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The Indiana Court of Appeals recently affirmed a trial court’s grant of summary judgment in favor of three healthcare providers in a medical malpractice case finding the affidavit of the patient’s expert was insufficient to create a genuine issue of material fact to refute a negative opinion of a medical review panel formed to review the case. In Korakis v. Mem’l Hosp. of S. Bend, Penny Korakis (Korakis) was involved in a car crash and went to Memorial Hospital of South Bend (the Hospital) where she was seen by emergency care physician David Halperin, M.D. (Dr. Halperin). Korakis reported pain from her left hand to her left shoulder and had x-rays of her left arm and hand. Dr. Halperin diagnosed her with an acute soft tissue injury. A week later Korakis returned to the Hospital and had additional x-rays, including x-rays of her left shoulder, elbow, and wrist. Korakis thereafter saw family physician Michael Messmer, D.O. (Dr. Messmer) who ordered additional x-rays of Korakis’s wrist and referred her to physical therapy. Later, Korakis obtained a second opinion from an orthopedic physician, who ordered an MRI of Korakis’s elbow. Korakis ultimately required corrective surgery for a fracture of her elbow, and she sued Dr. Halperin, Dr. Messmer, and the Hospital for failing to appropriately diagnose and treat her injuries.

To prevail in a medical malpractice case a patient must prove (1) the defendant owed the patient a duty, (2) the defendant failed to comply with the applicable standard of care, and (3) the defendant’s failure to comply with the applicable standard of care proximately caused injury to the patient. Under the Indiana Medical Malpractice Act, a medical malpractice claimant must present their case to a medical review panel comprised of three healthcare providers who issue an opinion as to whether a defendant failed to meet the applicable standard of care and whether the conduct complained of was a factor in the resultant damages. If a medical review panel finds a defendant complied with the applicable standard of care, a patient must then come forth with expert testimony to refute that opinion in order to survive summary judgment. Expert testimony necessary to refute a medical review panel opinion must establish (1) the applicable standard of care required by Indiana law, (2) how the defendant breached that standard of care, and (3) that the defendant’s negligence in breaching the standard of care proximately caused the injuries complained of.

Here, the Medical Review Panel formed to review Korakis’s case found the Defendants complied with the applicable standard of care, and the Defendants filed a motion for summary judgment based upon that opinion. In response, Korakis designated the affidavit of an orthopedic physician, James Kemmler, M.D. (Dr. Kemmler), who opined that Korakis suffered an occult fracture of her left elbow which was visible on the x-rays Korakis had at the Hospital; Dr. Halperin failed to diagnose the fracture; Dr. Messmer failed to order additional x-rays of Korakis’s elbow; Dr. Messmer should have done more testing; the delay in diagnosing and treating Korakis’s fracture worsened her condition and recovery; and Dr. Messmer’s treatment fell below the standard of care. The Defendants argued in turn that Dr. Kemmler’s affidavit was insufficient to create a genuine issue of material fact refuting the opinion of the Medical Review Panel. The trial court ultimately agreed with the Defendants and granted summary judgment in favor of the Defendants, and Korakis appealed.

The Indiana Court of Appeals recently backtracked on one of its more recent opinions on the applicability of the Indiana Medical Malpractice Act (MMA) and held in Doe v. Indiana Dep’t of Ins. that a plaintiff’s claims of sexual battery by a nurse while hospitalized do not fall under the MMA. In Doe, Jane Doe (Doe) was admitted to Indiana University Ball Memorial Hospital (the Hospital) after suffering a stroke. One of the hospital’s nurses, Nathanial Mosco (Mosco), sexually assaulted Doe and was thereafter convicted of battery. Doe filed a lawsuit against Mosco and the Hospital in court and before the Indiana Department of Insurance (IDOI). Doe and the Hospital entered into a settlement agreement for $400,000, which would allow Doe to pursue further damages from the Indiana Patient’s Compensation Fund (the Fund), which is administered by the IDOI. However, the settlement agreement provided that the settlement was not conditioned on Doe’s ability to recover additional damages from the Fund. After Doe filed a petition for excess damages against the Fund, the Fund moved for summary judgment arguing the MMA did not apply, and therefore, it had no obligation to pay any excess damages, even if warranted. The trial court granted the Fund’s motion for summary judgment and Doe appealed.

