[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

The nursing home argued that Talevski could not maintain Section 1983 claims because the FNHRA was enacted under Congress’s spending power and did not create individual rights.

The Court rejected the nursing home’s argument and upheld Talevski’s right to sue under Section 1983. Writing for the majority and delivering her first majority opinion since joining the Court, Justice Kentaji Brown Jackson traced the history and purpose of Section 1983, which was enacted in 1871 to combat state-sanctioned violence and lawlessness against newly freed slaves and their supporters after the Civil War. She emphasized that Section 1983’s plain language covers any rights secured by federal laws, without any exception for spending power legislation. She also noted that a claim brought pursuant to Section 1983 is a tort claim, not a contract claim, and that the common-law principles governing third-party beneficiaries were not relevant or well-settled at the time of Section 1983’s enactment.

Justice Jackson then applied the test established in Gonzaga University v. Doe to determine whether the FNHRA provisions at issue unambiguously conferred individual rights. She found that they did, based on 1) their clear rights-creating language, 2) their focus on the benefited class of residents, and 3) their location in a section titled “Requirements relating to residents’ rights.” She contrasted the FNHRA provisions with the statutory provisions that failed Gonzaga’s test, which lacked such language and had an aggregate focus on public funds. She concluded that the FNHRA rights were presumptively enforceable under Section 1983, unless Congress had expressly or implicitly foreclosed such enforcement.

Justice Jackson then examined the FNHRA’s enforcement scheme and found no evidence of congressional intent to preclude Section 1983 enforcement. She acknowledged that the FNHRA anticipated cooperative federalism between federal and state actors to ensure compliance with its standards, but she did not see any incompatibility between that scheme and individual enforcement under Section 1983. She pointed out that Congress had not provided any private remedy for residents or any express prohibition of Section 1983 nursing home lawsuits in the FNHRA. She also observed that allowing Section 1983 suits would advance the FNHRA’s goals of protecting residents’ health, safety, welfare, and rights.

Justice Jackson affirmed the judgment of the Seventh Circuit, which had reversed the District Court’s dismissal of Talevski’s complaint. She held that Talevski could proceed with her Section 1983 action against the nursing home for violating her father’s rights under the FNHRA. Justices Clarence Thomas and Samuel Alito dissented from the 7-2 majority decision.

The Talevski decision is a victory for Indiana nursing-home residents and nursing home residents across the nation, who, under appropriate circumstances, can now rely on Section 1983 to vindicate their federal rights against abusive or negligent facilities. It is also a reaffirmation of Section 1983’s broad scope and historic role as a safeguard of individual liberty against state infringement. Finally, the decision is a reminder that laws mean what they say, and that Congress has the power to create rights that courts must respect and enforce. You can read the full decision here.

Specifically, Talevski alleged in his complaint against the skilled nursing facility, Valparaiso Care, that it failed to follow FHNRA in several respects including failing to provide adequate medical care, administering psychotropic medicine to chemically restrain him resulting in rapid physical and mental decline, discharging him without the consent of his family or guardian, refusing to fulfill an administrative judge’s order to readmit him, and maintaining a policy, practice, or custom that failed to promote, maintain, or enhance the quality of his and each resident’s life. On appeal, Talevski narrowed the allegations to only two particulars that appear in FNHRA: the right to be free of chemical restraints imposed for purposes of discipline or convenience and his rights related to resident-transfer and discharge procedures, namely his right to remain at Valparaiso Care and to receive timely notice of transfer or discharge.

The issue for the Court was whether Section 1983, a federal law that allows for a private citizen to bring a private claim for damages for civil rights violations, would extend to a claim that a nursing home resident’s rights conferred by the language of a federal statute were violated. The Court noted that FHRNA places minimum standards of care required of nursing-home facilities to qualify for federal funding under the Medicaid program. Medicaid allows states to subsidize, through federal aid, medical assistance to low-income qualifying individuals and families. In return for this funding, the states must adhere to the program’s statutes and regulations, including FHRNA. Along with the specific rules to qualify, FHRNA also includes requirements relating to resident’s rights. The Court emphasized that FHRNA Section 1396r(c)(1)(A) provides that a “nursing facility must protect and promote the rights of each resident, including each of the following rights…(ii) Free from restraints…Restraints may only be imposed—(I) to ensure the physical safety of the resident or other residents, and (II) only upon the written order of a physician that specifies the duration and circumstances under which the restraints are to be used…”

In analyzing the propriety of the dismissal of Talevski’s FHRNA-premised Section 1983 claims, the Court examined the legal framework for a valid Section 1983 claim. Section 1983 requires an allegation that a federal right was violated, not just a federal law. To make this distinction, the United State Supreme Court has set forth three factors for examination, which can be summarized as: 1) Did Congress intend the law in question to benefit the claimant? 2) Has the plaintiff demonstrated the statute is clear enough that it would not make it difficult for courts to enforce?, and 3) Does the law clearly impose a mandate on the States? Assuming these three factors are met, the right is presumptively enforceable under Section 1983. The only way, then, there can be no claim is if the claim has been otherwise expressly or impliedly foreclosed by Congress.

