Indiana Personal Injury Lawyer and Medical Malpractice Attorney Blog

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).

Sudden Medical Emergency Can Excuse Car Crash Under Indiana Law

Published on: January 3, 2019 | by Barsumian Armiger

The Indiana Court of Appeals recently upheld the grant of summary judgment in favor of the estate of a vehicle driver who suffered a heart attack and became unconscious while driving, which resulted in his vehicle speeding up, going off the roadway, and crashing into a nearby house. The vehicle driver died and his passenger, who brought suit against his estate, suffered severe injuries.

In Indiana, a plaintiff must establish three elements to prove negligence on behalf of a defendant: (1) a duty owed to the plaintiff by the defendant; (2) a breach of that duty by failing to comply with the applicable standard of care; and (3) a compensable injury proximately caused by the breach of that duty. Under Indiana law, individuals must conform their conduct to that of a reasonable person under like circumstances. Summary judgment is appropriate when the defendant negates at least one of the elements of the plaintiff’s claim. While the element of breach is usually a question for the jury, where the relevant facts are undisputed and lead only to a single inference or conclusion, the court may determine as a matter of law whether the defendant breached a duty.

The defendant estate in this case claimed it was entitled to summary judgment on the element of breach because the vehicle driver could not be found to have acted unreasonably in causing the collision when he suffered a heart attack and was rendered unconscious. The plaintiff passenger argued that the defendant driver was negligent for driving in the first place given his medical condition. While the vehicle driver had recently suffered a prior heart attack and undergone treatment related to his heart condition, at the time of the collision, he had been cleared to drive by his medical providers. Based upon this evidence, the Court found that the passenger plaintiff failed to create a genuine issue of material fact as to whether the defendant driver’s sudden physical incapacity was reasonably foreseeable, so as to hold him negligent for driving in the first place.

Product Misuse Complete Defense Under Indiana’s Product Liability Act

Published on: November 26, 2018 | by Barsumian Armiger

The Indiana Supreme Court recently held in Campbell Hausfeld/Scott Fetzer Co. v. Johnson that product misuse, like the defenses of incurred risk and product alteration, operates as a complete defense to bar recovery in product liability cases. While misuse is normally a question of fact for the jury, under this opinion, misuse can be established as a matter of law, for which summary judgment can be granted, when the undisputed facts show the plaintiff misused the product in an unforeseeable manner in direct contravention of the product’s warnings and instructions, and that such misuse caused the harm and could not have been reasonably expected by the seller.

The Plaintiff was seriously injured in this case when he used a grinder designed by the Defendant in an attempt to cut around a truck’s headlight opening to substitute larger headlights. The Defendant’s warnings and instructions directed users to wear safety glasses, to avoid attaching a cut-off disc without a safety guard in place, and to avoid using a cut-off disc with an RPM rating below the minimum of 25,000 RPM. The evidence established that the Plaintiff did not follow these warnings and instructions and the Indiana Supreme Court found that, despite any product defect, had the Plaintiff used a guard and safety glasses, he would not have been injured.

An injury claim arising out of the use of a product falls under the Indiana Products Liability Act (IPLA). Under the IPLA, a product-liability plaintiff must show that a product was in an unreasonably dangerous defective condition and that the product caused the plaintiff’s injuries. Plaintiffs can establish that a product was defective because of a manufacturing flaw, a defective design, or a failure to warn of dangers while using the product. Strict liability claims under the IPLA are limited to manufacturing defect claims, while claims based upon design defects or inadequate warnings or instructions are determined under negligence principles. While comparative fault principles still apply under the IPLA, the IPLA provides three non-exclusive defenses—incurred risk, product alteration, and product misuse— which based upon this opinion, all now operate as complete defenses, if proven, despite any product defects.

Medical Review Panels Unconstitutional in Kentucky, Constitutional in Indiana

Published on: November 19, 2018 | by Barsumian Armiger

Legislators in Indiana and Kentucky have enacted laws mandating medical review panels in cases where individuals allege they have been harmed by a healthcare provider’s negligence, commonly known as medical malpractice. Under legal challenge, Indiana found the legislation constitutional, whereas Kentucky did not.

Long ago, prior to enacting this legislation, Indiana’s and Kentucky’s founders provided as part of their Constitutions that their courts should be “open” and justice administered freely and “without delay.”

Article I, Section 12 of the Indiana Constitution provides:

Proceed with Caution: Applicability of Indiana Medical Malpractice Act Must Be Raised Early to Avoid Post-Panel Estoppel

Published on: November 2, 2018 | by Barsumian Armiger

What is required of plaintiffs to protect their right to challenge the applicability of the Indiana Medical Malpractice Act when there exists a question as to whether a claim arises from medical malpractice or ordinary negligence? The Indiana Court of Appeals answered this question in Cmty. Hosps. of Indiana, Inc. v. Aspen Ins. UK Ltd., a case in which two insurance companies paid damages to persons injured in a trucking collision and then sought to recover those damages from a medical provider who had cleared the at-fault truck driver to drive a commercial motor vehicle.

