Indiana Injury Lawyer Blog

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.