Indiana Personal Injury Lawyer and Medical Malpractice Attorney Blog

Indiana Court of Appeals Reverses $6 Million Dollar Jury Verdict for Estate of Man Run Over and Killed by IndyGo Bus

Published on: November 14, 2024 | by Barsumian Armiger

The Indiana Court of Appeals recently reversed a $6,000,000.00 jury verdict in a wrongful death case in which an Indianapolis bus ran over and killed a pedestrian attempting to board the bus because the Court found—unlike the jury that decided the case, the judge who ruled on the case, and a dissenting member of the appellate panel—that no reasonable person could conclude that the pedestrian was free from contributory negligence causing his death. In Indianapolis Pub. Transportation Corp. v. Bush, Michael Rex Fergerson (“Fergerson”) was killed as he attempted to board a bus operated by the Indianapolis Public Transportation Corporation d/b/a IndyGo Public Transportation (“IndyGo”), a municipal corporation and governmental entity. Since Indiana’s legislature has excluded tort claims against governmental entities from Indiana’s Comparative Fault Act (under Indiana’s Comparative Fault Act a claimant can recover damages so long as the claimant’s fault is not greater than the fault of all persons whose fault proximately contributed to the claimant’s damages), governmental entities retain the common law defense of contributory negligence, which bars any recovery if the claimant is not “completely free of all negligence.” In other words, under Indiana’s Comparative Fault Act, a claimant can recover damages so long as the claimant’s fault is not greater than 50%, whereas a claimant asserting a claim against a governmental entity cannot recover even if the claimant is, for instance, only 1% at fault, despite the governmental entity being 99% responsible for the resulting harm to the claimant.

Fergerson was 63 years old. He was an alcoholic who had started drinking alcohol when he was eight years old. He suffered from sciatica, a painful condition of the spine that can affect one’s ability to stand up and walk. He lived with his mother and, while he had a license, he often used IndyGo buses for transportation. He had been eight-days sober prior to the date of his injury. However, the morning he was run over, he had started drinking again and was briefly hospitalized for intoxication, confusion, and incoordination. After being released from the hospital, still mildly intoxicated, Fergerson went to a grocery store. Later, Fergerson was drinking from a liquor bottle while seated at the Lafayette Square Mall bus stop. One IndyGo bus driver refused to pick him up, telling him “[y]ou’re not coming on here with that liquor bottle.” A little over thirty minutes later, another IndyGo bus, driven by David Ross (“Ross”), pulled up and stopped past the bench where Fergerson was seated. Fergerson stood up, collected his packages, and walked towards the door of the bus, while two passengers on the bus exited. When Fergerson was about two feet from the door, the bus pulled away. Fergerson raised his arm reaching towards the bus from the sidewalk. His arm contacted the bus, his body spun around, he fell from the sidewalk onto the street under the bus, and he was run over by the rear wheels of the bus. Fergerson died from complications of blunt-force trauma. His blood alcohol concentration was over three times the legal limit to drive.

As they approach bus stops, IndyGo bus drivers are supposed to assess bus stops, including who is at the bus stop and may want to ride the bus. IndyGo bus drivers are trained on safety rules, including the need to keep a safety perimeter around the bus while stopped and in motion. The driver of the bus that ran over Fergerson, Ross, acknowledged, among other things, that he occasionally encountered drunk or disruptive riders, it was his responsibility to ensure their safety, including making sure everyone was completely clear of the bus before moving the bus, and he was supposed to allow extra time for the elderly and disabled. Ross acknowledged IndyGo buses have blind spots and that he was trained to, and knew he had to, check mirrors to confirm the presence of persons. He was also aware that the window by the bus door was tinted, limiting his visibility, which he had to take into consideration for safety.

Indiana Trial Lawyers Association (ITLA) Publishes Attorney Jonathan Armiger’s Medical Malpractice Article in VERDICT

Published on: October 21, 2024 | by Barsumian Armiger

Indiana Trial Lawyers Association (ITLA) Medical Malpractice Article Jonathan Armiger Barsumian Armiger

2 for 1: Filing Two Medical Malpractice Claims for One Injury

Jonathan Armiger, Barsumian Armiger LLC

Medical malpractice attorneys must sometimes confront the question: To what extent can one pursue separate claims for medical malpractice when there is only one resulting injury? Another question is why one would want to. In considering both questions, one must keep in mind the “all too familiar” but maybe “all too forgotten” doctrines of claim preclusion and issue preclusion.

