Indiana Personal Injury Lawyer and Medical Malpractice Attorney Blog

Indiana Supreme Court Considers Admissibility of Expert’s Disciplinary History in Car Accident Case

Published on: August 23, 2019 | by Barsumian Armiger

The Indiana Supreme Court recently issued an opinion in a car accident case in which the question before the Court was whether a party may use evidence of an expert witness’s professional disciplinary history to challenge the expert’s credibility. In Tunstall v. Manning, 124 N.E.3d 1193, 1195 (Ind. 2019), the plaintiff filed a lawsuit against a defendant driver that had rear-ended the plaintiff at a stop sign, causing injuries to the plaintiff. One of the plaintiff’s treating physicians diagnosed the plaintiff with a 28% whole body impairment.

Leading up to the jury trial, counsel for the defendant inquired about the plaintiff’s physician’s past professional discipline and the reasons underlying the physician’s past discipline. While the physician admitted his medical license had previously been on probation, he refused to answer questions about the reasons underlying his past discipline. When the defendant filed a motion in court to compel the plaintiff’s physician to answer questions about his past discipline, the trial court denied the motion, reasoning that the physician’s professional disciplinary history was not relevant because his medical license was in good standing. At trial, the defendant was unable to use the physician’s licensure probation and the reasons underlying the physician’s past discipline to impeach the physician’s testimony, which was the sole medical testimony offered by the plaintiff, based upon the trial court excluding any evidence of the plaintiff’s physician’s past licensure probation and the reasons for his past professional discipline.

After an Indiana jury returned a verdict in favor of the plaintiff, the defendant appealed, arguing the trial court abused its discretion by disallowing evidence of the plaintiff’s physician’s licensure probation and the reasons underlying his professional discipline. In personal injury cases in which there are competing expert opinions as to the seriousness of a person’s injuries, expert testimony can be particularly important in affecting the amount of any jury verdict in favor of the plaintiff. Once the foundation for an expert’s opinions has been established, the accuracy, consistency, and credibility of the expert’s opinions can be challenged by the parties. The question in this case was whether the plaintiff’s physician’s expert opinions could be attacked by evidence of his professional disciplinary history.

Indiana Supreme Court Resolves Court of Appeals Split in Medical Malpractice Cases

Published on: August 3, 2019 | by Barsumian Armiger

We previously wrote about a split between two panels of the Indiana Court of Appeals on what constitutes preferred venue under Indiana Trial Rule 75 in medical malpractice cases in Indiana. Indiana Trial Rule 75 provides for preferred venue in “the county where… the principal office of a defendant organization is located…,” and the Indiana Supreme Court has previously interpreted the term “principal office” as “the place in Indiana where one serves the corporate registered agent.” Ind. R. Trial P. 75(A)(4); Am. Family Ins. Co. v. Ford Motor Co., 857 N.E.2d 971, 975 (Ind. 2006) (American Family).

Plaintiffs in both medical malpractice cases argued preferred venue existed in Marion County, Indiana because one or more of the defendants had registered agents with office addresses in Marion County. However, the healthcare Defendants in these cases argued that preferred venue did not lie in Marion County because a new Indiana statute provides that “[t]he address of [an entity’s registered] agent does not determine venue in an action or a proceeding involving the entity.” Ind. Code § 23-0.5-4-12.

The Indiana Court of Appeals in Morrison v. Vasquez, 107 N.E.3d 1103 (Ind. Ct. App. 2018) held that Marion County, Indiana was not a preferred venue based upon the address of the defendant’s registered agent, whereas the Court in Indiana Univ. Health S. Indiana Physicians, Inc. v. Noel, 114 N.E.3d 479 (Ind. Ct. App. 2018) held that preferred venue lied in Marion County.

Component Part Manufacturer May Have Duty to Offer or Install Necessary Safety Features

Published on: July 4, 2019 | by Barsumian Armiger

The Indiana Supreme Court recently held in Brewer v. PACCAR, Inc. that a component part manufacturer (PACCAR) may have a duty to offer or install necessary safety features under Indiana’s Product Liability Act (IPLA). Because issues of fact existed as to whether the safety features were offered and necessary to make the final product safe, the Court reversed the trial court’s finding that PACCAR owed no duty, as a matter of law, to install safety features that the injury party alleged were necessary.

The IPLA subjects a manufacturer of “a product or a component part of a product,” I.C. § 34-6-2-77, to liability for physical harm caused by a manufacturer placing “into the stream of commerce any product in a defective condition unreasonably dangerous to any user or consumer,” I.C. § 34-20-2-1. A product is defective under the IPLA if it is defectively designed, if it has a manufacturing flaw, or if it lacks adequate warnings about dangers associated with its use.

