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The Indiana Supreme Court recently reaffirmed the limited scope of authority trial courts have during medical review panel proceedings in Indiana medical malpractice cases in Bojko v. Anonymous Physician. We previously wrote a blog about the Indiana Court of Appeals decision in the case. In Bojko, six patients filed medical malpractice claims against the estate of a deceased physician and his practice (the “physician”) alleging, among other things, the physician recommended, performed, and billed for unnecessary and unindicated sinus and nose surgeries. In their submissions to the medical review panel, the six patients alleged the physician was mentally ill, abusing drugs and/or alcohol, or was motivated by naked greed and they included a wrongful death complaint filed by the physician’s wife, in which the wife alleged the physician suffered from chronic alcohol and drug abuse and was killed after being discharged from a hospital ER.

The physician filed a petition in court under Indiana Code § 34-18-10-14, which provides “[a] party, attorney, or panelist who fails to act as required by [Chapter 10 of the Indiana Medical Malpractice Act] without good cause shown is subject to mandate or appropriate sanctions upon application to the court designated in the proposed complaint as having jurisdiction.” The physician requested the trial court order the patients redact from their submissions all references to alleged mental illness or drug or alcohol abuse, arguing such was not “evidence.”  The trial court granted the petition and ordered the patients to redact all such references and any references to the physician’s wife’s complaint. The Indiana Court of Appeals affirmed, likening Bojko to its prior decision in Sherrow v. GYN, Ltd., 745 N.E.2d 880, 884-885 (Ind. Ct. App. 2001), in which the Court of Appeals ruled trial courts have authority under Indiana Code § 34-18-10-14 to order redaction of legal argument in evidentiary submissions because legal argument is not “evidence.”

On transfer to the Indiana Supreme Court, the Court first reviewed the scope of authority trial courts have under Indiana Code § 34-18-10-14. In looking at the statute, the Court recognized that a condition precedent to relief under the statute is the failure of a party, attorney, or panelist to comply with Chapter 10 of the Indiana Medical Malpractice Act, which imposes various requirements on parties, attorneys, and panelists during medical review panel proceedings (e.g., parties cannot communicate with panelists prior to the issuance of opinions and must timely tender evidence and panels must timely issue their opinions). The Court recognized trial courts have authority to direct panel proceedings to the extent necessary to ensure the various statutory duties are met. The Court referenced Sherrow, the case relied upon by the Court of Appeals, as instructive, in that the Medical Malpractice Act requires panel chairs to advise the panel as to legal questions and the issue in that case was the panel chair’s failure to carry out that duty given the legal argument by the defendants. In Bojko, the Indiana Supreme Court ruled trial courts have authority to grant relief under Indiana Code § 34-18-10-14, but only if there is a failure to act as required by the statute.

The Indiana Court of Appeals recently found against a church in an Evansville premise liability lawsuit arising out of an injury a volunteer sustained while working on a project on the church’s premises. In Calvary Temple Church of Evansville, Inc. v. Kirsch, Gerard Kirsch (Kirsch), a member and trustee of Calvary Temple Church of Evansville (Calvary), volunteered to lead a project to build a shed on the church’s property to house the church’s van. During the final stages of the project, Kirsch fell off a ladder and lacerated his arm requiring surgery, which resulted in a permanent injury. Kirsch filed a lawsuit against Calvary for negligence resulting in his injury. Calvary moved for summary judgment arguing it was not liable for Kirsch’s injury under Indiana Code § 34-31-7-2, which limits the liability of non-profit religious organizations in premise liability claims. The trial court denied Calvary’s motion and Calvary appealed.

Under Indiana’s common law, a possessor of land is liable to invitees for a condition on land if the landowner (1) knows or with reasonable care would discover the condition and should realize it involves an unreasonable risk of harm, (2) should expect its invitees will not discover or realize the danger or will fail to protect themselves against it, and if the landowner (3) fails to exercise reasonable care to protect its invitees against the danger. However, Indiana’s legislature has enacted special protections for non-profit religious organizations.