The Court made quick work of the first question of whether the law was intended to benefit residents like Talevski, stating “We do not know how Congress could have been any clearer. After the heading, the statute says ‘[a] skilled nursing facility must protect and promote the rights of each resident, including each of the following rights.’” 42 U.S.C. § 1396r(c)(1)(A). Although Valparaiso Care argued Talevski could not show the statute was intended to apply to an individual, the Court emphasized the plain language of the law: “What must it do? ‘[P]rotect and promote the rights of each resident…” The Court noted FHRNA was enacted to curb widespread abuses within government-certified nursing facilities. It found “dispositive the fact that Congress spoke of resident rights, not merely steps that the facilities were required to take.”

As for the second question of whether Talevski had demonstrated the law was clear and easily enforceable by courts, the Court noted that facilities “must not” do exactly what Talevski was complaining had occurred. Observing that Talevski’s allegations were not so complex that they would require input from a medical review panel, as might be required in an ordinary medical malpractice or nursing home claim in Indiana. Inquiries such as whether a patient was chemically restrained or transferred or discharged “are focused, straightforward inquires that agencies and courts are well equipped to resolve.”

For the final question of whether the law clearly imposes a mandate upon the States, the Court found “there is no dispute” and agreed with Talevski that “a common sense reading of its provisions leaves no room for disagreement.”

Having determined a right had been established, the Court finished its analysis by examining whether a private right of action premised upon Section 1983 had been expressly or impliedly foreclosed by Congress. The Court found no express foreclosure of such a claim. Valparaiso Care argued that the right had been impliedly foreclosed, because Congress otherwise requires annual nursing home surveys to enforce nursing home adherence to laws and regulations. The Court noted, however, “[t]his is not the type of comprehensive enforcement scheme, incompatible with individual enforcement, that we are looking for.” While such surveys and enforcement actions might measure compliance with FHRNA, “[t]hey do not address, and thus do not protect, individual entitlements to be free from chemical restraints or involuntary transfer or discharge.” The Court also rejected the argument that the administrative appeals process Tavleski had gone through constituted any kind of comprehensive enforcement scheme, noting the Supreme Court had rejected similar arguments in the past. The Court concluded with a nail in the coffin of Valparaiso Care’s argument:

Were there any lingering doubt, it should be put to rest in the general guidance provided in section 1396r(h)(8): “The remedies provided under this subsection are in addition to those otherwise available under State or Federal law and shall not be construed as limiting such other remedies, including any remedy available to an individual at common law…there is nothing that support carving out section 1983, and we will not rewrite the statute to create any such exception.

The Court noted in passing that Valparaiso Care also argued Talevski’s claim was barred by the two-year statute of limitations applicable to Section 1983 claims brought in Indiana. However, given Talevski’s mental condition and wife’s guardianship over him, this was a mixed question of law and fact left for the district court to determine his capacity to bring such a claim, as the statute of limitations only runs on an incapacitated person’s claim under Indiana law when “the disability is removed.”

You can read the Tavleski opinion in full here.

Indiana has a strong public policy in favor of arbitration agreements. Such agreements, however, can be invalidated with generally applicable contract defenses, such as unconscionability. Even though parties may agree to have the Federal Arbitration Act apply to an agreement, state contract law governs the scope of the agreement, including who is bound by it. Typically, only contracting parties or those in privity with contracting parties can enforce arbitration agreements. However, if the parties want to allow non-signatories to enforce such agreements, the parties can state their intent in the agreement, thereby making the non-signatory a third-party beneficiary. Non-signatories can also enforce arbitration agreements under the doctrine of equitable estoppel.

Here, CSL and Certiphi both moved to compel arbitration of the claims arising out of the resident’s alleged nursing home negligence, which Guardian opposed, arguing the arbitration agreement was unconscionable and, as to Certiphi, could not be enforced by Certiphi because Certiphi was not a party to the agreement. The trial court granted the motions to compel filed by CSL and Certiphi, and Guardian appealed. The Indiana Court of Appeals affirmed, finding the agreement was not unconscionable, and, as to Certiphi, Guardian was equitably estopped from asserting Certiphi could not enforce the arbitration agreement because Guardian was alleging substantially interdependent and concerted misconduct by both CSL and Certiphi. In so holding, the Indiana Court of Appeals relied upon its prior split-panel decision in German American Financial Advisors & Trust Co. v. Reed, 969 N.E.2d 621 (Ind. Ct. App. 2012) in which the Court adopted an alternative theory of equitable estoppel for arbitration agreements allowing non-signatories to enforce arbitration agreements if they could show either (1) reliance by a signatory on the agreement in asserting a claim against a non-signatory, or (2) allegations of substantially interdependent and concerted misconduct by both a signatory and non-signatory to the agreement.

