Articles Posted in Injuries to Children

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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While trampolines remain a popular recreational activity for many children and teenagers, pediatricians have long warned that they pose serious dangers of debilitating spinal fractures or traumatic brain injuries. The American Academy of Pediatrics (AAP) renewed its warnings in a paper published this month in its journal, Pediatrics, reviewing the types of accidents that can occur with trampolines and the injuries that are likely to result.

The trampoline, in its modern form, originated as a “tumbling device” intended for athletic training. A 1945 patent obtained by George Nissen, a competitive gymnast, described a device for use in gymnastic and acrobatic training. Later modifications to the design allowed manufacturers to produce units that could be shipped and assembled individually, and the recreational trampoline was born. While organizations like the AAP, the American Academy of Orthopaedic Surgeons (AAOS), and the U.S. Consumer Product Safety Commission (CPSC) provide safety recommendations for the proper maintenance and use of trampolines, trampoline-related injuries have persisted. Recent safety modifications to trampoline designs, such as protective netting and padding, have not significantly reduced injury rates, according to the AAP. The AAOS noted that injury rates increased parallel to the growth in popularity of trampolines. The AAP has observed, however, that trampoline purchases peaked in 2004, and injury rates have declined since then.

The AAP estimates that an average of 100,000 trampoline-related injuries occur every year. About 3,000 of those injuries result in hospitalization or fatalities. Injuries can result from collisions between multiple users, falls from the trampoline to the ground or floor, and collision with the trampoline frame or springs. While injuries to the upper and lower extremities, particularly fractured or sprained ankles, are the most common type of trampoline-related injury, head and neck injuries are the most dangerous and damaging risk. Impact to the head or neck can cause traumatic brain injury such as concussion, or damage to the cervical spine. In rare cases, trampoline-related neck injuries can cause a vertebral artery dissection, which can cause stroke or other long-term impairment. The AAP estimates that about 0.5% of all trampoline injuries, which could be as many as five hundred each year, result in permanent neurological damage.
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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.”
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