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Articles Posted in Injuries to Children

As much as one may try to avoid them, accidents and injuries are far too common, and Indiana residents may find themselves injured because of another person’s negligence. Although it does not undo the damage, Indiana law allows a victim to bring a lawsuit against the negligent party to recover compensation for medical bills, pain and suffering, lost wages, and more. In order to successfully recover, the plaintiff must prove in court that the accident was the defendant’s fault and that there was real harm suffered as a result. There may be some cases in which establishing liability in an injury case is straightforward, but typically the process proves to be more complex than it initially appears. To help with this process, a personal injury plaintiff may want to use expert witness testimony to support their case.

Unlike eyewitnesses, who saw the incident in question happen, expert witnesses were not present at the scene of the incident but have relevant expertise that can help explain what happened to the judge or jury. For example, an accident reconstructionist can help explain to the court how an accident happened, or a medical professional could testify as to the severity of the injuries and likely future medical costs. Since expert witnesses offer this valuable information, they are used in many personal injury cases across Indiana.

Due to the prevalence of expert witnesses in personal injury cases, many plaintiffs may think that they need expert witnesses to make their case and that they will lose without them. However, this is not the case. While expert witnesses are helpful, they are not necessary to win every personal injury case, and many cases can be won without them. A recent state case illustrates this fact. According to the court’s written opinion, the victim was an elementary school student who was assaulted and beaten by other students on the playground during recess one afternoon. The victim’s mother brought suit against the city and the Board of Education on her daughter’s behalf, alleging negligence in failing to supervise the schoolchildren during recess. A lower court had previously ruled that, without expert testimony establishing the standard of care that the defendants owed the plaintiff, the plaintiff could not prevail. The court reversed, finding that although there are some cases in which expert testimony may be necessary, it was not necessary in this particular case.

According to the American Academy of Pediatrics (AAP), medical malpractice claims involving babies and children are among the most common types of lawsuits that go to trial. This is likely because negligently treated babies and children often have the worst injuries and outcomes. When a baby, child, or teenager suffers injuries because of a negligent Indiana health care provider, the medical professional may be liable for the damages that they caused. Babies and children are particularly vulnerable to medical malpractice, since these groups either are unable to communicate or have difficulty effectively communicating their symptoms and conditions.

Under the Indiana Medical Malpractice Act, most physicians, nurses, midwives, dentists, chiropractors, psychologists, paramedics, and other medical professionals may be liable for injuries that their negligence causes. Pediatric negligence takes many forms and can have devastating consequences. Pediatric malpractice lawsuits often arise after birth injuries, misdiagnoses, delayed diagnoses, incorrect prescription orders, inaccurate laboratory results, failures to follow up, and botched surgeries.

When a medical professional fails to adhere to their standard of care and commits medical malpractice, the consequences can be dire. Pediatric malpractice injuries often cause irreversible damage because babies and young children cannot always effectively fight off infections and recover from severe trauma to their bodies. For example, recently, a mother filed a lawsuit against a medical provider after her infant died following his routine vaccinations. The infant was born prematurely but was generally in good health when he received his vaccinations. Shortly after his shots, he became feverish, and his parents gave him fever medication and put him down for a nap. A few hours later, his mother found him unresponsive in his crib. The defendants successfully argued that they were not liable for his death because medical examiners established that he died of Sudden Infant Death Syndrome. However, this case highlights the importance of follow-up care, especially when patients are very young.

When a hospital or medical provider deviates from a generally accepted standard of care and causes harm to a patient, they may be liable for the patient’s injuries through an Indiana medical malpractice lawsuit. All personal injury lawsuits require plaintiffs to present a significant amount of evidence to establish their claim to damages. In addition to the typical evidentiary burdens that a plaintiff has to meet, Indiana medical malpractice laws impose additional obstacles on injury victims. There are various forms of medical malpractice, and injury victims should seek the representation of an Indiana malpractice attorney when pursuing these lawsuits.

The most common types of medical malpractice lawsuits stem from diagnosis errors, surgical errors, treatment failures, birth injuries, prescription drug errors, and laboratory mistakes. Laboratory professionals are responsible for the proper collection, handling, interpretation, and reporting of their results. Laboratory testing and their accompanying results are a critical part of an individual’s medical treatment, as these reports may affect diagnosis and dictate treatment. Moreover, laboratory machines, products, or devices may also cause severe injury or death to a patient. Injuries can occur if the handler does not know how to use the equipment correctly or if the device is defective. Defective devices may include, drains, tubes, pumps, measuring instruments, centrifuges, and catheters. When a lab error occurs, the consequences can be life-altering, or even fatal.

