Articles Posted in Civil Litigation

The Indiana Supreme Court has ruled that a man who was injured when his father drove into him, pinning him between two vehicles, may sue for damages. A trial court dismissed the lawsuit in Robert L. Clark, Jr. et al vs. Robert L. Clark, Sr., based on a state law that bars suit between family members in certain circumstances. The Indiana Court of Appeals overturned the trial court’s dismissal based on a different reading of the state law, and the Indiana Supreme Court affirmed the appeals court’s decision.

Robert Clark, Sr. was driving a car on September 5, 2007, in which his son, 46 year-old Robert Clark, Jr., was a passenger. The son got out of the car when they got to their destination in order to direct his father into a parking spot. He stood several feet in front of the car and motioned his father forward into a parking space. Once the car was fully in the spot, the son motioned to his father to stop the car. The father pressed the accelerator instead of the brake pedal. The car lurched forward into Robert Clark Jr., pinning him between his father’s vehicle and the adjacent vehicle and causing extensive injuries to his legs.

Robert Clark, Jr. and his wife, Debra Clark, sued Robert Clark, Sr. for negligence. The trial court granted summary judgment for Robert Sr. based on his assertion of the Indiana Guest Statute as an affirmative defense. The Guest Statute bars suit for injuries against the operator of a vehicle by a family member of the operator, or a hitchhiker, provided the injury occurred while the person “was being transported without payment in or upon” the vehicle. The statute allows an exception for “wanton or willful misconduct” by the driver.
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In Person v. Shipley (No. 20S03-1110-CT-609), the Indiana Supreme Court agreed with the trial court that an engineering expert was qualified to provide expert testimony on the cause of a lower-back injury the plaintiff suffered when his tractor trailer truck was rear-ended by the defendant’s Buick sedan.

The engineer’s qualifications included an undergraduate degree in mechanical engineering, a Ph.D. in biomedical engineering, time spent as an assistant professor at a school of medicine, and time spent teaching courses in biomechanics that cover the musculoskeletal system and the principles underlying the calculations he used for his testimony. The Court explained that the expert was qualified to provide expert testimony because his “engineering background, his knowledge of velocity and changes in speed upon impact, and his experience in reviewing these types of cases made him qualified to offer his opinion as to the change in speed or velocity of [the Plaintiff’s] tractor-trailer.” The Court also agreed that the expert was qualified to give his opinion that the accident did not cause the plaintiff’s lower-back injury because, although the expert was not a medical doctor, the expert’s opinion focused on “the science of engineering and physics as opposed to the science of medicine.” Therefore, his education, background, training, and knowledge of the effect of forces on the musculoskeletal system made him qualified to render his causation opinion under Rule 702.
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Below Parr Richey Frandsen Patterson Kruse Attorney Paul Kruse responds to an editorial published earlier this fall in the Lebanon Reporter. Mr. Kruse counters several myths relating to tort reform for medical malpractice lawsuits, citing studies supporting his argument that medical malpractice costs represent a small percentage of overall healthcare costs. Furthermore, Mr. Kruse explains why no further tort reform for medical malpractice claims is necessary.
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Your recent editorial on September 17, 2009, authored by Chip Minemyer, titled “Without Tort Reform, There Should Be No Health Overhaul,” was misleading and inaccurate. It was simply an attempt to influence public opinion in favor of big corporations and insurance companies and harpoon injury victims’ claims.

Minemyer starts his column with the statement that litigation reform is an issue “central to improving the cost of healthcare and access to treatment.” In fact, the cost of medical malpractice is actually a tiny percentage of healthcare costs, in part because medical malpractice claims are far less frequent than insurance companies would lead people to believe. According to the Congressional Budget Office (CBO), malpractice costs amount to less than two percent of overall healthcare spending.

President Obama proposed to implement measures to limit the legal rights of severely injured persons as part of the healthcare discussion, apparently as a bargaining chip to reduce Republican opposition to his healthcare reform plan. His medical malpractice reform proposal will hurt patients and dump more cost on taxpayers. It would not eliminate death and injuries but merely shift costs of caring for malpractice victims from perpetrators of malpractice to hard pressed state Medicaid systems, for which state and federal taxpayers share the cost. In fact, according to the insurance industry’s own data, medical malpractice insurance claims and premiums have been trending downward for years.
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In a recent decision, the Indiana Court of Appeals affirmed a ruling from the Marion Circuit Court, holding that an Indiana father who watched his son die after he was prematurely sent home from the hospital without his injuries being properly treated could recover damages for negligent infliction of emotional distress independently from damages awarded under the Adult Wrongful Death Statute. Indiana Patient’s Compensation Fund vs. Gary Patrick, Individually and as Personal Representative of the Estate of Christopher Patrick, Deceased, No. 49A02-0807-CV-614 (Ind. Ct. App. 2009).

A tragic set of circumstances surrounds this case. Back in 2002, a thirty-one year old man was involved in a motor vehicle accident and was transported to St. Mary’s Medical Center in Evansville, Indiana, where he was treated for a broken wrist, broken nose, and abdominal trauma. He was discharged the following day after the accident.

At the time the man lived with his father. The evening of the day the son was released from the hospital, he began vomiting blood. His father called 911, but by the time EMTs arrived, the son had died from an untreated ruptured colon caused by seatbelt trauma during the accident.
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When handling personal injury claims, plaintiffs’ counsel often address the resolution of subrogation liens, including those asserted by Medicare.  Under federal statutes, Medicare is entitled to reimbursement when an injured Medicare recipient receives benefits which are later recovered through a settlement or judgment.  New legislation has now given Medicare an effective – and harsh – means of recovering its subrogation lien.In 2007 the Medicare, Medicaid and SCHIP Extension Act (the “Act”) was signed into law, placing new and more detailed requirements on liability insurance companies in claims dealing with Medicare recipients.  This 2007 Amendment, effective July 1, 2009, is the counterpart to the 2003 Amendment, which focused on plaintiffs and their attorneys.  The 2007 Act increases the enforcement power for Medicare reimbursement by extending liability to insurers and adding damages, penalties and fines for noncompliance.
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I have been a personal injury attorney at the law firm Parr Richey Frandsen Patterson Kruse for the past 30 years. Insurance companies and their clients have ignored the facts about personal injury litigation and propagate the myth that frivolous claims threaten society. In fact, insurance companies only pay for harm caused by their insured. Claims that have no substance–if they exist–are dismissed by the court or are lost at trial.

I responded to a recent newspaper editorial written under the headline: “Lawyers, spurious lawsuits threaten a potential civic disaster”. Too many newspaper editors have fallen prey to the propaganda campaigns of insurance companies who try to poison the perception of the public–and potential jurors in our community–about the impact of litigation on our society. In fact, our homes, cars, products and lives are safer because personal injury lawyers hold manufacuturers and others accountable for their misconduct.

Attached is my entire letter to the Editor for the Lebanon Reporter:
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