The MMA applies to claims of medical malpractice against healthcare providers that are qualified under the MMA. Qualified healthcare providers have numerous protections under the MMA, including, among other things, a cap on damages. Ind. Code § 34-18-14-3. Under the MMA, if a qualified healthcare provider or its insurer has agreed to settle its liability by payment of its limits, a claimant is then allowed to seek excess damages from the Fund. Ind. Code § 34-18-15-3. However, not all claims against qualified healthcare providers constitute medical malpractice.

Over the years, court decisions have delineated tests as to what constitutes medical malpractice. These tests include whether the claim involves curative or salutary conduct of a healthcare provider acting in a professional capacity, whether the subject conduct was related to the promotion of a patient’s health and the provider’s exercise of professional expertise, skill, or judgment, and whether the issues in the case are capable of resolution by a jury without application of the standard of care. However, in the recent Indiana Court of Appeals decision in Martinez v. Oaklawn Psychiatric Ctr., Inc., the Court stated that “the current test… as to whether the [MMA] applies to specific misconduct is to determine whether that misconduct arises naturally or predictably from the relationship between the health care provider and patient or from an opportunity provided by that relationship,” with the Court also noting such conduct may include tortious or abusive conduct. Martinez v. Oaklawn Psychiatric Ctr., Inc., 128 N.E.3d 549, 558 (Ind. Ct. App. 2019).

In our last blog, we wrote about Erie Ins. Exch. v. Craighead in which the Indiana Court of Appeals held car insurance companies do not get setoffs against underinsured motorist (UIM) limits for payments made to their insureds under medical payments coverages. The day after the Court’s decision in Craighead, the Indiana Court of Appeals issued a similar opinion in Kearschner v. Am. Family Mut. Ins. Co., S.I. with respect to setoffs for worker’s compensation payments.

In Kearschner, Donald Kearschner (Kearschner) injured his shoulder in a car crash while working for Wal-Mart. The at-fault driver had a liability insurance policy with a $50,000 limit. Kearschner had his own insurance coverage with American Family Mutual Insurance Company (AFI), with $100,000 in liability coverage and $100,000 in UIM coverage. Kearschner sued the at-fault driver and AFI. Kearschner settled with the at-fault driver for the at-fault driver’s liability limit of $50,000 and sought an additional $50,000 in UIM coverage from AFI. AFI moved for summary judgment arguing that Kearschner was not entitled to any UIM coverage because, in addition to the $50,000 he received from the at-fault driver, he had also received a net amount of $62,084.52 in worker’s compensation payments, and his UIM policy stated that his UIM limit would be reduced by any payment from an at-fault driver and by any payment made under any worker’s compensation law. The trial court granted AFI’s motion and Kearschner appealed.

Similar to its decision in Craighead, the Indiana Court of Appeals held that the provision of Kearschner’s AFI policy providing a setoff for the $62,084.52 in worker’s compensation payments violated Indiana’s uninsured/UIM statute, specifically Indiana Code § 27-7-5-2 (“the UIM Statute”). The Court noted that the purpose of UIM coverage is to provide an insured with a recovery the insured would have received had the at-fault party carried adequate liability insurance, with the UIM Statute providing a minimum level of compensation. The UIM Statute provides that, absent a written rejection, UIM coverage (1) must be provided “in limits at least equal to the limits of liability specified in the bodily injury liability provisions of an insured’s policy,” and (2) may not be provided in an amount less than $50,000. Ind. Code § 27-7-5-2(a).