Indiana Code § 34-31-7-2 states in relevant part as follows:

We previously wrote a personal injury and medical malpractice blog about the decision of the Indiana Court of Appeals in Korakis v. Mem’l Hosp. of S. Bend in which the court affirmed summary judgment for three medical defendants based upon the insufficiency of the patient’s expert’s affidavit submitted to refute a negative medical review panel opinion. In the case, Penny Korakis (Korakis) suffered an occult radial fracture of her left elbow, which went undiagnosed and untreated and ultimately required corrective surgery. Korakis filed a lawsuit against an ER doctor, the hospital where she had two sets of x-rays a week apart, and a family practice physician, Dr. Michael R. Messmer, who had referred her to physical therapy without obtaining additional imaging of her elbow. The medical review panel in the Indiana Department of Insurance proceedings found for the medical defendants. After the lawsuit was filed in court, the defendants moved for summary judgment based on the panel opinion.

Generally, in Indiana, when a medical review panel finds against a patient, the patient must then present expert medical testimony to refute the panel’s opinion to survive summary judgment. Here, in response to the defendants’ motion for summary judgment, Korakis designated an affidavit from an orthopedic doctor, Dr. James E. Kemmler. In his affidavit, Dr. Kemmler opined that 1) Korakis suffered an occult fracture of her left elbow, which was evident in the two sets of x-rays she had at the hospital, 2) the ER doctor failed to identify the fracture during Korakis’ initial ER visit, 3) Dr. Messmer failed to order additional imaging “when appropriate,” 4) Dr. Messmer “should have done more testing” prior to sling placement and referring Korakis for therapy, 5) the delay in diagnosis and “appropriate treatment” likely worsened Korakis’ condition, and 6) Dr. Messmer’s treatment “fell below the standard of care.” In turn, the medical defendants argued, with the trial court agreeing, that Dr. Kemmler’s affidavit was insufficient to survive summary judgment.

The Indiana Court of Appeals affirmed the trial court’s judgment. The court noted Dr. Kemmler’s affidavit did not identify any negligence by the hospital or state it had breached the standard of care; while it stated the ER doctor failed to identify Korakis’ fracture, it did not state that such failure was a breach of the standard of care; and while it stated Dr. Messmer breached the standard of care, it did not explicitly state that Dr. Kemmler was familiar with the applicable standard of care or what the applicable standard of care was, therefore making the affidavit insufficient to survive summary judgment. On transfer to the Indiana Supreme Court, the Indiana Supreme Court summarily affirmed the Court of Appeals opinion as to the ER doctor and the hospital. However, the Court fashioned a new test for the sufficiency of an expert’s affidavit in medical malpractice cases, and as applied to Dr. Messmer’s care, found Dr. Kemmler’s affidavit sufficient to preclude summary judgment.

The Indiana Court of Appeals recently evaluated the timeliness of claims asserted under Indiana’s Child Wrongful Death Statute (CWDS). In Peters v. Girl Scouts of Southwest Indiana, Inc., Amanda Peters (Mother) filed a wrongful death lawsuit against the Girl Scouts of Southwest Indiana (Girl Scouts) after her eleven-year-old daughter Isabelle Meyer was killed when a tree fell and struck her at a camp operated by the Girl Scouts. At the time of Isabelle’s death, Cynthia Meyer (Grandmother) and her husband were co-guardians of Isabelle. After the Girl Scouts filed a motion to dismiss Mother’s lawsuit for failure to join Benjamin Brassard (Father) in the lawsuit, Mother added Father as a defendant to answer as to his interest; however, service was not perfected, and he did not answer, until more than two years after Isabelle’s death. The trial court ultimately denied the motion to dismiss Mother’s claim. Then, almost three years after Isabelle’s death, Mother added Grandmother as a defendant due to her guardianship of Isabelle; however, Grandmother never appeared or filed an answer in the action. The Girl Scouts thereafter filed a motion to dismiss Father’s and Grandmother’s claims as untimely, which the trial court ultimately granted, despite Mother’s argument that their claims were derivative of her timely filed claim.

The CWDS governs actions involving injury or death to children, which the CWDS defines as unmarried individuals without dependents who are less than 20 years of age or less than 23 years of age and enrolled in a postsecondary educational institution or a career and technical education school or program. Ind. Code § 34-23-2-1(b), (c). Actions under the CWDS may be brought by (1) the father and mother jointly, or either of them by naming the other as a codefendant to answer as to his or her interest, (2) in case of divorce or dissolution of marriage, the person to whom custody of the child was awarded, and (3) a guardian, for injury or death to a protected person. Ind. Code § 34-23-2-1(c). In the case of death, damages awarded for loss of the child’s services, love, and companionship, reasonable expenses of psychiatric and psychological counseling of a surviving parent or minor sibling, and uninsured debts of the child inure to the benefit of (1) the father and mother jointly if both parents had custody of the child, (2) the custodial parent, or custodial grandparent, and the noncustodial parent of the deceased child as apportioned by the court, or (3) a custodial grandparent if the child was not survived by a parent entitled to benefit under the CWDS. Ind. Code § 34-23-2-1 (f), (i). Importantly, a CWDS claim must be brought within two years from the date of the child’s death. Ellenwine v. Fairely, 846 N.E.2d 657, 666 (Ind. 2006).

On appeal the Court first noted the “odd procedural posture” of the case and standing issues with regards to the Mother alone appealing the dismissals of the Father’s and Grandmother’s claims. Nonetheless, recognizing it has allowed parties to raise arguments as to the dismissal of other parties when there is prejudice to a party and “some confusion” with regards to the CWDS itself, the Court addressed the merits of the parties’ arguments. The Court noted that service on the Father and his answer occurred more than two years after Isabelle’s death and the Grandmother was not added as a defendant within the two years and never appeared and answered in any case. While Mother argued that neither Father nor Grandmother were required to “bring a claim” to be entitled to an apportionment of damages under the CWDS, the Court found such inconsistent with Indiana’s trial rules and procedures requiring a claim for relief to be made by a party. As such, the Court concluded that, even though the CWDS sets forth an apportionment in their favor, Father and Grandmother were nonetheless required to assert a claim as to any damages, and the two-year time period for them to do so under the CWDS had passed, thereby making their claims properly subject to dismissal. The Court found the trial court did not abuse its discretion and affirmed on appeal.

In a recent decision, the Indiana Supreme Court affirmed the trial court’s denial of a motion to dismiss a negligence claim against two restaurants that served alcohol to an intoxicated driver who later caused a fatal car crash. The case, WEOC, Inc. v. Niebauer, involved the interpretation and application of Indiana’s Dram Shop Act, which limits the civil liability of entities that furnish alcoholic beverages to someone who causes injury due to intoxication.

The Court held that the Dram Shop Act did not eliminate the common-law liability of dram shops, but rather modified it by imposing two additional requirements: (1) the person furnishing the alcohol must have actual knowledge of the injury-causing person’s visible intoxication; and (2) the intoxication must be a proximate cause of the injury. The Court found that the plaintiff’s negligence claim satisfied these requirements and alleged facts capable of supporting relief.

The Court clarified the history and scope of dram-shop regulation in Indiana, which dates back to the late nineteenth century. The Court explained that Indiana’s dram shops have faced criminal liability for various conduct since then, and civil liability under principles of common-law negligence since the 1960s. The Court also noted that the Dram Shop Act, enacted in 1986, was not applicable in two previous cases that recognized the existence of independent common-law liability, Picadilly, Inc. v. Colvin and Gariup Construction Co. v. Foster.

The Indiana Supreme Court recently issued a decision in a case involving a woman who was injured while swimming in a health and fitness center’s pool. The case, Pennington v. Memorial Hospital of South Bend, Inc., raised several issues of premises liability and negligence against the pool owner, operator, and designers.