The Indiana Supreme Court summarily affirmed the Court of Appeals except it found Certiphi could not compel arbitration against Guardian. First, the Indiana Supreme Court found Certiphi was not an agent of CSL, one of the third-party beneficiaries listed in the agreement between Guardian and CSL. Under Indiana law, to establish an agency relationship a party must show (1) a manifestation of the principal’s consent, (2) acceptance of authority by the agent, and (3) control exerted by the principal over the agent. Here, even assuming consent and acceptance, the Court found no evidence that CSL exerted control over the way Certiphi performed its background check. Thus, the Court found the arbitration agreement did not apply to Certiphi as CSL’s agent.

Second, the Court disapproved of the alternative theory of equitable estoppel adopted by the Court of Appeals in Reed because it lacked a showing of reliance by the party seeking estoppel. Instead, equitable estoppel would only apply if Indiana’s established elements of equitable estoppel could be shown. Under Indiana law, a party claiming equitable estoppel must show (1) lack of knowledge and the means of knowledge as to the facts in question, (2) reliance on the conduct of the party to be estopped, and (3) prejudice resulting from a change in position based upon the conduct of the party to be estopped. Here, there was no evidence that Certiphi knew of the arbitration agreement, relied upon it, or experienced any prejudice because of any reliance on the agreement. Thus, the Court found Certiphi could not enforce the arbitration agreement based upon equitable estoppel.

The Indiana Supreme Court affirmed the trial court’s order compelling arbitration as to CSL, CSL’s management company, and CSL’s employee, but the Court reversed the trial court’s order compelling arbitration between Guardian and Certiphi, preserving Guardian’s right to a jury trial.

You can read the full opinion here.

During the prosecution of the lawsuit, Redbanks refused to respond to discovery requests seeking documents Redbanks claimed were protected by the Federal Quality Assurance Privilege (FQAP) pursuant to 42 U.S.C. § 1396r(b)(1)(B) and 42 U.S.C. § 1395i-3(b)(1)(B). The FQAP is a subsection of the Federal Nursing Home Reform Act (FNHRA) passed in 1987. To ensure quality care of nursing home residents, the FQAP requires skilled nursing facilities and nursing facilities to establish a quality assessment and assurance committee. The FQAP protects the records of the committee from disclosure.

At times relevant to McGuire’s care, Redbanks had a Quality Assurance Performance Improvement (QAPI) committee, which then contracted with an independent contractor, Wells Health Systems (“Wells”), to consult and evaluate and provide guidance to Redbanks on the facility’s quality of care. Nurse consultants employed by Wells performed site visits monthly wherein they examined residents’ medical charts, observed Redbanks staff perform their duties, and reviewed various statistical data. These chart audits, compliance rounds, and statistics reviews were then compiled in reports provided to Redbanks QAPI. The nurse consultants were neither Redbanks’ employees, nor members of the QAPI.

The Henderson Circuit Court ruled that because the nurse consultant reports were not created by the QAPI committee, they were not QAPI records and ordered the records be produced. The Court of Appeals agreed and Redbanks appealed.

The Kentucky Supreme Court noted that privileges must be strictly construed because they counter the general principle that the “public has a right to every man’s evidence.” It further explained that it had never ruled on the merits of a FQAP records discovery dispute and that few jurisdictions had. Noting there were two separate approaches, a narrow or “the Missouri Rule” and a broad or the “New York Rule,” the Court then analyzed both.

In examining Missouri’s approach, the Court noted that Missouri has taken the position that the FQAP privilege only protects the FQAP committee’s “own records—its minutes or internal working papers or statement of conclusion.” It noted that a Tennessee district court had followed Missouri’s lead and that the Third Circuit Court of Appeals had taken a similar position, both suggesting the records must be created by the FQAP committee, even though the statute’s use of the phrase “generated by” was undefined in the statute. The Court noted that the Third Circuit had left open the possibility that it might interpret the FQAP more broadly under a different set of facts.

In examining New York’s approach, the Court noted that New York does not protect duplicated records or clinical files. However, “compilations, studies or comparisons of clinical data” arising out of or relating to the request of an FQAP committee are entitled to protection under the law as interpreted by New York courts. The Court noted this approach dovetails with various courts’ approaches to the attorney-client privilege and the long-established United State Supreme Court Upjohn rule: documents created by a third-party consultant employed by an attorney to assist a lawyer in providing legal services are similarly protected.

Turning to the question of whether the Wells nurse consultant reports contracted by Redbanks were protected as FQAP committee records, the Kentucky Supreme Court found they were in spite of the narrow scope of legal privileges. Although potentially highly relevant to complaints by an injured, neglected or abused nursing home patient, their family, or estate, the Court believed maintaining a broader privilege was necessary to further “self-critical analysis” and, thereby, promote the improvement of safety conditions, procedures, and outcomes which furthers the purpose of the FNHRA. Consequently, the Court opined that a case-by-case approach to documents was appropriate that would allow the “trial court to determine how a document was generated, why it was generated, and by whom it was generated before determining if the FQAP applies.”

The Court provided guidelines as well. Significantly, the Court emphasized that a QAPI committee cannot shield otherwise discoverable documents by funneling them through the QAPI committee, even if those documents were relied upon in creating the privileged QA documents. No documents kept in the facility’s ordinary course of business were entitled to protection from discovery. And, if the documents were required to be generated pursuant to other legal requirements, they are not entitled to the privilege. However, documents generated, created by, or at the behest of a QAPI committee would likely fall within the FQAP privilege. This is the case, even if generated by an outside source.

