Indiana Injury Lawyer Blog

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.

A common question by those who have been injured due to an unsafe roadway condition is whether they can bring a claim against a governmental entity for failure to maintain the roadway properly? In some cases an injury victim will be allowed to proceed with a claim against a governmental entity for failing to exercise reasonable care in keeping the roadway reasonably safe.

The Indiana Supreme Court held that a governmental entity has a common law duty to exercise reasonable care and diligence to keep its streets and sidewalks in a reasonably safe condition for travel. Catt vs. Board of Comm'rs of Knox County, 779 N.E.2d 1 (Ind. 2002).

Continue reading "Defective/Unsafe Roadway Conditions - Do I Have a Claim for My Injury?" »

Several states and some localities have already passed strict laws regulating drivers use of cellphones. Some states such as California and New York have enacted a statewide ban on all hand-held cellphone use while driving. Certain localities such as Chicago, for example, have done the same. Indiana law currently has no limits on drivers hand-held cellphone use.

Many more states have completely banned cellphone text messaging while a person is driving. While Indiana lawmakers have not enacted uniform statewide bans on text messaging while driving, they have place restrictions on drivers under the age of 18. Effective as of July 1, 2009, in Indiana drivers under the age of 18 may not use cellphones, text messaging devices, or other wireless telecommunications devices.

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" »

Indiana law requires that each driver be covered with liability insurance in order to operate a car on public roadways. This law requires that insurance to have minimum liability limits of $25,000 per person and $50,000 total damages per accident. Simply put, this requires every driver to have enough insurance to pay any damages they cause up to $25,000 to any one person they injure. While every driver is required to carry insurance, too many drivers have too little or no insurance at all.

While no one can guarantee other drivers on the roadway will have insurance, drivers can protect themselves by purchasing uninsured (UM) and underinsured (UIM) motorist coverage. In fact, every automobile insurance carrier selling policies in Indiana is required to offer UM/UIM coverage in an amount equal to the liability portion of the insurance policies they sell.

UM/UIM coverage acts to protect drivers from uninsured and underinsured drivers by insuring they are protected up to the amount of the UM/UIM coverage they purchase. For example, if you are insured by Allstate Insurance with UM/UIM limits of $100,000, and are hit by a negligent uninsured driver, Allstate is required by law to step in and provide coverage to you and pay any damages you sustain in the accident up to the limits of your $100,000 UM/UIM policy. This would include paying for all of your damages including medical expenses, lost wages, pain, suffering, the loss of enjoyment of life, and any other damages you sustain.

If the negligent driver is insured by Progressive Insurance with liability limits of $25,000 and your damages exceed the $25,000 limits, Progressive would pay the first $25,000 of your damages and Allstate would cover any additional damages you sustained up to your policy limits of $100,000 in total damages.

The law surrounding uninsured and underinsured motorist coverage can be complicated. However, purchasing significant UM/UIM coverage can provide substantial financial protection for you and your family.

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?" »

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).

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 chicagotribune.com reported recently that more Indiana motorcycle deaths has caused a renewed debate over Indiana's lack of a mandatory motorcycle helmet law. According to the report, while Indiana does not have a mandatory motorcycle helmet law, 20 states currently do. The Indianapolis based Indiana Criminal Justice Institute states that since April of this year, at least 12 Indiana motorcycle crashes have resulted in deaths and motorcycle deaths have risen 80 percent in the last 10 years.

Click here to review the complete article from the chicagotribune.com.

Under Indiana law, when a person driving a vehicle that is approaching a railroad crossing, that person must stop within fifty feet but not less than fifteen feet from the nearest track of railroad and may not proceed until safe to do so when: 1) a clearly visible electric or mechanical signal device gives warning of the immediate approach of a train, 2) a crossing gate is lowered or when a human flagman gives or continues to give a signal of the approach or passage of a train, 3) a railroad train approaching within one thousand five hundred (1,500) feet of a highway crossing emits an audible signal and because of speed or nearness to the crossing is an immediate hazard, and 4) an approaching train is plainly visible and is in hazardous proximity to the crossing. See IC 9-21-8-39.

Additionally, motor vehicle drivers have a duty under IC 9-21-5-4 to reduce their speed as necessary at railroad crossings in order to avoid colliding with people, vehicles, or other conveyances on or near the intersection.

Under Indiana law, when approaching a stationary authorized emergency vehicle that has its emergency lights activated, all motor vehicle drivers are required to proceed with "due caution" in yielding the right-of-way by changing into a lane not adjacent to that of the authorized emergency vehicle, "if on a highway having at least four (4) lanes with not less than two (2) lanes proceeding in the same direction as the approaching vehicle." See IC 9-21-8-35(b)(1). If a motor vehicle driver is unable to safely change lanes, Indiana law requires drivers to reduce the speed of their vehicle, while still maintaing a speed that is safe for the current road conditions. See IC 9-21-8-35(b)(2).

Please be careful and remember the law when encountering stopped emergency vehicles on Indiana roadways.

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.

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.

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).

Indiana law allows only 1 additional passenger on a motorcycle, in addition to the motorcycle driver. The passenger must be seated only on a firmly attached and regular seat designed for passenger use. See IC 9-21-10-1

Indiana law requires a motorcycle to have its headlamp illuminated at all times during operation. See IC 9-21-10-5

All drivers or passengers of a motorcycle under the age of 18 in Indiana must wear protective headgear meeting Indiana's minimum requirements, and must also wear protective glasses, goggles, or use a transparent face shield at all times while operating or riding on a motorcycle. See IC 9-21-10-9