Indiana Court of Appeals Finds Amazon Owed a Duty of Care to Truck Drivers Injured on a Public Road Next to One of Its Fulfillment Centers

Published on: October 2, 2024 | by Barsumian Armiger

The Indiana Court of Appeals recently found against Amazon in two related cases, one involving personal injury and one involving wrongful death, finding Amazon owed a duty of care to two truck drivers injured on an abutting public road while attempting to deliver goods to one of Amazon’s fulfillment centers. In Oukbu v. Amazon, Mahari Mrach Oukbu (Oukbu) was struck by a vehicle and severely injured after he stopped and exited his truck on a county road along the south side of one of Amazon’s fulfillment centers while attempting to determine how to gain access to the fulfillment center. Around a month and a half later, in Kaur v. Amazon, Harvail Singh Dhillon (Dhillon) was struck and killed by a truck after he stopped and exited his vehicle on the county road while also trying to determine how to gain access to the fulfillment center.

Oukbu and Dhillon were both independent contractors/truck drivers. Neither of them had been to the fulfillment center before and neither were given instructions on how to access the facility’s premises. Amazon only gave them an address and a delivery time. Both Oukbu and Dhillon were injured in the early morning while it was still dark. The fulfillment center had three entrances along the county road. When approaching from the west, as Oukbu and Dhillon both did, the first two entrances had “no truck” signs. The third entrance was for deliveries, but it was 500 feet east of the facility. Oukbu and Dhillon both exited their trucks after passing the second “no truck” sign. Amazon had no signage at the first two entrances informing truck drivers where to go, and truck drivers were often seen getting out of their trucks in the same location. In fact, an Amazon employee told the police that “these lost truck drivers get out of their trucks at this spot every day.”

Oukbu and his wife and the estate of Dhillon filed lawsuits against Amazon. They alleged Amazon was negligent in its maintenance, design, and control of the fulfillment center’s entrances, including the layout and lack of lighting and signage at the entrances, which they claimed created a hazardous condition to business invitees such as Oukbu and Dhillon. Amazon filed motions for judgment on the pleadings, arguing that Amazon did not owe Oukbu and Dhillon any duty of care and that any negligence by Amazon was not the proximate cause of their injuries. The trial court granted Amazon’s motions, finding Amazon had no duty with respect to the negligent acts of someone over whom Amazon had no control and when the injury occurred off Amazon’s premises.

Indiana Court of Appeals Affirms Denial of Motion to Dismiss Indiana Truck Accident Case

Published on: September 13, 2024 | by Barsumian Armiger

The Indiana Court of Appeals recently affirmed a trial court’s denial of an Indiana Trial Rule 12(B)(6) motion to dismiss filed by a truck driver and trucking company in a semi-truck accident case involving a truck driver’s failure to warn another truck driver of a disabled vehicle in the roadway that both truck drivers ultimately collided with on eastbound I-94. In NFI Interactive Logistics LLC v. Bruski, on an early morning in December 2019, truck driver D’Andre Terry (“Terry”), driving a semi-truck for NFI Interactive Logistics LLC (“NFI”), struck a disabled vehicle on an unlit portion of I-94, after which his semi-truck came to a controlled stop on the right shoulder, with the disabled vehicle remaining in the roadway. After the crash, Terry did not activate his hazard warning signal flashers or place hazard warning triangles or flares. Around ten minutes later, James Bruski (“Bruski”), who was also driving a semi-truck, crashed into the same disabled vehicle, causing his semi to strike and roll over a concrete barrier wall, resulting in injuries. Bruski and his wife filed a lawsuit against Terry and NFI (the “Defendants”) claiming Terry was negligent for failing to warn oncoming motorists of the disabled vehicle, including a claim that Terry was negligent per se for failing to comply with Federal Motor Carrier Safety Regulations (“FMCSR”) incorporated under Indiana law that require drivers of commercial motor vehicles to take certain actions when stopped on the shoulder of a highway.

