Indiana Injury Lawyer Blog

The Boone County Sheriff's office has been spreading the word about recent speed limit changes on portions of I-65 in Boone County. A major road construction project is set to begin on I-65 between Indianapolis and Lebanon. A third lane will be added on the stretch of I-65 from I-865 to Exit 138 in Lebanon, Boone County. Also, the bridge at SR 267 will be replaced and the ramps at SR 334 will be improved.

The speed limit for the stretch of interstate where construction is set to begin has already been lowered to 55 miles per hour and additional speed reductions will go into place once construction begins. Patrols will be enhanced in this area with state and local law enforcement officers concerned with the safety of those at the worksite, as well as the motorists on I-65.

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Super Lawyers magazine recently released its 2010 list of attorneys to be recognized in Indiana. Parr Richey Obremskey Frandsen & Patterson is proud to have six attorneys from its office recognized on this prestigious list. Attorneys Pete Obremskey, Paul Kruse and Tony Patterson were selected as 2010 Indiana Super Lawyers based on their excellence in representing personal injury victims. Parr Richey attorney Kent Frandsen was also selected as a 2010 Indiana Super Lawyer for the outstanding representation he has provided as a business litigator, while Larry J. Wallace and Jeremy Fetty were recognized as a 2010 Indiana Super Lawyer and Rising Star in the utilities practice area, respectively.

Super Lawyer candidates are evaluated based on a number of things, including verdicts, settlements and experience. The Super Lawyers list is limited to only 5% of the attorneys within their jurisdiction. Parr Richey has been represented on the Indiana Super Lawyers list by at least one of its attorneys every year since its inception.

On Wednesday, U.S. Transportation Secretary Ray LaHood announced a federal ban on drivers of commercial vehicles, including buses and semi-trailer trucks, from text-messaging while driving. Click here to read an article on the ban posted at www.washingtonpost.com.

This ban comes in the wake of a recent study by the Virginia Tech Transportation Institute, which found texting truckers to be 23 times more likely to be involved in a crash or near crash. Distracted driving has become a concern of Congress, and many view this ban as a first step in passing more laws and bans to eliminate or reduce cellphone use among drivers.

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In Hillenbrand v. Supervised Estate of Charlotte Fern Large, 914 N.E.2d 846 (Ind. Ct. App. 2009), Charlotte Fern Large was killed in a motor vehicle accident and a wrongful death action was pursued by the personal representative of Large’s Estate. The attorney for the Estate (“Attorney”) negotiated a settlement awarding Hillenbrand, as Large’s sole surviving child and beneficiary to the wrongful death claim, $47,983.28, with an additional $12,016.72 to be paid to Large’s Estate.

The Attorney then filed a Request for Attorney Fees and Personal Representative Fees with the probate court handling Large’s Estate requesting her attorney’s fees to be paid out of the entire settlement amount that was recovered (amount paid to Hillenbrand plus amount paid to Large’s Estate). Hillenbrand objected and a hearing was held. The probate court held $6,545.50 in attorney’s fees was to be deducted from the wrongful death claim settlement. Hillenbrand appealed the decision, arguing that all settlement amounts remaining after the payment of reasonable medical, hospital, funeral, and burial expenses shall go to the exclusive benefit of Hillenbrand as the nondependent child of Large. The Estate argued that since it is the personal representative of the Estate that is entitled to pursue the wrongful death claim, the Attorney must be paid from the settlement amount from the wrongful death claim. Consequently the singular issue on appeal was “whether the Estate [could] charge the attorney fees incurred in the pursuit of the wrongful death claim against the settlement funds instead of being paid from the probate estate.”

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In EADS v. Community Hospital, 909 N.E.2d 1009 (Ind. Ct. App. 2009), Plaintiff brought a medical malpractice claim against a hospital after receiving treatment for a broken ankle. Following her treatment, plaintiff’s request for a wheelchair was denied. She was instead given crutches and ultimately fell while leaving the hospital, resulting in her injuries. Plaintiff initially filed a general liability negligence claim in Lake County Superior Court. The hospital then filed a motion to dismiss, arguing plaintiff’s claim was a medical malpractice claim requiring it to first be filed before the Indiana Department of Insurance (“IDOI”). Plaintiff argued it was premises liability/general liability case, which does not fall under the Medical Malpractice Act (“MMA”). The trial court agreed with the hospital and dismissed plaintiff’s claim without prejudice. Plaintiff did not appeal this ruling. Approximately two weeks after plaintiff’s case was dismissed, she re-filed her claim with the IDOI. The hospital responded by filing a petition for preliminary determination of law with the trial court, requesting summary judgment be granted in its favor. The hospital argued in its petition that plaintiff’s claim was barred because it was filed with IDOI outside of the MMA’s two-year statute of limitations period. Plaintiff filed initially filed her claim in the Lake County Superior Court within the two-year statute of limitations period, but plaintiff’s filing with IDOI was outside of the two-year period. The trial court agreed and dismissed plaintiff’s claim with prejudice.

On appeal, the Indiana Court of Appeals first looked at the Journey Account Statute. IC § 34-11-8-1. In summary, the Journey Account Statute is used to “save an action filed in the wrong court by allowing the plaintiff enough time to refile the same claim in the correct forum.” For example, “the statute enables an action dismissed for lack of personal jurisdiction in one state to be refilled in another state despite the intervening running of the statute of limitations.”