The plaintiff, Dr. Jennifer Pennington, was a member of the fitness center owned and operated by Memorial Hospital of South Bend, doing business as Beacon Health and Fitness. The fitness center had a rectangular, multi-purpose swimming pool that was designed by Panzica Building Corporation and Spear Corporation. The pool had a long ramp and a concrete “wing-wall” on one side, separating the ramp from the main swimming area. The wing-wall had a gap at the bottom, allowing swimmers to pass through, and another shorter wing-wall at the end of the pool near the entry steps. The wing-walls were designed to sit at the pool’s water level through an automatic leveling mechanism. The ends of the wing-walls were unpadded, and no floating lane divider was placed across the gap. However, backstroke pennants were strung above and across the width of the pool approximately fifteen feet from each end.

Dr. Pennington visited the pool during its first week of operation and swam several laps of various strokes in the lane adjacent to the wing-walls. After switching from freestyle to backstroke, she collided with the corner of the wing-wall by the entry steps, causing her injury.

The Indiana Court of Appeals recently revived a personal injury claim involving the legal doctrine of res ipsa loquitur and its applicability in the premise liability context. In Isgrig v. Trustees of Indiana University, Kiera Isgrig (“Isgrig”) was injured while studying in a building at Indiana University Bloomington (IU) when a window, which she and her friends had not tampered with, fell out of the wall and landed on Isgrig’s head, leaving shattered glass over her and the table she was sitting at. An IU employee came and examined the window. The employee noted the window could be partially opened when in its casing and other than two broken sash springs, which the employee believed would not have caused the window to fall out of its casing without warning, the employee did not find any other damage to the window and no reason to explain what happened, other than possible tampering at some point prior to the incident. The last time IU had performed maintenance on the window was around a year prior when it repaired the window’s blinds. IU did not perform any preventative, as opposed to reactive, maintenance on the window.

Isgrig filed a lawsuit against IU for her injuries relying on the legal doctrine of res ipsa loquitur, which translated from Latin means “the thing speaks for itself.” The doctrine allows an inference of negligence in situations where the nature of the incident is such that the person having control over the situation was likely negligent, even though no particular negligent act can be shown. To get an inference of negligence against a defendant with res ipsa loquitur in Indiana, a claimant must show (1) that the injuring instrumentality was within the exclusive management and control of the defendant, and (2) the incident is of the type that ordinarily does not happen if those who have management or control exercise proper care. As to the element of exclusive control, it is exclusive control over the injuring instrumentality at the time of the alleged negligent act or injury, with the focus on who had the right or power to control and the opportunity to exercise the control.

Here, in response to Isgrig’s lawsuit, IU moved for summary judgment in the trial court arguing that even with res ipsa loquitur Isgrig still had to establish its liability under premise liability law by proving it had actual or constructive knowledge of the dangerous condition of the window, which it argued it did not have, and that it did not otherwise have exclusive control of the window, making res ipsa loquitur inapplicable. The trial court ruled in favor of IU and Isgrig appealed.

The Indiana Court of Appeals recently considered whether a nurse who suffered a workplace injury can pursue a medical malpractice claim against a co-employee physician who treated the nurse for her injuries despite the exclusivity provision of Indiana’s Worker’s Compensation Act (WCA). In Gardner v. Anonymous Physician, Laurie Gardner (“Gardner”) contracted scabies from another patient while working for a hospital. Gardner filed a worker’s compensation claim against the hospital, which was subsequently resolved. Gardner also filed a medical malpractice claim against a co-employee physician, who was the medical director at the hospital, alleging the physician failed to timely and appropriately treat the patient with scabies, protect Gardner from exposure to scabies, which her family also contracted, direct Gardner’s care, provide appropriate and timely treatment to Gardner, and refer Gardner to an appropriate specialist for treatment.