The Defendants filed a motion to dismiss Bruski’s complaint under Indiana Trial Rule 12(B)(6) for failure to state a claim upon which relief can be granted. In support, the Defendants argued, among other things, that Terry’s vehicle was not involved in the crash between Bruski’s vehicle and the disabled vehicle, Terry had no duty to warn Bruski of the disabled vehicle, which did not change from its position blocking the same lanes of traffic after Terry hit it, and the FMCSR were not applicable as they were designed to protect motorists from stopped commercial motor vehicles, not other roadway hazards. In response, Bruski argued Terry engaged in “misconduct” by not providing warning, including failing to comply with the FMCSR and Terry contributed to the hazard of the disabled vehicle when Terry struck and moved it. At the hearing, Defendants’ counsel argued, “How is Terry at fault for a collision involving a guy who wrecked himself and a plaintiff who hit the guy that wrecked himself?” Ultimately, the trial court denied the Defendants’ motion to dismiss, and the Defendants appealed.

On appeal the Indiana Court of Appeals analyzed the two potentially applicable theories of liability, a common law duty to warn and negligence per se. The Court noted that while motorists have a general duty to exercise reasonable care with respect to other motorists, they generally do not have any duty to aid or protect other persons, even if they know another person needs assistance. However, there are exceptions to this general rule under both the common law and by statute.

Indiana Supreme Court Clarifies Indiana’s Firefighter’s Rule and Indiana’s First-Responder’s Rule in Personal Injury Claim

Published on: August 1, 2024 | by Barsumian Armiger

We previously blogged about Indiana’s firefighter’s rule in an Indiana Court of Appeals case, Dolsen v. VeoRide, Inc., wherein the Court of Appeals found the firefighter’s rule did not bar a firefighter’s negligence claim against a possessor of land. In Dolsen, firefighter Richard Dolsen, Jr. (“Dolsen”) was injured when he fell through an open wall into a stairwell at a building leased by VeoRide, Inc. (“VeoRide”), an electric scooter company. One of the batteries VeoRide stored in the building caught fire and when Dolsen entered the building, smoke and a lack of light in the building prevented him from seeing the open wall. While employees of VeoRide were notified of the fire, VeoRide did not provide any warning to Dolsen about the open wall in the building.

The Indiana Supreme Court accepted transfer of the case and clarified Indiana law with respect to Indiana’s firefighter’s rule and Indiana’s first-responder’s rule, with the Court holding they are two separate doctrines. Under Indiana’s firefighter’s rule, originating from Woodruff v. Bowen, 34 N.E. 113 (Ind. 1893), a landowner’s only duty to a firefighter who enters the premises to address a fire is to refrain from positive wrongful acts, with the firefighter treated as a licensee under premise liability principles. Indiana’s firefighter’s rule only applies to firefighters. Indiana’s first-responder’s rule, as set forth in Babes Showclub, Jaba, Inc. v. Lair, 918 N.E.2d 308 (Ind. 2009), applies to both firefighters and other first responders and prevents them from recovering damages based upon negligence that caused the emergency to which they responded when injured.

In analyzing Dolsen’s claims against VeoRide, the Indiana Supreme Court first found that Indiana’s first-responder’s rule does not bar Dolsen’s claims. Dolsen claimed VeoRide was negligent, thus causing his fall, for failing to fix the open wall in the building and for failing to warn him of the danger of the open wall, neither of which were based upon any negligence related to the cause of the fire (the battery). The Court noted that Indiana’s first-responder’s rule was created as a limitation to Indiana’s rescue doctrine, which sets forth the circumstances under which a person needing to be rescued because of his or her own negligence might be liable to the person providing rescue. With the first-responder’s rule, while a person being rescued may potentially be liable to non-professional, spur-of-the-moment rescuers acting voluntarily to help, for negligence causing the emergency itself, no such liability exists with respect to first responders. The Court also noted that contributing factors in the cause of an injury, for example here, the smoke from the fire, were irrelevant, as the “key question” is whether the alleged negligence caused the emergency. As noted by the Court, under the first-responder’s rule, courts look to the act or omission the plaintiff claims was negligent and not whether the emergency contributed to the cause of the injury.