The Court concluded by noting that Wells “was effectively an ‘agent’ of the QAPI committee. The nurse consultant reports were being used to improve care at the facility, were for quality assurance purposes, and, therefore, were protected by the FQAP.

The Redbanks decision can be found here.

The Indiana Court of Appeals recently ruled that the adult son of a decedent was not a dependent for purposes of Indiana’s General Wrongful Death Statute and that he could not pursue an alternative survival claim based upon the Defendants’ admissions of liability. In Franciscan ACO, Inc. v. Newman, Virginia Newman was being transported by an employee of Franciscan ACO, Inc. and/or Franciscan Alliance, Inc. (“Franciscan”). During the transport, Virginia and her wheelchair were not properly secured, and when the employee turned, Virginia and her wheelchair fell over. Virginia suffered injuries and subsequently died. Virginia’s son, Vaughn Newman, filed a lawsuit alleging wrongful death and asserting an alternative survival claim for his mother’s injuries.

Defendants filed an answer in which they admitted the factual allegations in Vaughn’s complaint as to negligence and that the negligence caused Virginia’s death. They thereafter filed a motion for summary judgment arguing that Vaughn was not a dependent under Indiana’s General Wrongful Death Statute and was therefore limited to the $300,000 cap for loss of love and companionship under Indiana’s Adult Wrongful Death Statute. They also argued the evidence established that Defendants caused Virginia’s death, and therefore, Vaughn’s survival claim should be dismissed. After holding a hearing, the trial court denied the Defendants’ motion.

Under Indiana’s General Wrongful Death Statute, damages inure to the benefit of the decedent’s estate for payment of reasonable medical, hospital, funeral and burial expenses, and the remainder of damages, which are uncapped, including damages for loss of love, care and affection, inure to the exclusive benefit of the surviving spouse, dependent children, or dependent next-of-kin. Ind. Code § 34-23-1-1. When an unmarried adult dies without dependents, a claim can be brought under Indiana’s Adult Wrongful Death Statute, which provides that damages for reasonable medical, hospital, funeral and burial expenses inure to the decedent’s estate, while other damages, including loss of love and companionship, inure to the nondependent parent or nondependent child of the decedent. Ind. Code § 34-23-1-2. Importantly, under the Adult Wrongful Death Statute, damages for loss of love and companionship are capped at $300,000.00. Ind. Code § 34-23-1-2(e).

Vaughn lived with Virginia in her home since 2005 until her death in March 2018. Virginia paid her own mortgage, home insurance, property taxes, utilities, and food. Vaughn lived with Virginia rent-free but paid his own bills. Although Vaughn had access to Virginia’s checking account, which he used to pay for items on her behalf, he had his own checking account and did not need any assistance from Virginia to pay his bills. Vaughn took care of himself with Virginia not providing any services, such as cooking, cleaning or other daily living tasks. Virginia bought Vaughn two cars, which he would not have been able to afford and which he needed for work and transporting Virginia, but he testified that these were gifts. After 2001 neither Vaughn nor Virginia claimed each other as a dependent on their taxes, which they both filed separately. From 2013 to 2017 Vaughn testified he could afford to live on his own and did not have any financial needs from his mother but chose to live with her to take care of her. When Virginia’s health deteriorated in 2017, Vaughn took medical leave to help her, and Virginia reimbursed him for his lost wages.

Although dependency is not defined in the General Wrongful Death Statute, Indiana courts have established a standard for dependency requiring proof of (1) a need or necessity of support on the part of the alleged dependent and (2) the decedent’s contribution to such support. A decedent’s support or contribution to a beneficiary must amount to more than a service or benefit to which a beneficiary has become accustomed, and such must go beyond merely helping family members, even as to family members who have relied on that assistance. Here, as to the first consideration, the Court found Vaughn did not have an actual need or necessity for Virginia’s support. He was financially stable and paid his bills and expenses without assistance since 2005 and from 2013 to 2017 he had the means to maintain an independent household. As to the second consideration, the Court found Virginia’s support amounted to gifts, donations and acts of generosity. The Court therefore held that no reasonable jury could find that Vaughn was dependent on his mother.

Under Indiana’s Survival Act, an action for personal injuries to the decedent can be maintained to recover damages to the decedent resulting before the decedent’s death, including damages for pain and suffering, but only if the decedent died of causes other than those personal injuries. Ind. Code § 34-9-3-4. The damages in a survival action, which are uncapped, compensate the decedent’s estate for the decedent’s injuries, whereas damages for wrongful death compensate decedent’s survivors for the loss resulting from the decedent’s death. While parties can alternatively assert claims for wrongful death and survivorship, a party can only recover under one theory. Here, the Court found the Defendants’ admissions in their answer constituted a judicial admission conclusive and binding on the trier of fact. Since it was established that Virginia died as a result of the Defendants’ negligence, the Court found Vaughn could not show that Virginia died of causes other than Defendants’ negligence, and therefore, had no cause of action under the Survival Act.