The physician filed a motion for preliminary determination in court requesting that Gardner’s medical malpractice claim be dismissed pursuant to Indiana Trial Rule 12(B)(1) for lack of subject matter jurisdiction. The physician argued Gardner’s claim was foreclosed by the exclusivity provision of the WCA, which provides that an employee’s rights and remedies under the WCA providing compensation for accidental injuries arising out of and in the course of employment exclude all other rights and remedies of the employee, except for remedies for victims of violent crimes. Ind. Code § 22-3-2-6. However, despite its exclusivity provision, the WCA specifically permits employees to pursue claims against third parties causing injury, that is, persons other than an employer and those “in the same employ.” Ind. Code § 22-3-2-13. The WCA defines “employer” broadly to include parent corporations and subsidiaries, which are deemed joint employers. Ind. Code § 22-3-6-1(a). Here, under the WCA, the hospital for which Gardner worked was a joint employer of the physician, and therefore, he was “in the same employ” as Gardner. As such, the trial court granted the physician’s motion to dismiss Gardner’s malpractice claim.

On appeal Gardner argued, based upon the Court of Appeals’ decision in Ross v. Schubert, 388 N.E.2d 623 (Ind. Ct. App. 1979), that the physician was an independent contractor and therefore not a fellow employee in the same employ as Gardner. The physician in turn argued the holding in Ross had eroded over time and was no longer applicable. While recognizing that the independent contractor rationale in Ross was no longer applicable, the Court of Appeals nonetheless found the holding in Ross was still good law. The Court in Ross had noted that prior to the legislature adding the language “in the same employ” to the WCA, the Indiana Supreme Court had adopted a rule that a physician, whether hired by an employer or not, was a third party under the WCA, with the Court in Ross finding the addition of that language was not intended to immunize physicians for care arising out of a doctor-patient relationship as opposed to an employer-employee relationship.

The Indiana Court of Appeals recently reviewed Indiana’s “firefighter’s rule,” ultimately ruling in favor of a firefighter injured while responding to a building fire in Fort Wayne, Indiana. In Dolsen v. VeoRide, Inc., firefighter Richard Dolsen, Jr. (“Dolsen”) responded to a fire at a building owned by Sweet Real Estate – City Center, LLC (“Sweet”) and leased to VeoRide, Inc. (“VeoRide”). VeoRide, an electric scooter company, stored scooters, batteries, and battery equipment at the building. One of the batteries ignited, causing the fire. While no VeoRide employees were at the building when the fire started, VeoRide and Sweet employees were notified of the fire and knew firefighters were responding to the fire. Dolsen, who had never been in the building before, could not see as he entered the building due to a lack of light and smoke, and as he was moving around the perimeter of the building, he fell through an open wall comprised of bare wooden studs, falling into a stairwell. At the time of the incident, Dolsen had a radio, such that any warning sent by VeoRide or Sweet could have quickly and easily been conveyed to him. Dolsen testified over his career there had been many occasions where commercial building owners or tenants would alert the fire department about potential dangers inside buildings, such as holes in floors.

Dolsen filed a personal injury lawsuit against VeoRide and Sweet alleging negligence in the handling of the batteries at the building and in failing to warn Dolsen about the opening in the wall. VeoRide filed a motion for summary judgment arguing Dolsen’s claims were barred by Indiana’s firefighter’s rule. Sweet filed a motion for summary judgment arguing it could not be held liable since it had given full possession and control of the building to VeoRide. The trial court granted both motions for summary judgment, finding Dolsen’s claims were barred by Indiana’s firefighter’s rule. Dolsen appealed the trial court’s order only with respect to VeoRide.

On appeal, the Court of Appeals reviewed Indiana Supreme Court precedent on Indiana’s firefighter’s rule. According to that precedent, Indiana’s firefighter’s rule bars any claim by a professional emergency responder for any negligent conduct that created the emergency responded to. As such, with regards to Dolsen’s claim arising from any negligence by VeoRide in handling the battery that caused the fire, the Court held that such claim was barred by the firefighter’s rule. However, as noted by the Court, Indiana’s firefighter’s rule does not bar a claim when an injury is caused by conduct separate and apart from the conduct that contributed to the emergency, even if that conduct occurred prior to the emergency responder arriving on the scene. Here, Dolsen also alleged VeoRide was negligent in failing to warn him of the dangers associated with the open wall next to the stairwell. The Court found such claim was separate from and independent of any negligent conduct causing the fire, and therefore, was not barred by Indiana’s firefighter’s rule.