Damages for Negligent Infliction of Emotional Distress Continue to be Unavailable in Indiana Adult Wrongful Death Medical Malpractice Claims

Published on: June 21, 2024 | by Barsumian Armiger

The Indiana Court of Appeals recently reaffirmed the unavailability of damages for negligent infliction of emotional distress (NIED) in adult wrongful death medical malpractice claims. In Hyzy v. Anonymous Provider 1, Mark Hyzy filed a medical malpractice claim for the death of his mother Carolyn Hyzy. He sought various damages, including damages for NIED. The Defendant filed a motion for preliminary determination to dismiss Hyzy’s NIED claim. After a hearing, the trial court dismissed the claim, and Hyzy appealed to the Indiana Court of Appeals.

The Indiana Court of Appeals first reviewed the nature of Indiana’s wrongful death statutes. Since there was no tort liability for another’s death at common law, recovery for wrongful death in Indiana is purely statutory and Indiana’s wrongful death statutes are strictly construed. Pecuniary loss, as opposed to loss of life itself, is the foundation of wrongful death claims in Indiana. Indiana has three wrongful death statutes: the General Wrongful Death Statute, applicable when there is a surviving spouse, dependent children, or dependent next-of-kin, the Child Wrongful Death Statute, applicable when there is the death of a child, and the Adult Wrongful Death Statute (AWDS).

When an adult unmarried individual without dependents dies due to a wrongful act or omission of another person, the personal representative of the adult person’s estate may pursue damages for wrongful death under the AWDS, Indiana Code § 34-23-1-2. Damages under the AWDS may include medical and funeral and burial expenses, which inure to the estate for the payment thereof, and damages for the loss of the adult person’s love and companionship, which inure to nondependent parents or children of the adult person. Attorney’s fees and expenses and loss of services are also available. However, damages cannot be obtained under the AWDS for a person’s grief, punitive damages, or lost earnings of the deceased, and damages for the loss of love and companionship suffered by nondependent parents and children are capped at $300,000.

Indiana Supreme Court Reverses Trial Court Decision Ordering Redaction of Patient Submissions in Indiana Medical Malpractice Case

Published on: May 24, 2024 | by Barsumian Armiger

The Indiana Supreme Court recently reaffirmed the limited scope of authority trial courts have during medical review panel proceedings in Indiana medical malpractice cases in Bojko v. Anonymous Physician. We previously wrote a blog about the Indiana Court of Appeals decision in the case. In Bojko, six patients filed medical malpractice claims against the estate of a deceased physician and his practice (the “physician”) alleging, among other things, the physician recommended, performed, and billed for unnecessary and unindicated sinus and nose surgeries. In their submissions to the medical review panel, the six patients alleged the physician was mentally ill, abusing drugs and/or alcohol, or was motivated by naked greed and they included a wrongful death complaint filed by the physician’s wife, in which the wife alleged the physician suffered from chronic alcohol and drug abuse and was killed after being discharged from a hospital ER.

The physician filed a petition in court under Indiana Code § 34-18-10-14, which provides “[a] party, attorney, or panelist who fails to act as required by [Chapter 10 of the Indiana Medical Malpractice Act] without good cause shown is subject to mandate or appropriate sanctions upon application to the court designated in the proposed complaint as having jurisdiction.” The physician requested the trial court order the patients redact from their submissions all references to alleged mental illness or drug or alcohol abuse, arguing such was not “evidence.” The trial court granted the petition and ordered the patients to redact all such references and any references to the physician’s wife’s complaint. The Indiana Court of Appeals affirmed, likening Bojko to its prior decision in Sherrow v. GYN, Ltd., 745 N.E.2d 880, 884-885 (Ind. Ct. App. 2001), in which the Court of Appeals ruled trial courts have authority under Indiana Code § 34-18-10-14 to order redaction of legal argument in evidentiary submissions because legal argument is not “evidence.”

On transfer to the Indiana Supreme Court, the Court first reviewed the scope of authority trial courts have under Indiana Code § 34-18-10-14. In looking at the statute, the Court recognized that a condition precedent to relief under the statute is the failure of a party, attorney, or panelist to comply with Chapter 10 of the Indiana Medical Malpractice Act, which imposes various requirements on parties, attorneys, and panelists during medical review panel proceedings (e.g., parties cannot communicate with panelists prior to the issuance of opinions and must timely tender evidence and panels must timely issue their opinions). The Court recognized trial courts have authority to direct panel proceedings to the extent necessary to ensure the various statutory duties are met. The Court referenced Sherrow, the case relied upon by the Court of Appeals, as instructive, in that the Medical Malpractice Act requires panel chairs to advise the panel as to legal questions and the issue in that case was the panel chair’s failure to carry out that duty given the legal argument by the defendants. In Bojko, the Indiana Supreme Court ruled trial courts have authority to grant relief under Indiana Code § 34-18-10-14, but only if there is a failure to act as required by the statute.

