Indiana Personal Injury Lawyer and Medical Malpractice Attorney Blog

Indiana Court of Appeals Reverses Another Trial Court for Giving a Failure-to-Mitigate Jury Instruction in Car Crash Case

Published on: April 8, 2020 | by Barsumian Armiger

The Indiana Court of Appeals recently issued another decision reversing a trial court for giving a failure-to-mitigate jury instruction in an Indiana car accident case. We had previously written about a similar decision in Humphrey v. Tuck. In this case, Harris v. Jones, the Plaintiff, Marlo Harris, was rear-ended on the interstate by the Defendant, Joe Jones, Jr. Harris filed suit against Jones for compensatory damages for her injuries and punitive damages alleging Jones was intoxicated while driving. She also filed an uninsured/underinsured claim against Allstate.

Harris experienced low back pain following the car crash that continued to worsen. Her treating physician diagnosed her with acute lumbar disk disease with left radiculopathy. He treated her with pain medications and injections and referred her for an MRI to determine the cause of her radicular symptoms. Harris never underwent the MRI test. During the four years prior to trial, Harris continued to experience back pain; however, she did not have any medical treatment.

Prior to trial Jones made a qualified settlement offer to Harris in the amount of $25,000.00. Under Indiana law, qualified settlement offers can be made at any time after a complaint has been filed but not within thirty days of trial. Ind. Code § 34-50-1-2. Qualified settlement offers must resolve all claims and defenses. Ind. Code § 34-50-1-3. They must be in writing, signed by the offeror or the offeror’s attorney with his or her name and address, be designated as a qualified settlement offer, be delivered by registered or certified mail or another method verifying the date of receipt, set forth the complete terms of the proposed settlement, and revoke all prior qualified settlement offers. Ind. Code § 34-50-1-4. If a party does not accept a qualified settlement offer, and a final judgment is less favorable than the terms of the qualified settlement offer, the party that made the qualified settlement offer is entitled to attorney’s fees, costs and expenses, not to exceed $1,000.00. After the jury awarded Harris only $10,000.00, the Court awarded Jones $1,000.00 in fees.

Recovery of Diminished Value of Truck in Auto Accident Case Approved by Indiana Court of Appeals

Published on: February 24, 2020 | by Barsumian Armiger

Persons involved in car accidents in Indiana due to no fault of their own have numerous claims for damages that they can pursue against the at-fault parties that caused the collisions. Claimants can pursue claims for wrongful death, physical and permanent injuries, medical costs and other expenses, lost wages, lost time, loss of enjoyment of life, emotional distress, mental anguish, loss of services, support and consortium of a spouse, and property damage. In the recent case of Shield Glob. Partners-G1, LLC v. Forster, the Indiana Court of Appeals addressed the availability of one of those items of damage, diminished value of a vehicle as part of a property damage claim.

The case arose out of an automobile collision between Lindsay Forster and Lance Ingersoll in Bloomington, Indiana. Forster rear-ended Ingersoll, and as a result of the collision, Ingersoll’s Chevy Silverado pickup truck was damaged. The truck was repaired for a cost of $6,852.55. Shield Global Partners-G1, LLC (“Shield”), which held an assignment of any claims for any diminished value, sought reimbursement for the diminished value of the truck, despite the repairs that had been satisfactorily performed. Shield presented an in-house appraisal that the truck had a fair market value of $36,550 before the collision, according to the National Automobile Dealers Association, and that after the collision, despite the repairs, its fair market value was $32,529.50, for a diminished value of $4,020.45. Shield also presented a second appraisal from an auto appraiser who estimated that the diminished value of the truck amounted to $7,400.00.

Shield filed suit against Forster for the diminished value of the truck. A bench trial was held. The trial court denied Shield’s claim for the diminished value of the truck. The trial court found that Shield’s diminished value claim amounted to a claim for “stigma of defect” damage, which per the trial court, Indiana law does not per se recognize without permanent damage. The trial court also found that Shield had failed to present sufficient evidence to support its claim of diminished value. The trial court, therefore, found the repair costs to be an adequate measure of damages.

“An Insured Is an Insured Is an Insured Is an Insured” for Purposes of an Insurer’s Duty of Good Faith and Fair Dealing

Published on: February 20, 2020 | by Barsumian Armiger

“[A]n insured is an insured is an insured is an insured for purposes of an insurer’s duty of good faith and fair dealing,” the Indiana Court of Appeals wrote in its recent decision in Schmidt v. Allstate Prop. & Cas. Ins. Co. In this case, Monika Schmidt was injured in a car accident. She was riding as a passenger in a vehicle being driven by her friend, Deborah Fisher. The driver of the other vehicle was Robert Bromley. Bromley had a Progressive insurance policy with $50,000 per person liability coverage. Fisher had an Allstate insurance policy with $100,000 per person liability coverage and $100,000 in underinsured motorist coverage. Schmidt was an “insured” under the provisions of Fisher’s Allstate policy. Schmidt sued Bromley and Fisher for her injuries. After Allstate refused to tender Fisher’s policy limits for underinsured coverage, Schmidt amended her lawsuit and added an underinsured claim and bad faith claim against Allstate. Ultimately, Schmidt and Allstate settled the underinsured claim and Fisher and Bromley were dismissed from the case.

Allstate filed for summary judgment on Schmidt’s bad faith claim. Under Indiana law, while an injured third party cannot sue an at-fault party’s insurance company for handling the claim in bad faith, there is an implied duty of good faith in all insurance contracts that an insurer will act in good faith with its insured, and insureds can sue their insurers in tort when their insurers act in bad faith in handling their claims. The duty of good faith and fair dealing owed by insurers includes, among other things, the obligation to refrain from making an unfounded refusal to pay policy proceeds, causing an unfounded delay in making payment, deceiving the insured, and exercising an unfair advantage to pressure an insured into a settlement. Here, Allstate argued that an insurer does not owe a duty of good faith and fair dealing to an insured who is not the policyholder.

On appeal, the Indiana Court of Appeals reviewed prior court decisions relied upon by the trial court in granting summary judgment in favor of Allstate, including Cain v. Griffin, which the Court distinguished on the basis that it involved a third-party beneficiary claim for medical payments coverage as opposed to a claim by an additional insured. The Court also reviewed the duty analysis under Webb v. Jarvis, which provides that courts should balance the following three factors in determining the existence of duty: (1) the relationship between the parties, (2) the reasonable foreseeability of harm to the person injured, and (3) public policy concerns.

Non-Physician Healthcare Provider Allowed to Give Expert Causation Opinion in Indiana Medical Malpractice Case

Published on: February 3, 2020 | by Barsumian Armiger

The Indiana Court of Appeals recently issued a decision on whether a non-physician healthcare provider could render an expert opinion as to medical causation in an Indiana medical malpractice case. In Riley v. St. Mary’s Med. Ctr. of Evansville, Inc., the patient filed a lawsuit against a hospital arising out of an IV contrast extravasation the patient suffered during a CT scan to rule out a pulmonary embolism. The patient alleged that the hospital’s radiologic technologist (RT) was negligent in injecting contrast dye into her right arm in preparation for the CT scan, and as a result, suffered compartment syndrome necessitating surgery and causing permanent injuries.

After the medical review panel formed in the parties’ case returned a unanimous opinion in favor of the hospital, the hospital moved for summary judgment. In response, the patient designated an affidavit from another radiologic technologist, Barry Southers, RT (Southers), who opined that the hospital RT did not comply with the applicable standard of care and that the hospital RT’s conduct was a factor in the resultant injury to the patient. In reply, the hospital argued that Southers, while he could give an opinion as to breach of the standard of care, could not give an expert opinion as to causation. The trial court agreed and entered summary judgment in favor of the hospital.

Plaintiffs in medical malpractice cases in Indiana must prove that (1) the defendant owed a duty to the plaintiff, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff’s injuries. A unanimous opinion of a medical review panel is ordinarily sufficient to support a party’s motion for summary judgment where the non-movant is then required to rebut the medical review panel opinion with expert medical testimony. The question before the Indiana Court of Appeals was whether Southers was sufficiently qualified to render an expert opinion on the element of causation to rebut the negative opinion of the medical review panel.

Indiana Essure Product Liability Claims Survive Bayer’s Motion to Dismiss

Published on: January 24, 2020 | by Barsumian Armiger

The Indiana Court of Appeals recently considered Bayer’s motion to dismiss the claims of more than 30 women who had suffered complications alleged to have been caused by Bayer’s Essure medical device. Bayer’s challenge was two-fold: (1) that the complaint itself was deficient and (2) that the claims were preempted by federal law, and thus did not belong in an Indiana court.

Indiana follows a liberal notice-pleading standard when it comes to legal complaints. All that is required is to put the defendant on notice of potential liability and the potential harms and losses arising out of the liability.

The women alleged manufacturing defects in the Essure device such as “the central axis was not fully adhered to the spring which can cause the [device] to fracture/break apart.” This, Bayer argued, was not good enough. The women alleged a variety of symptoms following the implantation of the Essure device including menorrhagia, extreme fatigue, abdominal pain, back pain, joint pain, and various skin rashes.” Again, Bayer claimed the women had failed to tie these injuries to any alleged defect.

Kentucky Supreme Court Reinstates Defense Verdict in Medical Malpractice Wrongful Death Trial

Published on: December 31, 2019 | by Barsumian Armiger

A few months ago we wrote about an Indiana Supreme Court decision granting a plaintiff a new trial as a result of a trial court’s refusal to strike a biased juror for cause which caused the plaintiff to lose a peremptory strike of another juror.

In Floyd v. Neal, the Kentucky Supreme Court reversed the Kentucky Court of Appeals decision to give an alleged medical malpractice wrongful death victim’s spouse and her late husband’s estate a new trial under similar circumstances albeit with a twist of facts.

The Kentucky Court of Appeals had concluded that a juror was biased and should have been struck for cause and that the plaintiff should have thus been able to use a peremptory strike on another prospective juror who was ultimately empaneled. In other words, a peremptory strike was utilized unnecessarily, depriving the plaintiff of utilizing it later. The Supreme Court, over a lone dissent, concluded that the plaintiff failed to preserve the error, even though the error apparently would have been preserved under the language of then-existing precedent. The dissent took issue with the Court’s retroactive application of a clarified striking procedure and the constitutionality of allowing a juror with an admitted bias to sit on the jury. Of significance to the Supreme Court’s decision was that in identifying the peremptory strikes she would have used, the plaintiff identified not one, but two jurors, when she only had one peremptory strike remaining.

Snow and Ice Removal Contractor Secures Summary Judgment Citing Slippery Services Agreement

Published on: December 23, 2019 | by Barsumian Armiger

The Indiana Court of Appeals recently resolved a dispute between an apartment complex property manager, Buckingham Management, L.L.C. d/b/a Bradford Place Apartments (Bradford), and a snow-and-ice removal contractor, Tri-Esco, Inc. (Tri-Esco), arising out of a slip and fall injury that Deborah Perez (Perez) suffered when she slipped and fell on ice at the Bradford Place Apartments in Lafayette, Indiana on February 23, 2015. According to a services agreement for snow removal, Tri-Esco was to remove snow and ice from the parking lot where Perez fell. If it snowed two inches or more, Tri-Esco was to clear ice and snow without an explicit request by Bradford to do so. While the agreement stated that Tri-Esco would otherwise perform salting without a request as warranted by ice and snow conditions, the agreement also had conflicting provisions providing that Tri-Esco would salt the parking lot only upon Bradford’s specific request and salting would be authorized by the maintenance supervisor or the property manager of the apartment complex.

