Indiana Injury Lawyer Blog

When one imagines a medical malpractice lawsuit, typically the scenario that comes to mind is clumsy surgery gone wrong. However, the reality of medical malpractice is that, in most cases, it occurs much earlier.

Much research on the field of malpractice has come out of Johns Hopkins School of Medicine with hopes to curb the nearly $3.6 billion dollars a year spent on these suits, with misdiagnoses being the most easily preventable type of malpractice. A recent study by Dr. David Newman-Toker found that late or incorrect diagnoses accounted for approximately 35% of all medical malpractice suits.

Some diseases are more prone to misdiagnosis. It is estimated by the Journal of Clinical Oncology that some cancers have a misdiagnosis rate of 44%. A study by Indianapolis-based Eli Lilly and Co. found that nearly 1 in 5 Alzheimer's patients are wrongfully diagnosed with Alzeimher's when the condition is not present.

Medical misdiagnosis lawsuits do not always stem from missing a condition or a late discovery. As an example, in the case of Mr. Strout, the misdiagnosis was traumatizing but, ultimately, the worst part of his health concerns. When Strout visited his doctor, he was told he had pancreatic cancer. The diagnosis described it as extremely aggressive and Strout was told he had months to live. However, when the tests returned, the diagnosis was wrong and Strout actually had Hodgkin-lymphoma, which is much more easily treatable. Strout sued and was awarded $200,000 in his medical malpractice suit for his "tremendous emotional distress".

Studies of ICU units have reported incidences of misdiagnoses at anywhere from 20-40%. Here are some important steps to take to avoid and/or survive a misdiagnosis:

1.) Speak with a doctor – Nurses, physician assistants, and a spectrum of other medical professionals can be liable for medical malpractice. So when something is bothering you, it is best to get a diagnosis from a licensed doctor before dismissing it. A Pennsylvania woman was examined by a physician's assistant for sinus issues, to which a steroid treatment was suggested. This treatment, without antibiotics, led to a life threatening brain abscess and a $3 million dollar medical malpractice award.

2.) Be prepared – You only have so much time in the examination room, so prepare your questions, tally your symptoms as you experience them, and detail your medical history including medications and previous medical treatments. Your physician is a doctor, not a psychic.

3.) Find a second opinion – Do not feel shy about addressing your health concerns with another medical professional. Not only could you avoid a costly and dangerous misdiagnosis but, more often, it can give you the chance to get more answers and a more detailed understanding of your ailments.

4.) Contact an experienced malpractice attorney. Due to the complicated and expensive nature of medical malpractice litigation, the majority (93%) are settled out of court. Settlement agreements can be detailed and have long-lasting implications, and you will want an attorney to ensure each harm you have or will have suffered is addressed.

Continue reading "Indiana Patients - Beware Medical Misdiagnoses" »

Every month in America, plenty of bizarre lawsuits get filed (like suing Jessica Simpson for baby snatching) but Indiana has had one strange May, with three 'unique' cases making national headlines.

Funny Fuzz
The ACLU is stepping up to represent a Greenfield, Indiana police corporal attempting to exercise his constitutional right of speech. The police officer was attempting to exercise this freedom on his license plate through a vanity plate. Corporal Rodney Vawter had a sense of humor when he bought the vanity license plate "0ink" with the obvious humorous self-referencing slang "pig" for police officers. Vawter actually had acquired the license plate years ago, but only was recently denied renewal under a statute referencing Indiana Bureau of Motor Vehicles' (BMV) right to refuse vanity license plates for "offensive or misleading content".

The suit beginning with Vawter has developed into a full class action suit against the BMV. The vague content restriction is not constitutional, according to Vawter's attorney. In furtherance of confusion and unfair enforcement, Vawter's choice to use a zero for the "o" in oink was as a result of "oink" already have been taken by another Indiana driver.

Archaic Law's Last Call
Not all lawsuits in themselves are bizarre; rather, some attempt to take down the bizarre status quo. One does not need to live in Indiana for long to become familiar with the rather odd way the state of Indiana micro-manages beer sales. The temperature of beer to be sold has long been regulated by Indiana, with cold beer being banned to consumers. However, chilled wines, containing higher levels of alcohol could be sold cold. This archaic unnecessary statute has recently been modified to permit liquor stores to sell beer cold. With this one-sided exception, the Indiana Petroleum Marketers and Convenience Store Association has initiated a lawsuit to be treated equally.

Currently, alcohol ranks third for items purchased at convenient stores. However, according to store owners, if they are allowed to sell beer cold, the item would leap to the number two spot. This would lead to great gains for convenience stores, simplicity for consumers, constitutional fairness, and simply the abolishment of an outdated, silly law (Oklahoma is the only other US state which puts any sort of regulation on the temperature of beer).

Continue reading "Indiana's Month of Bizarre Lawsuits" »

In the past month we have blogged about a series posts covering important personal injury information for Spring/Summer activities. In today's post, we will give a brief overview of current Indiana sports law.

A preliminary report released this month released by USA Football and conducted by Datalys Center for Sports Injury Research and Prevention, based out of Indianapolis, examined the safety of youth tackle football and the long and short term injuries associated with play.

In America today, 2.8 million children (age 6-14) play in an organized tackle football league. The study involved nearly 2,000 athletes in 10 football leagues spanning six states, although the findings are not complete as the study is expected to span another whole year.

