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%.

Posted by Parr Richey Obremskey & Morton | Permalink | Email This Post

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

Bookmark:

The SunHerald.com reported that the American Association for Justice ("AMJ") recently released a report ranking the United States "worst" insurance companies based on factors such as: refusal to pay just claims, the company employs harball tactics against policyholders, rewarding of company executives with extravagant salaries, and the raising of premiums while stockpiling excessive profits.

Researchers for the AMJ spent six months gathering information to base the report on. According to the SunHerald.com, researchers used "court documents, SEC and FBI records, state insurance department investigations and complaints, nationwide news accounts, and testimony of former insurance agents and adjusters" to draw their conclusions.

The top five "worst" companies listed in the report are:
1. Allstate
2. Unum
3. AIG
4. State Farm
5. Conseco

Posted by Parr Richey Obremskey & Morton | Permalink | Email This Post

Posted In: Reports & Studies , Tips for Attorneys

Bookmark:

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.

Posted by Parr Richey Obremskey & Morton | Permalink | Email This Post

Posted In: Civil Litigation , Indiana Laws , Personal Injury Litigation , Tips for Attorneys

Bookmark:

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).

Posted by Parr Richey Obremskey & Morton | Permalink | Email This Post

Posted In: Civil Litigation , Indiana Laws , Personal Injury Litigation , Tips for Attorneys

Bookmark:

Under many circumstances, lawyers have cases which may need to be referred to other counsel for a variety of reasons. While the case may require referral, many lawyers are hesitant to do so due to fear of losing a fee. This fear arises from Professional Conduct Rule 7.3(f) which prohibits one being paid purely for a referral.

Notwithstanding the ban on pure referral fees, Rule 1.5(e) provides that lawyers in different firms can divide fees from cases provided that (1) the division is in proportion to the services performed by each lawyer or the attorneys assume joint responsibility for the representation; (2) the client agrees in writing to the division; and (3) the total fee is reasonable. Under this Rule, referring lawyers are still entitled to collect a fee so long as these requirements are satisfied.

This rule was noted by the Indiana Supreme Court in In re Hailey, 792 N.E.2d 851 (Ind. 2003). The Court stated that in all circumstances the total fee must be reasonable and the division must be accepted by the client in writing. Further, absent proportionality in services rendered by the referring attorney, all attorneys receiving a portion of the fee must accept, in writing, joint responsibility for the representation. This ruling resulted in the revision of Rule 1.5 in 2005.

Posted by Parr Richey Obremskey & Morton | Permalink | Email This Post

Posted In: Tips for Attorneys

Bookmark:

If you are contacted regarding a case involving a potential traumatic brain injury, several steps should be taken to insure that the injuries are fully explored and that proper evidence is developed. Among the steps are as follows:

• Obtain the police report and photographs, interview all accident witnesses regarding the nature of the incident and the facts surrounding it.
• Closely review and gather all medical records, including the ambulance run and emergency room reports.
• Gather all medical imaging, including CT Scans, MRI and SPECT Scans. Obtain the DICOM studies so that interactive slice choosers and three-dimensional imaging can be reviewed.
• Interview family, friends and co-workers to identify the client’s behavior, personality or cognitive changes.
• Consult with or retain a neurologist and neuropsychologist to perform testing for measurable brain injury.
• Gather all pre-injury academic, military, employment and medical records to help establish a pre-accident baseline.
• Retain the services of a forensics psychiatrist to determine the psychological impact of the traumatic brain injury.

While each case should be reviewed independently, most traumatic brain injuries require that these issues be addressed in order to fully develop and explore your client’s injuries.

Posted by Parr Richey Obremskey & Morton | Permalink | Email This Post

Posted In: Personal Injury Litigation , Tips for Attorneys

Bookmark:

Anyone who has dealt with health insurance companies either on a personal or a professional level is probably familiar with the insurance “write-off” for medical expenses. In a nutshell, the write-off is a contractual reduction in the amount that an insurance company is required to pay a medical care provider for services rendered on behalf of the insured. For the unsuspecting plaintiff’s attorney, however, the insurance write-off can be a potential stumbling block. It is important to be wary of attempts by the defense to limit the evidence of medical expenses to the net amount paid, rather than the gross medical expense charged by the provider. Although the specific issue of insurance write-offs has not been addressed by Indiana Courts, the existing statutes and caselaw support the proposition that the admission of insurance write-offs into evidence is improper, and that such evidence should be excluded.

At trial, the plaintiff should introduce the total medical bills into evidence in order to establish the reasonable cost of medical services; further, the plaintiff should attempt to keep the defense from putting in the insurance write-offs. A motion in limine is a useful pre-trial tool to accomplish this, and it can prevent the possibility having to argue about these issues in front of the jury. In the motion, the plaintiff should first argue that the Collateral Source Rule prohibits the introduction of insurance write-offs because they are a part of the insurance benefit for which the plaintiff has paid. In the absence of specific Indiana caselaw that addresses the insurance write-off, the plaintiff should also refer to Indiana cases which hold that the measure of damages for medical treatment is the reasonable value of the services, and not the actual amount paid. These cases complement the statutory analysis and strengthen the argument that the introduction of the insurance write-off is improper.

Additionally, the plaintiff may make policy arguments that the principles of subrogation help to defray any purported windfall to the plaintiff for damages recovered above and beyond the actual amounts paid by the insurance company. More importantly, the existence of a contractual relationship between an insurer and an insured plaintiff is wholly independent of the defendant tortfeasor, and the defendant should not be exculpated from the full extent of liability on that basis. To hold otherwise would have the effect of punishing the plaintiff who has obtained medical insurance and would deprive the plaintiff of a fair and reasonable award for damages.

Posted by Parr Richey Obremskey & Morton | Permalink | Email This Post

Posted In: Civil Litigation , Personal Injury Litigation , Tips for Attorneys

Bookmark: