Indiana Personal Injury Lawyer and Medical Malpractice Attorney Blog

Kentucky Supreme Court Addresses Ostensible Agency and Continuous Treatment Doctrine in Medical Malpractice Case in Affirming Grant of Summary Judgment to Physicians and Hospital

Published on: May 8, 2020 | by Barsumian Armiger

The Supreme Court of Kentucky recently issued a decision in Sneed v. University of Louisville Hospital affirming a trial court’s grant of summary judgment in favor of a hospital and two physicians in a Plaintiff’s medical malpractice claim arising out of a fourth-degree laceration the Plaintiff suffered during delivery on August 1, 2013, which caused a rectovaginal fistula (the most severe category of vaginal tear, often extending into the rectum), requiring surgery.

One year after the Plaintiff’s delivery and vaginal laceration, on August 1, 2014, the Plaintiff filed a lawsuit against the hospital, and on October 30, 2014, amended the complaint to add the two physicians who delivered her baby and initially repaired the laceration. The physicians moved for summary judgment based upon Kentucky’s statute of limitations, which the trial court granted. After the Plaintiff tendered expert disclosures, which did not allege a breach of the standard of care as to the hospital, the hospital moved for summary judgment, which the trial court granted, finding the hospital was not vicariously liable for the individual physicians, as they were not employees or agents of the hospital. The Court of Appeals subsequently affirmed.

The Plaintiff argued on appeal that Kentucky’s statute of limitations did not bar her action against the physicians under the continuous treatment doctrine and under the fraudulent concealment doctrine due to concealment of her records. Under Kentucky law, medical malpractice claims against physicians must be commenced within one year after the cause of action accrues, which occurs at the time the injury is first discovered or in the exercise of reasonable care should have been discovered. However, the statute of limitations can be tolled under the continuous treatment doctrine and when a party absconds, conceals himself, or by other indirect means obstructs prosecution of the case.

Payment of Hospital Lien Does Not Reduce Tortfeasor’s Automobile Bodily Injury Liability Policy Limits for Purposes of Underinsured Motorist Coverage

Published on: May 1, 2020 | by Barsumian Armiger

The Indiana Court of Appeals recently resolved a dispute as to the availability of underinsured coverage in an Indiana motor vehicle accident case. In Catanzarite v. Safeco Ins. Co. of Indiana, the Plaintiff, Christine Catanzarite, suffered severe injuries when another driver, Timothy Smith, turned his vehicle in front of her vehicle, causing a collision. Catanzarite incurred $269,841.32 in medical expenses at Memorial Hospital in South Bend, Indiana. Smith had a $100,000.00 liability insurance policy. Catanzarite had a $100,000.00 underinsured policy with Safeco.

Smith’s auto insurer offered Catanzarite Smith’s liability insurance limits of $100,000.00. Memorial Hospital asserted a hospital lien for the medical bills incurred by Catanzarite, which it subsequently reduced to $25,000.00. A perfected hospital lien gives a hospital a direct right to insurance proceeds which are paid to the patient by an at-fault party. Catanzarite filed a motion for declaratory judgment against Safeco, upon which she filed a motion for summary judgment, seeking a determination that Smith, as a result of Memorial Hospital’s hospital lien, was an underinsured driver and Catanzarite was entitled to $25,000.00 in underinsured coverage.

Underinsured motorist coverage ensures an insured person receives the recovery he or she would have received if the at-fault driver had carried adequate insurance; it helps protect persons against inadequately insured negligent motorists. Under Indiana law, an underinsured motor vehicle is an “insured motor vehicle where the limits of coverage available for payment to the insured under all bodily injury liability policies covering persons liable to the insured are less than the limits for the insured’s underinsured motorist coverage at the time of the accident…” Ind. Code § 27-7-5-4(b).

Indiana Court of Appeals Declines to Find Equitable Estoppel for Slip-and-Fall Claimant’s Failure to Comply with Indiana Tort Claims Act Notice Requirement

Published on: April 21, 2020 | by Barsumian Armiger

The Indiana Court of Appeals recently reversed a trial court’s decision allowing a slip-and-fall claimant’s case to move forward against a governmental entity despite non-compliance with the Indiana Tort Claims Act (ITCA). In City of Columbus v. Londeree, the Plaintiff, Debra Londeree, slipped and fell on ice in the parking lot of the Foundation for Youth of Bartholomew County (FFY). The City of Columbus (City) provided snow removal services for FFY. After the fall, Debra filed an incident report with FFY. She then spoke with the City’s risk office and was told that the City had not received her incident report. A few weeks later, a City employee called Debra and told her the insurance company would contact her. However, the City’s insurance carrier, Tokio Marine Insurance, never contacted her. FFY’s insurance carrier, Cincinnati Insurance, did contact her, but the claims representative was not working for the City or its insurer and did not tell Debra, who was relying upon the claims representative, that she was working for the City or its insurer.

After Cincinnati Insurance denied the claim on behalf of FFY, Debra and her husband Dan filed a lawsuit against FFY and the City. Neither Debra nor Dan served a notice of tort claim on the City within 180 days from the fall as required by the ITCA. Under the ITCA, a notice of claims against a political subdivision, which includes cities, 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. 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.

The City filed a motion for summary judgment against Debra and Dan due to their non-compliance with the notice requirements of the ITCA. The trial court denied the City’s motion as to Debra finding there was a genuine issue of material fact as to whether the City should be estopped from raising the ITCA notice defense due to Debra’s understanding of the relationship between the City and FFY and whether her reliance on the representations of FFY and the City were reasonable. As to Dan’s derivative claim, the trial court granted the City’s motion based upon precedent providing that a spouse claiming loss of consortium must file a separate notice of tort claim.

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.