The Court of Appeals reversed the trial court’s denial of the Defendants’ motion for summary judgment and remanded the case for further proceedings consistent with the opinion.

You can read the full opinion here.

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.

On appeal in this case, the Estate argued that, even though Aperion was a qualified healthcare provider, King and Aperion had agreed in the Arbitration Agreement that any legal claim would be resolved exclusively by arbitration, and therefore, the Estate was not required to first present the claim to a medical review panel prior to having to arbitrate the dispute. The Indiana Court of Appeals agreed. The Court noted Indiana recognizes a strong policy favoring enforcement of arbitration agreements, the parties’ Arbitration Agreement did not provide for completion of the medical review panel process as a condition precedent to arbitration, and the Medical Malpractice Act itself provides parties can agree to waive the requirement that a case be presented to a medical review panel before being pursued in court. The Court reversed the trial court and remanded the case with instructions for the trial court to grant the Estate’s motion to compel arbitration.

You can read the full opinion in Estate of King by Briggs v. Aperion Care here.

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.

Under the Indiana Medical Malpractice Act (MMA), before a patient can pursue a claim against qualified healthcare providers in state court, the patient must file a proposed complaint with the Indiana Department of Insurance and receive an opinion from a medical review panel. However, as explained by the Court in this case, not all claims against medical providers fall under the MMA. A claim against a medical provider sounding in ordinary negligence, as opposed to medical negligence, falls outside the scope and requirements of the MMA. While the patient in this case attempted to couch her claims as ones of ordinary negligence, the Indiana Court of Appeals ultimately disagreed and held that her claims sounded in medical malpractice.

The medical review panel formed to review the patient’s claims in this case unanimously found that the evidence did not support a conclusion that the defendants failed to meet the applicable standard of care. After the plaintiff filed her complaint in court, the defendants moved for summary judgment based upon the opinion of the medical review panel.

In order to move forward with her claims in state court, the plaintiff was required to present expert testimony to refute the opinion of the medical review panel or show that her claims fell under the “common knowledge” exception. Interestingly, however, the trial court granted summary judgment as to the issue of “medical malpractice,” but denied summary judgment as to the issue of “medical negligence.”

In reversing the trial court’s denial of summary judgment as to the issue of “medical negligence,” the Court of Appeals noted that under the “common knowledge” exception, a plaintiff is not required to provide expert testimony to refute a negative opinion of a medical review panel in cases where the deviation from the standard of care is a matter commonly known to laypersons. The Indiana Court of Appeals held that the plaintiff’s claims did not fall under this exception.

The Indiana Court of Appeals ultimately found in favor of the defendant healthcare providers because the plaintiff failed to provide expert testimony to refute the opinion of the medical review panel which found no malpractice on behalf of the healthcare providers.

Seeking to alleviate any confusion by a distinction drawn by the trial court, the Indiana Court of Appeals specifically noted that Indiana law does not recognize a distinction between “medical malpractice” and “medical negligence.” These are one and the same under Indiana law. The Court held that the Defendants were entitled to summary judgment on the issues of medical malpractice and ordinary negligence.

The Court of Appeals decision can be found here.

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:

All courts shall be open; and every man, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely and without denial; speedily, and without delay.

Similarly, Article I, Section 14 of the Kentucky Constitution provides:

All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.

In 1980 the Indiana Supreme Court upheld the constitutionality of the Indiana Medical Malpractice Act and its medical review panel requirements in the case of Johnson v. St. Vincent Hospital. In 2018 the Kentucky Supreme Court found its own law, which was substantially similar to Indiana’s law, unconstitutional in Kentucky v. Claycomb.

In Johnston the Indiana Supreme Court found that the constitutionally guaranteed “without delay” should be qualified when it comes to healthcare providers, because healthcare providers occupy a special place in our society according to the legislature. The Indiana Supreme Court noted then that “we do not sit to judge the wisdom or rightness of its underlying policies” when “dealing with the constitutionality of a statute of our state.” The Court observed the law’s aim to “preserve health care services for the community,” the “threatened loss to the community of health care services,” physicians purportedly being “totally unable to purchase insurance coverage,” surgeries being cancelled in rural areas, emergency services being discontinued at some hospitals, and healthcare providers “[becoming] fearful of the exposure to malpractice claims.”

In focusing on Indiana’s constitutional guarantee that individuals have a remedy for injury, the Indiana Supreme Court started with a discussion of a pronouncement by the Supreme Court of the United States that a person has no common law right to any rule of the common law. Presumably the Indiana Supreme Court was establishing with this discussion that the legislature, as opposed to the Court, has the right to decide the importance of an individual’s right when it comes to the common law right to a remedy in spite of the explicit guarantee contained in Indiana’s Constitution.

In marked contrast, the Supreme Court of Kentucky observed that while there is no federal common law right to seek redress for harm, there most certainly is a State right if a State chooses to guarantee one, noting “the law governing rights, duties, and liabilities between individuals with respect to the protection of ‘person, property, or reputation’ was deemed to be committed or reserved to the states.”

