Congratulations to attorney Tony Patterson for being selected by his peers to be included in the 2011 edition of The Best Lawyers in America in the specialty of personal injury litigation. Selection to this list is based on evaluations by other lawyers across the country.
In Rieth-Riley v. Gibson et al., 923 N.E.2d 472 (Ind. Ct. App. 2010), the Indiana Court of Appeals held the trial court erred when it applied the discovery rule to toll the statute of limitations for injury victim to file his amended complaint. The injury victim was involved in a motor vehicle accident and brought suit against the other driver. Through discovery and after the two-year statute of limitations had run, plaintiff found out the driver was working at the time of accident. He then amended his complaint to add the employer arguing the discovery rule tolled the statute of limitations.
In Rieth-Riley v. Gibson et al., 923 N.E.2d 472 (Ind. Ct. App. 2010), the Indiana Court of Appeals held the trial court erred when it applied the discovery rule to toll the statute of limitations for the injury victim to file his amended complaint. The injury victim was involved in a motor vehicle accident and brought suit against the other driver. Through discovery and after the two-year statute of limitations had run, plaintiff found out the driver was working at the time of accident. He then amended his complaint to add the employer arguing the discovery rule tolled the statute of limitations.
In Smith v. Champion Trucking Company, Inc., No. 93S02-0906-EX-276 (April 15, 2010), in a 5-0 decision, the Indiana Supreme Court held "an employer's worker's compensation liability for an employee's benefits terminates if the employee settles a claim against a third party for the same injury without first obtaining the employer's consent to the settlement." In reaching its holding, the Court relied on what is known as the "absolute bar" provision found in Paragraph 2 of I.C. Section 22-3-2-13.
In Smith, employee truck driver was injured by a third-party motorist. He then received worker's compensation benefits for his medical expenses from his employer. Following his departure from the trucking company, the employee filed an adjustment of his worker's compensation claim to receive benefits from his former employer in the form of additional medical expenses and for a permanent impairment.
Around this time, employee filed a lawsuit against the third-party. His attorney notified the employer of this lawsuit and the employer responded by stating he was entitled to a lien on any settlement proceeds. Employee ultimately settled the third-party lawsuit for $10,342. At that time, employee's lawyer paid the employer back out of the settlement for approximately $3,200 in medical expenses that the employer had paid. Subsequent to this, the employee received a 19% potential permanent impairment rating, which would entitle him to approximately $26,500 in additional worker's compensation benefits to be paid by his former employer.
In Hillenbrand v. Supervised Estate of Charlotte Fern Large, 914 N.E.2d 846 (Ind. Ct. App. 2009), Charlotte Fern Large was killed in a motor vehicle accident and a wrongful death action was pursued by the personal representative of Large’s Estate. The attorney for the Estate (“Attorney”) negotiated a settlement awarding Hillenbrand, as Large’s sole surviving child and beneficiary to the wrongful death claim, $47,983.28, with an additional $12,016.72 to be paid to Large’s Estate.
The Attorney then filed a Request for Attorney Fees and Personal Representative Fees with the probate court handling Large’s Estate requesting her attorney’s fees to be paid out of the entire settlement amount that was recovered (amount paid to Hillenbrand plus amount paid to Large’s Estate). Hillenbrand objected and a hearing was held. The probate court held $6,545.50 in attorney’s fees was to be deducted from the wrongful death claim settlement. Hillenbrand appealed the decision, arguing that all settlement amounts remaining after the payment of reasonable medical, hospital, funeral, and burial expenses shall go to the exclusive benefit of Hillenbrand as the nondependent child of Large. The Estate argued that since it is the personal representative of the Estate that is entitled to pursue the wrongful death claim, the Attorney must be paid from the settlement amount from the wrongful death claim. Consequently the singular issue on appeal was “whether the Estate [could] charge the attorney fees incurred in the pursuit of the wrongful death claim against the settlement funds instead of being paid from the probate estate.”
Continue reading "Estate's Attorney's Fees in Wrongful Death Cases " »
In EADS v. Community Hospital, 909 N.E.2d 1009 (Ind. Ct. App. 2009), Plaintiff brought a medical malpractice claim against a hospital after receiving treatment for a broken ankle. Following her treatment, plaintiff’s request for a wheelchair was denied. She was instead given crutches and ultimately fell while leaving the hospital, resulting in her injuries. Plaintiff initially filed a general liability negligence claim in Lake County Superior Court. The hospital then filed a motion to dismiss, arguing plaintiff’s claim was a medical malpractice claim requiring it to first be filed before the Indiana Department of Insurance (“IDOI”). Plaintiff argued it was premises liability/general liability case, which does not fall under the Medical Malpractice Act (“MMA”). The trial court agreed with the hospital and dismissed plaintiff’s claim without prejudice. Plaintiff did not appeal this ruling. Approximately two weeks after plaintiff’s case was dismissed, she re-filed her claim with the IDOI. The hospital responded by filing a petition for preliminary determination of law with the trial court, requesting summary judgment be granted in its favor. The hospital argued in its petition that plaintiff’s claim was barred because it was filed with IDOI outside of the MMA’s two-year statute of limitations period. Plaintiff filed initially filed her claim in the Lake County Superior Court within the two-year statute of limitations period, but plaintiff’s filing with IDOI was outside of the two-year period. The trial court agreed and dismissed plaintiff’s claim with prejudice.
