Indiana Injury Lawyer Blog

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.

Continue reading "Discovery Rule Not Intended to Toll Indiana SOL Until Optimal Litigation Conditions are Established" »

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 " »

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.

Continue reading "Oklahoma Woman Seeking Redress from Cellphone Company - Courts Look at Liability of Cellphone Companies When Users Cause Accidents While Talking on Cellphones " »

In Spaulding et al. v. Wishard Memorial Hospital et al., No. 49A02-0810-CV-954 (October 8, 2009), the Indiana Court of Appeals decided several issues stemming from a medical malpractice trial. One of those issues is whether the trial court erred by redacting the words "Department of Insurance" from the medical review panel's certified opinion. On appeal, the Indiana Court of Appeals held the trial court was correct in excluding the words "Department of Insurance" and using a redacted copy of the certified medical review panel opinion as evidence.

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.

Continue reading "INDIANA COURT OF APPEALS UPHOLDS TRIAL COURT'S DECISION TO REDACT "DEPARTMENT OF INSURANCE" SHOWN IN MEDICAL REVIEW PANEL OPINION" »

In a recent not for publication memorandum decision* by the Indiana Court of Appeals, the court reversed the granting of a motion for summary judgment in favor of the Indiana Department of Transportation ("INDOT"), finding that INDOT owed a duty of care to a father and son who were subcontracted to complete some paving work for INDOT. Lorraine Bunn, as Personal Representative of the Estate of Robert P. Bunn, Deceased, and Robert L. Bunn vs. Indiana Department of Transportation, No. 50A03-0810-CV-504 (Indiana Ct. App. 2009).

While completing the work, the son was electorcuted after a dump truck made contact with overhanging power lines. The father was in close proximity, watching as it happened.

Continue reading "INDIANA DEPARTMENT OF TRANSPORTATION CHARGED WITH DUTY FOLLOWING THE ELECTROCUTION OF INDOT SUBCONTRACTOR" »

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.

Continue reading "INDIANA FATHER'S EMOTIONAL DISTRESS CLAIMS FOUND INDEPENDENT OF HIS CLAIMS FOR DAMAGES UNDER THE ADULT WRONGFUL DEATH STATUTE" »

Indiana Supreme Court has granted transfer of a case involving Indiana's workers' compensation statute and a farmer's insurance policy which aimed at excluding the farmer's liability coverage. Everett Cash Mutual Insurance Company vs. Rick Taylor and Katrina Taylor, No. 02A03-0808-CV-386 (Ind. Ct. App. 2009), transfer granted (September 3, 2009).

In Everett, a farmer employed an independent contractor business to paint his house, grain bin, and barn. The farmer did not check to see if the business carried workers' compensation insurance for its employees and in fact they did not. One of the business' employees came into contact with an electrical wire while painting and was injured.

The employee initially filed a workers' compensation claim against the independent contractor business, but he discovered the business had no such insurance. He then amended his complaint to name the farmer, alleging the farmer failed to verify whether the independent contractor business had workers' compensation insurance pursuant to Indiana Code 22-3-2-14(b). At no time did the employee file any tort-related claims against the farmer.

Continue reading "Indiana Supreme Court Will Take Closer Look at Exclusionary Clause in Farmer's Personal Liability Policy with Everett Cash Mutual Insurance Company" »

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 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). 

In Ramirez v. Wilson, a semi-tractor collided head-on with a pregnant woman’s car.  She was killed, and her daughter S.R. died in utero.  S.R.’s father filed a complaint for the wrongful death of the unborn child.  The Court found that although S.R. was a viable, full-term fetus, under Indiana precedent, a fetus is not a child for purposes of the wrongful death statute and the driver was appropriately entitled to judgment as a matter of law on S.R.’s father’s claim for the unborn child’s wrongful death.  Ramirez v. Wilson, 901 N.E.2d 1 (Ind. App. 2009).

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.

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).

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 Owen v. State, 796 N.E.2d 775 (Ind. Ct. App. 2003), the owner of Chervrolet Blazer was stopped by a police officer at a seatbelt checkpoint when the officer noticed the owner was not wearing his seatbelt. While the officer was in the process of issuing the owner a seatbelt ticket, the owner argued that his Blazer was registered as a truck and exempt from the seatbelt requirement pursuant to Indiana statute. Despite the owner's Blazer being registered as a truck, the trial court found it not to be a truck and affirmed the issuance of the ticket.

On appeal, the Indiana Court of Appeals noted that IC 9-19-10-2 states that drivers and front-seat passengers in "passenger motor vehicles" are required to keep their seatbelts fastened, and that IC 9-13-2-123 defines a "passenger motor vehicle" as "a motor vehicle designed for carrying passengers." The Indiana Court of Appeals noted, however, that Indiana statute excludes "truck, tractors, and recreational vehicles" as "passenger motor vehicles." Furthermore, the Indiana Court of Appeals stated a truck is defined as "a motor vehicle designed, used, or maintained primarily for the transportation of property" under IC 9-13-2-188.

In giving the applicable statutes their plain and ordinary meaning, the Indiana Court of Appeals held "the definition of 'truck' does not necessarily exclude SUVs, and if an SUV owner has paid the fee for a truck plate, then by law he drives a truck that is specifically excluded from the seatbelt law." Additionally, the Indiana Court of Appeals stated "[i]f an SUV owner does not have a truck plate, then by law he does not drive a truck but instead drives a passenger vehicle that is subject to the seatbelt law."

Applying its holding to the case at hand, the Indiana Court of Appeals reversed the trial court, stating the owner's Blazer was licensed as a truck. Therefore, Indiana's seatbelt statute did not apply.

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).