After noting that an individual’s right to seek redress is not absolute, the Indiana Supreme Court noted that there are already delays associated with legal process in court. Therefore, the further restrictions placed upon individuals to go through medical review panels before being allowed to proceed in court was “not so restrictive as to violate the right to access to courts guaranteed by Art. I, § 12 of our Constitution.”

The Kentucky Supreme Court saw it differently in Claycomb. The Court started its opinion with the importance and significance of the Kentucky Bill of Rights, noting “Of all the rights guaranteed by state constitutions but absent from the federal Bill of Rights, the guarantee of a right of access to the courts to obtain a remedy for injury is possibly the most important.” The Court noted the medical review panel process was “a mandatory process to delay certain medical-malpractice claimants’ ability to access immediately the courts of the Commonwealth.”

With these two observations, the Court turned its focus solely to the right of redress guaranteed by the Kentucky Constitution. The Court noted that the guarantee applies to both the judiciary and the legislative branch of government and that to characterize the guarantee as only applying to the judiciary and not the legislature

is to ignore the common understanding of the original framers and the original meaning of the words they employed—all branches of government can oppress the people and such oppression must be guarded against.

Of importance to the Kentucky Supreme Court’s decision was Kentucky’s explicit constitutional guarantee and over-arching principle regarding legislation found in Section 28 of Kentucky’s Bill of Rights (originally Section 26):

To guard against transgressions of the high powers which we have delegated, WE DECLARE, that everything in this article is excepted out of the general powers of government, and shall forever remain inviolate; and that all laws contrary thereto, or contrary to this Constitution, shall be void.

Interestingly, Indiana does not have the same explicit constitutional provision even if the Indiana framers were providing individual citizens with a “Bill of Rights.”

Ultimately, the Indiana Supreme Court implicitly decided that “without delay” means without unreasonable delay and that submitting claims to a medical review panel “is one reasonable means of dealing with the threatened loss to the community of health care services in this situation,” even if it adds further delay and prevents an individual from filing a lawsuit against a medical provider for many months, if not years.

Presumably, then, in Indiana it is theoretically possible that the construction industry, manufacturing industry, automotive industry, trucking industry, financial industry, and insurance industry could lobby the legislature to pass legislation allowing review panels for many other types of claims. Under the reasoning of the Indiana Supreme Court in Johnston, such a law should pass constitutional muster, so long as the law’s proponents could provide evidence that further restrictions on a Hoosier’s right to seek a remedy would be reasonable based upon the impact to the community and those industries of having to defend themselves against lawsuits.

With the strong pronouncement by the Kentucky Supreme Court in Claycomb, Kentucky citizens should be assured that their Court will strike down legislation that places any roadblock in the way of an individual wanting to seek immediate redress in court “without delay,” regardless of the inherent delays that may already be associated with seeking redress in courts.

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.

Under the doctrine of fraudulent concealment, however, a defendant cannot assert the 2-year occurrence-based statute of limitations as a defense if the defendant, by deception or violation of a duty, concealed material facts from the plaintiff that prevented discovery of the malpractice.

If the concealment was passive, or constructive, which can result from mere negligence, then the statute begins to run when the patient-physician relationship ends, or until the discovery of the malpractice, whichever is earlier.

If the concealment was active, that is, involving affirmative acts of concealment intended to mislead or hinder the plaintiff from obtaining information concerning the malpractice, then the statute does not expire until a reasonable time after the plaintiff discovers, or with reasonable diligence could have discovered, the existence of the malpractice.

Similar to the doctrine of fraudulent concealment, defendants also cannot use the 2-year statute of limitations as a defense if a plaintiff did not know of the malpractice and resulting injury and had not discovered facts that, in the exercise of reasonable diligence, should have led to the discovery of the malpractice and resulting injury. When a patient does not know of, and could not have discovered, the malpractice and resulting injury within the 2-year statute of limitations, then the patient has two (2) years from the date of the discovery thereof to file.

However, if within the 2-year statute of limitations a plaintiff knows of the malpractice and resulting injury, or learns facts that, in the exercise of reasonable diligence, should lead to the discovery thereof, then the plaintiff must file within the 2-year statute of limitations or within a reasonable period of time after discovery thereof if a lawsuit could not have been filed in the exercise of due diligence within the 2-year period.

In this case, the plaintiffs were unable to establish fraudulent concealment by the defendant healthcare providers, or that they filed their lawsuits within the appropriate timeframe after they discovered, or could have discovered, the malpractice and resulting injury.

Barsumian Armiger has offices in Newburgh, Indiana, Evansville, Indiana and Fishers, Indiana, serving the greater Evansville and Indianapolis areas. In addition to handling medical malpractice cases, our injury lawyers handle cases arising from car accidents, truck accidents, motorcycle accidents, defective products, premise liability, and nursing home negligence.