For example, recently, a national news report detailed the tragic death of infants receiving treatment at a neonatal intensive care unit in a hospital. Late last summer, several infants began to show signs of illness, and three subsequently died of a bacterial infection. During an investigation, the hospital discovered that the infants died after exposure to infected donor milk. The hospital’s infection control unit determined that the laboratory equipment used to measure the donor milk contained the deadly bacteria. The bacteria generally only present a threat to fragile individuals, such as preterm immunocompromised babies. Following the deaths and discovery of the bacteria, the hospital began diverting the care of premature babies to other hospitals. So far, one of the families who lost a child has filed a lawsuit against the hospital.

Earlier this month, the Ninth Circuit Federal Court of Appeals issued a written opinion in a Federal Tort Claims Act (FTCA) case that may impact Indiana personal injury and wrongful death cases involving minor victims. The case required the court to determine if a claim under the FTCA is automatically tolled while the plaintiff is a minor. Ultimately, the court noted that the FTCA contained no explicit provision calling for minority tolling, and thus held that FTCA claims were not subject to minority tolling.

Statutes of Limitations

Generally, all personal injury claims must be brought within a certain period as outlined in the relevant statute of limitations. However, there are some situations in which a statute of limitations is “tolled” or delayed. For example, in some cases, a statute of limitations will be tolled during the period in which the plaintiff is a minor. Another common example of when tolling may occur is when a plaintiff does not discover their injury until a later date

The Facts of the Case

According to the court’s opinion, the plaintiff was nine years old when his father was killed in a car accident. After the accident, the plaintiff’s mother filed an administrative claim with the Federal Highway Administration (FWA) seeking compensation on behalf of her son for the loss of his father. However, it was not until six years later that the plaintiff’s mother filed a lawsuit in federal district court on behalf of her son. Once the plaintiff turned 18, he was substituted for his mother as plaintiff.

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Under Indiana premises liability law, property owners are generally not liable for injuries caused to trespassers. However, through Indiana’s attractive nuisance doctrine, a property owner may be liable when a trespassing child is injured on their land due to a dangerous object that attracted the child onto the landowner’s property. A recent state appellate decision illustrates the attractive nuisance doctrine.

The Facts of the Case

According to the court’s recitation of the facts giving rise to the case, the plaintiff and some friends entered a construction site after hours. The teens spent several hours at the site, drinking whiskey and smoking marijuana. Evidently, the construction crew had left several pieces of heavy construction equipment on-site. Several of the pieces of equipment had the keys in the ignition. The plaintiff initially removed one set of keys to prevent his friends from starting the machine and potentially hurting themselves. However, as the group was leaving, the plaintiff climbed inside a machine and began to drive it up a floodwall. The machine flipped over, and the plaintiff was seriously injured.

The plaintiff filed a premises liability lawsuit against the construction company, arguing that leaving the construction site unfenced created an attractive nuisance. In a pre-trial motion, the defendant argued that no reasonable juror could find that the plaintiff, a 16-year-old male, did not realize the risk playing with the machine. The court granted the defendant’s motion, and the plaintiff appealed.

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Recently, a state appellate court issued a written opinion in a personal injury case involving a parent’s allegations against her daughter’s school. While the case arose in another jurisdiction, it raises important issues under Indiana personal injury law. Specifically, the duty that a school owes to its students.

The Facts of the Case

According to the court’s opinion, the plaintiff’s daughter sustained a serious cut to her thumb in woodshop class. Evidently, the student was trying to free a jammed piece of wood from a table saw when the student’s hand came into contact with the saw’s blade. At the time, the shop teacher was out of the shop supervising other students.

The shop teacher testified that before a student was permitted to use the machine unsupervised, they had to pass a written test. Additionally, the teacher would observe students using the machine until he felt comfortable they could do so safely. He estimated that he observed the plaintiff use the table saw correctly 60 times.

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Indiana schools have a duty to ensure the safety of students while they are attending school and after-school activities. This duty generally requires that school employees and administrators take reasonable precautions to prevent injuries. For example, schools are required to maintain safe premises, free of dangerous hazards that may result in an Indiana slip-and-fall accident.

Schools are also responsible to take adequate precautions when designing curriculums, especially in classes that present a heightened danger, such as shop classes and gym classes. However, there are several legal doctrines that can come into play when a student is injured at school. A recent case illustrates the type of analysis a court will conduct when considering whether a school can be held liable for a student’s injuries.

