Indiana Injury Lawyer Blog

In Newkirk v. Bethlehem Woods Nursing and Rehab. Center, LLC., the Indiana Supreme Court held that a wrongful death claim for an adult by a personal representative based on medical malpractice, which is subject to Indiana's Professional Services Statute ("PSS"), must comply with PSS's statute of limitations and be brought within (2) two years of the malpractice, not within (2) two years of the person's death.

In Newkirk, a woman was recovering from surgery at Bethlehem Woods Nursing and Rehab Center. As a result of Bethlehem's medical negligence, the woman died while at their facility. Her estate brought a action for wrongful death within two years of her death, but more than two years after the medical negligence occurred. Bethlehem filed a motion for summary judgment arguing that her estate was barred from bringing the claim as they had not brought it within two years of the alleged malpractice. The trial court agreed and granted the motion.

On appeal, the Indiana Court of Appeals reversed argreeing with the trial court that the estate's claim arose under the PSS, but finding that the claim was timely filed under the Wrongful Death Act. The Indiana Supreme Court vacated the Indiana Court of Appeals decision and affirmed the trial court's grant of summary judgment for the defendant.

See Newkirk v. Bethlehem Woods Nursing and Rehab. Center, LLC, 898 N.E.2d 299 (Ind. 2008).

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 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 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%.

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).

Medical malpractice claims in Indiana are governed by Indiana’s contributory negligence law. King v. Clark, 709 N.E.2d 1043 (Ind. Ct. App. 1999). Medical malpractice claims against qualified health care providers must be filed with the Indiana Department of Insurance. IND. CODE § 34-18-8-4. If a health care provider is not qualified, the claim must be filed in a court of competent jurisdiction. Guinn v. Light, 558 N.E.2d 820 (Ind. 1990).

The statute of limitations for medical malpractice claims in Indiana is two years from date of occurrence if the plaintiff discovers the claim within the two year period. If the plaintiff does not discover the malpractice, or did not know or should not have known of the malpractice within two years of the date of the malpractice, then two years from the date of discovery. See Jacobs v. Manhart, 770 N.E.2d 344 (Ind. Ct. App. 2002). If the medical provider is qualified, the statute of limitations is tolled by ninety days from the date of the receipt of the medical review panel opinion. IND. CODE § 34-18-7-2.

Medical malpractice awards in Indiana are limited to $1,250,000 and under. IND. CODE § 34-18-14-3.

In a medical malpractice action, evidence that a party expressed a communication of sympathy (a statement, gesture, act, conduct or writing that expresses sympathy, an apology, or a general sense of benevolence) is not admissible into evidence if the statement relates to causing or contributing to an injury, loss, pain, suffering, death or damage to property, unless it relates to fault.

IC § 34-43.5-1, et seq.

A surgeon had an absolute duty to remove all sponges used during surgery and cannot delegate his duty to nurses or other surgical staff. The Indiana Court of Appeals found that the surgeon breached the standard of care in performing abdominal surgery when he left a sponge in the abdominal cavity, despite the fact that the assisting nurses reported a sponge count indicating that all sponges had been removed.

He could not absolve himself of liability for his own failure to account for the sponges by claiming he had relied upon the nurses’ count. The doctrine of res ipsa loquitur applies in such a case, and the plaintiff was entitled to partial summary judgment on the issue of negligence. Chi Yun Ho v. Frye, 865 N.E.2d 632 (Ind.App. 2007).