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Articles Posted in Medical Malpractice

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Super Lawyers rates Indiana attorneys on a yearly basis in more than 70 different practice areas, including personal injury and medical malpractice.  Following its completion of a peer review process, together with a patented evaluation process, the organization determines the lawyers in Indiana it will include on its Super Lawyers and Rising Stars list and announces those named online and in its Super Lawyers Magazine.  Super Lawyers rates attorneys nationwide among their peers for their respective states and areas of practice.

This year marks Barsumian’s fourth consecutive selection as a Super Lawyer in the field of personal injury.  Super Lawyers recognizes no more than 5 percent of the attorneys in Indiana.  Barsumian was previously selected as a Rising Star on four occasions.  Armiger, recognized for the area of medical malpractice, has now been selected to the Rising Star list on five occasions.  The Rising Stars designation recognizes attorneys 40 years old or younger and represents only 2.5 percent of the attorneys in Indiana.

Barsumian and Armiger are proud of this recognition and look forward to continuing to serve their clients in the Indianapolis and Evansville area in the areas of personal injury, medical malpractice, and wrongful death.

Jacqueline McGuire was a resident of Henderson County Healthcare Corporation’s Redbanks Skilled Nursing Facility in Henderson Kentucky.  After McGuire suffered bedsores and multiple injuries while at Redbanks, McGuire was transferred to another nursing home facility where she ultimately died.  McGuire’s brother, as administrator of her estate, filed a nursing home negligence lawsuit with various claims against Redbanks arising out of the alleged neglect.

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.

Unlike Indiana, Kentucky has a statute, the Unfair Claims Settlement Practices Act (“UCSPA”), KRS 304.12-230, that expressly allows for bad-faith claims to be brought against liability insurers for unfair claims settlement practices.  However, so-called captive insurers have taken the position that they are excluded from the law.  The Kentucky Supreme Court recently addressed the issue in Merritt v. Catholic Health Initiatives, Inc.

Harold Merritt alleged that Dr. Anthony Smith, an employee of KentuckyOne Health, was responsible for medical negligence in the deaths of his wife, Kimberly, and infant son.  During her pregnancy, Kimberly developed placenta previa, a condition wherein the baby’s placenta partially or totally covers the mother’s cervix, which can cause severe bleeding during pregnancy and delivery.  Although the high-risk obstetrician to whom Dr. Smith referred Kimberly recommended a caesarian section no later than at thirty-seven weeks gestation, Dr. Smith examined her at thirty-seven weeks and scheduled an appointment one week later.  Shortly thereafter Kimberly was found unresponsive at home and died shortly after being transported to the hospital by EMS.  The couple’s child was delivered by post-mortem caesarian section, but only survived a few hours, suffering seizures during that time.

In his medical malpractice complaint, Merritt named Catholic Health, an entity that sponsors KentuckyOne Health and its affiliates, and First Initiatives, a foreign, wholly-owned subsidiary of Catholic, which provided self-insurance coverage to Catholic, its affiliates and employees including KentuckyOne Health and Dr. Smith.  First Initiatives provided coverage and Catholic paid assessments to First Initiatives, although Catholic’s affiliates did not pay for the coverage.  Merrit included a claim that First Initiatives violated the UCSPA, KRS 304.12-230, by engaging in bad faith settlement negotiations.

The United States Court of Appeals for the Seventh Circuit recently requested the Indiana Supreme Court address two questions through a process known as certification of questions.  Both Seventh Circuit Rule 52(a) and Indiana Rule of Appellate Procedure 64 recognize federal courts may seek guidance from a state’s highest court on questions arising under the law of that state which will control the outcome of a case pending in federal court.

The questions arose out of a tragic car crash in Gibson County, Indiana, which claimed the lives of two drivers and a passenger.  Sylvia Watson was driving from a repair shop in Owensville, Indiana to Princeton, when she approached a red light and exclaimed to the sole survivor of the crash, her granddaughter/passenger, Brandy Mayer, that she could not stop the vehicle.  Watson’s vehicle struck a vehicle driven by Claudine Cutchin, whose daughter, Adelaide, was in the passenger seat.  Claudine died at the scene and Watson and Adelaide died later from the injuries suffered.

A blood test on Watson revealed opiates in her bloodstream and Mayer recounted Watson had taken two pills before leaving the repair shop.  It was later discovered that a physician had prescribed Watson eight different medications, including an opioid and muscle relaxers.

Delivery of a business card to a patient during registration for a surgical procedure does not itself, as a matter of law, constitute meaningful written notice, acknowledged at the time of admission, to a patient that a physician is an independent contractor for which a hospital has no liability arising out of the doctor’s alleged malpractice. This is what the Indiana Court of Appeals recently held in the case of Jernagan v. Indiana Univ. Health.

Richard Jernagan (“Jernagan”) underwent spine surgery at IU Health North Hospital. The anesthesiologist was Dr. Michael Miller, a partner with Anesthesia Consultants of Indianapolis. Prior to the procedure, an IU Health guest relations representative, Mary Mosby (“Mosby”), registered Jernagan and gave Jernagan Dr. Miller’s business card, which stated Dr. Miller’s name, employer, and contact information. Mosby did not tell Jernagan Dr. Miller was an independent contractor and not an employee of the hospital. During the surgery, Jernagan suffered a cardiac arrest requiring resuscitation and admission to the ICU due to a sudden drop in blood pressure and significant blood loss. Jernagan filed a lawsuit against the surgeon and the hospital. A medical review panel found no malpractice on behalf of the named defendants and did not address the conduct of Dr. Miller, who had not been named in the lawsuit. After the hospital filed a second motion for summary judgment, Jernagan filed an expert affidavit as to Dr. Miller and argued the hospital was vicariously liable for his conduct based upon apparent agency pursuant to Sword v. NKC Hospitals, Inc. The trial court granted the hospital’s motion and Jernagan appealed.

The Court of Appeals first resolved a procedural issue concerning the timeliness of Jernagan’s response to the hospital’s motion for summary judgment. There had been an agreement for an extension of time reached between Jernagan and the hospital as noted on an entry to the Chronological Case Summary (CCS) with defense counsel directed to circulate an order regarding the summary judgment deadline. Indiana law has a bright-line rule that, unless a party responds to a motion for summary judgment within the applicable timeframe or requests an extension, a trial court has no discretion to alter the time limits for a response. The Court of Appeals agreed with the trial court’s analysis that the CCS entry’s direction that defense counsel circulate an order was meant to separately express the order stated in the CCS entry, and with Jernagan having requested an extension, which was granted by the trial court, Jernagan’s response was timely.

Depending on the circumstances surrounding a fatality caused by another’s negligence, Indiana statutes may place limits on the monetary value of the human life taken when it comes to compensating the remaining family members for their loss.  Known as a “damage cap,” such limits may be triggered by the status of the negligent actor being a qualified healthcare provider or a governmental entity. Another damage cap depends on the dependency of those family members left behind, which is the topic of today’s blog.

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.

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

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

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

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

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

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

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

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

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

Verdict-Article-1-300x189Barsumian Armiger attorney Jonathan Armiger’s article examining recent Indiana medical malpractice cases was published in Volume 40, No 1 of the Indiana Trial Lawyers Association (ITLA) Verdict.  The article is republished below with permission from ITLA.

MEDICAL MALPRACTICE VS. ORDINARY NEGLIGENCE

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

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