On appeal, the Indiana Court of Appeals first looked at the Journey Account Statute. IC § 34-11-8-1. In summary, the Journey Account Statute is used to “save an action filed in the wrong court by allowing the plaintiff enough time to refile the same claim in the correct forum.” For example, “the statute enables an action dismissed for lack of personal jurisdiction in one state to be refilled in another state despite the intervening running of the statute of limitations.”
Continue reading "Indiana's Journey Account Statute - When Can It Save Your Case " »
In Spar v. Cha, M.D., No. 45S05-0906-CV-273 (Ind. 2009), plaintiff patient brought a medical malpractice claim against defendant doctor after the patient suffered complications and infections following laparoscopic surgery. The Indiana Supreme Court (“ISC”) held, in part, that the defense of incurred risk (assumption of risk) was not and could not be a defense to plaintiff patient’s lack of informed consent claim. In echoing the Indiana Court of Appeals prior decision in this case, the ISC explained that the defense of incurred risk has little to no applicability as a defense to a lack of informed consent claim or a claim of negligent performance of a medical procedure. In Spar, the trial court instructed the jury on the defense of incurred risk. The ISC concluded it was error for the trial court to do so, and it remanded the case for a new trial.
Continue reading "Med Mal - Cases to Know " »
Indiana's Comparative Fault Act does not apply to medical malpractice actions against qualified health care providers. I.C. § 34-51-2-1(b)(1). Consequently, the common law principles of negligence apply to medical malpractice claims, and contributory negligence on the part of the plaintiff, if found, will bar the plaintiff’s recovery against a qualified health care provider. King v. Clark, 709 N.E.2d 1043, 1046 (Ind. Ct. App. 1999), transfer denied. For example, a plaintiff’s failure to follow a physician’s instructions or failure to give accurate information to the physician may constitute contributory negligence in a medical malpractice claim. Smith v. Hull, 659 N.E.2d 185, 191-92 (Ind. Ct. App. 1995), transfer denied. However, plaintiff’s conduct must go beyond a tiny percentage of fault in order for contributory negligence to bar plaintiff’s recovery. Plaintiff’s contributory negligence must unite simultaneously with the fault of the defendant(s) in being the legal cause of plaintiff’s injuries. Id. at 192.
The New York Times recently wrote an article about an Oklahoma woman who has filed a lawsuit against a major cellphone company. The woman's mother was killed in a motor vehicle accident last year when a pickup truck crashed into the mother's car. At the time of the collision, the driver of the pickup truck was using his cellphone and later explained to the police he had become distracted by talking on the cellphone, which caused him to run a red light causing the collision.
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.
IU-Indy law Professor Eleanor Kinney recently appeared on ABC's Good Morning America to weigh-in on the recent national debate surrounding patient care and medical malpractice reform. She was joined by U of Penn Professor Tom Baker who authored the book The Medical Malpractice Myth.
Click here to see a video of the discussion.
Below Parr Richey Obremskey Frandsen & Patterson Attorney Paul Kruse responds to an editorial published earlier this fall in the Lebanon Reporter. Mr. Kruse counters several myths relating to tort reform for medical malpractice lawsuits, citing studies supporting his argument that medical malpractice costs represent a small percentage of overall healthcare costs. Furthermore, Mr. Kruse explains why no further tort reform for medical malpractice claims is necessary.
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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.
Attorneys who represent personal injury victims or handle personal injury litigation should attend one of the periodic conferences conducted by the National Institute for Trial Advocacy. I had the privilege of serving on the faculty for the recent week-long NITA conference at the Indiana University School of Law at Indianapolis and I am proud to report that it was a wonderful success.
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.
In a recent decision, the Indiana Court of Appeals affirmed a ruling from the Marion Circuit Court, holding that an Indiana father who watched his son die after he was prematurely sent home from the hospital without his injuries being properly treated could recover damages for negligent infliction of emotional distress independently from damages awarded under the Adult Wrongful Death Statute. Indiana Patient's Compensation Fund vs. Gary Patrick, Individually and as Personal Representative of the Estate of Christopher Patrick, Deceased, No. 49A02-0807-CV-614 (Ind. Ct. App. 2009).
A tragic set of circumstances surrounds this case. Back in 2002, a thirty-one year old man was involved in a motor vehicle accident and was transported to St. Mary's Medical Center in Evansville, Indiana, where he was treated for a broken wrist, broken nose, and abdominal trauma. He was discharged the following day after the accident.
At the time the man lived with his father. The evening of the day the son was released from the hospital, he began vomiting blood. His father called 911, but by the time EMTs arrived, the son had died from an untreated ruptured colon caused by seatbelt trauma during the accident.
A recent article from JusticeNewsFlash.com reports that $6 million dollar jury verdict was recovered in a medical malpractice case by a family out of the St. Louis, Missouri area. The doctors of the family's six month-old baby were found liable for the wrongful death of the baby after failing to diagnose and treat a bacterial infection in the baby.
Continue reading "$6 MILLION VERDICT IN MISSOURI MEDICAL MALPRACTICE CASE" »
Personal injury victims in Indiana are required to use reasonable care to mitigate any damages or injuries they sustained as a result of an accident. Generally under this duty, the injured party must follow their doctor's orders following the accident. If a party's injuries are worsened as a result of the party's failure to follow his/her doctor's instructions, then that party's recovery for his/her injuries can be reduced.
But how far can this defense reach?