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In Spar v. Cha, M.D., No. 45S05-0906-CV-273 (Ind. 2009), plaintiff patient brought a medical malpractice claim against defendant doctor after the patient suffered complications and infections following laparoscopic surgery. The Indiana Supreme Court (“ISC”) held, in part, that the defense of incurred risk (assumption of risk) was not and could not be a defense to plaintiff patient’s lack of informed consent claim. In echoing the Indiana Court of Appeals prior decision in this case, the ISC explained that the defense of incurred risk has little to no applicability as a defense to a lack of informed consent claim or a claim of negligent performance of a medical procedure. In Spar, the trial court instructed the jury on the defense of incurred risk. The ISC concluded it was error for the trial court to do so, and it remanded the case for a new trial.

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Indiana's Comparative Fault Act does not apply to medical malpractice actions against qualified health care providers. I.C. § 34-51-2-1(b)(1). Consequently, the common law principles of negligence apply to medical malpractice claims, and contributory negligence on the part of the plaintiff, if found, will bar the plaintiff’s recovery against a qualified health care provider. King v. Clark, 709 N.E.2d 1043, 1046 (Ind. Ct. App. 1999), transfer denied. For example, a plaintiff’s failure to follow a physician’s instructions or failure to give accurate information to the physician may constitute contributory negligence in a medical malpractice claim. Smith v. Hull, 659 N.E.2d 185, 191-92 (Ind. Ct. App. 1995), transfer denied. However, plaintiff’s conduct must go beyond a tiny percentage of fault in order for contributory negligence to bar plaintiff’s recovery. Plaintiff’s contributory negligence must unite simultaneously with the fault of the defendant(s) in being the legal cause of plaintiff’s injuries. Id. at 192.

Congratulations to Parr Richey Obremskey Frandsen & Patterson law office partner Tony Patterson for having recently been named to the Indiana Basketball Hall of Fame Silver Anniversary Team. The Silver Anniversary Team annually recognizes the best Indiana high school basketball players who graduated 25 years ago and continue to make significant contributions to the game and to society.

Tony guided his L & M High School basketball team to a #1 ranking in Indiana his senior year. The team captured national attention that year, as it was one of the smallest schools (enrollment 132) to ever be ranked #1 under Indiana's old single-class system. Following his senior season, Tony was named to the Converse All-American team, selected to play on the Indiana All-Star team, and was a first team All-State pick in Indiana.

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The New York Times recently wrote an article about an Oklahoma woman who has filed a lawsuit against a major cellphone company. The woman's mother was killed in a motor vehicle accident last year when a pickup truck crashed into the mother's car. At the time of the collision, the driver of the pickup truck was using his cellphone and later explained to the police he had become distracted by talking on the cellphone, which caused him to run a red light causing the collision.

Based on the article, it appears the cellphone company involved is Sprint Nextel. The daughter is arguing in her claim that Sprint Nextel should have foreseen the danger causing her mother's death and provided adequate warnings to prevent the harm. The article reports this to be one of only a handful of such cases ever filed.

Indiana courts have ruled on a similar case. In Williams v. Cingular Wireless, a driver was injured in a two-car motor vehicle accident. 809 N.E.2d 473 (Ind. Ct. App. 2004), transfer denied. At the time of the collision, the other driver involved was talking on her cellphone serviced by Cingular Wireless.

Continue reading "Oklahoma Woman Seeking Redress from Cellphone Company - Courts Look at Liability of Cellphone Companies When Users Cause Accidents While Talking on Cellphones " »

IU-Indy law Professor Eleanor Kinney recently appeared on ABC's Good Morning America to weigh-in on the recent national debate surrounding patient care and medical malpractice reform. She was joined by U of Penn Professor Tom Baker who authored the book The Medical Malpractice Myth.

Click here to see a video of the discussion.

Parr Richey partner Paul Kruse obtained a jury verdict for his client for $75,000 in a trial held this month in Marion County, Indiana. Our client was a 54 year old dump truck driver whose vehicle was overturned when he was cut off by a driver insured by Allstate Insurance. Our client suffered neck and shoulder injuries, and had permanent pain and lost range of motion after therapy and exercise failed to resolve the injuries.

Allstate Insurance only offered $10,000 before trial to settle the matter, despite healthcare expenses and lost wages in excess of $14,000. Allstate admitted fault one week before trial and elected not to have the defendant driver appear at trial.

Of note in the trial was that plaintiff's healthcare was provided by a physician assistant (PA). Physician assistants are often utilized in busy medical practices and are allowed to examine, treat and prescribe healthcare, including prescription medication, under the supervision of a medical doctor. PAs have postgraduate schooling in medicine, although they do not participate in clinical training and do not receive a doctorate degree. We used the PA to testify in court regarding our client's condition and prognosis for the future and chose not to have a medical doctor testify. After the trial, jurors said they had no concern about the credibility of the PA, and several acknowledged that they had seen PAs for their own healthcare.

Jury trials for damages for personal injuries are difficult, especially in a political climate in which insurance companies try to poison public perception about lawsuits and claims. But we are lucky to have a constituion that provides for a trial by our peers in resolving civil disputes.

With police, schools and employers all utilizing Facebook as a resource to discover information about people, it is no surprise insurance adjusters are following suit. MSNBC.com posted an article by the Associated Press reporting that a woman lost her long-term sick leave benefits being paid an insurance company after one of the company's representatives discovered pictures of her in good health at a night club.

Insurance company adjusters and representatives handling disability claims, worker's compensation claims and personal injury claims have started to use social networking sites such as Facebook and MySpace as a resource to collect evidence of malingering injuries. However, some pictures may create the appearance that an injury victim is in better health than they actually are, or the picture was taken before their injury occurred. For the reason that some pictures displayed on social networking sites may inaccurately portray an injury victim's health and condition, it is important injury victims closely monitor the content accessible to others in their personal profile.