Rickey Brewer was a construction foreman killed when a semi driver backed up a semi with an integrated PACCAR glider kit, did not see Rickey, and pinned him against a trailer, killing him. His widow and his estate asserted an IPLA claim against PACCAR. The claim asserted PACCAR’s glider kit was defectively designed because it lacked certain safety features to reduce the danger inherent in its forty-foot blind spot. (If you drive a vehicle with a rear camera and sensors, you can probably attest to the peace of mind and safety such devices add to our everyday life). Here, because a design-defect claim is based in negligence, Brewer would need to be able to prove at trial that (1) PACCAR owed a duty to Rickey; (2) PACCAR breached that duty; and (3) the breach proximately caused an injury to Rickey. The only element at issue in the case was duty—whether PACCAR lacked a duty, as a matter of law, to install certain safety features.

Punitive Damages in Indiana

Published on: June 24, 2019 | by Barsumian Armiger

What are punitive damages?

Punitive damages are a creature of common law and have been allowed for under certain circumstances by Indiana’s legislature under Indiana law. Cheatham v. Pohle, 789 N.E.2d 467, 471 (Ind. 2003); Ind. Code §§ 34-51-3-0.2 to 34-51-3-6. While the purpose of compensatory damages is to make a plaintiff whole and otherwise value a plaintiff’s injury, punitive damages serve to deter and punish wrongful activity and behavior. Cheatham, 789 N.E.2d at 471.

What is the standard for obtaining an award of punitive damages in Indiana?

Indiana Medical Malpractice Act Not Applicable to Claim of Negligent Dissemination of Protected Health Information

Published on: June 12, 2019 | by Barsumian Armiger

Not all claims against healthcare providers in Indiana constitute medical malpractice and fall within the scope of the Medical Malpractice Act. A slip-and-fall on untreated ice in a parking lot at a hospital, for instance, is a claim of ordinary negligence, as opposed to medical malpractice. The Medical Malpractice Act does not apply to claims of ordinary negligence.

Whether a claim constitutes medical malpractice or ordinary negligence is a question of law and often turns on hairline distinctions with courts looking to the substance of a claim. The test is whether the claim is based on the provider’s behavior or practices while acting in a professional capacity as a provider of medical services. The Medical Malpractice Act applies to curative or salutary conduct undertaken for the benefit of a patient’s health. The Medical Malpractice Act does not apply to conduct unrelated to the promotion of a patient’s health or the provider’s exercise of professional expertise, skill, or judgment. Courts also ask whether the issues are capable of resolution by a jury without application of the standard of care and whether there is a causal connection between the conduct complained of and the patient-healthcare provider relationship.

The Indiana Court of Appeals recently held that the Medical Malpractice Act was not applicable to a claim of negligent dissemination of protected health information.

Heir Not Required to Recover Wrongful Death Damages in Indiana

Published on: April 3, 2019 | by Barsumian Armiger

The Indiana Supreme Court recently issued an opinion in Horejs v. Milford, 117 N.E.3d 559 (Ind. 2019), a medical malpractice wrongful death lawsuit in Indiana concerning the availability of “survivor damages” for wrongful death, including loss of love, care, and companionship. In Horejs, the surviving widower, the statutory beneficiary under Indiana’s wrongful death statute, died during the pendency of the case without an heir. The Court previously held in Bemenderfer v. Williams, 745 N.E.2d 212 (Ind. 2001) that “the wrongful death statute does not operate to preclude the statutory beneficiary who dies before judgment from recovering wrongful death damages.” Id. at 214. However, while Bemenderfer held wrongful death damages did not abate upon the death of the surviving widow under Indiana’s survival statute, which allows claims to proceed after the death of a claimant, unlike Horejs, there was an heir to recover those damages in Bemenderfer.

After the patient in Horejs died as a result of alleged medical malpractice, her surviving husband was appointed administrator of her estate and he filed a lawsuit against the medical providers for wrongful death damages, which include “survivor damages” such as loss of love, care and companionship and “final-expense damages” such as medical, funeral and burial expenses. While the lawsuit was pending, the surviving husband died intestate (without a will), leaving no heir. Thereafter, the deceased patient’s father and brothers were appointed co-administrators of the patient’s estate.

Indiana’s wrongful death statute provides that the personal representative of the decedent may maintain an action against the alleged wrongdoer if the decedent could have maintained an action had he or she lived. Wrongful death damages recovered for reasonable medical, hospital, funeral and burial expenses inure to the exclusive benefit of the decedent’s estate for payment thereof, and the remainder of damages, if any, such as loss of love, care and companionship, inure to the exclusive benefit of the widow or widower, dependent children, and dependent next of kin.

When Animals Attack What Does Indiana Law Say?

Published on: February 21, 2019 | by Barsumian Armiger

The Indiana Court of Appeals recently issued an opinion in a personal injury lawsuit between a landowner and a person injured on the landowner’s property after a ram owned by the landowner headbutted the person, causing her to fall and fracture her arm, which required surgery.

