Indiana Personal Injury Lawyer and Medical Malpractice Attorney Blog

Indiana Supreme Court Upholds Jury Verdict in Truck Crash Case Finding Some Evidence to Support Trial Court’s Failure to Mitigate Instruction

Published on: September 30, 2020 | by Barsumian Armiger

We previously wrote about an Indiana Court of Appeals case in which the court reversed a trial court’s judgment on a jury verdict of $40,000 for a plaintiff in a truck accident case and remanded the case for a new trial based upon the trial court’s giving of a failure to mitigate jury instruction. In Humphrey v. Tuck, the plaintiff, Patrick Humphrey, suffered swelling of a pre-existing tumor after being sideswiped by a truck and hitting his head, which caused problems with his vision and symptoms of a hormonal imbalance. Humphrey did not follow his doctor’s orders and advice with regards to medication management and an eyeglass prescription. However, the parties disagreed as to whether the defendants had shown such failure increased his harm, and if so, by how much. In a recent opinion, the Indiana Supreme Court found there was sufficient evidence to support a failure to mitigate instruction, thereby vacating the Court of Appeals opinion and affirming the judgment.

When reviewing the appropriateness of an instruction, reviewing courts consider whether (1) the instruction correctly states the law, (2) the instruction is supported by evidence in the record, and (3) the instruction’s substance is covered by another instruction. The first consideration is a legal question reviewed without giving any deference to the trial court, whereas the second and third considerations are reviewed for an abuse of discretion. To prove a failure to mitigate, a defendant must prove by a preponderance of the evidence that (1) the plaintiff did not exercise reasonable care in mitigating post-injury damages, and (2) the failure to exercise reasonable care caused the plaintiff to suffer harm not attributable to the defendant’s negligence. When a plaintiff fails to follow medical advice aggravating his injuries, a defendant must show such failure caused discrete, identifiable harm arising from that failure and not attributable to the defendant. Courts consider whether the defendant has produced enough evidence of causation to warrant an instruction. Expert opinion is often, but not always, required, with courts considering whether the medical issue is within the common experience, observation, or knowledge of a layman.

The Court of Appeals reversed the trial court and remanded for a new trial finding the evidence insufficient to support a failure to mitigate jury instruction. The Indiana Supreme Court, however, disagreed, noting under Indiana law to warrant the giving of an instruction a defending party need only show some evidence—a “scintilla”—of each element of the underlying claim or defense. Here, the trucking crash plaintiff Humphrey conceded the existence of evidence showing he had failed to exercise reasonable care to mitigate his post-injury damages; the only question, therefore, was whether there was some evidence that his conduct caused him to suffer harm beyond that attributable to the defendants. As to the second element of failure to mitigate, the Indiana Supreme Court noted that the issue is not only whether Humphrey’s failure to follow his doctor’s orders increased his harm, but also whether it prolonged the suffering he attributed to the defendants’ negligence in any discrete, measurable way, without the defendants having to put forth a specific numerical value as to the plaintiff’s increased or prolonged harm in showing “quantifiable” harm. Defendants argued that Humphrey’s failure to mitigate his damages either aggravated his injuries or prolonged them.

Indiana Court of Appeals Instructs Trial Court to Grant Patient’s Estate’s Motion to Compel Arbitration in Medical Malpractice Nursing Home Case

Published on: September 18, 2020 | by Barsumian Armiger

The Indiana Court of Appeals recently held a nursing home, qualified under the Indiana Medical Malpractice Act, had relinquished its right to protections afforded by the Act to medical malpractice defendants by contracting for claims against it to be resolved exclusively by arbitration, such that the estate of a nursing home resident could compel arbitration in lieu of presenting the case before a medical review panel.

The Estate of Sandra King (“the Estate”) filed a medical malpractice lawsuit against Aperion Care d/b/a Aperion Care Tolleston Park (“Aperion”) relating to nursing care provided to King while she was a resident at Aperion. As part of her admission to the nursing home, King signed Aperion’s Arbitration Agreement, which provided all claims against Aperion were to be resolved exclusively by arbitration. After filing a lawsuit and conducting discovery, and prior to tendering its medical review panel submission, the Estate moved to compel arbitration based upon the Arbitration Agreement. After a hearing, the trial court denied the Estate’s motion to compel, finding the case “not yet ripe for arbitration,” as the case had not yet been presented to a medical review panel.

Under the Indiana Medical Malpractice Act, qualified healthcare providers (i.e., those who have filed proof of financial responsibility and paid the applicable surcharge, Ind. Code § 34-18-3-2), get numerous protections, including a requirement that plaintiffs first present their claims before a medical review panel prior to prosecuting them in court. Ind. Code § 34-18-8-4. Medical review panels are comprised of one attorney chairperson and three healthcare providers. Ind. Code § 34-18-10-3. Once the panel is formed, the parties tender medical review panel submissions consisting of evidence to be considered by the panel. Ind. Code § 34-18-10-17. The panel then issues an opinion on whether the defendants complied with the applicable standard of care and whether the conduct complained of was a factor in the resultant damages. Ind. Code § 34-18-10-22.

Indiana Court of Appeals Affirms Trial Court’s Denial of Fertility Doctor and Fertility Clinic’s Motion to Dismiss

Published on: September 1, 2020 | by Barsumian Armiger

The Indiana Court of Appeals in Anonymous Physician 1 v. White affirmed the trial court’s denial of a motion to dismiss filed by a fertility doctor and fertility clinic in a lawsuit against the fertility doctor for using his own sperm in artificially inseminating a patient in the early 1980s. The lawsuit filed on behalf of the patient and her son alleged breach of contract and medical malpractice.

The patient went to the fertility doctor for help becoming pregnant. The fertility doctor and the patient entered into a contract that provided that the doctor would artificially inseminate the patient with donor sperm from an anonymous medical school resident, and the doctor was supposed to use the donor sperm in no more than three successful artificial insemination procedures. As a result of the artificial insemination, the patient became pregnant and gave birth to a son in 1982. After learning in 2016 that the doctor had used his own sperm, the patient and her son filed a lawsuit.

The doctor and clinic filed a motion to dismiss the son’s claim arguing he had not established he was a third-party beneficiary to the contract with his mother, that he had failed to sufficiently state a claim for negligence because no duty was owed to him, and that he had failed to state a claim for compensable injuries. A motion to dismiss under Indiana Trial Rule 12(B)(6) tests the legal sufficiency of a complaint as to whether some facts have been stated giving rise to a legally actionable injury. Courts accept alleged facts as true and view them and all reasonable inferences in favor of the nonmovant. Under Indiana’s notice pleading standard, a complaint only needs to contain a short and plain statement of the claim showing entitlement to relief. Allegations are sufficient if they put a reasonable person on notice as to why the plaintiff is suing. Motions to dismiss are disfavored as they undermine the policy of deciding cases on their merits.

Indiana Court of Appeals Rules Claim Involving Unauthorized Access of Patient Information Does Not Fall Under Indiana Medical Malpractice Act

Published on: August 7, 2020 | by Barsumian Armiger

In Community Health Network, Inc. v. McKenzie (an opinion which has since been vacated), the Indiana Court of Appeals addressed several important health law issues, one of which was whether a claim of negligence arising out of a hospital employee’s accessing another’s private health information falls under Indiana’s Medical Malpractice Act. The Court of Appeals ruled that such mishandling of a patient’s confidential information “even by a treating physician—are not governed by the Medical Malpractice Act.”

The claimant, Heather McKenzie, was initially employed at Indiana Orthopedic Center (“IOC”), along with Katrina Gray. Katrina was the medical records coordinator and was Heather’s direct supervisor. Katrina introduced Heather to her stepson, Kevin, and the two married and had two children. Thereafter, Kevin and Heather divorced and Heather received full custody of the children. Heather later married Daniel McKenzie. The Gray family and the McKenzie family had a “family feud” according to the Court.

In 2012, Community acquired IOC through an asset purchase. Katrina was hired and trained by Community to be the medical records coordinator and was required to train on HIPPA. After training Katrina was provided access to Epic, an electronic medical records system. She was authorized to schedule appointments and release records of patients only within IOC and “strictly prohibited” from accessing any patient record without a business need or for personal reasons. After Community investigated an anonymous internal employee complaint received via Community’s anonymous hotline, it was determined that Katrina had accessed her own chart, as well as the confidential health records of multiple other patients, including the McKenzies. Katrina was placed on leave and then terminated. The McKenzies were later notified of the unauthorized access of their medical information and eventually learned that Katrina was the culprit.