Continue reading "HOW FAR DOES THE "FAILURE TO MITIGATE DAMAGES" DEFENSE REACH?" »
In Stanley v. Walker, the two parties were involved in a car accident and the plaintiff filed a negligence complaint. The defendant asked the trial court to admit evidence that the plaintiff’s healthcare providers discounted the medical bill. The plaintiff objected, arguing that any evidence of write offs would violate Indiana’s collateral source statute, Ind. Code § 34-44-1-2. The Court discussed how, in Indiana, the proper measure of medical expenses is the reasonable value of such expenses. The court stated that this value is not based exclusively on the actual amount paid to the health care provider, or on the amount originally billed. The court thus held that the collateral source statute does not bar evidence of medical bills discounted by insurance providers in order to determine the reasonable value of medical services in calculating the plaintiff’s damages. The court cautioned that this may only be done if the admission of the write offs can be done without violating the collateral source statute. Stanley v. Walker, 906 N.E.2d 852 (Ind. 2009).
After a patient’s death, her estate in Butler v. Indiana Dept. of Ins. sought excess damages from the Indiana Patient’s Compensation Fund. The Indiana Supreme Court held that, with respect to damages under Ind. Code § 34-23-1-2(c)(3)(A), the amount recoverable by the plaintiff in a wrongful death case for the “reasonable medical expenses” necessitated by the wrongful act is the portion of the billed charges ultimately accepted pursuant contractual adjustments, not the initial amount billed. The court reached its decision after analyzing the specific language contained in Ind. Code § 34-23-1-2, (the Adult Wrongful Death Statute). Butler v. Indiana Dept. of Ins., 904 N.E.2d 198 (Ind. 2009).
In Atterholt v. Herbst, a patient died as a result of an improper diagnosis. His estate brought a wrongful death action against his medical providers, which was later settled at a level sufficient to allow the estate access to the Patient’s Compensation Fund. During the estate’s proceeding against the Fund, the court held that although negligence and causation is established once an underlying settlement is reached with a qualified healthcare provider, the Fund may introduce evidence of the claimant’s preexisting risk of harm, survival odds, and their ability to work if the evidence is relevant to establish the amount of the claimant’s damages. Atterholt v. Herbst, 902 N.E.2d 220 (Ind. 2009).
When handling personal injury claims, plaintiffs’ counsel often address the resolution of subrogation liens, including those asserted by Medicare. Under federal statutes, Medicare is entitled to reimbursement when an injured Medicare recipient receives benefits which are later recovered through a settlement or judgment. New legislation has now given Medicare an effective – and harsh – means of recovering its subrogation lien.In 2007 the Medicare, Medicaid and SCHIP Extension Act (the “Act”) was signed into law, placing new and more detailed requirements on liability insurance companies in claims dealing with Medicare recipients. This 2007 Amendment, effective July 1, 2009, is the counterpart to the 2003 Amendment, which focused on plaintiffs and their attorneys. The 2007 Act increases the enforcement power for Medicare reimbursement by extending liability to insurers and adding damages, penalties and fines for noncompliance.
Continue reading "New Medicare Laws Impact Personal Injury Cases" »
In Indiana auto accident cases, injury victims generally have 2 years from the date of the accident to file a claim. There are several exceptions to this rule such as in cases against governmental entities which require tort claim notices to be sent shortly after the accident. Because every case is different and may involve different laws, it is advisable to talk to an attorney as soon as possible to ensure your rights are protected.
While you are entitled to represent yourself, it is not recommend to pursue a claim without an attorney. Claims adjusters for insurance companies are trained to negotiate settlements in the best interest of the insurance company, not you. Furthermore, accident laws require you to meet specific deadlines in order to pursue your case. In order to insure that you will be treated fairly, meet all deadlines and obtain the maximum recovery you are entitled to, it is wise to hire an attorney.
Accident victims may have different problems resulting from car wrecks. However, most have the same questions they need answered. For this reason, our firm has developed a series of video FAQs answering questions for accident victims. Each month we anticipate addressing different areas of the law. Examples of questions that are addressed are "Do I use my health insurance card to pay for my medical expenses?" and "If I hire a lawyer, how long will it take for my case to be resolved?" The videos aren't intended to offer legal advice, but they do help provide short answers to questions our clients frequently ask. The videos can be seen on indianalawtv.com or by visiting Youtube.com. When visiting the indianalawtv.com site, we provide visitors an opportunity to ask questions which we can answer in future videos. If you have any questions you feel would be appropriate for our series, please let us know. Below is one of the videos in the series entitled, "Can I handle my auto accident without a lawyer?"
The New York Times recently discussed a problematic new trend happening during jury trials. That trend being jurors using Blackberrys and iPhones to gain information through the internet about the case they are hearing. Read the article here.
On top of these devices distracting the jurors from focusing on the case, internet services provided through Blackberrys and iPhones allow jurors to research technical aspects involved in the trial they are hearing or simply find out information about the parties themselves. Information that can be prejudicial and prohibited from being considered pursuant to state and federal trial rules.
Continue reading "Blackberrys and iPhones Causing Problems in Court " »
This past January, the Indiana Court of Appeals ruled on a case coming out of Laporte County. The case dealt with a grandmother who signed the state required "financial responsibility form" for her grandson when he turned 16. At that time, the grandson was living with his grandmother and she was his legal guardian. She had bought her grandson a new car for his 16th birthday and registered the car in his name.
Pursuant to IC 9-24-9-3, Indiana requires that a minor's driver's license application be signed by a parent or legal guardian who promises to assume certain statutory obligations on behalf of the minor. Under IC 9-24-9-4(a), "[a]n individual who signed an application for a permit or license under this chapter agrees to be responsible jointly and severally with the minor applicant for any injury or damage that the minor applicant causes by reason of the operation of a motor vehicle if the minor applicant is liable in damages.”
