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.

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.

The Indiana Court of Appeals affirmed the trial court holding that no relationship existed between the injured driver and Cingular as to create a duty. It also held that while it is foreseeable people will use cellphones while driving, to a "legally significant extent," it is not foreseeable that a driver talking on his/her cellphone would cause a motor vehicle accident.

Also, from a public policy standpoint, the Indiana Court of Appeals held that putting a duty on cellphone companies in this context would "effectively require the companies to stop selling cellular phones entirely because the companies have no way of preventing customers from using the phones while driving." It explained the responsibility of the accident in these situations should fall on the driver.

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.

Indiana is one of the top states in the U.S. for the number of deer/motor vehicle collisions annually. Deer collisions can cause significant property damage and serious personal injury. Indiana drivers are cautioned to stay alert and be on the lookout for deer crossing Indiana roadways.

Be sure you are sufficiently covered through your insurance policy in the event of a deer collision. Collision coverage in your insurance policy generally does not cover deer collisions. Look to see if any provision within your automobile insurance policy covers deer collisions and determine if you are adequately covered.

Your recent editorial on September 17, 2009, authored by Chip Minemyer, titled “Without Tort Reform, There Should Be No Health Overhaul,” was misleading and inaccurate. It was simply an attempt to influence public opinion in favor of big corporations and insurance companies and harpoon injury victims’ claims.

Minemyer starts his column with the statement that litigation reform is an issue “central to improving the cost of healthcare and access to treatment.” In fact, the cost of medical malpractice is actually a tiny percentage of healthcare costs, in part because medical malpractice claims are far less frequent than insurance companies would lead people to believe. According to the Congressional Budget Office (CBO), malpractice costs amount to less than two percent of overall healthcare spending.

President Obama proposed to implement measures to limit the legal rights of severely injured persons as part of the healthcare discussion, apparently as a bargaining chip to reduce Republican opposition to his healthcare reform plan. His medical malpractice reform proposal will hurt patients and dump more cost on taxpayers. It would not eliminate death and injuries but merely shift costs of caring for malpractice victims from perpetrators of malpractice to hard pressed state Medicaid systems, for which state and federal taxpayers share the cost. In fact, according to the insurance industry’s own data, medical malpractice insurance claims and premiums have been trending downward for years.

Minemyer and his corporate friends want to take advantage of the current debate to further their interests to prevent victims of medical negligence from having an effective remedy in the civil justice system. The debate about medical negligence tends to focus on doctors’ insurance premiums, but one very important factor is overlooked: the injured patients. The injuries patients suffer from preventable medical errors, are very real and include additional medical costs, lost wages, and an impact on their quality of life. The problem with medical negligence reform proposals is that they do not seek to prevent medical errors, but merely to shift the burden of the damages to the injured patients themselves.

Tort reform opportunists ignore the fact that our current civil system promotes public health and patient safety. A study from the American College of Emergency Physicians found that safety improves when injured patients can hold negligent hospitals or physicians accountable. Researchers have concluded that any fear that malpractice liability impedes efforts to improve our healthcare system is unfounded and that, to the contrary, medical negligence reforms have resulted in lower healthcare quality and increased infant mortality.

There is little correlation between medical malpractice payouts and malpractice insurance premiums. Researchers at the University of Texas, the University of Illinois and the National Bureau of Economic Research concluded that rapid changes in malpractice insurance premiums simply reflect insurance market dynamics, largely disconnected from malpractice payments. Furthermore, the empirical research concludes that even when tort reform saves the insurance companies money, those savings are not being passed on to the doctors and hospitals in the form of lower physician premiums or healthcare costs. One study of leading medical malpractice insurance companies’ financial statements found that the insurers artificially raise doctors’ premiums and mislead the public about the nature of medical negligence claims. In most instances, malpractice premium rates are simply driven by the economic cycle of the insurance industry, caused by declining interest rates and investments. And the Americans for Insurance Reform (AIR) determined that there has not been an “explosion” in lawsuits, jury awards or tort system costs to justify the premium increases that doctors have been charged in recent years.

There is no doubt that we need to look for ways to get medical insurance for everyone while improving the quality of healthcare in our country. But the best way to reduce malpractice claims is to reduce medical malpractice.

The good news is that very few doctors are responsible for malpractice payments. The National Practitioner Data Bank reports that fewer than six percent of all doctors are responsible for nearly two-thirds of medical negligence incidents, and that 82% of all doctors have never had to make a medical malpractice payment.

The most frequently echoed myth concerning medical negligence is the notion that it is creating physician shortages. The GAO reported that healthcare provider actions taken in response to malpractice pressures were not substantiated. In fact, the AMA shows that physician numbers have been increasing across the board for many years, and are increasing faster than population growth.

The Indiana legislature enacted legislation when Dr. Otis Bowen was governor that provides conservative, stringent procedures for all medical malpractice claims. Every doctor and healthcare provider who elects to be a participant in the Patient Compensation Fund is entitled to have claims reviewed by a panel of three doctors before it can proceed in the civil court system. In addition, any claim that survives the panel and proceeds to trial is subject to a long, expensive process in which doctors are called to testify to provide opinions regarding the alleged malpractice. Ultimately, any jury verdict is capped at $1.25 million, notwithstanding the fact that most cases that go to trial seek a recovery of hundreds of thousands of dollars in medical expenses and permanent injuries or death. Indiana’s procedures for medical malpractice claims provide an effective means for ensuring that doctors’ rights, as well as victims’ rights, are safeguarded. No further “reform” is justified.

NITA provides training of legal advocacy skills for lawyers with all ranges of skills, but is particularly helpful to those attorneys who have less experience in the courtroom or wish to refine their skills. The conference seeks to teach advocacy skills in all facets of litigation, with a 4:1 student/faculty ratio and a volunteer faculty of judges, professors and practicing attorneys from around the country.

The conference in Indianapolis last week focused on examination of lay and expert witnesses, as well as opening statements and final arguments. It concluded with a mock trial by all participants. NITA conferences utilize a learn-by-doing method, with immediate feedback and demonstations by faculty members. Participants are welcomed into the NITA "family" and receive NITA certification at the end of the conference.

It is also a wonderful experience for the faculty. I found it invigorating to work with so many lawyers willing to teach younger lawyers, passing on subtle tips about trial advocacy in an effective, professional and ethical manner. The faculty members, including long time NITA veterans, return regularly from their practices in New Hampshire, Iowa, Chicago, and Scotland, and include some of finest attorneys and judges in Indiana.

If you are interested in learning more about the National Institute for Trial Advocacy or want to attend one of their conferences, I encourage to go to their website at www.nita.org.

At trial, the plaintiff's counsel sought to introduce a copy of the medical review panel opinion, which had a stamp, seal and caption depicting the State of Indiana Department of Insurance. Indiana law provides that in medical malpractice cases, the report issued by the experts on the medical review panel is admissible at trial. IC 34-18-10-23. However, the defendant in this case argued Indiana Rule of Evidence 411 bars evidence being introduced that shows a person was or was not insured against liability, unless it is being offered to prove agency, ownership, control, or bias/prejudice of a witness.

The Court of Appeals held that the trial court did not abuse its discretion in redacting the words "Department of Insurance" after considering Rule 403 in its judgment of the evidence's admissibility. It explained that the parties never disputed the authenticity of the document. Further, it held that even though Indiana Code section 34-18-10-23 allows for the unconditional admissibility of medical review panel decisions at trial, it does not require the unconditional admissions of its stamps or seals.