Indiana Court of Appeals Reverses Trial Court’s Denial of Summary Judgment in Indiana Slip-and-Fall Case

Published on: August 1, 2020 | by Barsumian Armiger

The Indiana Court of Appeals recently found in favor of a restaurant and winery in an Indiana slip-and-fall case. In Cooper’s Hawk Indianapolis, LLC v. Ray, the Plaintiff, Katherine Ray, while at Cooper’s Hawk Winery & Restaurant (“Cooper’s Hawk”), went to use the restroom and slipped and fell on her way out of the restroom door. Ray filed a complaint against Cooper’s Hawk alleging she slipped and fell on an accumulation of water and was injured as a result of her fall. Cooper’s Hawk filed a motion for summary judgment, which the trial court denied, arguing that Cooper’s Hawk did not have actual or constructive notice of the defective condition that allegedly caused Ray to fall and that any breach of any duty was not the proximate cause of Ray’s injuries.

Under Indiana premises liability law, property owners must maintain their property in a reasonably safe condition for business invitees. A possessor of land is subject to liability for physical harm caused to its invitees by a condition on land if it (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees; (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. An inviter must exercise reasonable care to discover defects or dangerous conditions on the premises, and will be charged with knowledge of, and held liable for injuries that result from, any dangerous conditions that could have been discovered in the exercise of reasonable care. However, inviters are not insurers of their invitees’ safety and must be shown to have actual or constructive knowledge of the dangerous conditions on their premises before liability will attach. Negligence cannot be inferred from the mere fact of a fall and constructive knowledge can only be found if it is shown that a condition had existed for such a length of time that under the circumstances it would have been discovered if the inviter or its agents or employees had used ordinary care.

In this case, it was raining outside around the time of Ray’s fall. Ray testified she did not observe anything, any water, or any wet spots on her way to the restroom. She did not observe any slippery substance or wet spot outside the women’s restroom in the hallway after she exited the restroom. She did not feel any liquid substance or anything like that on her body after she fell. She did not see any wetness on her clothing. While Ray’s husband testified that after EMS arrived he noticed that one of the EMS personnel had a damp knee, Ray’s jeans were damp, and there were a few very small puddles or mist on the floor, he could not testify as to what the liquid was, where it came from, and how long it would have been there, and he did not recall seeing it when he first got to the area of the fall. An employee of Cooper’s Hawk submitted an affidavit stating she was working on the day of the fall, did not know how Ray fell, neither she nor Cooper’s Hawk were notified of the presence and had no knowledge of any type of hazard or liquid substance, employees would inspect the restrooms and hallways every twenty to thirty minutes, and when she inspected the area of the fall, she found no sign of a hazard, water, or other liquid on the floor.

It’s the Law: No Holding or Using Phones While Driving in Indiana

Published on: July 25, 2020 | by Barsumian Armiger

As injury lawyers representing victims of car crashes, one of the most common causes of car accidents we see in police reports is that the at-fault driver was texting or reached down to retrieve a dropped phone. These common car crash causes should vanish if drivers follow Indiana’s new hands-free phone law. Indiana Passes Hands Free Phone Law

“Do not hold or use your phone while driving in Indiana” is the new law in Indiana as of July 1, 2020. Under the law, a person operating a motor vehicle in Indiana may no longer hold or use their phone while driving unless that person has hands free or voice operated technology or is calling 911 to report a bona fide emergency. The new law, which went into effect July 1, 2020 and which can be found in Indiana Code § 9-21-8-59, provides as follows:

(a) Except as provided in subsections (b) and (c), a person may not hold or use a telecommunications device while operating a moving motor vehicle. (b) A telecommunications device may be used in conjunction with hands free or voice operated technology. (c) A telecommunications device may be used or held to call 911 to report a bona fide emergency. (d) A police officer may not, without the consent of the person: (1) confiscate a telecommunications device for the purpose of determining compliance with this section; (2) confiscate a telecommunications device and retain it as evidence pending trial for a violation of this section; or (3) extract or otherwise download information from a telecommunications device for a violation of this section unless: (A) the police officer has probable cause to believe that the telecommunications device has been used in the commission of a crime; (B) the information is extracted or otherwise downloaded under a valid search warrant; or (C) otherwise authorized by law. (e) The bureau may not assess points under the point system for a violation of this section occurring before July 1, 2021.

