Articles Posted in Indiana Laws

Indiana has been one of the hardest-hit states in a nationwide fungal meningitis outbreak that has caused more than three hundred illnesses and over twenty deaths in eighteen states. Health officials believe an injectable medication from a Massachusetts pharmacy is the source of the infection. The pharmacy has recalled the medicine and ceased its facility’s operations. It is already facing lawsuits from victims alleging injury from a defective product, and Indiana state officials are seeking to suspend its license. Some victims may also be pursuing causes of action for medical negligence against the doctors and healthcare facilities that prescribed or administered the allegedly contaminated drugs.

At least forty-three reported cases, out of a national total, so far, of 328, are in Indiana. Three of the Indiana patients have died. The total death toll, as of October 25, 2012, is twenty-four. Investigations by the U.S. Food and Drug Administration (FDA) and the Centers for Disease Control and Prevention (CDC) have determined that the fungal infection came from injections of methylprednisolone acetate, a steroid-based anti-inflammatory medication used to treat back pain. Authorities traced contaminated vials to the New England Compounding Center (NECC) in Framingham, Massachusetts. They suspect that the contamination occurred during the compounding process.

Victims are suffering from fungal meningitis, an infection affecting the spinal cord. Other types of meningitis may result from communicable viral or bacterial infections, but fungal meningitis is not contagious between people. It usually develops when an infectious fungus species gets into the bloodstream, such as through an injection, and spreads to the victim’s spine. The CDC believes it has identified the fungal species Exserohilum rostratum in at least fifty-two patients. The disease can be fatal, particularly in patients with compromised immune systems, and it can cause severe headaches, nausea, light sensitivity, and disorientation.
Continue reading

An unexpected invocation of the Indiana Tort Claims Act (ITCA) led to the dismissal of an auto accident lawsuit in Schoettmer v. Wright, et al. The ITCA requires plaintiffs to serve written notice of a planned lawsuit against the state or one of its political subdivisions within 180 days of the loss. The defendant revealed in an amended pleading that it is a political subdivision of the state of Indiana, and the trial court granted summary judgment based on the plaintiffs’ lack of notice under the ITCA. The Indiana Court of Appeals affirmed the judgment with one dissent.

John Schoettmer sustained injuries in a November 24, 2008 automobile accident with Jolene Wright. Wright was acting in her capacity as an employee of South Central Community Action Program, Inc. (SCCAP) at the time of the accident. SCCAP is a private nonprofit corporation designated by the state as a “community action agency.” This makes it a political subdivision of the state, although SCCAP did not reveal this until several months into the eventual lawsuit.

Schoettmer corresponded with a claims adjuster for SCCAP’s insurer for several months after the accident. He rejected the insurer’s settlement offer in August 2009 and retained counsel. After his attorney could not negotiate a settlement, they filed suit against SCCAP and Wright in October 2010. SCCAP answered in November, and amended its answer with the court’s leave in February 2011 to add an affirmative defense of non-compliance with the ITCA. The trial court granted summary judgment for the defendants, finding that Schoettmer failed to serve the required notice by the 180-day deadline, which would have been around May 24, 2009.
Continue reading

A Shelbyville man has submitted a tort claim to the Indiana Attorney General, indicating his intention to file a wrongful death lawsuit against the state’s Department of Child Services (DCS) over the death of his one year-old son. He alleges that DCS ignored warnings that the child’s mother and her boyfriend were abusing the child, and that the agency’s failure to intervene and protect the child contributed to his death. The man also notified the hospital that treated his son of his intent to file a medical negligence lawsuit.

According to Jerraco Noel, he reported the abuse of his son, Jayden, to DCS in July 2011. Jayden was treated in the emergency room of Major Hospital in Shelbyville on July 15, 2011 for injuries resulting from abuse by his mother and her boyfriend. DCS reportedly found Noel’s claims at the time “unsubstantiated.” Jayden died on January 18, 2012 from “multiple blunt-force traumatic injuries to the head.” Prosecutors have charged the mother and her boyfriend with neglect of a dependent causing death. Both have pleaded not guilty.

Noel claims that DCS “failed to conduct a reasonable investigation” after he reported his suspicions of abuse. He also alleges that the agency failed to consult with any of the medical professionals who treated Jayden, and that those medical professionals failed to report the injuries to DCS. He is demanding $700,000, the maximum amount of damages allowed by statute from DCS, for “loss of love and affection.”
Continue reading

Drivers have dealt with distractions since the invention of the automobile. The explosive growth in the use of cell phones, however, has compounded the risks presented by distracted driving. Drivers who use their cell phones to talk, send text messages, or even read e-mail or web pages cause thousands of accidents around the country every year. A member of the National Transportation Safety Board (NTSB), the federal agency that investigates accidents and recommends safety regulations, went so far as the call distracted driving an “epidemic.” People injured by a distracted driver generally have a clear claim for damages from that driver. While courts have rejected attempts to recover damages from cell phone companies, plaintiffs have recovered from drivers’ employers, when the driver was engaged in work-related activities.

Distracted driving accounted for as many as 3,092 deaths in traffic accidents in 2010, according to the federal government. It was a factor in up to eighteen percent of all injury accidents that year. The government identifies three types of distraction:

Manual: where the driver takes one or both hands off the wheel.
Visual: where the driver is not watching the road.
Cognitive: where the driver’s attention (or mind) is not on the road.

Studies have suggested that even the use of a hands-free device like a headset does not improve overall safety, because it does not reduce cognitive distraction.

Indiana, like most states, has enacted laws restricting the use of cell phones while driving. Thirty-nine states, including Indiana, and the District of Columbia prohibit text messaging while driving. Indiana also prohibits drivers under the age of eighteen from any cell phone use while driving. Other laws include a ban on all handheld cell phone use (ten states and D.C.), and handheld cell phone use by school bus drivers (nineteen states and D.C.) No state has a ban on all cell phone use, including hands-free devices, although the NTSB recommended such a ban last year.
Continue reading

Indiana ranks in the middle of the fifty states and the District of Columbia when it comes to injury prevention, according to a recent study. The study, entitled “The Facts Hurt: A State-By-State Injury Prevention Policy Report,” is the work of the Trust for America’s Health (TFAH), a health care policy organization, in partnership with the philanthropic Robert Wood Johnson Foundation. The study ranks states and D.C. based on ten “key indicators” relating to injury prevention laws or regulations. Indiana has five of the ten. It also ranks the states based on the total number of annual injury-related deaths per 100,000 people. With a rate of 60.4, Indiana ties Kansas for the twenty-seventh highest rate.

The study analyzed injury data, which it says account for 180,000 deaths per year in America. The lifetime costs of injuries in the U.S., which includes both immediate costs and ongoing care needs, as well as lost income and productivity, exceeded $406 billion in 2000. Injuries, as compared to communicable and non-communicable disease, are the leading cause of death for Americans between the ages of one and forty-four. At 97.8 njury-related deaths per 100,000 people, New Mexico has the highest annual rate. New Jersey, with 36.1, has the lowest. Indiana and Kansas, tied at twenty-seventh, are almost exactly in the middle.
Continue reading

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.
Continue reading