Indiana’s Limited Premise Liability for Churches Does Not Extend to Injuries Occurring in Church Areas Not Primarily Used for Worship Services

Published on: April 23, 2024 | by Barsumian Armiger

The Indiana Court of Appeals recently found against a church in an Evansville premise liability lawsuit arising out of an injury a volunteer sustained while working on a project on the church’s premises. In Calvary Temple Church of Evansville, Inc. v. Kirsch, Gerard Kirsch (Kirsch), a member and trustee of Calvary Temple Church of Evansville (Calvary), volunteered to lead a project to build a shed on the church’s property to house the church’s van. During the final stages of the project, Kirsch fell off a ladder and lacerated his arm requiring surgery, which resulted in a permanent injury. Kirsch filed a lawsuit against Calvary for negligence resulting in his injury. Calvary moved for summary judgment arguing it was not liable for Kirsch’s injury under Indiana Code § 34-31-7-2, which limits the liability of non-profit religious organizations in premise liability claims. The trial court denied Calvary’s motion and Calvary appealed.

Under Indiana’s common law, a possessor of land is liable to invitees for a condition on land if the landowner (1) knows or with reasonable care would discover the condition and should realize it involves an unreasonable risk of harm, (2) should expect its invitees will not discover or realize the danger or will fail to protect themselves against it, and if the landowner (3) fails to exercise reasonable care to protect its invitees against the danger. However, Indiana’s legislature has enacted special protections for non-profit religious organizations.

Indiana Code § 34-31-7-2 states in relevant part as follows:

Indiana Supreme Court Sets Forth New Test for Expert Affidavits in Indiana Medical Malpractice Cases

Published on: April 3, 2024 | by Barsumian Armiger

We previously wrote a personal injury and medical malpractice blog about the decision of the Indiana Court of Appeals in Korakis v. Mem’l Hosp. of S. Bend in which the court affirmed summary judgment for three medical defendants based upon the insufficiency of the patient’s expert’s affidavit submitted to refute a negative medical review panel opinion. In the case, Penny Korakis (Korakis) suffered an occult radial fracture of her left elbow, which went undiagnosed and untreated and ultimately required corrective surgery. Korakis filed a lawsuit against an ER doctor, the hospital where she had two sets of x-rays a week apart, and a family practice physician, Dr. Michael R. Messmer, who had referred her to physical therapy without obtaining additional imaging of her elbow. The medical review panel in the Indiana Department of Insurance proceedings found for the medical defendants. After the lawsuit was filed in court, the defendants moved for summary judgment based on the panel opinion.

Generally, in Indiana, when a medical review panel finds against a patient, the patient must then present expert medical testimony to refute the panel’s opinion to survive summary judgment. Here, in response to the defendants’ motion for summary judgment, Korakis designated an affidavit from an orthopedic doctor, Dr. James E. Kemmler. In his affidavit, Dr. Kemmler opined that 1) Korakis suffered an occult fracture of her left elbow, which was evident in the two sets of x-rays she had at the hospital, 2) the ER doctor failed to identify the fracture during Korakis’ initial ER visit, 3) Dr. Messmer failed to order additional imaging “when appropriate,” 4) Dr. Messmer “should have done more testing” prior to sling placement and referring Korakis for therapy, 5) the delay in diagnosis and “appropriate treatment” likely worsened Korakis’ condition, and 6) Dr. Messmer’s treatment “fell below the standard of care.” In turn, the medical defendants argued, with the trial court agreeing, that Dr. Kemmler’s affidavit was insufficient to survive summary judgment.