The Facts of the Case

The plaintiff was a student at the defendant school. One day in gym class, the plaintiff was injured when he was accidentally struck in the eye by another student’s stick during a game of floor hockey. After the accident, the plaintiff required eye surgery.

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When someone intends on filing an Indiana wrongful death lawsuit, a thorough investigation must be conducted to determine all of the proper parties that should be named in the lawsuit. In situations in which a government entity is discovered to be one of the potential defendants, Indiana law requires that certain additional steps be taken when naming that entity as a defendant.

Under the Indiana Tort Claims Against Governmental Entities and Public Employees Act, plaintiffs intending on filing lawsuits filed against government entities must first provide notice of the claim to the government entity. This notice is due either 180 or 270 days after the incident. If a party fails to provide the government entity with notice of the claim and proceeds to file the claim, the court will dismiss the plaintiff’s case.

A recent wrongful death case illustrates the importance of conducting a thorough investigation.

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The parents of an eight year-old child have filed suit against the child’s school, alleging negligence and violations of their child’s statutory and constitutional rights. Doe v. Ball State University, et al, No. 18C01-1208-PL (Circuit Court No. 1, Delaware County, Ind., Sept. 28, 2012), removed to No. 1:12-cv-01464 (S.D. Ind., Oct. 10, 2012). The suit claims that the school negligently failed to supervise its students, allowing several of the child’s classmates to commit repeated acts of sexual abuse against him. The parents claim the school had knowledge of the abuse, but failed to intervene or notify them. The suit is seeking compensatory and punitive damages.

The plaintiffs, identified in court papers as John and Jane Doe, enrolled their child, identified as Junior Doe, at Burris Laboratory School in Muncie, Indiana. Burris is a K-12 school operated by Ball State University. Junior Doe was eight years old and in the second grade at Burris in the fall semester of 2011. His parents received a telephone call from another student’s parent on December 5, 2011, informing them that Junior had been the victim of sexual abuse and harassment at the school.

The Does learned several days later, according to their complaint, that teachers and administrators at Burris knew of the abuse but did not inform them. At this time, the school told them about the extent of the abuse, which allegedly occurred in the restrooms, library, and one or more classrooms at the school. About four other second-grade boys allegedly touched Junior inappropriately in intimate areas and forced him to engage in other forms of sexual conduct. Students had largely unsupervised and unrestricted access to the restrooms, library, classrooms, and computer equipment. The Does allege that the students were imitating acts they saw in pornographic images and videos viewed on school computers and iPads. They claim that other students approached their teacher to report the abuse, but the teacher allegedly “told the students to sit down and stop ‘tattling'” on others. Complaint at 5.
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A Nebraska law allowing wrongful death claims for unborn children is getting its first test in a federal lawsuit. The suit, Baumann v. Slezak, et al, arises from a multi-vehicle accident that killed a family of four and their unborn child. It asserts causes of action for negligence and violations of federal trucking regulations. Several states, including Indiana, have passed statutes allowing wrongful death claims for unborn children at various stages of gestation, and courts in other states have recognized causes of action related to fetal death.

The accident giving rise to the lawsuit occurred on westbound Interstate 80 during the early morning of September 9, 2012. Traffic had become backed up for about a mile after two semi-trailers collided at about 4:30 a.m. One semi-trailer had become disabled and pulled onto the right shoulder. The driver, Vladimir Zhukov, however, allegedly left the trailer in a lane of traffic. Another semi-trailer driven by Keith Johnson reportedly collided with Zhukov’s trailer. The impact killed Johnson and caused his tractor to catch fire. The accident blocked all westbound lanes of the highway, creating a significant risk of further accidents for vehicles forced to stop on the highway.

Christopher and Diana Schmidt were traveling to California from Maryland with their two children, and Diana Schmidt was seven-and-a-half months pregnant with a child they had named Ethan. Diana Schmidt was driving a 2007 Toyota Corolla with the two children, and Christopher Schmidt was following her in a 2010 Ford Mustang. They were at the rear of the line of cars stopped because of the semi-trailer accident, with the Corolla stopped behind another semi-trailer, and the Mustang behind the Corolla. A semi-trailer driven by Josef Slezak approached the stopped traffic reportedly travelling at about seventy-five miles per hour. Allegedly without slowing or stopping, Slezak’s vehicle collided with the back of the Mustang at about 5:19 a.m., propelling it into the Corolla. This pushed the Corolla under the trailer in front of it. All four members of the Schmidt family and their unborn child died in the impact.
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