist insurance. As Winter turns to Summer and drivers take to the roads for day trips and recreational driving, it is important to understand Indiana's Uninsured Motorist Statute and recent case law.

For those unfamiliar with uninsured motorist insurance, the purpose of the clause in an insurance policy is to protect a driver if they should find themselves needing compensation from an uninsured, or only partially insured, driver.

Consider this situation: A responsible, fully insured driver encounters an accident with a negligent driver. The not-at-fault driver's insurance covers a certain threshold of property damage and personal injury, but there are still outstanding medical bills. Typically, the driver could recover these additional costs from the negligent driver's insurance but when that driver is underinsured then the driver must find other means of compensation. A lawsuit against the party might yield a judgment but, oftentimes, the underinsured party does not have the assets to immediately satisfy that judgment.

For these reasons, insurance companies offer a clause in many insurance policies to provide the uninsured motorist coverage. The clause would insure the policy-holder in the amount they would recover if the other driver, being uninsured, had been insured. The different policies cover property, bodily injury, and/or economic-only damages. Basic uninsured coverage is typically included in auto insurance policies and must be explicitly rejected if the driver wishes to exclude it. This is not advisable as the slightly increased premiums are worth the additional coverage.

Despite clear policy language, uninsured motorist coverage has led to numerous cases in Indiana to settle certain ambiguities. Indiana Code section 27-7-5-4(b) mandates that nearly all insurance policies in Indiana include uninsured motorist coverage. But what happens when the individual carrying full coverage (including uninsured motorist coverage) is the negligent party causing an accident with the uninsured driver?

In Lakes v. Grange Mutual Casualty Co., the Indiana Supreme Court considered this question. In that case, an injured party moved for the underinsured motorist coverage to compensate her costs in excess of the standard coverage. The court examined the meaning of underinsured and deteremined that if coverage by the tortfeaser was greater than or equal than the per-accident limit of the injured persons, the tortfeasor would not be considered underinsured and the coverage would not apply. This determination affirmed the 2002 decision in Corr v. American Family Insurance, which held the amount actually recovered to the policy limit would be the basis for determining underinsured. A decade later, the Indiana Supreme Court reiterated this understanding to state that the uninsured motorist coverage should be "read in a light most favorable to the insured."

Continue reading "Indiana Uninsured Motorist Coverage" »

Even responsible drivers need to be reminded that texting while driving still plagues the streets, even with laws on the books. This includes drivers like Mississippi's Dandre Moore who was pulled over earlier this April in Alabama allegedly "double texting". The teenager had, according to his statement to the officer, been driving with his knees while texting on two cell phones at once. He added that he had been driving while double texting since he was fifteen. Fortunately for Dandre, his passenger, and other drivers on the road, no one was hurt. Still, texting while driving presents its hazards.

Representative Eric Koch who had authored the bill described how, at this point, it is impossible to determine the degree of effectiveness in changing drivers' habits in the year since the bill was passed but stated "[w]hat's important is that the general assembly has made a statement of public policy."

The numbers are staggering and in the first year of the telecommunications ban, 125 citations and 114 warnings were issued by the Indiana State Police. However, in that same time approximately 1,000 auto accidents had communication device usage as a contributing factor. In 2012, 966 accidents were linked to cell usage.

A major concern of law enforcement is that the law is difficult to enforce, hard to prove in a court that the driver was sending texts, and provides no restriction against cell phone web browsing.

Additional legislation has tightened the restriction on drivers age 18 and under, limiting any and all cell phone usage while driving. Both bills do permit hands-free devices, which has proven to be a mixed blessing because distractions may still be present.

Continue reading "Indiana Drivers Beware the Perils of Texting" »

Soon, the Indiana Supreme Court is scheduled to hear the argument of a former Wabash student against Wabash College for injuries sustained during hazing incidents with his fraternity. The suit against Wabash College, and the on-school fraternity Phi Kappa Psi (otherwise known as Phi Psi), will hinge on whether either institution had the duty to ensure his safety.

In 2007, the victim had suffered his injuries when his fellow Phi Psi members attempted to force him into a shower. The ritual of "showering" is revealed to pledges through distributed information packets and pledges are encouraged to uphold these traditions. During the struggle to force the victim into the shower, he was choked to the point of unconsciousness and hit his head on the bathroom floor. The victim suffered severe brain damage.

This suit makes its way to the State Supreme Court after the Indiana Court of Appeals ruled (2-1) against the plaintiff citing his failure to prove that either Wabash or Phi Psi violated Indiana's codified hazing law (IC § 34-30-2-150). The plaintiff will now bring his action to the Supreme Court under civil negligence liability attempting to prove the college was negligent in failing to protect him from the hazing - a "reasonably foreseeable" danger.