The Indiana Court of Appeals affirmed the trial court’s judgment. The court noted Dr. Kemmler’s affidavit did not identify any negligence by the hospital or state it had breached the standard of care; while it stated the ER doctor failed to identify Korakis’ fracture, it did not state that such failure was a breach of the standard of care; and while it stated Dr. Messmer breached the standard of care, it did not explicitly state that Dr. Kemmler was familiar with the applicable standard of care or what the applicable standard of care was, therefore making the affidavit insufficient to survive summary judgment. On transfer to the Indiana Supreme Court, the Indiana Supreme Court summarily affirmed the Court of Appeals opinion as to the ER doctor and the hospital. However, the Court fashioned a new test for the sufficiency of an expert’s affidavit in medical malpractice cases, and as applied to Dr. Messmer’s care, found Dr. Kemmler’s affidavit sufficient to preclude summary judgment.

Indiana Court of Appeals Affirms Dismissal of Father’s and Grandmother’s Claims in Child Wrongful Death Case

Published on: March 16, 2024 | by Barsumian Armiger

The Indiana Court of Appeals recently evaluated the timeliness of claims asserted under Indiana’s Child Wrongful Death Statute (CWDS). In Peters v. Girl Scouts of Southwest Indiana, Inc., Amanda Peters (Mother) filed a wrongful death lawsuit against the Girl Scouts of Southwest Indiana (Girl Scouts) after her eleven-year-old daughter Isabelle Meyer was killed when a tree fell and struck her at a camp operated by the Girl Scouts. At the time of Isabelle’s death, Cynthia Meyer (Grandmother) and her husband were co-guardians of Isabelle. After the Girl Scouts filed a motion to dismiss Mother’s lawsuit for failure to join Benjamin Brassard (Father) in the lawsuit, Mother added Father as a defendant to answer as to his interest; however, service was not perfected, and he did not answer, until more than two years after Isabelle’s death. The trial court ultimately denied the motion to dismiss Mother’s claim. Then, almost three years after Isabelle’s death, Mother added Grandmother as a defendant due to her guardianship of Isabelle; however, Grandmother never appeared or filed an answer in the action. The Girl Scouts thereafter filed a motion to dismiss Father’s and Grandmother’s claims as untimely, which the trial court ultimately granted, despite Mother’s argument that their claims were derivative of her timely filed claim.

The CWDS governs actions involving injury or death to children, which the CWDS defines as unmarried individuals without dependents who are less than 20 years of age or less than 23 years of age and enrolled in a postsecondary educational institution or a career and technical education school or program. Ind. Code § 34-23-2-1(b), (c). Actions under the CWDS may be brought by (1) the father and mother jointly, or either of them by naming the other as a codefendant to answer as to his or her interest, (2) in case of divorce or dissolution of marriage, the person to whom custody of the child was awarded, and (3) a guardian, for injury or death to a protected person. Ind. Code § 34-23-2-1(c). In the case of death, damages awarded for loss of the child’s services, love, and companionship, reasonable expenses of psychiatric and psychological counseling of a surviving parent or minor sibling, and uninsured debts of the child inure to the benefit of (1) the father and mother jointly if both parents had custody of the child, (2) the custodial parent, or custodial grandparent, and the noncustodial parent of the deceased child as apportioned by the court, or (3) a custodial grandparent if the child was not survived by a parent entitled to benefit under the CWDS. Ind. Code § 34-23-2-1 (f), (i). Importantly, a CWDS claim must be brought within two years from the date of the child’s death. Ellenwine v. Fairely, 846 N.E.2d 657, 666 (Ind. 2006).

On appeal the Court first noted the “odd procedural posture” of the case and standing issues with regards to the Mother alone appealing the dismissals of the Father’s and Grandmother’s claims. Nonetheless, recognizing it has allowed parties to raise arguments as to the dismissal of other parties when there is prejudice to a party and “some confusion” with regards to the CWDS itself, the Court addressed the merits of the parties’ arguments. The Court noted that service on the Father and his answer occurred more than two years after Isabelle’s death and the Grandmother was not added as a defendant within the two years and never appeared and answered in any case. While Mother argued that neither Father nor Grandmother were required to “bring a claim” to be entitled to an apportionment of damages under the CWDS, the Court found such inconsistent with Indiana’s trial rules and procedures requiring a claim for relief to be made by a party. As such, the Court concluded that, even though the CWDS sets forth an apportionment in their favor, Father and Grandmother were nonetheless required to assert a claim as to any damages, and the two-year time period for them to do so under the CWDS had passed, thereby making their claims properly subject to dismissal. The Court found the trial court did not abuse its discretion and affirmed on appeal.