Indiana Injury Lawyer Blog

Despite argument to the contrary from the Indiana Supreme Court Disciplinary Commission, the Indiana Supreme Court held that a structured or sliding scale contingency fee agreement in a medical malpractice case does not violate the Indiana Rules of Professional Conduct, so long as the total fee is reasonable. In this disciplinary action, the attorney fee contract provided for a fee of 15% of any recovery from the Indiana Patient’s Compensation Fund plus up to 100% from the first $100,000 received from the physician’s insurance carrier, to equal a fee of one-third of the total recovery. The attorney later renegotiated the contract and required a $10,000 non-refundable retainer. After the Indiana Supreme Court sanctioned the attorney, the Indiana Trial Lawyers Association (ITLA) intervened and requested clarification on the Indiana Supreme Court’s position upon the “sliding scale” fee in medical malpractice cases. In re Stephens, 867 N.E.2d 148 (Ind. 2007).

According to researchers at the University of Michigan Transportation Research Institute, pedestrian fatalities involving children are 4.5 times the level on Halloween than other nights. Restricted to children under the age of 15, the study shows more of an increase of fatalities in darkness rather than daylight.

Halloween is a time for children to expand their imaginations through costume choices and to explore a sense of independence while trick-or-treating. By taking safety precautions, parents can keep their child’s Halloween tradition while creating new memories. Below are a few tips to follow on Halloween:

• Plan costumes that are bright and reflective or consider adding reflective tape
• Secure emergency identification discreetly within costume or on a bracelet
• Obtain flashlights with fresh batteries
• Teach children their home phone number and how to call 911 if they have an emergency or become lost
• Do not permit children to bicycle, roller-blade or skateboard
• Remind all household drivers to remain cautious and drive slowly through out the community
• Stay in a group, walk slowly and communicate where you are going
• Only trick-or-treat in well-known neighborhoods and at homes that have a porch light on
• Remain on well-lit streets and always use the sidewalk
• If no sidewalk is available, walk at the farthest edge of the roadway facing traffic
• Never cut across yards or use alleys
• Obey all traffic and pedestrian regulations
• Always walk. Never run across a street
• Only cross the street as a group in established crosswalks
• Remove any mask or item that will limit eyesight before crossing a street, driveway or alley
• Don’t assume the right of way. Motorists may have trouble-seeing Trick-or-Treaters. Just because one car stops, doesn’t mean others will

Medical malpractice claims in Indiana are governed by Indiana’s contributory negligence law. King v. Clark, 709 N.E.2d 1043 (Ind. Ct. App. 1999). Medical malpractice claims against qualified health care providers must be filed with the Indiana Department of Insurance. IND. CODE § 34-18-8-4. If a health care provider is not qualified, the claim must be filed in a court of competent jurisdiction. Guinn v. Light, 558 N.E.2d 820 (Ind. 1990).

The statute of limitations for medical malpractice claims in Indiana is two years from date of occurrence if the plaintiff discovers the claim within the two year period. If the plaintiff does not discover the malpractice, or did not know or should not have known of the malpractice within two years of the date of the malpractice, then two years from the date of discovery. See Jacobs v. Manhart, 770 N.E.2d 344 (Ind. Ct. App. 2002). If the medical provider is qualified, the statute of limitations is tolled by ninety days from the date of the receipt of the medical review panel opinion. IND. CODE § 34-18-7-2.

Medical malpractice awards in Indiana are limited to $1,250,000 and under. IND. CODE § 34-18-14-3.

As required by federal law, in 2006 the Indiana Department of Transportation (“INDOT”), along with various stakeholders in highway safety, set forth a Strategic Highway Safety Plan (“SHSP”) serving as a guideline in making Indiana’s highways more safe. INDOT reports Indiana traffic accidents account for significant economic loss each year (estimated in excess of $4 billion) with a traffic accident occurring every 2 ½ minutes (fatality every 9 hours).

In alleviating this dilemma, Indiana’s SHSP highlights 13 areas of emphasis, within which Indiana’s greatest threats on the road are analyzed and “data-driven” strategies conveyed on how to best deal with these threats. Large trucking accidents are an area of emphasis within the SHSP, with 17% of Indiana’s 947 fatalities involving tractor-trailer and/or other large trucks in 2004. The SHSP has set forth the goal of reducing large trucking accidents 10% by 2008 (using 2004 as a baseline).

Click here to see Indiana's Strategic Highway Safety Plan.

The Indiana Trial Lawyers Association overwhelmingly supported a proposed addition to the Indiana Rules of Professional Conduct which would prevent lawyers from contacting potential injury victims through direct solicitation for at least thirty days following an accident. ITLA Board Members, Peter Obremskey, Paul Kruse and Tony Patterson of PARR RICHEY all voted in favor of the proposed rule.

The Court may take judicial notice of a party’s pleadings. In doing so, any admission contained in the pleading is admissible into evidence and is conclusively established as to that party, without any further proof. See Lutz v. Erie Insurance Exchange, 848 N.E.2d 675 (Ind. 2006).

Under many circumstances, lawyers have cases which may need to be referred to other counsel for a variety of reasons. While the case may require referral, many lawyers are hesitant to do so due to fear of losing a fee. This fear arises from Professional Conduct Rule 7.3(f) which prohibits one being paid purely for a referral.

Notwithstanding the ban on pure referral fees, Rule 1.5(e) provides that lawyers in different firms can divide fees from cases provided that (1) the division is in proportion to the services performed by each lawyer or the attorneys assume joint responsibility for the representation; (2) the client agrees in writing to the division; and (3) the total fee is reasonable. Under this Rule, referring lawyers are still entitled to collect a fee so long as these requirements are satisfied.

This rule was noted by the Indiana Supreme Court in In re Hailey, 792 N.E.2d 851 (Ind. 2003). The Court stated that in all circumstances the total fee must be reasonable and the division must be accepted by the client in writing. Further, absent proportionality in services rendered by the referring attorney, all attorneys receiving a portion of the fee must accept, in writing, joint responsibility for the representation. This ruling resulted in the revision of Rule 1.5 in 2005.

If you are contacted regarding a case involving a potential traumatic brain injury, several steps should be taken to insure that the injuries are fully explored and that proper evidence is developed. Among the steps are as follows:

• Obtain the police report and photographs, interview all accident witnesses regarding the nature of the incident and the facts surrounding it.
• Closely review and gather all medical records, including the ambulance run and emergency room reports.
• Gather all medical imaging, including CT Scans, MRI and SPECT Scans. Obtain the DICOM studies so that interactive slice choosers and three-dimensional imaging can be reviewed.
• Interview family, friends and co-workers to identify the client’s behavior, personality or cognitive changes.
• Consult with or retain a neurologist and neuropsychologist to perform testing for measurable brain injury.
• Gather all pre-injury academic, military, employment and medical records to help establish a pre-accident baseline.
• Retain the services of a forensics psychiatrist to determine the psychological impact of the traumatic brain injury.

While each case should be reviewed independently, most traumatic brain injuries require that these issues be addressed in order to fully develop and explore your client’s injuries.