The Indiana Court of Appeals recently held that automobile insurers do not get a setoff against underinsured motorist (UIM) limits above the statutory minimum of $50,000.00 for payments made by insurers under medical payments coverage (MPC). In Erie Ins. Exch. v. Craighead, Olivia Craighead (Craighead) was injured in a single-vehicle car crash while riding as a passenger. She pursued a claim against the driver, and the driver’s insurance company paid her $50,000 in liability coverage and $5,000 in MPC. Craighead also pursued a claim against her own insurance company, Erie Insurance Exchange (Erie). Craighead had $100,000 in UIM coverage and $5,000 in MPC under her policy with Erie. Erie paid the $5,000 in MPC but disputed the amount of the remaining UIM coverage after setoffs pursuant to Craighead’s policy with Erie, which provided that the limit of UIM coverage available would be reduced by liability payments and MPC payments.

Erie claimed Craighead’s $100,000 UIM coverage should be set off by both the $50,000 liability payment and the $10,000 in MPC payments, thereby making the available UIM coverage $40,000. While recognizing Erie was entitled to a setoff for the $50,000 liability payment, Craighead claimed she was entitled to the remaining $50,000 in UIM coverage with no setoff for the $10,000 MPC payments. After Erie refused to pay the undisputed $40,000 in UIM coverage absent agreement by Craighead to release her claim for the additional $10,000 in coverage, Craighead filed a lawsuit against Erie for both breach of contract and bad faith. After Craighead filed suit, Erie reversed its previous position and paid Craighead the undisputed $40,000 in UIM coverage.

Both parties moved for summary judgment in the trial court. Erie argued it acted in accordance with Indiana law and not in bad faith in enforcing the MPC setoff policy provision. Craighead argued the MPC setoff policy provision violated Indiana law and there was a genuine issue of material fact as to whether Erie acted in bad faith. The trial court denied Erie’s motion for summary judgment but granted Craighead’s motion for partial summary judgment, finding a setoff from Craighead’s UIM coverage for the $10,000 MPC payments was not permissible. Erie appealed.

The Indiana Court of Appeals recently reversed a trial court’s grant of summary judgment in favor of a music venue security company alleged to have caused a crowd surfer’s injuries in a fall. In Wiley v. ESG Sec., Inc., Seth Wiley (Wiley), a minor at the time, was crowd surfing during a “punk rock” concert at the Murat in Indianapolis, Indiana. ESG Security, Inc. (ESG) was contracted by Live Nation to provide security at the concert. “Bicycle racks” were placed between the stage and the crowd with several ESG personnel stationed between the racks and the stage. Various concertgoers were crowd surfing during the concert, including Wiley on three or four occasions prior to his fall. On prior occasions, ESG personnel helped Wiley to the ground after he reached the front of the audience and was passed over the racks. However, the last time he crowd surfed the crowd moved him to the front of the audience when there were no ESG personnel to support him down, as they were attending to another concertgoer, and he fell and sustained injuries.

Wiley sued various parties for his personal injuries, including ESG. Under Indiana law, to recover in a negligence case, a plaintiff must show (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the defendant’s breach proximately caused the plaintiff’s injuries. Generally, the existence of a duty is a question of law for courts to decide.

ESG filed a motion for summary judgment arguing it was entitled to judgment as a matter of law as it did not owe Wiley a duty of care and Wiley incurred the risk of his injuries. While the contract between ESG and Live Nation stated that ESG would “exert reasonable… efforts to protect all persons who enter [the venue] from… personal injury from any causes whatsoever,” ESG argued that language only applied to risks of which a concertgoer would not be aware or warned against and such did not mean ESG had to protect concertgoers from their own negligent acts. There were signs posted throughout the venue, and an audio message repeatedly played, that crowd surfing was prohibited and those who crowd surfed did so at their own risk and were subject to expulsion.