I have been a personal injury attorney at the law firm Parr Richey Obremskey Frandsen & Patterson for the past 30 years. Insurance companies and their clients have ignored the facts about personal injury litigation and propagate the myth that frivolous claims threaten society. In fact, insurance companies only pay for harm caused by their insured. Claims that have no substance--if they exist--are dismissed by the court or are lost at trial.
I responded to a recent newspaper editorial written under the headline: "Lawyers, spurious lawsuits threaten a potential civic disaster". Too many newspaper editors have fallen prey to the propaganda campaigns of insurance companies who try to poison the perception of the public--and potential jurors in our community--about the impact of litigation on our society. In fact, our homes, cars, products and lives are safer because personal injury lawyers hold manufacuturers and others accountable for their misconduct.
Attached is my entire letter to the Editor for the Lebanon Reporter:
Continue reading "The myth about frivolous lawsuits--what insurance companies don't tell you" »
A southern Indiana bicycle rider who suffered serious injuries as a result of being hit by a motorist received some justice this week when the motorist plead guilty to attempted murder. The conviction arose out of a July 27, 2006 incident in New Washington Indiana when Justin Keith Simpson attempted to run over and kill the bicyclist Eric May. While May fortunately survived the crash, he reportedly suffered a head injury, and severe lacerations to his leg which may result in amputation.
According to the Clark County Prosecutor Jeremy Mull, the court has discretion as to Simpson's sentence, but the minimum recommended sentence for class A felonies in Indiana is 20 years in prison. The sentencing hearing is set for March 2, 2009.
In addition to the criminal prosecution, Simpson could face a civil lawsuit for injuries suffered by May in the bicycle/car accident. Under Indiana law, crime victims can sue the criminal for injuries they sustain, including damages for medical expenses, lost wages, pain, suffering and the loss of the enjoyment of life. While victims can sue criminals for damages, collecting damages for injuries arising out of criminal acts can prove difficult as most car insurance policies do not cover damages which their insured intentionally caused.
Most people have heard of punitive damages in accident and injury cases, but these damages are often misunderstood. Under Indiana law, personal injury victims can generally seek two types of damages. The first and most common type of damages sought are known as compensatory damages. The second and rarely obtained type of damages are punitive damages. The two types of damages are different in that they are used to accomplish different ends.
Continue reading "Punitive Damages-what are they?" »
When Indiana car accident victims file claims for their injuries, most people assume that the lawsuit will be filed against the negligent driver's insurance company. This is not the case. Under Indiana law, when an injury victim files a lawsuit against a negligent driver, the suit will be filed against the negligent driver, not his insurance company.
Continue reading "Are Indiana car accident cases filed agianst the insurance company?" »
The Associated Press recently reported that a push for change in Georgia's seat belt law has intensified as state lawmakers consider the safety concerns under the current law and the potential increased highway funds if a new law was enacted. Georgia's current seat belt law does not require adults to wear their seat belts while opeating or riding in a pick-up truck. The article explains that pressure to make the law tougher has come under the lure of receiving $4 million in federal highway funds if the law was changed and avoiding "an estimated $62 million each year in accident-related expenses such as medical costs."
Under Indiana law, adults that are front-seat passengers and drivers in pick-up trucks and SUVs that are registered as trucks are not required to wear their seat belts. See Owen v. State, 796 N.E.2d 775 (Ind. Ct. App. 2003); IC 9-13-2-123; IC 9-13-2-188; 9-19-10-2.
Indiana car and motorcycle accident victims often want to know where their case will be filed if a settlement is not reached with the other driver's insurance company. Most motor vehicle accident cases are filed in state courts. The few cases filed in federal courts either involve a federal law which has been allegedly violated or the parties are from different states and the case value exceeds $75,000.
When cases are filed in state court, as the majority are, each state has different rules regarding what county the case can be filed in. In Indiana, the Indiana Trial Rules, adopted by the Indiana Supreme Court, sets forth what counties are the appropriate venue, or location, for cases to be filed. While the rules have several subparts and exceptions always exist, Indiana accident victims must generally file their cases in either the county where the accident occurred or the county where the defendant lives. The decision of which county to choose, if they are different, is left to the injury victim and his attorney filing the case.
Indiana law expressly states that an attorney cannot receive more than 15% of any award the attorney obtained on behalf of his client to be paid out of the patient's compensation fund. See IC 34-18-18-1.
In 2007, however, the Indiana Supreme Court found it to be okay when an attorney used a sliding scale fee arrangement ("agreement") in representing his client in a medical malpractice case, stating it was not an unreasonable fee given the circumstances and difficulty of the case. Under the Court's holding, for example, if the maximum amount recoverable under Indiana's Medical Malpractice Act ($1,250,000) was awarded to the patient, "the maximum possible total attorney fee would be $400,000, calculated by taking 100% of the non-Fund recovery ($250,000) plus 15% of $1,000,000 Fund recovery ($150,000). The resulting attorney fee would be 32% of the total recovery . . . ." In re Stephens, 867 N.E.2d 148 (Ind. 2007).
Newsday.com reported that the largest city in America paid $403 million to settle personal injury lawsuits in the fiscal year of 2008, which accounted for a 6% increase from the amount paid in the previous fiscal year. The highest settlement was $8.5 million, going to compensate a school guidance counselor who lost vision in one eye after having a broken door slammed in his face by a child.
In a lawsuit against Bridgestone Firestone North American Tire ("Bridgestone"), plaintiff brought suit against Bridgestone after her child was fatally injured in a rollover automobile accident, alleging that the accident was caused by a failed Bridgestone tire.
