Legislation

January 20, 2016

Indiana Legislature Proposes Increase in Medical Malpractice Cap

by Parr Richey Frandsen Patterson Kruse LLP

Indiana’s state legislature has proposed an increase in the state’s cap on medical malpractice payments. The proposed bill would increase the state’s limits on how much compensation malpractice victims can receive. The new bill would increase the limit to $1.65 million. According to one new source, if passed, the increase would be the first in 17 years. In addition, the bill would increase the limit on what a health care provider must pay from $250,000 to $450,000. If an award exceeds that, the remainder of the money is paid by the state. The proposed bill would also limit increases to every four years based on the national inflation rate.

Indiana’s Senate President Pro Tem David Long said that he believes the cap has helped limit the state’s medical costs but also that it needs to increase to meet growing costs. Also, the current limit is being challenged in court, and Long commented that he believes that not allowing for limit increases could mean that the current state law would be deemed unconstitutional by a state court. Some other states’ caps have also been found unconstitutional.

Medical Malpractice Damages Caps

Medical malpractice damages caps limit the amount of money a plaintiff can receive from a medical malpractice lawsuit. Generally, the caps place a limit only on non-economic damages. Economic damages include the cost of medical bills and lost wages, whereas non-economic damages include pain and suffering, mental distress, and loss of companionship. However, some states have laws on all types of damages, including both non-economic and economic damages. Indiana’s current and proposed law includes all types of damages.

March 18, 2013

Indiana Bill to Set Dietician Standards

by Parr Richey Frandsen Patterson Kruse LLP

Unlike most states, Indiana dieticians can currently practice without a license. But soon that may change. House Bill 1272 has passed the House and is currently being reviewed by the Indiana Senate. If it passes there it will be the first state-wide framework for dietician standards in Indiana.The bill would require registered dieticians to file for and maintain a valid dietician license in order to operate within Indiana. Jennifer Wickware, a dietitian and a clinical nutrition manager for an Indiana hospital, cited the bill’s importance in protecting dietitians’ names “so that we are making sure that people are getting the right nutrition information from the experts in nutrition.”

The new license requirement would force practicing dietitians to keep up on the practice through 15 additional hours of continuing education per year, in addition to setting a focus or “scope of practice”. Furthermore, when a dietitian is accused of malpractice there are standards they may be held against, and in the event malpractice has committed, a license may be suspended or revoked.

The current requirement is simply certification, which may be satisfied with a bachelor’s degree, a minimum number of practice hours and having passed the nationwide exam. Only licensed dietitians would be eligible to accept Medicare and Medicaid reimbursements, and nutritionists are not mentioned in the bill whatsoever. Nutritionists generally concentrate on teaching groups how to maximize their benefit from nutrition, whereas dietitians focus on working with individuals on their diet, oftentimes directly planning, and possibly administering, their food.

Currently, formal legal remedies for those who have suffered as a result of a dietitian’s negligence are especially difficult, and it is best to contact an experienced personal injury attorney. Professional negligence is the best remedy to pursue against a dietitian in absence of this current bill. Professional negligence forces the injured party to show that the negligent party (i) owed a duty; (ii) that the party breached that duty; (iii) that the breach caused an injury to the plaintiff; and (iv) the plaintiff can show damages. These actions must be filed two years from the time of the negligence, or from the discovery of the injury.

Medical negligence costs the lives of 100,000 individuals every year. The type of damages recoverable are economic damages, including further medical costs or loss of work, for example, non-economic damages such as pain and suffering, and damages associated with impairments such as incapacitation, scars, or long-term chronic suffering.

Your health insurance will likely be involved in any injury suffered due to medical negligence. Insurance can be a difficult sea to navigate, however. The insurance company will likely seek reimbursement for your costs and that reimbursement may be through a medical claim or settlement with the negligent party. It is important to seek attorney advice before consenting to any settlement agreement.
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November 16, 2012

Law Allowing Wrongful Death Claims for Unborn Children Used for First Time in Car Accident Lawsuit: Baumann v. Slezak, et al

by Parr Richey Frandsen Patterson Kruse LLP

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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October 18, 2012

Federal Statute Preempts State Products Liability Lawsuit Over Asbestos Exposure, According to Supreme Court: Kurns v. Railroad Friction Products Corp.

by Parr Richey Frandsen Patterson Kruse LLP

After decades working on repair and maintenance of railroad locomotives, a man developed malignant mesothelioma. He sued multiple companies for alleged asbestos exposure, and the executor of his estate substituted in as plaintiff upon his death. After dismissal by the district court, which was upheld by the appellate court, the U.S. Supreme Court considered the matter in Kurns v. Railroad Friction Products Corp., 132 S. Ct. 1261 (2012). It affirmed the lower courts’ findings that a federal statute preempted the plaintiffs’ state tort claims.

The federal statute in question, the Locomotive Inspection Act (LIA), 49 U.S.C. § 20701 et seq., was passed by Congress in 1915. The law requires railroad carriers to maintain locomotives “in proper condition and safe to operate.” 49 U.S.C. § 20701(1). The statute generally preempts state law claims for locomotive-related injuries. In Napier v. Atlantic Coast Line Railroad Co., 272 U.S. 605 (1926), the Supreme Court reviewed the scope of the LIA’s preemption. It held that the law preempts lawsuits brought by railroad workers as well as passengers. The question presented in the Kurns case was whether it also preempted claims for injuries caused by alleged toxic exposure related to locomotive repair and maintenance, as opposed to injuries in locomotive accidents.

The decedent, George Corson, worked for the Chicago, Milwaukee, St. Paul & Pacific Railroad for about twenty-seven years as a machinist and welder, beginning in 1947. He performed locomotive repair by installing brakeshoes, and he performed maintenance on locomotive boilers by removing insulation. His last year of employment at the railroad was 1974. Several decades later, in 2005, Corson was diagnosed with malignant mesothelioma, a form of lung cancer associated with exposure to asbestos.
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