Indiana Injury Blog

In an interesting case decided this past July, the Indiana Court of Appeals held that instructions on contributory negligence were not warranted where the plaintiff had failed to correctly disclose her mammogram history to her doctor before undergoing breast augmentation surgery.

In Joyner-Wentland vs. Waggoner, the plaintiff brought a medical malpractice suit against her doctor after she failed to order a mammogram before performing breast augmentation surgery on her. In her initial plastic surgery consultation, the plaintiff stated her last mammogram had come back clear and that it had been taken two years prior, when it had actually been five years prior. As a result, the defendant plastic surgeon proceeded with plaintiff's augmentation surgery. While operating, the defendant discovered the plaintiff was suffering from breast cancer and ultimately, the surgery caused plaintiff's cancer condition to significantly worsen.

On appeal, the Indiana Court of Appeals found there to be "overwhelming" evidence that plaintiff's untruthfulness as to the date of her last mammogram did not contribute to her injuries. It further explained that the standard of care was that mammograms should be performed annually for women over fifty years old and even though plaintiff misrepresented the date of her last mammogram, the information she presented the defendant with still called for a pre-surgery mammogram under the standard. Consequently, it held that the trial court did not abuse its discretion in prohibiting an instruction that plaintiff was contributory negligent in giving incorrect information on her pre-surgery intake form.

Joyner-Wentland v. Waggoner, 890 N.E.2d 730 (Ind. Ct. App. 2008).

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Posted In: Civil Litigation , Indiana Court of Appeals Decisions , Medical Malpractice , Personal Injury Litigation

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In Simmons v. Erie Ins. Exchange, the defendant insurance company argued that plaintiff failed to mitigate his damages due to his failure to undergo surgery to treat his plantar fasciitis, which resulted from his involvement in an automobile accident. Plaintiff had received full insurance policy limits from the individual that was 100% at fault in causing the collision and was seeking to recover from defendant insurance company whom plaintiff held an underinsured motorist policy with. On appeal, the Indiana Court of Appeals held “that whether a plaintiff has a duty to submit to surgery requires a ‘reasonable person’ analysis.” The Court further concluded that even though the question of whether a reasonable person would submit to surgery is one for the jury, “under some circumstances, courts will be able to answer the question as a matter of law.” When judges or juries are making a reasonable person inquiry regarding surgery, the Court held they should consider the following factors: 1) the likelihood that the surgery will correct or improve the condition; 2) the risk involved in the surgery; 3) the pain or inconvenience caused by the surgery; and 4) the ability of the plaintiff to bear the cost of surgery. Following the Indiana Supreme Court’s opinion in Willis v. Westerfield, the Court noted that even though normally expert medical opinion would be necessary in regard to the first three factors, “no bright-line rule exists on this point.” Simmons v. Erie Ins. Exchange, 2008 WL 3271552 (Ind. Ct. App. 2008).

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Posted In: Civil Litigation , Indiana Court of Appeals Decisions

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Wave3.com has reported that police are seeking the driver of a S-10 truck that was involved in a hit-and-run accident early morning on August 2. Indiana State Police reported that the truck, identified by state police to look nearly identical to the truck shown in the picture below, collided with a motorcycle, leaving the operator fatally injured. The truck subsequently left the scene of the accident after the collision occurred.

Police ask that you call the Indiana State Police or Crime Stoppers with any information relating to this accident.

Picture Courtesy of Wave3.com and Indiana State Police

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Posted In: Motor Vehicle Accidents , Motorcycle Accidents , Truck Accidents

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In a recent medical malpractice case, the Indiana Court of Appeals affirmed a $800,000 judgment against a doctor after a family had brought a claim relating to the stillbirth of their daughter.

On appeal, the doctor argued that the trial court "improperly excluded opinion testimony" from two of the patient's treating physicians, who were giving favorable testimony to the doctor that went to the standard of care. At trial, two treating physicians' testimony were objected to, as they had not been disclosed as experts under Indiana Evidence Rule 702. On appeal, Defendant doctor's counsel unsuccessfully argued that the treating physicians' testimony relating to the standard of care were based on personal perceptions under Indiana Evidence Rule 701. However, the Indiana Court of Appeals held that "knowledge of the standard of care was not based on physician's perception, rather, it was based on the physician's expert knoweledge." Consequently, the Indiana Court of Appeals held that it was not an abuse of discretion for the trial court to exclude the treating physicians' testimony as to whether the defendant deviated from the standard of care as an undisclosed expert opinion.

See Cain v. Back, 889 N.E.2d 1253 (Ind. Ct. App. 2008).

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Posted In: Civil Litigation , Indiana Court of Appeals Decisions , Medical Malpractice

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