Plaintiff presented testimony from an expert witness who opined that the tire failure was caused by separation in the tread and upper steel belt from the body, it had insufficient fatigue strength/age deterioration/resistance to cracks, and it had an inadequate liner/wedge.
Bridgestone moved to have the negligence and strict liability claims against them dismissed, arguing under FRE 702, Daubert v. Merrell Dow Pharmaceuticals, and Kumho Tire Co. v. Carmichael that plaintiff's expert was unqualified to render a reliable expert opinion on the matter.
U.S. District Court Judge David G. Campbell from Arizona rejected Bridgestone's arguments holding that plaintiff's expert was qualified "by knowledge, experience, training and education to testify on the cause of the tire failure;" citing the expert's graduate training in mechanical engineering and 19 years of evaluating failed tires and consulting work on these matters.
See Andrews et al. v. Bridgestone/Firestone Inc. et al.
In jury trials involving personal injuries, disputes often arise regarding what can be said about insurance during the course of proceedings. Unfortunately, many assumptions about about what can and cannot be said about insurance are based upon evidentiary rule misconceptions rather than upon the actual rules of evidence.
Obviously, what can be said will depend upon the nature of the case. If the claim is a first-party insurance case brought by an insured against her insurer, such as an uninsured or underinsured motorist claim, the insurance company is a party to the action and its identity should be appropriate for discussion as these claims are technically based upon contract. Malott v. State Farm, 798 N.E.2d 924, 926 (Ind. Ct. App. 2003). Under these claims, not only can you discuss the identity of the insurance company, but a plaintiff may introduce into evidence portions of the written insurance policy to establish the contract upon which the claim is based. See Ind. Trial Rule 9.2(A) (requiring written contracts to be filed with the complaint and made part of the record). . . . Continue reading Tony Patterson's article Insurance at Trial: What Can You Say? on Parr Richey Obremskey & Morton's Indiana Co-Counsel newsletter for October 2008.
The plaintiff in this case was injured in an automobile accident. The defendant retained a medical expert who offered opinions regarding the plaintiff's injuries during discovery. At trial, the expert testified for the first time that he diagnosed the plaintiff with a degenerative disc disease, which was a material deviation from his prior deposition testimony. As a result of this contradiction, the plaintiff requested a new trial.
The trial court found the defendant committed misconduct by not disclosing its medical expert's new diagnosis prior to trial and granted the plaintiff's motion for a new trial. On appeal, the trial court's ruling was affirmed, finding that the defendant should have supplemented its medical expert's opinion prior to trial. Nature's Link v. Przbyla, 885 N.E.2d 709, 719 (Ind. Ct. App. 2008).
The Indiana Trial Rules do not distinguish between "trial" and "discovery" depositions. Trial Rule 30 allows either party to conduct a deposition provided that the party gives reasonable notice in writing to other parties to the action. If a deposition is properly taken in accordance with Trial Rule 30, the deposition may later be used at trial for evidentiary purposes if the witness is unavailable to testify at trial and the party against whom the testimony is offered had an opportunity and similar motive to examine the witness during the deposition. (Ind. Rule of Evidence 804(b)(1)) It does not matter that the deposition was not noticed as a "trial" or "evidentiary" deposition, as the "Indiana Rules of Trial Procedure do not recognize such a distinction." Hagerman v. Copeland , 697 N.E.2d 948, 953 (Ind. Ct. App. 1998).
The Indiana Supreme Court has granted petition to transfer in the case Stanley v. Walker. The Court is set to hear oral argument on the matter November 6, 2008 at 9:45 a.m. in the Indiana Supreme Court Court Room. It can be watched live via webcast at the IndianaCourts website.
In Stanley v. Walker, the Indiana Court of Appeals affirmed the Johnson Superior Court in preventing the defendant from introducing evidence at trial that the plaintiff's medical providers and health insurance company had negotiated a "write off" which reduced the amount plaintiff was initially billed after receiving medical services. The Indiana Court of Appeals held that Indiana's collateral source evidentiary statute precluded the evidence from being admitted.
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).
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).
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).
The Indiana Court of Appeals upheld the trial court's award of prejudgment interest in a medical malpractice case earlier this month in Hupfer v. Miller, 2008 WL 2600021 (Ind. Ct. App. 2008). In Hupfer, a jury returned a verdict in favor of the Plaintiff for $75,000 against a podiatrist who was found liable for committing malpractice. Following the verdict, the Plaintiff filed a motion for prejudgment interest. The trial court granted the motion and awarded the plaintiff $24,000 after applying an interest rate of 8%.
The Indiana Court of Appeals affirmed the trial court's decision on appeal. In doing so, it stated that the initial award of prejudgment interest was made pursuant to the Tort Prejudgment Interest Statute ("TPIS") (or IC 34-51-4-1 et. seq.), which was enacted to "encourage settlement and to compensate the Plaintiff for the lost time value of money." Moreover, TPIS preempts comomon law prejudgment interest in tort cases.
On appeal, the Defendant argued that Plaintiff's written settlement offer did not comply with TPIS because it failed to specify the exact Plaintiff and Defendant to whom the offer applied. The Court disagreed stating the it was clear who the offer was directed at when the letter was sent from the individuals who filed the claim to the person whom the claim was filed against.
The Defendant also argued that the prejudgment award violated TPIS as it was more than one and one-third (1 1/3) the amount of the total judgment. The Court again disagreed explaining that the TPIS states the prejudgment interest award must not exceed one and one-thid the total amount of the judgment and in the case at hand the prejudgment interest award was exactly one and one-third.