The report found that nearly 10% of youth athletes suffered an injury. Approximately two-thirds of those injuries were minor enough that the athlete could return to the field that same day. No catastrophic head or neck injuries were reported but almost 4% suffered a concussion.

Lawsuits stemming from Sports Injuries
Sports related injuries fall into a field of negligence in which "assumption of risk" becomes a deciding factor. Assumption of risk is not always cut-and-dry but rather involves what the injured party knew or expected or should have expected before entering the activity and whether the activity was foreseeable. Severe head/brain injuries can have long unforeseen damages associated with them. The personal injury suit will likely require expert witness testimony to predict the long term costs and damages associated with such injuries.

Indiana law, as of 2012, requires any student athlete who is suspected to have sustained a head injury or possible concussion to be removed from all play until the athlete is evaluated by a trained health care provider.

The NHL and player's union may now face liability in a wrongful death suit brought on behalf of Derek Boogaard for the brain injuries he suffered during his hockey career and the subsequent narcotics addiction allegedly caused by his condition.

Continue reading "Indiana Law - Sports Injuries" »

A Zionville adoption agency is now facing liability after being sued by a couple for failing to disclose information relating to the baby’s drug addiction. The Indiana Court of Appeals overturned the previous dismissal of the suit by a lower court.

A Canadian couple, Jesica and Gerson Urbina, sought out the services of A Bond of Life Adoptions (ABLA) to adopt the child of a pregnant woman based in the Noblesville area.
After communication with the agency and the mother, the couple came to Indiana to spend time with the newborn child. Over the span of several days, the couple proudly acquired photos of the infant to share with friends and family. The baby then, however, began to display signs of drug withdrawal stemming from alleged methadone use by the birth-mother during the pregnancy. The hospital began monitoring for problematic symptoms and alerted ABLA. It wasn’t until several days later that the news of their baby’s addiction was shared to the parents, by a social worker.

The couple, horrified at the news, mulled over their options and painfully withdrew from the adoption process, citing that they may not be capable to take care of a special needs child. The couple then proceeded to file a complaint against ABLA for negligence, fraud, breach of contract and fiduciary duty, infliction of emotional distress. On appeal, the court commented with regards to the Urbanis’s breach of contract claim on the basis that vital information gathered by the adoption agency regarding the baby is important to the parents' decision and should thereby be disclosed.

The family has claimed that they do not believe they will attempt the adoption process again.

The contractual nature of the Urbanis relationship with ABLA allowed for the Urbanis to recover. However, the contract was also relied upon by ABLA to dismiss the claim. According to the contract, there is release which limits ABLA's liability from claims based upon unknown medical conditions of the family or child. The court's most pointed concurring opinion, authored by Judge Bradford, identified the problem of adoption agencies hiding behind this clause. Hon. Bradford lists a history of cases where agencies use this clause and "public policy" concerns to limit recovery. The purpose of the clause is protect upstanding organizations when information passed on to the agency turns out to be incorrect. In the Urbanis's case, ABLA had information that was not incorrect, just unfortunate, and ABLA failed to inform parents making a lifelong decision.

Continue reading "Indiana Adoption Agency Sued for Addicted Baby" »

The Statute of Limitations governs each and every civil claim plaintiffs may have. These are statutorily established periods of time from the date the cause of action is created to when the plaintiff must have filed his claim with the court. The periods of time vary with the type of action, and certain "tolls" on the time may apply which extend the period, such as for infants, fraudulent concealment, or undiscovered injuries. But after the time period is over the claim may be dismissed upon motion by the opposing counsel. Although Statute of Limitation issues seem clear, cases like Moryl v. Ransone discussed below stress the importance of consulting with an experienced knowledgeable attorney.

A LaPorte area woman was offered no leniency by the Indiana Court of Appeals in the filing of her claim. This woman had a potentially valid medical malpractice claim against LaPorte Hospital in relation to the wrongful death of her husband. Indiana Medical Malpractice claims have a two-year statute of limitations and are governed by the Indiana Medical Malpractice Act, which requires all claims to both be filed first with the Department of Insurance (DOI) then the Indiana Court. As the deadline approached, the woman sent in the complaint on the day before the statutory period expired. Because of the urgency, the woman sent the documents in through FedEx. The papers arrived one day after the deadline.

Traditionally, Indiana, and most jurisdictions, consider the complaint filed on the day it is delivered to a third-party carrier. Indiana Trial Rule 5(F) extends a deadline three days when delivered through a commercial carrier, such as FedEx, to the court. This rule only applies, however, to courts, not to the DOI.

Judge John Baker, writing the opinion for the Court of Appeals, explained that Indiana law only recognizes registered or certified mail through the U.S. Postal Service as valid "third-party carriers" for the purposes of a Medical Malpractice claim filed with the DOI. The court ruled against the woman 3-0.

The unique unfortunate factor in this case is that there is no statute of limitations time listed for the DOI portion of the filing. The prerequisite that the filing be made at the DOI before it may be validly filed with the court leads to an imposed statute of limitations for the DOI filing which then fails to recognize any extension for a commercial carrier.

Continue reading "Medical Malpractice Mailing - Commercial Carriers are the Wrong Choice" »

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" »