In deciding the case, the Court of Appeals reviewed Indiana premises liability law, Indiana law on injuries caused by domestic animals, Indiana negligent entrustment law, Indiana negligent supervision law, and Indiana vicarious liability law.

The landlord in this case was in Florida and left her home in Indiana, including animals on her property, under the care of her half-brother. The landowner’s half-brother invited the plaintiff onto the property to help care for an ill goat. While attempting to help the goat, the plaintiff was injured. The plaintiff sought to hold the landowner liable for her injuries on the basis of premises liability, negligent entrustment, negligent supervision, and vicarious liability. Both parties moved for summary judgment, and the trial court granted summary judgment in favor of the landowner.

Are Mesothelioma Claims from Decades-Old Asbestos Exposure Still Viable Under Indiana Law?

Published on: February 14, 2019 | by Barsumian Armiger

Yes, according to the Indiana Supreme Court decision in Myers v. Crouse-Hinds Div. of Cooper Indus., Inc., 53 N.E.3d 1160 (Ind. 2016). In this case, the Court consolidated three appeals involving the constitutionality of the Indiana Product Liability Act statute of repose as applied to plaintiffs who had suffered mesothelioma-related illnesses and in one case death.

What is mesothelioma? Mesothelioma is a rare type of cancer that often develops years after exposure to asbestos, which is a naturally occurring mineral used in a variety of products manufactured for various industries and still found in many old buildings where it has not been removed through abatement. Mesothelioma can take different forms in tissues lining certain of the body’s organs or cavities including pleural mesothelioma (mesothelioma occurring in the pleura aka lining of the lung), peritoneal mesothelioma (mesothelioma occurring in the peritoneum aka lining of the abdominal cavity), and pericardial (mesothelioma occurring in the pericardium aka lining of the heart).

Turning to the decision in Myers, the Court examined Indiana’s Product Liability Act as applied to cases of the mesothelioma-inflicted plaintiffs. Chapter 3 of the Indiana Product Liability Act sets forth the statute of limitations for product liability actions in Indiana. Section 1 of Chapter 3 applies to product liability actions generally and includes a two-year statute of limitations and a ten-year statute of repose. Section 2 of Chapter 3 applies to asbestos-related actions and also includes a two-year statute of limitations. However, Section 2, unlike Section 1, does not include a ten-year statute of repose.

“Medical Malpractice” and “Medical Negligence” Distinction without Difference in Indiana

Published on: January 21, 2019 | by Barsumian Armiger

In finding in favor of several healthcare providers in a medical malpractice case in Indiana, the Indiana Court of Appeals in Speaks v. Vishnuvardhan Rao reviewed numerous concepts applicable to medical malpractice claims in Indiana.

Medical malpractice claimants in Indiana must prove that a healthcare provider owed the patient a duty, the healthcare provider breached that duty, and the breach proximately caused injury to the patient. Healthcare providers are not obligated to provide perfect care, but they must exercise the degree of skill and care ordinarily possessed and exercised by a reasonably skillful and careful healthcare provider under the same or similar circumstances.

The patient in this case filed a lawsuit against several healthcare providers claiming her healthcare providers committed malpractice by administering the wrong medication, failing to correctly complete a DVT risk form, and failing to properly monitor and flush her IV.

Indiana Court of Appeals Splits Decisions on Venue in Indiana Medical Malpractice Cases

Published on: January 12, 2019 | by Barsumian Armiger

There currently exists a split between two panels of the Indiana Court of Appeals on what constitutes preferred venue under Indiana Trial Rule 75. Indiana Trial Rule 75 is a rule adopted by the Indiana Supreme Court that sets forth venue requirements for cases filed in Indiana state courts. While the rule provides that “[a]ny case may be venued, commenced and decided in any court in any county,” Ind. R. Trial P. 75, it allows for parties to have cases transferred to other courts or counties that have preferred venue, based upon criteria set forth in ten (10) separate subsections.

Preferred venue for cases can exist in more than one court or county in Indiana. One of the ten (10) subsections of Indiana Trial Rule 75 provides for preferred venue in “the county where… the principal office of a defendant organization is located…” Ind. R. Trial P. 75(A)(4).

The Indiana Court of Appeals’ split decisions arise from medical malpractice cases filed in Marion County, Indiana. The defendants sought to have the cases transferred to other counties, namely Monroe County, Indiana and Lawrence County, Indiana. Although Indiana procedural law enacted by Indiana’s legislature provides that “[t]he address of [an entity’s registered] agent does not determine venue in an action or a proceeding involving the entity,” Ind. Code § 23-0.5-4-12, the Indiana Supreme Court has interpreted the term “principal office” as used in Indiana Trial Rule 75(A)(4) and (10) as “the place in Indiana where one serves the corporate registered agent.” Am. Family Ins. Co. v. Ford Motor Co., 857 N.E.2d 971, 975 (Ind. 2006) (American Family).