Indiana Injury Blog

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%.

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Posted In: Civil Litigation , Indiana Court of Appeals Decisions , Medical Malpractice , Tips for Attorneys

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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).

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Posted In: Civil Litigation , Medical Malpractice

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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.

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Posted In: Medical Malpractice

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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.

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Posted In: Medical Malpractice , Personal Injury Litigation

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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).

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Posted In: Medical Malpractice

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