Lastly, the Defendant unsuccessfully argued that the trial court erred in awarding prejudgment interest when it applied a prejudgment interest rate of 8%. The Court, however, noted that the TPIS allows a trial court to award a prejudgment interest rate of not less than 6% and no more than 10% per year. Consequently, the trial court was within its discretion to award 8%.
On a rehearing of the matter, the Indiana Court of Appeals recently affirmed its decision in Estate of O'Neal v. Bethlehem Woods Nursing Rehab. Ctr., LLC, 878 N.E.2d 303, 314 (Ind. Ct. App. 2007), that the Indiana Wrongful Death Act's ("WDA") two-year statute of limitation, which begins at the date-of-death, controls over Indiana's professional services two-year statute of limitation, which begins at the time of the occurrence. See Newkirk v. Bethlehem Woods Nursing & Rehab. Ctr., LLC (Estate of O'Neal), (Ind. Ct. App. 2008) (June 10, 2008) (opinion on rehearing), 2008 WL 2346138.
In its petition for rehearing, the petitioners argued, among other things, that the similarities in text and purpose between the Indiana professional services statute of limitation and the Indiana Medical Malpractice Act's ("MMA") two-year, occurrence based statute of limitation requires the Indiana Court of Appeals to conclude that the Indiana professional services statute of limitation controls over the Indiana WDA's statute of limitation.
The Indiana Court of Appeals disagreed, holding that even though the professional services statute of limitation has similarities in its text and purpose to the Indiana MMA's statute of limitation, the legislative goals of the MMA constitute a far more comprehensive means of accomplishing certain legislative goals. Thus, even though the MMA's statute of limitation controls over the WDA's statute of limitation, the professional services statute of limitation does not control over the WDA's statute of limitation.
Click here to read the opinion.
In deciding two matters of first impression, the Indiana Supreme Court recently held that a trampoline may constitute an attractive nuisance and that a parent/landowner may be liable for injuries of a minor sustained on the parent/landowner's property, when the parent/landowner's minor child invites the other minor onto the property. Click here to read the Indiana Supreme Court's opinion in Kopczynski v. Barger.
In Kopczynski, a twelve-year-old girl was invited by her neighbor's minor child to jump on a trampoline in the neighbor's back yard and subsequenlty injured her knee while on the trampoline. The trampoline was located in an unenclosed area behind the neighbor's house and the children were jumping on the trampoline without adult supervision.
The trial court granted the parent/landowner's motion for summary judgment on the injured girl's claim for liability under the attractive nuisance doctrine and premises liability, determining that the girl was a trespasser and that the attractive nuisance doctrine was not applicable. The Indiana Court of Appeals affirmed the trial court's determination.
The Indiana Supreme Court reversed the trial court's grant of summary judgment, holding that there is a genuine issue of material fact as to whether the injured girl was an invitee on the property, opposed to a trespasser. Additionally, the Court used expert testimony that stated unenclosed trampolines on private property "are particularly attractive to children," that knee injuries are a common result of trampoline use and additional testimony stating the injured girl was not warned of the dangers of the trampoline in determining that a genuine issue of material fact existed as to whether the trampoline in this case constitued an attractive nuisance.
Indiana's Southern Federal District Court recently ruled in favor of plaintiff's motion to strike defendant's expert witness's testimony, determining that defendant's expert witness's failure to disclose the previous cases in which he provided expert testimony violated Federal Rule of Civil Procedure 26(a)(2)(B) and this violation was prejudicial to the plaintiff. See Wallace v. Hounshel, 2008 Lexis 44977 (S.D. Ind.) (May 22, 2008).
In its order, the Court explained that FRCP 26(a)(2)(B) mandates that expert witnesses disclose to opposing counsel during the discovery process "a list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition." However, the defendant in this case argued that under FRCP 37(c)(1), the expert's testimony should still be allowed, as the failure to disclose was harmless to the plaintiff.
Ultimately, the Court held that defendant's failure to disclose the other cases in which their expert gave an opinion was prejudicial for the reasons that it prevented the plaintiff from determining whether the expert was credible and from seeing if the expert was giving "inconsistent positions" in the case at hand compared to previous cases.
Indiana's Hospital Lien Statute, IC 32-33-4-1 et seq., allows a hospital to hold a lien against an injury claim. When properly perfected, this lien applies to any amount recovered by the patient.
The hospital must record its lien in the county where the hospital is located within 180 days after the patient is discharged, and, within 10 days of recording, must provide notice of the lien to (1) the tortfeasor, (2) the patient's attorney, and (3) the Indiana Department of Insurance.
Despite the statute explicitly requiring a hospital to provide the patient's attorney with actual notice of the lien's existence, the Indiana Supreme Court has determined that, in certain situations, constructive notice will suffice. To avoid personal liability, search the Recorder's Office for any hospital liens prior to disbursing any funds in a personal injury claim.
The Indiana Court of Appeals handed down a decision on Monday, in Stanley v. Walker, holding write-offs constitute insurance benefits for purposes of the collateral source rule. In its opinion, the Indiana Court of Appeals reasoned "that write-offs constitute insurance benefits for which the plaintiff has paid directly, and therefore, defendants cannot be allowed [to] introduce evidence of write-offs to reduce damage awards" pursuant to Indiana's collateral source statute. The majority concluded that these benefits "should inure to the benefit of the plaintiffs," as they had the forethought to carry insurance and make the required premium payments.