• Drowsiness
• Confusion
• Dry mouth or ulcers
• Hallucinations
• Weakness
• Falling
• Fractures
• Withdrawal from friends and family
• Dizziness
• Seizures

No one knows your loved one like you do. In addition to the obvious signs that something is not right, if you notice anything at all out of the ordinary for your loved one, it’s time to get involved and start asking questions. What To Do If You Suspect Overmedication A person who resides in a nursing home is there because they can’t care for themselves or because living alone has become too dangerous. So, the one place you would expect them to be safe and to continue to enjoy their life would be a nursing home. In fact, the U.S. government pays billions of dollars to nursing homes to ensure the most vulnerable people, which are those residing in nursing homes, are protected from abuse and receive proper care. However, even with strict regulations in place to protect those who live in nursing homes across the country, overmedication is still a significant problem. If you suspect your loved one is being overmedicated, you must take immediate action.

• Report the suspected overmedication. Every nursing care facility is regulated by a government agency. You can report the suspected overmedication to that agency. Because such reports are time-sensitive, it is imperative that you report your suspicions in a timely manner.
• Move your loved one to another nursing home. If you feel that overmedication continues to be a problem, research other facilities and talk with your loved one about a move. They may resist your efforts especially if they’ve established friendships and a routine. But, you may be able to persuade them if they can understand why the move is in their best interests.
• Contact an attorney. After you’ve reported the problem to the appropriate authorities and have taken the necessary steps to ensure your loved one is in a safe environment, your next step is to seek the advice of an attorney. If it can be proven that the nursing home was negligent and overmedicated your loved one, it is possible they will be awarded compensation for:
  • Medical bills
  • Disability
  • Emotional pain and suffering
  • Physical pain and suffering

Pay attention to your loved one. If you notice changes in their personality, behavior or physical or mental abilities, you might be dealing with overmedication. You’ll want to take the necessary steps to deal with this problem before your loved one suffers physical or mental damage. Author Bio: Laurence Banville. Esq is the managing partner and face of Banville Law. Laurence is licensed to practice law in the state of New York. Originally from Ireland, Banville moved to the United States of America where he worked at law firms, refining his litigation and brief writing crafts. He is also the recipient of the Irish Legal 100 and the Top 40 Under 40 awards.

Entrusting a loved one, such as a mother, father, sister or brother, to the care of a nursing home is one of the most difficult decisions many of us will ever make. In spite of a long, thorough investigation into suitable nursing and rest homes and assisted living centers, it is often difficult to get a true feel for the environment when you leave a loved one in the care of strangers. Often times it is not possible to witness the actual care being given so it is important to notice the overall state of care such as cleanliness, the quality and temperature of food items, how medications are delivered, changes in personality of the loved one, and missing personal items. When you arrive at the facility are the staff actually engaged in helping residents or are they out on the front porch in groups smoking, texting and checking social media on their cell phones? Has the rest home, nursing or assisted living facility changed ownership or administration often? Have medical directors changed or are they rarely or never present?What have State nursing home survey inspection findings been for the home?

Keeping Tabs on Conditions and Care

While it is likely impossible to meet the ideal conditions we would like to see for a loved one, some nursing, rest and assisted living homes fall well short of meeting even the most minimum standard of care. Sometimes failure to ensure proper staffing levels means the routine care of a loved one suffers. Pay careful attention to your loved one’s mood changes. Do they seem anxious or concerned when they see particular staff? Are you seeing a lot of different faces and are those faces less friendly than when the stay began? Do you hear yelling or exasperation from staff as you walk by other rooms, administration or the nursing station? Does your loved one exhibit signs of dehydration such as dry eyes, flaky skin or chapped lips? When you arrive, do they have a full or empty drinking cup in their room and within their reach and are they eating or refusing to eat reminiscing about home-cooked meals? Are they losing weight or exhibiting skin changes? Do you notice flies or uncleaned restroom facilities? If they had bedsores or pressure ulcers upon admission, have these gotten better or worse? If they were continent when they started are they now incontinent? Or, if they were incontinent when they started at the facility and were on a scheduled toileting program, has the facility now suggested they are continent to avoid the burden of scheduled toileting? Has your loved one fallen from a wheelchair, bed or been found wandering outside the facility?

The Domino Effect and Sudden Decline in Condition

Unless quickly corrected, inadequate staffing or poor care practices can lead to outright neglect and abuse, which can then lead to serious health declines and sometimes premature death. As conditions worsen, your loved one may not want to cooperate as readily with overworked staff who now have less time to spend before they must move on to the next resident. A domino effect can begin where only the neediest residents are attended to and others who were once healthy and adequately cared for lose the attention and focus they need to keep from a decline in condition. Tension can arise between staff and resident as pressure mounts to provide quicker, less adequate care. Abuse and a decline in condition may follow.

Abuse and Neglect

Abuse and neglect can take many forms, but the following are some of the most common:

• Dehydration leading to organ impairment or failure, such as acute renal failure;
• Small wounds or sores become infected or grow deeper as a result of inadequate turning or wound care practices, such as failing to change bandages;
• Improper toileting or cleaning techniques leading to urinary tract infections;
• The failure to monitor, dose or administer necessary and common medications such as antibiotics or blood thinners or an unwise combination of the medications;
• A fall and failure to administer care or pursue appropriate diagnostic imaging to diagnose internal bleeding, hematoma, hemorrhaging, or broken bones;
• Unexplained bruising; and
• Contracture of arms, legs, hands and fingers.