Indiana Trial Lawyers Association Publishes Attorney Jonathan Armiger’s Indiana Appellate Case Update on Medical Malpractice

Published on: July 25, 2020 | by Barsumian Armiger

Verdict-Article-1-300x189 Barsumian Armiger attorney Jonathan Armiger’s article examining recent Indiana medical malpractice cases was published in Volume 40, No 1 of the Indiana Trial Lawyers Association (ITLA) Verdict. The article is republished below with permission from ITLA.

MEDICAL MALPRACTICE VS. ORDINARY NEGLIGENCE

The Indiana Court of Appeals has recently issued four opinions concerning whether the claims at issue constituted medical malpractice or ordinary negligence. The distinction is important as such relates to the applicability of the Medical Malpractice Act (MMA), which, among other things, caps damages, Ind. Code § 34-18-14-3, requires claims be presented to a medical review panel prior to prosecuting them in court, Ind. Code § 34-18-8-4, shortens the statute of limitations for minors, Ind. Code § 34-18-7-1(b), and, in conjunction with the Comparative Fault Act, retains contributory negligence for those providers who qualify thereunder, Ind. Code § 34-51-2-1(b)(1).

Indiana Car Accident Plaintiff Loses Appeal After Jury Verdict for Defendant by Not Objecting to Defendant’s Testimony and Timely Supplementing Trial Court Record

Published on: July 16, 2020 | by Barsumian Armiger

The Indiana Court of Appeals recently affirmed a jury verdict in favor of a defendant in an Indiana car accident case. In Cook v. Beeman, the Plaintiff, Edward Cook, was driving west on Tenth Street in Jeffersonville, Indiana and collided with a vehicle being driven north on Allison Lane by the Defendant, Mark Beeman. Both Cook and Beeman claimed they had a green light at the intersection of Tenth Street and Allison Lane. The jury returned a verdict in favor of Beeman, finding Cook 51% at fault and Beeman 49% at fault in causing the collision. Under Indiana’s Comparative Fault Act, a personal injury plaintiff may not recover damages if the person’s fault is greater than the fault of all other persons whose fault proximately contributed to the person’s damages.

Cook appealed and on appeal argued that the trial court erred in admitting some of Beeman’s testimony. During the trial, Beeman’s counsel asked Beeman why he did not sue Cook. Beeman replied by stating, among other things, that he did not sue Cook because he had already been compensated for the property damage to his vehicle. Cook argued on appeal that such testimony violated a motion in limine. A motion in limine is a procedural device used to prevent prejudicial, irrelevant, and otherwise objectionable matters that would interfere with a fair and impartial administration of justice from being raised in the presence of a jury before the trial court has had a chance to rule upon the appropriateness or admissibility of those matters. However, a ruling on a motion in limine is not a final ruling and a party must still object to evidence at trial falling within the scope of a motion in limine. Here, Cook did not object when Beeman was asked why he did not sue Cook and Cook did not thereafter move to strike Beeman’s answer. As such, the Court of Appeals held that Cook waived any claim that the trial court erred in admitting the testimony.

Cook also argued on appeal that the trial court erred in not granting a mistrial. On cross examination of Beeman, Cook asked Beeman who compensated Beeman for his vehicle. Beeman requested a sidebar conference with the Court, objecting to the question. Cook argued that Beeman opened the door to this question by Beeman’s testimony about being compensated for his vehicle. Under Indiana Rule of Evidence 411, evidence that a person did or did not have liability insurance is not admissible to prove negligent or wrongful conduct. The transcript provided to the Court of Appeals did not indicate what occurred during the sidebar conference as the recording was inaudible. Cook argued on appeal that the trial court sustained Beeman’s objection and that he moved for a mistrial, which the trial court denied. Beeman argued Cook did not move for a mistrial.

Indiana Court of Appeals Opines Horse Riding in Arena Is a Sporting Activity Not Subject to Ordinary Negligence Instruction and Subject to Inherent and Incurred Risk Instructions

Published on: June 24, 2020 | by Barsumian Armiger

The Indiana Court of Appeals recently affirmed a trial court’s decision refusing to give a negligence jury instruction but giving jury instructions on inherent risks of equine activities and incurred risk in a horse-related injury case. In Burdick v. Romano, the Plaintiff, Kathleen Burdick, and the Defendant, Julie Romano, were riding horses in a horse arena. According to Burdick, Romano’s horse, which was known to be aggressive and kick other horses, kicked Burdick after being left unattended by Romano. Romano claimed that Burdick simply fell off her horse. Burdick suffered a broken shoulder and brain injury and filed a lawsuit against Romano for her injuries.