In Stanley, the plaintiff was involved in a motor vehicle accident and sustained medical bills stemming from his injuries in the amount of $11,569.99. However, due to write-offs negotiated by his insurance company, this gross amount was significantly adjusted downward. At trial court, defendant acknowledged he could not introduce evidence of or ask plaintiff about the amount of his medical expenses that were being paid for through his insurance coverage. However, defendant sought to introduce evidence of the write-offs arranged by plaintiff's insurance coverage. Plaintiff objected and the trial court sustained the objection citing Indiana's collateral source statute.
Click here to see the Indiana Court of Appeals opinion in Stanley v. Walker.
In Knightstown Banner, LLC v. Town of Knightstown, the Indiana Court of Appeals set forth the criteria that must be met in order for a party to be granted change of judge after a case is remanded to the trial court. Specifically, the Indiana Court of Appeals held that in order to give rise to a change of judge as a matter of right upon remand, the matter to be decided upon remand must require a hearing and receipt of evidence and must involve at least one issue already tried and decided by the court. 882 N.E.2d 270 (Ind. Ct. App. 2008).
In Scheible v. Jackson, the plaintiff argued that both a purchaser and a vendor owe a duty to the traveling public to maintain property which is the subject of a land-sale contract in a reasonably safe condition. On appeal, the Indiana Court of Appeals noted that, as a general rule, a vendor in a land-sale contract avoids liability on the subject real estate by relinquishing possession and control to the purchaser, at least where the purchaser has a reasonable opportunity to address a known defect. However, the Indiana Court of Appeals also stated, that where a vendor retains control of the subject premises, liability may attach.
As a result, the Indiana Court of Appeals determined the existence of a land-sale contract is not itself dispositive as to the vendor's non-liability for a dangerous condition of the land. Instead, the Indiana Court of Appeals held that it must look to both the terms of the land-contract and the conduct of the contracting parties to determine who actually exercised control over the property. 881 N.E.2d 1052 (Ind. Ct. App. 2008).
In Bailey v. State Farm Mut. Auto. Ins. Co., the Indiana Court of Appeals held that Indiana does not recognize a first-party cause of action for negligent entrustment of a motor vehicle to a voluntarily intoxicated adult. The Indiana Court of Appeals reasoned that denying those who drive another's vehicle while intoxicated the ability to be compensated by the entrustor properly distributes the incentive to control irresponsible drinking between the entrustor and the entrustee, and will encourage personal autonomy and responsibility rather than dependency and paternalism. 881 N.E.2d 996 (Ind. Ct. App. 2008).
In Smith v. Auto-Owners Ins. Co., the plaintiffs automobile insurer argued that IC 27-7-5-4 and the terms of the insurance policy prevented the plaintiffs from making an uninsured motorists claim more than two years after an accident. Upon review, the Indiana Court of Appeals held that although IC 27-7-5-4 requires the tortfeasor's insurer to become insolvent within two years of the date of the accident in order for a party to be able to claim uninsured motorists coverage from their insurer, the statute does not require the claim to be filed within two years after the accident, only within two years after the tortfeasor's insurer becomes insolvent and the insured has knowledge of the insolvency. 877 N.E.2d 1220, 1224 (Ind. Ct. App. 2007).
In Querry & Harrow v. Transcontinental Ins. Co., 861 N.E.2d 719 (Ind. Ct. App. 2007), the Indiana Court of Appeals denied an excess insurer's claim against the insured's attorneys. In reaching its decision, the Indiana Court of Appeals stated the doctrine of equitable subrogation should not be extended to excess insurers which would allow them to sue the insured's attorneys for legal malpractice. The Indiana Court of Appeals explained that allowing such a claim could jeopardize the attorney's loyalty to his client and maintaining client confidentiality. The Indiana Supreme Court granted transfer of the case.
In a brief opinion, the Indiana Supreme Court affirmed the Indiana Court of Appeals decision and reasoning on this issue. It also affirmed the Indiana Court of Appeals decision on a secondary issue of finding no material issue of fact that the limited communications between the excess insurer and the insured's attorneys did not constitute an attorney/client relationship.
See the Indiana Supreme Court's opinion.
Most litigating attorneys will agree that obtaining fair settlements in injury cases can be challenging. For this reason, once settlement is reached, the temptation exists to simply execute the release the defendant's attorney encloses with the check. Unfortunately, many releases contain un-negotiated terms or language which leads to unintended results; therefore they must be carefully scrutinized prior to signing.
The first fundamental issue is to be sure the release only discharges intended defendants. Indiana law historically held that a release of one torfeasor released all tortfeasors. However, in Huffman v. Monroe County Community Sch. Corp., 588 N.E.2d 1264 (Ind. 1992), the Indiana Supreme Court abrogated the common law release rule and held that the release of one wrongdoer does not release all unless the agreement was to release all, as in any contract for the release of joint tortfeasors.
In Pelo v. Franklin College of Indiana, 715 N.E.2d 365 (Ind. 1999), the Indiana Supreme Court extended this holding to derivative actions, reversing the prior Indiana Court of Appeals opinion in United Farm Bureau Mut. Ins. Co. v. Blossom Chevrolet, 668 N.E.2d 1289 (Ind. Ct. App. 1996). The Indiana Supreme Court held that a settlement agreement only released those specifically identified and not other defendants, including those whose liability is derivative. Pelo, 715 N.E.2d at 366-67.
In a case in which several individuals have been named as parties to the case, there is little difficulty in identifying the individuals who are not released. However, in a case in which there is an early settlement and there is time to file subsequent claims, it is not always known who the later defendants will be. Pelo was significant in allowing plaintiffs to release one defendant while continuing on with investigation to determine if there were other tortfeasors.