The Indiana Court of Appeals recently affirmed the grant of summary judgment in favor of an ophthalmologist in a medical malpractice case based on the Court’s precedent in McKeen v. Turner. In Radil v. Long, Ardith Radil and Larry Radil sued Dr. Kuumba Long and his group. Dr. Long had performed cataract surgery on Ardith’s right eye. Three days after surgery Ardith saw Dr. Long and noted vision problems. Dr. Long prescribed eye drops and told her to call him if she had any changes, decreased vision, or concerns. Six days after surgery Ardith called Dr. Long and reported pain and decreased vision. Dr. Long asked her to come into his office and he saw her the same day. Dr. Long diagnosed Ardith with endophthalmitis, a medical emergency. He referred her to a retina specialist, who performed surgery later the same day. Ardith ultimately lost vision in her right eye, and she and her husband filed a medical malpractice lawsuit for damages.

The parties tendered their submissions to a medical review panel formed to review the case. In the Radils’ submission, the Radils did not present any evidence concerning, or even mention, alleged calls Ardith made to Dr. Long on day 4 and day 5 post-surgery. In his submission, Dr. Long argued that while Ardith had a change in her vision on day 4 and day 5, she had not alerted him.

The medical review panel found in favor of Dr. Long. Based upon the panel’s opinion, Dr. Long filed a motion for summary judgment. In response, the Radils designated an affidavit from Ardith in which she stated she had called Dr. Long on day 4 and day 5 reporting her deteriorating vision and Dr. Long had told her to continue using the eye drops. The Radils also designated an expert affidavit from Dr. Bernard Spier, who opined that Dr. Long was negligent when he failed to examine or refer Ardith to another provider when Ardith contacted him on day 4 and day 5.

The Indiana Court of Appeals recently affirmed a jury’s $510,000 award in favor of an injured woman in a slip-and-fall case in Indianapolis, Indiana. In Mastellone v. Young Men’s Christian Ass’n of Greater Indianapolis, Jacqueline Mastellone (“Mastellone”) slipped and fell at an Indianapolis YMCA as she was walking back to a locker room after a swim class. The area where she fell did not have a slip-resistant mat. As part of a facility upgrade, the YMCA later replaced the flooring where Mastellone fell. Mastellone dislocated and fractured her left shoulder in the fall, which required a shoulder replacement, and she sued the YMCA for her injuries and damages.

The jury returned a verdict in favor of Mastellone calculating her total damages at $850,000, which was reduced to $510,000 based upon finding her 40% at fault and the YMCA 60% at fault. Prior to trial, the YMCA filed a motion in limine to exclude evidence as to the new floor installation. The trial court ordered it would allow evidence of the new floor installation, but it would not allow evidence that the flooring was changed. During trial, when Mastellone’s counsel asked a YMCA employee whether the flooring had been replaced, YMCA’s counsel objected, arguing the evidence was irrelevant and prejudicial. After the trial court indicated it would allow the question, YMCA’s counsel moved for a mistrial, which the trial court denied. In response to the question from Mastellone’s counsel, the YMCA employee testified the flooring had been replaced. YMCA’s counsel then elicited testimony that the flooring was not changed due to the fall but a facility upgrade. After the jury had reached a verdict but before reentering the courtroom, YMCA’s counsel then moved for a second mistrial after learning a piece of the flooring where Mastellone fell had not been sent back to the jury room. The trial court denied the second motion for mistrial because the jury had the opportunity to examine the flooring after it had been admitted as evidence.

After the jury verdict was read, the trial court stated it would enter judgement on the verdict, and then the trial court noted the entry of judgment on the docket, or chronological case summary (CCS). However, three days after the verdict, the trial court sua sponte (i.e., of its own accord) issued an Order Reconsidering Motion for Mistrial setting aside the jury’s verdict and the judgement. In its Order Reconsidering Motion for Mistrial, the trial court did not state which of the two motions for mistrial it had reconsidered, and it did not provide any reasoning. Mastellone appealed the Order Reconsidering Motion for Mistrial and the YMCA cross appealed arguing the trial court erred in denying its two mistrial motions and the verdict was excessive.