The insurance companies contemporaneously filed a proposed complaint for damages with the Indiana Department of Insurance (IDOI) and an anonymous state-court complaint for damages against Community Hospitals of Indiana, Inc. (Community). Community employed a nurse practitioner who performed a physical examination of the negligent truck driver prior to the collision pursuant to a contract between Community and the truck driver’s company that required qualified Community employees to conduct physical examinations based on Department of Transportation (DOT) requirements. The insurance companies alleged that Community was negligent in not notifying the truck driver’s company of a medical condition that would have precluded the truck driver’s ability to drive a commercial motor vehicle under Federal Motor Carrier Safety Administration (FMCSA) regulations, thus preventing the trucking accident.

Medical malpractice claims are subject to the Indiana Medical Malpractice Act (IMMA), which, among other things, caps damages, maintains the doctrine of contributory negligence, and requires that claims be submitted to medical review panels prior to being presented to a jury. However, the IMMA does not apply to all cases involving healthcare providers. If a healthcare provider’s negligence is unrelated to the promotion of a patient’s health or the exercise of professional expertise, skill or judgment, then it does not constitute medical negligence, but rather ordinary negligence, falling outside the scope of the IMMA. Indiana courts have noted that a case falls under ordinary negligence when the factual issues can be resolved by a jury without regard to the applicable standard of care. Alternatively, a case sounds in medical negligence when there is a causal connection between the conduct complained of and the nature of the patient-healthcare provider relationship.

Indiana Court of Appeals Finds Uninsured Motorist Coverage Inapplicable

Published on: October 22, 2018 | by Barsumian Armiger

The Indiana Court of Appeals recently resolved an insurance dispute in an automobile accident case concerning uninsured motorist coverage. In Progressive Se. Ins. Co. v. Smith, a passenger, Smith, was injured in his own vehicle that was involved in a single-vehicle collision.

Smith had given the driver, Clayton, permission to drive the vehicle when the two had left a company event. Smith’s liability insurance covered his vehicle damage and he received medical payments under the medical payment portion of his policy. Smith then brought suit against Clayton which resulted in Clayton’s insurer, Allstate, tendering its policy limits to Smith to settle.

Smith then asserted an uninsured motorist (UM) claim with Progressive. Progressive, in turn, filed a complaint for a declaratory judgment against Smith, requesting a determination under the terms of the policy that Smith was not covered under the UM coverage portion of the policy. Smith then filed a motion for summary judgment seeking coverage and damages under the policy. The trial court granted Smith’s motion and Progressive appealed.

Expert Testimony Required in Nearly All Medical Malpractice Cases

Published on: October 17, 2018 | by Barsumian Armiger

The Indiana Court of Appeals recently issued an opinion in St. Mary’s Ohio Valley Heart Care, LLC v. Smith concerning claims of medical malpractice against a cardiothoracic surgeon, a pathologist, and their respective medical groups arising out of a lung lobectomy performed for suspected, but not confirmed, lung cancer.

During the wedge resection portion of the procedure, the pathologist interpreted the intraoperative frozen section pathology slides as cancerous or suggestive of cancer, which was communicated to the cardiothoracic surgeon, who then proceeded to perform the lobectomy. The permanent section slides, however, were later interpreted as being benign, and the patient filed a lawsuit for damages.

A medical review panel was convened to review the case pursuant to the requirements of the Indiana Medical Malpractice Act and it returned a unanimous expert opinion in favor of the Defendants. After the patient filed an amended complaint for medical malpractice in state court, the Defendants filed motions for summary judgment based upon the opinion of the medical review panel that the evidence did not support the conclusion that the Defendants failed to meet the applicable standard of care.

Indiana’s Limited Medical Malpractice Fraudulent Concealment Doctrine

Published on: October 8, 2018 | by Barsumian Armiger

The Indiana Court of Appeals recently issued an opinion in Biedron v. Anonymous Physician 1 addressing the applicable statute of limitations in medical malpractice lawsuits in Indiana.

Biedron involved three related medical malpractice claims, which were consolidated for the purposes of the appeal. Proposed complaints for medical malpractice were filed by the plaintiffs with the Indiana Department of Insurance more than two (2) years after the alleged malpractice occurred in each of the cases. The plaintiffs in each of the cases argued that the 2-year occurrence-based statute of limitations, as set forth in the Indiana Medical Malpractice Act, should be tolled under the doctrine of fraudulent concealment. With differing trial court orders on the defendant healthcare providers’ motions for summary judgment on the statute of limitations issue, the Indiana Court of Appeals affirmed in part and reversed in part, finding in favor of the Indiana healthcare providers.

Under the Indiana Medical Malpractice Act, a medical malpractice claim, whether in contract or tort, may not be brought against a healthcare provider based upon professional services or healthcare that was provided, or that should have been provided, unless the claim is filed within two (2) yeas after the date of the alleged act, omission, or neglect, except that a minor less than six (6) years of age has until the minor’s eighth birthday to file. Ind. Code § 34-18-7-1.