The Indiana Court of Appeals recently affirmed a trial court’s order directing patients in related medical malpractice claims to redact portions of their submissions tendered to medical review panels formed to review the cases under the Indiana Medical Malpractice Act. In Bojko v. Anonymous Physician, 215 N.E.3d 376 (Ind. Ct. App. 2023), six patients filed medical malpractice claims against a physician and the physician’s practice (the “physician”). After medical review panels were formed in each of the cases, the patients tendered separate, but in parts similar, submissions to the panels. Among other things, the patients’ submissions referenced a medical malpractice complaint filed by the physician’s wife on behalf of the physician’s estate (the physician was allegedly killed after being prematurely discharged from a hospital ER) wherein the physician’s wife stated the physician suffered from chronic alcohol and drug abuse with signs of mental illness. The physician in Bojko objected and filed a petition in court requesting the trial court order non-evidentiary allegations in the patients’ submissions be redacted. After a hearing, the trial court granted the physician’s petition and ordered the patients to redact “any and all references to the [malpractice complaint]” filed by the physician’s wife and “any and all references to allegations of drug and/or alcohol abuse or mental health issues of [the physician].”

Indiana patients pursuing medical malpractice claims against healthcare providers covered under the Indiana Medical Malpractice Act must first present their cases to medical review panels, which are comprised of one non-voting advisory attorney and three healthcare providers selected by the parties, and receive opinions from the medical review panels before pursing those cases in court. Ind. Code §§ 34-18-8-4, 8-7, 10-3 to 10-10. After the panels are formed, the parties are to submit “evidence,” which “may consist of medical charts, x-rays, lab tests, excerpts of treatises, depositions of witnesses including parties, and any other form of evidence allowable by the medical review panel.” Ind. Code § 34-18-10-17. Panels are then to “express [their] expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care as charged in the complaint,” and whether “[t]he conduct complained of was or was not a factor of the resultant damages.” Ind. Code § 34-18-10-22. Under the Indiana Medical Malpractice Act, “[a] party, attorney, or panelist who fails to act as required by [the Act] without good cause shown is subject to mandate or appropriate sanctions upon application to the court… having jurisdiction.” Ind. Code § 34-18-10-14.

On appeal the patients in Bojko argued the trial court lacked subject matter jurisdiction to grant the physician’s petition ordering them to redact portions of their submissions. However, in its decision affirming the trial court, the Indiana Court of Appeals referenced its prior decision in Sherrow v. GYN, Ltd., 745 N.E.2d 880 (Ind. Ct. App. 2001), in which it found that Indiana Code section 34-18-10-14 of the Medical Malpractice Act supplied subject matter jurisdiction to trial courts to order redaction of legal argument in “evidentiary submissions because legal argument is not ‘evidence.’” Sherrow, 745 N.E.2d at 884-885. Similar to legal argument, the Court in Bojko reasoned “unsworn [and] unsubstantiated allegations in a third-party proposed medical malpractice complaint are not evidence as described in Indiana Code Section 34-18-10-17.” Bojko, 215 N.E.3d at 380. According to the Court, Indiana Code sections 34-18-10-17 and 10-22 of the Medical Malpractice Act require panel opinions to be “based on the actual facts (and sworn testimony regarding those facts) of the particular case before the panel and not on mere allegations raised in another case or cases,” which are “non-evidentiary matters [that] are ‘inappropriate in evidentiary submissions’ to a medical review panel.” Bojko, 215 N.E.3d at 381. Finding the trial court had authority under Indiana Code section 34-18-10-14 to mandate compliance with Indiana Code section 34-18-10-17, the Court affirmed the trial court’s order requiring redactions of the patients’ submissions.

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