Over a year and a half ago we wrote about the Indiana Court of Appeals decision in Parkview Hosp. Inc. v. Am. Family Ins. Co. (“Parkview I”) in which the Court held that Parkview Hospital (“Parkview”) was entitled to summary judgment on its hospital lien claim against American Family Insurance Company (“American Family”) after American Family violated the Indiana Hospital Lien Act, Ind. Code § 32-33-4-4, by paying settlement funds directly to Ohio plaintiffs in a car accident personal injury matter pursuant to an Ohio court order without having obtained a release of Parkview’s hospital lien. Recently, the Indiana Court of Appeals issued another opinion in Parkview Hosp. Inc. v. Am. Family Ins. Co. (“Parkview II”) in a second appeal of the matter.

On remand after the first appeal the trial court ordered American Family to pay Parkview the full amount of Parkview’s hospital lien, $95,541.88, and Parkview’s attorney’s fees. After American Family filed a motion to correct error, the trial court ordered that Parkview was not entitled to its attorney’s fees; however, the trial court ordered that Parkview was entitled to the full amount of its hospital lien despite American Family’s request that its liability be limited to $50,000.00, which was the Ohio plaintiffs’ underinsured policy limits. Parkview appealed raising three issues: (1) whether Parkview I required the trial court to enter judgment for Parkview on its original request for damages and attorney’s fees; (2) whether American Family forfeited its challenges to Parkview’s damages by raising those challenges under Indiana Trial Rule 59 on remand; and (3) whether Parkview was entitled to its attorney’s fees under the Hospital Lien Act. American Family cross-appealed raising just one issue, whether it was required to pay Parkview the full amount of Parkview’s lien, $95,541.88, or the $50,000.00 limit of its underinsured policy with its insured.

In Parkview II the Indiana Court of Appeals ultimately concluded that the amount of Parkview’s damages and whether it was entitled to attorney’s fees was not decided in Parkview I, American Family did not forfeit its right to challenge the trial court’s award of damages and attorney’s fees under Indiana Trial Rule 59, Parkview was not entitled to attorney’s fees under Indiana’s Hospital Lien Act, and American Family’s responsibility for damages was limited to $50,000.00.

The Indiana Court of Appeals recently revived a dismissed wrongful death case brought by two stepchildren against their stepmother for the death of their father. In Estate of Bichler by Ivy v. Bichler, Jennifer Ivy and Tyler Bichler sued their stepmother, Wanda Bichler, for the death of their father, Jeffrey Bichler. Jennifer and Tyler alleged Wanda killed Jeffrey to collect on his $300,000 life insurance policy. The life insurance company had already filed an interpleader action in federal court depositing the $300,000 in life insurance proceeds with the court. Wanda thereafter died, and after her death, two individuals were appointed as personal representatives of her estate and the life insurance proceeds were transferred to state court to be distributed pending the outcome of Jennifer and Tyler’s lawsuit. While Jennifer and Tyler amended their lawsuit to add a count for a state interpleader action for the life insurance proceeds, they did not name the personal representatives of Wanda’s Estate. Wanda’s Estate intervened in the lawsuit, noting Wanda, “who was the original Defendant in the action,” had passed. Wanda’s estate then moved to dismiss Jennifer and Tyler’s lawsuit pursuant to Indiana Trial Rules 12(B)(2) (lack of personal jurisdiction), 12(B)(6) (failure to state a claim), and 12(B)(7) (failure to join a necessary party) because Jennifer and Tyler had not named the personal representatives of Wanda’s Estate as defendants. Jennifer and Tyler opposed the motion and amended their complaint to add a claim for constructive trust, while continuing to name only Wanda as a defendant. The trial court granted Wanda’s Estate’s motion to dismiss under Trial Rule 12(B) and Jennifer and Tyler appealed.