As of 2000, the college has had to deal with a slew of hazing incidences, including two student deaths in 2007 and 2008. And unlike other colleges who have faced similar hazing claims, Wabash University owns the fraternity house where the injuries occurred, and it was aware of previous incidents of fraternity abuse. The ownership status may place premise liability on Wabash, which would require Wabash to protect certain guests from "reasonably foreseeable" dangers.

This will be the first Indiana case to examine the civil liability and the duty of colleges in connection with hazing of their students.

Professor Andrew Klein of McKinney School of Law described the ramifications this case will have on schools. "Institutions are going to need to understand that there could be greater consequences for their failure to more actively engage in the behavior of institutions that are on university-owned property."

Schools are taking notice, and actions are being taken to limit liability in the wake of hazing incidences. This lawsuit comes the same month that another Indiana institution is dealing with hazing. Indiana University in Bloomington has suspended a chapter of the Omega Psi Phi after reports of providing an unsafe environment resulting in numerous hazing incidences.

Continue reading "College Claims to be Decided by Indiana Supreme Court" »

Spring has sprung and the weather, slowly but surely, is getting warmer. With the change of seasons, Indiana residents hit the parks and streets for a variety of recreational activities. Over this spring, we will keep you up to date on news, warnings, laws, and other important safety and legal information for your outdoor activities.

Biking
According to "Bicycling and Walking in the United States: 2012 Benchmarking Report", bicyclist rates are holding steady but, unfortunately, so are bicyclist injuries rates. In understanding the potential dangers of bicycling, researchers examined trips made by individuals by all modes of transportation. Twelve percent of trips are made by pedestrians or bicyclists, but they make up fourteen percent of all traffic fatalities. In addition, the report identified that, despite the higher fatality level, only 1.6% of federal traffic funding goes towards pedestrians and bicyclists.

Under Indiana Code 9-21-11, bicyclists in Indiana must obey all the rules of the road and have “all the rights and duties under this article that are applicable to a person who drives a vehicle”. They should go with traffic, not against, and must remember to hand signal left, right, and slowing down.

Important laws to remember when biking:
1.) The number one rule is that bicyclists must be predictable and cautious. Clearly communicate your actions, and don't surprise drivers.

2.) In most areas on regular roads or highways, bicycles are required to be equipped with a bell and, past dusk, have a red lamp on the back of the bike and a white lamp on the front.

3.) In most areas, it is illegal to ride side-by-side with a fellow bicyclist. This extends the pair too far into the road and limits navigation. Some residential areas and most bike paths permit such riding, but one should always prioritize safety first.

4.) Wear a helmet. Currently, there is no mandatory helmet law in Indiana. This could change, and according to a 2010 report, 70% of bicycle fatalities involved a bicyclist not wearing a helmet.

5.) For recreational riding, it is most advisable to take advantage of bike paths. Use MapMyRide or a similar tool to map out a safe bike path to follow.

6.) For more biking laws, visit Bicycle Indiana's website.

Continue reading "Bicycling in Indiana - A Rider's Legal Guide" »

After the Courier & Press published a story detailing how nine former patients of Evansville’s Dr. Alina Sholar have filed malpractice claims against her in relation to their breast surgeries the Doctor has fired back in a letter to her patients defending herself and blasting the paper calling it “unethical journalism”.

In the letter to her patients, Dr. Sholar highlighted that eight of the nine suits stemmed from surgery performed through the Medical Cosmetic Center and said that “[i]t is no coincidence” that the claims were filed all very close in time and at a time with other pending litigation against the Medical Cosmetic Center. The filing patients had received either elective breast augmentation or reconstructive breast surgeries from Dr. Sholar and some are now alleging to have experienced scarring, infections, and even bursting. Dr. Sholar urged patients to speak on her behalf and against the “false claims” being filed against her as she will be facing a malpractice panel soon over her standard of care.

As the industry of cosmetic surgery has grown over the past ten years, cosmetic malpractice has evolved as well to become a major field of medical malpractice law. More individuals are electing cosmetic treatment each year. It is estimated 1% of America undergoes Botox treatments, 1.6 million Americans undergo cosmetic surgical procedures, and over 300,000 have undergone breast augmentation procedures.

Complications resulting from improper breast augmentation may be aesthetic or functional. Infection and scarring leading to nerve and tissue damage may be short or long term. A victim of an improper breast procedure may also need expensive corrective surgery to address disfigurement, mistakes, scars, clots, or distortion. The results may be detrimental to one’s livelihood and lifestyle. The civil awards for a victim of malpractice include compensation for such damages as well as non-monetary damages such as pain and suffering and emotional suffering.

Continue reading "Medical Malpractice Allegations for Indiana Plastic Surgeon" »

On March 26, Indianapolis's morning commute was rife with weather related dangers. After a historic snowfall of 6.2 inches in Indianapolis Sunday and other records being broken throughout the state, Indiana first responders were confronted with a staggering 52 accidents on Tuesday morning between just the hours of 5am and 10am.

A total of 9 inches over the past several days, slick driving conditions, and a shortage of contractor plows to handle the situation led to a commuter nightmare. Indiana Department of Public Works has typically followed a policy to utilize contractor plows if the snowfall exceeded 6 inches, however, this snowfall was not met with the same determination.

Weather Related Accidents
Obviously weather severely affects the risk of an automobile accident. Twenty-four percent of all accidents occur during bad weather and, according to the National Highway Traffic Safety Administration, 11% of all traffic fatalities occur from accidents involving bad weather.

In the event of an auto accident suit, courts will take the weather into consideration. Where one is driving according to street signs and abiding by the speed limit, they may still be found negligent if the courts find that their speed was reckless given the road conditions. The speed limit may say 60 mph, but that does not permit a driver from hitting those speeds in a massive blizzard with little visibility.

Continue reading "Winter Slams Indiana Drivers" »

Unlike most states, Indiana dieticians can currently practice without a license. But soon that may change. House Bill 1272 has passed the House and is currently being reviewed by the Indiana Senate. If it passes there it will be the first state-wide framework for dietician standards in Indiana.

The bill would require registered dieticians to file for and maintain a valid dietician license in order to operate within Indiana. Jennifer Wickware, a dietitian and a clinical nutrition manager for an Indiana hospital, cited the bill's importance in protecting dietitians' names "so that we are making sure that people are getting the right nutrition information from the experts in nutrition."

The new license requirement would force practicing dietitians to keep up on the practice through 15 additional hours of continuing education per year, in addition to setting a focus or "scope of practice". Furthermore, when a dietitian is accused of malpractice there are standards they may be held against, and in the event malpractice has committed, a license may be suspended or revoked.

The current requirement is simply certification, which may be satisfied with a bachelor's degree, a minimum number of practice hours and having passed the nationwide exam. Only licensed dietitians would be eligible to accept Medicare and Medicaid reimbursements, and nutritionists are not mentioned in the bill whatsoever. Nutritionists generally concentrate on teaching groups how to maximize their benefit from nutrition, whereas dietitians focus on working with individuals on their diet, oftentimes directly planning, and possibly administering, their food.

Currently, formal legal remedies for those who have suffered as a result of a dietitian's negligence are especially difficult, and it is best to contact an experienced personal injury attorney. Professional negligence is the best remedy to pursue against a dietitian in absence of this current bill. Professional negligence forces the injured party to show that the negligent party (i) owed a duty; (ii) that the party breached that duty; (iii) that the breach caused an injury to the plaintiff; and (iv) the plaintiff can show damages. These actions must be filed two years from the time of the negligence, or from the discovery of the injury.

Medical negligence costs the lives of 100,000 individuals every year. The type of damages recoverable are economic damages, including further medical costs or loss of work, for example, non-economic damages such as pain and suffering, and damages associated with impairments such as incapacitation, scars, or long-term chronic suffering.

Your health insurance will likely be involved in any injury suffered due to medical negligence. Insurance can be a difficult sea to navigate, however. The insurance company will likely seek reimbursement for your costs and that reimbursement may be through a medical claim or settlement with the negligent party. It is important to seek attorney advice before consenting to any settlement agreement.

Continue reading "Indiana Bill to Set Dietician Standards" »

As personal injury counsel, we are often faced with the difficult task of working on behalf of injured children and their families. As parents, we understand that injuries to children can involve devastating and heartbreaking situations and present unique legal issues which practitioners need to consider.

When encountered with a claim for injuries to a child, it is initially important to determine the applicable statute of limitations. The general statute of limitations for personal injury claims under Indiana law is two years. Ind. Code § 34-11-2-4. However, because children are legally incompetent due to their minority, they do not have the legal capacity to sue on their own. For this reason a minor’s statute of limitations is generally tolled until they reach majority. Ind. Code § 34-11-6-1. Therefore minors generally have until their 20th birthday to bring personal injury claims.

Continue reading "HANDLING MINOR’S CLAIMS FOR PERSONAL INJURIES" »

The town of Versailles, Indiana is reeling from the news of a car accident that took the lives of three local teenagers. The accident occurred Thursday, March 7 when two pickup trucks collided after a local church function. The three victims were declared dead at the scene of the accident. Our condolences go out to the families and friends of those teenagers.

Three other teens were hospitalized from injuries from the crash. Their injuries do not appear to be life-threatening.