A jury trial was held, and the jury found in favor of Romano, finding Burdick to be 65% at fault and Romano 35% at fault. Under the modified comparative fault approach outlined in Indiana’s Comparative Fault Act, a plaintiff is barred from recovering damages for personal injuries when the plaintiff’s fault is greater than the fault of all other persons causing the injury. Burdick appealed the verdict arguing the trial court abused its discretion in refusing to give a negligence jury instruction and in giving jury instructions on inherent risks of equine activities and incurred risk.

The Court of Appeals upheld the trial court’s decision finding the parties were engaged in a sporting activity and therefore a negligence instruction was not warranted. The Court recognized previous cases categorizing as sporting activities non-competitive golf, riding a mountain bike alone on a bike trail, and practicing karate kicks during a karate class. Here, after examining the statutory definition of “equine activity,” Ind. Code § 34-6-2-41, which the Court found did not preclude sporting activities, the Court examined the parties’ activities, including riding in an arena (as opposed to pasture or other country terrain) and performing tricks and training related to the sport of horse-back riding, and found that the parties were engaged in a sporting activity. Under Indiana law, when a sports participant injures someone while engaging in conduct ordinary in the sport, and without intent or recklessness, the participant does not, as a matter of law, breach any duty of care. The Court of Appeals found no abuse of discretion in the trial court’s refusal to give a negligence instruction because the evidence did not support giving a negligence instruction and because giving a negligence instruction would have been confusing and misleading to the jury.

Credit or Setoff from Non-Healthcare Settlement Should Be Deducted from Total Case Value, Not Statutory Cap, in Indiana Medical Malpractice Cases

Published on: May 29, 2020 | by Barsumian Armiger

The Indiana Court of Appeals recently reversed a trial court’s grant of summary judgment for a healthcare provider in a medical malpractice case which was based upon a motorist’s prior settlement with the Plaintiff and the Indiana Medical Malpractice Act’s cap on damages. In Batchelder v. Indiana Univ. Health Care Associates, Inc., the Plaintiff filed a lawsuit against a healthcare provider arising out of a radiologist’s failure to diagnose her late husband’s unstable cervical spine fracture which he suffered in a motor vehicle collision with another driver. After settling the motor vehicle case for $1.25 million, the Plaintiff filed a medical malpractice lawsuit against the healthcare provider as a joint tortfeasor with joint and several liability for the death of her husband.

The healthcare provider filed a motion for summary judgment arguing that the Plaintiff could not recover any more money because she had already received $1.25 million arising from her husband’s death, which was, at the time, the cap of damages set forth by the Indiana Medical Malpractice Act. The Plaintiff, on the other hand, argued that the $1.25 million-dollar setoff from her settlement with the motorist should be deducted from the total amount of damages, which she valued between six and ten million dollars, as opposed to the Indiana Medical Malpractice Act’s cap on damages. Without any determination of the total amount of damages in the case, the trial court granted summary judgment in favor of the healthcare provider applying the $1.25 million settlement setoff to the Indiana Medical Malpractice Act’s $1.25 million cap on damages.

The Indiana Court of Appeal reviewed prior decisions and Indiana’s “one satisfaction” principle in joint and several liability cases, which provides that courts should credit the funds received from a defendant against amounts recoverable from other co-defendants. In Palmer v. Comprehensive Neurologic Services, P.C., the Indiana Court of Appeals previously upheld a trial court’s judgment of $0 for a plaintiff after a jury awarded $375,000 to the plaintiff against a medical provider where the plaintiff had previously received more than $375,000 from non-healthcare providers. Similarly, in Indiana Dept. of Ins. v. Everhart, the Indiana Supreme Court upheld a $1 million-dollar judgment against the Indiana Patient’s Compensation Fund where the trial court found the Plaintiff’s total damages were $3.15 million and where the Plaintiff had already received $2.15 million from a non-healthcare provider and the underlying medical providers.