While Pelo provides some protection to plaintiffs, it is still important to review the release document to ensure that it does not release other individuals the plaintiff may wish to remain as defendants in the case. In Esate of Spry v. Greg & Ken, Inc., 749 N.E.2d 1269 (Ind. Ct. App. 2001), the deceased's estate filed a claim against a drunk driver who negligently caused the deceased's death. The estate reached a settlement with the drunk driver and executed a release discharging the drunk driver "and any other party who is or may be liable" for the death.
Thereafter, the estate filed a dram shop claim against the bar that served the drunk driver. Upon reviewing the release document, the Indiana Court of Appeals held that the bar was released by the language discharging "any other party who is or may be liable." This case highlights the importance of reviewing the release language to ensure that only intended parties are released.
Continue Reading What's in a Release? in Newsletter
Last February, in a matter of first impression, the Indiana Court of Appeals handed down an opinion holding that an excess insurer of a client being sued in a product’s liability case was not allowed to bring a legal malpractice claim against the client’s attorneys and the law firms of those attorneys who negotiated a settlement for $6,300,000. See Querrey & Harrow, Ltd. v. Transcontinental Ins. Co., 861 N.E.2d 719 (Ind. Ct. App. 2007), reh’g denied, trans. granted, opinion vacated.
The attorneys had negotiated a $6,300,000 settlement stemming from a product’s liability claim that had been brought against the client regarding an injury that was produced from a trampoline the client manufactured. Id. at 720. The client’s primary liability insurer paid around $3,000,000 of the settlement before its coverage eroded. Id. The client’s excess insurer paid the remaining $3,740,000 of the settlement. Id. Arguing the settlement could have been substantially less had the client’s attorneys raised a timely non-party defense, the excess insurer filed suit against the client’s attorneys and their law firms. Id. The client’s attorneys appealed the denial of their motion for summary judgment by the trial court and the trial court’s determination that, as a matter of law, the excess insurer could bring a legal malpractice suit against them. Id. at 721.
On appeal, the Indiana Court of Appeals did not accept the excess insurer’s argument that they should be allowed to bring a legal malpractice claim against the client’s attorneys under the doctrine of equitable subrogation. The Indiana Court of Appeals found no material issue of fact in finding that limited correspondence between the excess insurer and the client’s attorneys fell significantly short of constituting an attorney/client relationship. Id. at 724. Furthermore, the Indiana Court of Appeals held that allowing the legal malpractice suit under the doctrine of equitable subrogation would essentially be the same as allowing an assignment of the cause of action from one party to another, which it will not do. Id. at 723. In support of the holding, the Indiana Court of Appeals explained it will not allow legal malpractice actions in these situations for the reason that allowing them would divide the loyalty of the attorneys. If allowed, attorneys will be tempted in not vigorously representing their clients in order to protect themselves against third parties such as the excess insurer in this case. Id.
The Indiana Supreme Court granted a petition to transfer and the Indiana Court of Appeals opinion has been vacated.
The Indiana Supreme Court held that a county in which a passenger's damaged property was regularly located was not a county of preferred venue in an automobile accident case. The Indiana Supreme Court disapproved two prior Indiana Court of Appeals decisions in which the plaintiffs were allowed to use a claim for personal property damaged in an automobile collision to establish preferred venue in the plaintiff's home county, rather than the county in which the accident occurred or the defendant's home county. In disapproving the prior Indiana Court of Appeals cases, the Indiana Supreme Court refused to broadly interpret Indiana Trial Rule 75(A)(2) to allow preferred venue in the plaintiff's county of residence, where it would ordinarily have secondary status.
R&D Transport, Inc. v. A.H., 859 N.E.2d 332 (Ind. 2006).
Tony Patterson was named Indiana Trial Lawyer of the Year at the November 1, 2007, Indiana Trial Lawyers Association ("ITLA") 43rd Annual Institute at the Indiana Roof Ballroom in Indianapolis. The annual award is given to an attorney who exemplifies the foundation of ITLA's mission and who has shown distinguished service to the citizens of Indiana and the United States as a leading member of the Indiana Trial Bar and dedication to the rights of the injured under the laws of the State of Indiana and the United States of America. Congratulations Tony!
Whether your organization is taking advantage of the latest electronic communication devices or is merely using e-mail as an inexpensive form of communication, electronically stored information can become a minefield of problems if your organization ever finds itself in litigation.
Companies are obligated to prevent the destruction of relevant evidence to a law suit. However, now with electronic information, that task has become more difficult. At a minimum, all organizations should have a formal written process for implementing a “hold” on destruction of data when a lawsuit is reasonably likely.
Next, all companies should have a detailed written inventory of the kinds of electronically stored information the organization produces, its format, and the system or software used for its creation. Often the most troublesome area for many organizations is determining what information exists on off-premise, personal electronic devices, such as personal laptops, or PDAs, yet data from these sources can also be subject to discovery.
On the other hand, there is a proper method to the deletion of electronically stored information if it is destroyed as part of a routine operation done in good faith. In order to qualify for the safe harbor, your organization must have already implemented a data retention policy before litigation and must consistently adhere to it.
Finally, parties may not be required to provide certain information if it can be shown that it is not reasonably accessible. Companies should prepare in advance to provide proof of the costs of accessing and recovering electronic information that it would seek to prove is not “reasonably accessible”. Through proper planning and implementation of these policies, your organization can be well-prepared to meet the challenges of litigation in this information age.
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).
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).
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.