On appeal the Indiana Court of Appeals first explained that a dismissal based upon a plaintiff’s failure to substitute a personal representative of a defendant’s estate as a defendant should not be analyzed under Indiana Trial Rule 12, but rather Indiana Trial Rules 25 and 41(E). Under Indiana’s Survival Statute, “[i]f an individual who is… liable in a cause of action dies, the cause of action survives and may be brought… against the representative of the deceased party…” and it can also “be continued… against the legal representatives… of the deceased.” Ind. Code § 34-9-3-1. When a sole defendant dies in a case, the matter is stayed so that the proper parties can be substituted. Under Indiana Trial Rule 25, with the exception of a public official sued in an official capacity, a “motion for substitution may be made by the court, any party or by the successors or representatives of the deceased party…” Ind. R. Trial P. 25(A). Importantly, unlike Rule 25 of the Federal Rules of Civil Procedure, which states a case must be dismissed if the motion for substitution is not made within 90 days after service of a statement noting a party’s death, Indiana Trial Rule 25 does not include any time limitations for filing a motion to substitute. Nonetheless, a case is still subject to dismissal under Indiana Trial Rule 41(E) if a “Suggestion of Death” is filed putting everyone on notice that a defendant has died, and a plaintiff fails to comply with a court order setting a time to file a motion to substitute or otherwise fails to timely prosecute the action.

In this case, Wanda’s Estate did not file a Suggestion of Death but intervened in the action based upon Wanda’s passing. Contrary to Indiana Trial Rule 24(C), Wanda’s Estate did not note in its motion to intervene the claim, defense, or matter for which intervention was sought, and in its motion, Wanda’s Estate also referred to Wanda as “the original Defendant.” Jennifer and Tyler thought, reasonably so according to the Indiana Court of Appeals, that the intervention served as a substitution, but they also noted in their response to the motion to dismiss that Wanda’s Estate could be substituted if the trial court found such necessary. While noting that intervention and substitution are not the same thing, the Court of Appeals noted there is no reason an intervention cannot also serve as a substitution when the sole purpose of intervening is to replace a defendant. In any case, the Court of Appeals found Jennifer and Tyler did not fail to comply with any deadline under Indiana Trial Rules 25 or 41(E), and therefore, their case should not have been dismissed.

The Indiana Court of Appeals recently affirmed the grant of summary judgment for a defendant driver in a car accident case finding the driver suffered a medical emergency that was not reasonably foreseeable. In Patrick v. Henthorn, Walter E. Patrick, III (“Patrick”) filed a lawsuit against April J. Henthorn (“Henthorn”) arising out of an intersection collision in Indianapolis, Indiana, which resulted in Patrick suffering several injuries and incurring more than $50,000.00 in medical bills. Henthorn, who had ornithine transcarbamylase (“OTC”), a “protein allergy,” raised an affirmative defense to Patrick’s lawsuit and filed a motion for summary judgment stating she lost consciousness at the time of the collision due to a sudden emergency not of her own making.

Henthorn testified that prior to the accident she was feeling fine and in good health, but at the time of the accident she suddenly and unexpectedly felt light-headed, flushed, and dizzy and thereafter lost consciousness. She testified when she regained consciousness, she was in her stopped vehicle adjacent to a telephone pole. She testified she did not recall the crash. Henthorn’s doctor, who had treated Henthorn for her OTC deficiency for many years, testified that he believed Henthorn suffered a sudden change in mental status with loss of consciousness prior to the collision that resulted from an unforeseen elevation in her blood ammonia levels due to her OTC deficiency, which caused Henthorn to become incapacitated just before losing control of her car and crashing.

Patrick filed a response to Henthorn’s motion for summary judgment designating the affidavits from Henthorn and her doctor, Henthorn’s deposition, and the accident report. Patrick argued Henthorn’s deposition testimony conflicted with her affidavit and her doctor’s affidavit when she testified in her deposition that she had not experienced lightheadedness or loss of consciousness in the past ten years. Patrick also raised discrepancies as to her testimony about how she felt prior to the accident and her version of the accident. After a hearing, the trial court granted summary judgment in Henthorn’s favor, finding no inconsistencies in the designated evidence, or at most immaterial inconsistencies, and that Henthorn’s sudden physical incapacity was not foreseeable.

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