In a medical malpractice action, evidence that a party expressed a communication of sympathy (a statement, gesture, act, conduct or writing that expresses sympathy, an apology, or a general sense of benevolence) is not admissible into evidence if the statement relates to causing or contributing to an injury, loss, pain, suffering, death or damage to property, unless it relates to fault.
An Indiana restaurant patron suffered injuries when a man driving on a nearby highway had a heart attack, crossed over two lanes of oncoming traffic and several parking lots and crashed into a restaurant. Plaintiffs argued that the defendant’s failure to erect barriers in front of the building was a breach of its duty to the plaintiffs to exercise reasonable care.
The Indiana Court of Appeals disagreed and found that the incident was not foreseeable and therefore held there was no breach of duty on the restaurant’s part and granted summary judgment in its favor. See Schoop’s Restaurant v. Hardy, 863 N.E.2d 451 (Ind.App.2007).
A surgeon had an absolute duty to remove all sponges used during surgery and cannot delegate his duty to nurses or other surgical staff. The Indiana Court of Appeals found that the surgeon breached the standard of care in performing abdominal surgery when he left a sponge in the abdominal cavity, despite the fact that the assisting nurses reported a sponge count indicating that all sponges had been removed.
He could not absolve himself of liability for his own failure to account for the sponges by claiming he had relied upon the nurses’ count. The doctrine of res ipsa loquitur applies in such a case, and the plaintiff was entitled to partial summary judgment on the issue of negligence. Chi Yun Ho v. Frye, 865 N.E.2d 632 (Ind.App. 2007).
Anyone who has dealt with health insurance companies either on a personal or a professional level is probably familiar with the insurance “write-off” for medical expenses. In a nutshell, the write-off is a contractual reduction in the amount that an insurance company is required to pay a medical care provider for services rendered on behalf of the insured. For the unsuspecting plaintiff’s attorney, however, the insurance write-off can be a potential stumbling block. It is important to be wary of attempts by the defense to limit the evidence of medical expenses to the net amount paid, rather than the gross medical expense charged by the provider. Although the specific issue of insurance write-offs has not been addressed by Indiana Courts, the existing statutes and caselaw support the proposition that the admission of insurance write-offs into evidence is improper, and that such evidence should be excluded.
At trial, the plaintiff should introduce the total medical bills into evidence in order to establish the reasonable cost of medical services; further, the plaintiff should attempt to keep the defense from putting in the insurance write-offs. A motion in limine is a useful pre-trial tool to accomplish this, and it can prevent the possibility having to argue about these issues in front of the jury. In the motion, the plaintiff should first argue that the Collateral Source Rule prohibits the introduction of insurance write-offs because they are a part of the insurance benefit for which the plaintiff has paid. In the absence of specific Indiana caselaw that addresses the insurance write-off, the plaintiff should also refer to Indiana cases which hold that the measure of damages for medical treatment is the reasonable value of the services, and not the actual amount paid. These cases complement the statutory analysis and strengthen the argument that the introduction of the insurance write-off is improper.
Additionally, the plaintiff may make policy arguments that the principles of subrogation help to defray any purported windfall to the plaintiff for damages recovered above and beyond the actual amounts paid by the insurance company. More importantly, the existence of a contractual relationship between an insurer and an insured plaintiff is wholly independent of the defendant tortfeasor, and the defendant should not be exculpated from the full extent of liability on that basis. To hold otherwise would have the effect of punishing the plaintiff who has obtained medical insurance and would deprive the plaintiff of a fair and reasonable award for damages.