This past year has been devastating for the small farming town of Versailles having suffered several tragic losses:

• In May 2012, a 15 year old highschool freshman in a all-terrain vehicle accident
• In December 2012, an 18 year old from a texting while driving accident.
• In March 2011, two elementary students from an accident with a semi-truck.

The teens were students are South Ripley High School. That morning they were serving breakfast at a church to support the Future Farmers of America, of which one of the victims was president. After the event, the students got into two separate pickup trucks and left their own separate routes.

Investigation of the accident has revealed that both vehicles failed to make a stop both entering the intersection of a four-way stop. Rumors of racing have, for the moment, been put aside until further investigation is complete.

Katherine Taul of the Ripley County Tourism Bureau highlighted the impact these accidents make on the small community. "These are all very, very tight communities and everyone knows everyone, so even if you weren't directly connected or related to them, it still touches everybody."

According to the U.S. Centers for Disease Control, more Americans aged 5 to 34 are killed in motor vehicle crashes than from any other single cause. Such troubling statistics leave families looking for justice and in many cases in need of funds for expenses related to treatment, emergency services, and funeral costs.

For families needing to file suit on behalf of a loved one lost in an auto accident, Indiana has a wrongful death statute they can recover under. In Indiana, survivors must prove fault of the other driver to succeed in a claim against that driver's insurance company. The lawsuit must be brought within two years of the accident.

The elements necessary to win a wrongful death suit: (i) the death of a human being; (i) caused by negligence of the other party; (iii) the suit brought by family members suffering monetary injury as a result of the death; and (iv) the appointment of a personal representative for the decedent's estate.

Continue reading "Car Accident Claims Lives of Three Indiana Teenagers" »

Conflicts between state and federal laws governing prescription drugs led the Alabama Supreme Court to rule that a plaintiff allegedly injured by a generic drug may sue the manufacturer of its brand-name equivalent. In re Wyeth, Inc., et al v. Weeks, No. 1101397, slip op. (Ala., Jan. 11, 2013). Because the plaintiff’s claim alleged deficiencies in the warning label, and not the manufacturing process, the court found that it was “not fundamentally unfair,” slip op. at 52, to hold the defendant liable. The defendant was responsible for drafting the warnings, and the generic manufacturer’s responsibility was to reprint those warnings. The ruling could affect state-level pharmaceutical cases around the country.

The plaintiffs, a married couple, filed suit against five pharmaceutical companies, alleging that the husband suffered injuries from taking the drug metoclopramide, marketed under the brand name Reglan. The drug is used in short-term treatment of various stomach and intestinal conditions, including persistent heartburn. It has been associated with a risk of tardive dyskinesia (TD), a neurological disorder that affects body movements. The plaintiffs allege that the defendants breached a duty to warn Mr. Weeks’ physician of the risk of TD and other side effects. They concede that he never took brand-name Reglan manufactured by Wyeth, but rather generic variants manufactured by other companies. The plaintiffs claim instead that Wyeth and other brand-name manufacturers “falsely and deceptively misrepresented or knowingly suppressed facts about” the drug. Id. at 6.

Continue reading "Plaintiff May Sue Manufacturer of Name-Brand Prescription Drug for Injury Allegedly Caused by Different Company's Generic Drug" »

We extend our condolences to the families of two Indianapolis medics who died from injuries sustained in an automobile accident in the early morning of February 16, 2013. These were reportedly the first fatalities in an on-the-job vehicle collision in the history of Indianapolis EMS.

The accident happened at approximately 3:37 a.m., according to local news station WTHR, at the intersection of Senate Avenue and St. Clair. The ambulance, heading south on Senate, had the right of way, as the traffic light at the intersection was flashing yellow for vehicles on Senate. The lights on St. Clair were flashing red. The ambulance was not responding to a call at the time, so its lights and sirens were not activated. A black Honda headed west on St. Clair allegedly did not stop at the flashing red light and struck the ambulance as it was crossing the intersection. The ambulance’s driver and the other medic were taken to a nearby hospital. The driver, a 24 year-old private, died at the hospital shortly after the collision. The passenger, a 22 year-old paramedic, spent about twenty-four hours on life support and died early Sunday morning.

The Honda’s 21 year-old driver was taken to the hospital for blood testing after the accident and was listed in good condition. An officer claimed to smell alcohol on her breath, and she reportedly admitted to having one-and-a-half drinks before the accident. Police stated on the afternoon of February 17 that preliminary blood alcohol tests on the driver, based on samples drawn about two hours after the collision, were “borderline.” The driver was released while police continued their investigation and awaited results of further blood alcohol testing.

Continue reading "Two Killed in Indianapolis Ambulance Crash" »