Tri-Esco performed snow removal at the apartment complex on February 21, 2015, two days prior to Perez’s fall. Bradford, which had an on-site maintenance crew and snow and ice removal equipment, applied nine bags of ice melt. Neither Tri-Esco nor Bradford performed any additional snow and ice removal services in the two days prior to Perez’s fall. Bradford did not request that Tri-Esco perform any additional snow and ice removal services. It was undisputed that Tri-Esco never performed any discretionary salting at the apartment complex, was not required to make periodic inspections of the property, had no contractual obligation to be on site after the snow or ice removal services it performed on February 21, 2015 because the two-inch snowfall provision was not thereafter triggered, and Bradford had no expectation that Tri-Esco would provide any snow or ice removal services after February 21, 2015 on February 22 or February 23, 2015.

Perez filed a lawsuit for the personal injuries she suffered as a result of her fall on ice, which necessitated various surgeries. Tri-Esco moved for summary judgment. Tri-Esco argued that it had no duty to apply salt to the parking lot during the two days prior to Perez’s fall; there had been no additional snowfall and no explicit request by Bradford to provide additional services and it was not obligated to preemptively inspect the property or provide services. The trial court granted Tri-Esco’s motion for summary judgment, and Bradford appealed.

Indiana Court of Appeals Reverses Trial Court In Personal Injury Case Dealing with Indiana’s Claims Against Public Schools Act

Published on: December 12, 2019 | by Barsumian Armiger

The Indiana Court of Appeals recently reversed a trial court’s dismissal of an Indiana automobile accident case in which the injured motorist was alleged not to have complied with the notice provisions of Indiana’s Claims Against Public Schools Act (“CAPSA”). In Smith v. Franklin Twp. Cmty. Sch. Corp., Benjamin Smith (“Smith”) was injured when his vehicle collided with a school bus owned and operated by the Franklin Township School Corporation (“the School”). A few months after the accident, Smith provided notice of his tort claim to the School in accordance with the Indiana Tort Claims Act (“ITCA”). A year and a half after the accident, Indiana’s legislature enacted CAPSA which provides notice requirements in all civil actions or administrative proceedings against public schools. After Smith filed a lawsuit against the School, and after the applicable statute of limitations had run, the trial court granted the School’s motion to dismiss Smith’s complaint without prejudice on the basis that he had failed to comply with CAPSA.

The ITCA governs tort claims against governmental entities or public employees. Under the ITCA, a claim against the state of Indiana is barred unless notice of the claim is filed with the attorney general or the state agency involved within two hundred seventy (270) days after the loss occurs. Ind. Code § 34-13-3-6. Claims against political subdivisions, for example cities or counties, must be filed with the governing body of the political subdivision and the Indiana political subdivision risk management commission within one hundred eighty (180) days after the loss. Ind. Code § 34-13-3-8. To comply with the notice provision of the ITCA, a claimant must describe “in a short and plain statement the facts on which the claim is based,” including the circumstances which brought about the loss, the extent of the loss, the time and place the loss occurred, the names of all persons involved if known, the amount of the damages sought, and the residence of the person making the claim at the time of the loss and at the time of filing the notice.” Ind. Code § 34-13-3-10.

CAPSA was enacted on July 1, 2018 and provides that claimants may not initiate a civil action or administrative proceeding against a public school “unless the individual or entity submits a written notice to the public school and the governing body… that notifies the public school and the governing body… of the alleged violation of law and indicates a proposed remedy.” Ind. Code § 34-13-3.5-4. The proposed remedy must provide “a specific request for relief” and “[a]llow the public school to offer [the claimant] the relief requested,” to which the public school must respond within fifteen (15) days after the notice is submitted, before the claimant can initiate a civil action or administrative proceeding. Ind. Code §§ 34-13-3.5-5, 34-13-3.5-6. If a claimant does not provide the required notice under CAPSA, the action “shall [be] dismiss[ed]… without prejudice.”

