Indiana Injury Lawyer Blog

This past Friday, the Indiana Judicial Nominating Commission voted to nominate the three finalists for the Indiana Supreme Court vacancy. Judge Steven H. David (Boone Circuit Court), Judge Robyn L. Moberly (Marion Superior Court) and Karl L. Mulvaney (Indianapolis attorney) have all been nominated as the remaining three finalists.

The Commission will send a report containing evaulations of the finalists to Indiana Governor Mitch Daniels sometime this week. Governor Daniels will then be given 60 days to make his appointment. Good luck to the finalists.

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.

Continue reading "Recent Indiana Supreme Court Ruling Re-emphasizes that Employee's Settlement with Third-Party without Consent of Employer Bars Worker's Compensation Claim" »

In Sibbing v. Cave, the Indiana Supreme Court ("ISC") recently affirmed the trial court's decision to strike portions of the defense expert's videotape deposition testimony which challenged the medical necessity of some of the plaintiff's medical treatment she received as a result of a motor vehicle accident. Sibbing v. Cave, No. 49S02-0906-CV-00275, 2010 Ind. LEXIS 123 (March 4, 2010).

The defense expert testified that the nerve conduction studies and "passive care" treatment provided to the plaintiff four or more weeks after the accident was unnecessary. Defendant unsuccessfully argued a party can only recover damages for medical expenses that he/she proves are both reasonable and necessary. In reaching its holding, the ISC stated that defendant did "not assert that such treatment lacks causation in fact, that is, that plaintiff failed to establish that, but for the collision, the challenged treatment would not have occurred." Instead, the defendant attempted to use their expert's testimony to dispute "the medical judgment of the plaintiff's medical providers in choosing to administer the questioned studies and treatment," which "[defendant] may not do."

Continue reading "Indiana Supreme Court Clarifies Rule Relating to Defense Expert's Testimony Concluding as to the Necessity of Plaintiff's Medical Treatment" »

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?" »

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). 

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).

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.