When to Consider Pursuing Legal Help

Sometimes a case of abuse or neglect is brought to the attention of family only after a loved one is urgently admitted to the hospital. You may have been away and unable to visit for several days or weeks, but upon your next visit, you find your loved one unresponsive and in need of urgent care. EMS is called and finds signs of severe wounds or sores, infection or broken bones or paralysis. Sometimes a debilitating condition is less obvious and hidden beneath dry eyes, chapped lips and sunken cheeks, but is the result of a failure to monitor fluid intake and output. Once at the hospital, a doctor or social worker inquires where the loved one was staying or how they got in this condition. Unfortunately, even if hospital personnel or a treating physician takes the courageous but appropriate step of alerting authorities, there may be inadequate information or an inadequate investigation to prove any actual abuse or neglect. The practices and efforts of investigators can vary substantially and your questions may never be answered or you may conclude that your loved one’s decline in health was inevitable. If your loved one’s sudden decline is serious or results in death, but you cannot obtain satisfactory answers to your questions, it may be time to seek help from an attorney with experience in nursing home abuse, neglect, and wrongful death.

What Attorneys Can Do to Help You Find Answers or Closure

An attorney with experience reviewing nursing home and medical records can attempt to pinpoint issues of abuse or neglect generally using the Long Term Care Survey published by the American Healthcare Association as a starting point. The Long Term Care Survey, sometimes referred to as the Watermelon Book for its color, is a three-ring binder (or e-book) and contains the regulations, protocols, forms, survey procedures and guidance to surveyors. The regulations arise out of the Omnibus Budget Reconciliation Act of 1987 (OBRA). The comprehensive regulations have been distilled into what are commonly known as F-Tags, which are akin to motor vehicle regulations, but for the context of the nursing home. Medicare (now known as the Centers for Medicare & Medicaid Services or CMS) provides these F-Tags as interpretive guidelines for surveyors tasked with investigating the long-term care industry.

For example, an attorney screening a possible dehydration leading to an acute renal failure situation will want to review the MDS, MAR, Progress Notes, Intake/Output records, Bladder/Bowel reports and other documentation to see how the resident’s condition progressed and declined to see if there were warning signs that should have been brought to the attention of a physician. F-Tag 327 addresses resident hydration and provides that a facility must provide each resident with sufficient fluid intake to maintain proper hydration and health. If the facility failed to follow this basic requirement by neglecting a resident’s needs, such failure may have been a substantial contributing factor to the resident’s decline and even death and a civil lawsuit may help hold the facility legally monetarily responsible for the pain, suffering and damages it caused and send a message so that future residents are not neglected in the same manner. An attorney can engage nursing home and medical experts to shed further light on the situation.

An attorney can work to summarize and communicate this information effectively. Below are graphs we prepared in a case to illustrate the resident’s dehydration evidenced by fluid intake and output records ultimately leading to hospital admission:

While not every sudden decline in condition is the result of abuse or neglect, an experienced attorney practicing in the area of nursing home abuse and neglect will often be willing to provide a free consultation to help you weigh your legal rights.

Time is of the Essence

When it comes to initiating legal action, laws often differ substantially from State to State. Some States may only have a one-year statute of limitations and others longer. Some may require you go through a medical review panel process before allowing you to bring suit against potentially responsible parties. Sometimes it may be necessary to give a tort claim notice to a county-owned facility. Because laws can differ greatly when crossing the State line between, for example, Indiana and Kentucky, it is important to seek an attorney licensed to practice in the State where the incident took place. If you fail to pursue legal help in a timely manner, any potential remedy may be barred on account of the passage of time or the failure to comply with legal or administrative prerequisites before filing suit.

When we were children, our parents and siblings did their best to protect us from harm. As adults, unfortunately it is sometimes necessary to stand up and fight for our parents and loved ones who cannot stand up for themselves so that they or others will not suffer from the same abuse or neglect.

© 2016 Barsumian Armiger

According to the CEO of the Indiana Association of Area Agencies on Aging, there were close to 40,000 cases of elder abuse, exploitation or neglect reported to Adult Protective Services in 2014. Those reports resulted in the investigation of approximately 10,000 cases.

Elder abuse can take many forms. The abuse can be physical or emotional. Sometimes abuse occurs when a resident’s possessions are taken. Occasionally the things taken are medications prescribed to the resident. In the latter situation, this theft could result in the resident experiencing serious pain, injury, or even death.

An employee of an Indiana nursing home was recently accused of stealing medication from residents. She was charged with a total of nine felony counts, including:

• Interference with medical services
• Theft
• Possession of a narcotic drug
• Obtaining a controlled substance through fraud or deceit

Depending on the specific situations the woman is accused of being involved in, it is possible that she could face more than a criminal case. Loved ones of the people she stole from could pursue personal injury lawsuits against her as well. In these situations, the nursing home the employee worked for might also be named as a defendant.