Last Reasonable Opportunity to Diagnose and Treat Not Last In-Person Visit Establishes Date on Which Statute of Limitations Begins to Run in Indiana Medical Malpractice Claims

Published on: November 26, 2019 | by Barsumian Armiger

The Indiana Court of Appeals recently issued an opinion in Strickholm v. Anonymous Nurse Practitioner reversing a trial court’s grant of summary judgment based upon the statute of limitations. Under the Indiana Medical Malpractice Act (MMA), a claim for medical malpractice may not be brought against a health care provider based upon professional services or health care that was provided or that should have been provided unless the claim is filed within two (2) year after the date of the alleged act, omission, or neglect. Health care is defined by the MMA as an act or treatment performed or furnished, or that should have been performed or furnished, by a healthcare provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.

On October 29, 2015, the patient, Peter Strickholm, established primary care with Anonymous Nurse Practitioner (Anonymous NP). Anonymous NP thereafter saw Peter on December 1, 2015, at which time she prescribed a blood pressure medication to manage his high blood pressure and recommended that he return for a blood pressure check the following week. When Peter returned on December 8, 2015, a blood pressure check was performed by a licensed practical nurse (LPN). On December 11, 2015, the Anonymous NP electronically reviewed and approved the LPN’s report, but the Anonymous NP did not recommend any further testing or treatment despite the results. On December 15, 2015, Peter went to the hospital and was diagnosed with low sodium. He then suffered a cardiopulmonary arrest and hypoxic event causing a permanent brain injury.

Peter, and his parents, as his guardians, filed a proposed medical malpractice complaint on December 4, 2017. Anonymous NP filed a motion for preliminary determination of law and motion for summary judgment on February 1, 2018 claiming that the complaint was barred by the two (2) year statute of limitations because the last day Anonymous NP provided health care to Peter was on December 1, 2015 with the complaint having been filed more than two (2) years after that date. The trial court granted summary judgment in favor of Anonymous NP holding that the continuing-wrong doctrine (which provides that the statute of limitations can be extended when an entire course of conduct of a continuous nature combines to produce an injury) did not apply to Anonymous NP’s single act of prescribing the medication on December 1, 2015, Anonymous NP did not provide health care on December 8, 2015 because she did not see Peter on that date, and Anonymous NP’s review and approval of the LPN’s report on December 11, 2015, did not constitute the provision of health care to a patient. The plaintiff appealed the trial court’s decision.

Goshen Health Alerts Patients of Hospital Sterilization Failure and Risk of Infection

Published on: November 18, 2019 | by Barsumian Armiger

Goshen Health Hospital and Emergency Room has recently alerted patients undergoing surgical procedures between April 1, 2019 and September 30, 2019 that they may have been exposed to infectious diseases such as the hepatitis B virus, the hepatitis C virus, and the human immunodeficiency virus (HIV) due to their failure to fully complete a multistep sterilization process for certain surgical instruments. According to articles in the Elkhart Truth and The Goshen News, it is possible that around 1200 patients may have been affected by one of Goshen Health’s seven surgical instrument sterilization technicians failing to complete a step in their sterilization process. The situation has gained national attention.

Goshen Health is currently offering free testing to potentially affected patients, and has, according to reports, put additional policies and safety measures in place to make sure that it does not happen again. Depending upon the circumstances surrounding the technician’s error, injuries arising out of a failure to complete a sterilization process step could constitute ordinary and/or professional negligence and could give rise to personal injury and/or medical malpractice claims for physical and emotional injuries by the affected patients.

The Centers for Disease Control and Prevention (CDC) has offered a Guideline for Disinfection and Sterilization in Healthcare Facilities. These guidelines discuss appropriate and recommended sterilization cycle verification (verification of sterilizers with biological and chemical indicators prior to routine use), physical facilities (including areas designed for decontamination, packaging, and sterilization and storage), cleaning (cleaning and decontamination after use to prevent residual debris), packaging (in accordance with guidelines set forth by the Association for the Advancement of Medical Instrumentation (AAMI) and other organizations), loading (allowing for sterilant circulation with proper placement of trays and items), storage (including proper wrapping and handling), and monitoring (routine checking of mechanical, chemical and biological indicators).