CORONAVIRUS UPDATE: How We Are Protecting and Serving Our Clients

Articles Posted in Nursing Home Neglect

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.

In finding in favor of several healthcare providers in a medical malpractice case in Indiana, the Indiana Court of Appeals in Speaks v. Vishnuvardhan Rao reviewed numerous concepts applicable to medical malpractice claims in Indiana.

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.

Legislators in Indiana and Kentucky have enacted laws mandating medical review panels in cases where individuals allege they have been harmed by a healthcare provider’s negligence, commonly known as medical malpractice.  Under legal challenge, Indiana found the legislation constitutional, whereas Kentucky did not.

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:

The Indiana Court of Appeals recently issued an opinion in Biedron v. Anonymous Physician 1 addressing the applicable statute of limitations in medical malpractice lawsuits in Indiana.

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.

It’s a fear that many people have – that they or their parents will end up in a nursing home unable to care for themselves and becoming overmedicated. The fact is that many nursing home residents are suffering from Alzheimer’s or some form of dementia which can make them aggressive or anxious. That makes them difficult to care for. And for nursing home workers who are overworked in a facility that is understaffed, the solution, unfortunately, is to medicate such individuals. This often leads to overmedication. An estimated 179,000 people living in nursing homes receive antipsychotic drugs each week although they have no mental illness for which such drugs are intended.

Signs of Overmedication

It is difficult enough to make the decision to send your loved one to a nursing facility. But, sometimes that is the only option and is required to ensure the safety of your loved one. A nursing home should be a place where residents receive adequate care while being kept safe. However, some residents go downhill fast once they’ve entered a nursing home. This is sometimes due to the fact that they are being overmedicated. If you have a loved one who resides in a nursing home, then you should look out for the following signs:


The Nursing Home Investigation and Selection Process
. 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?

For most people, deciding to place a family member or loved one in a nursing home is a difficult decision. This could lead to a long period of searching for a facility that meets the needs of the loved one. When a decision is finally made regarding where that person will go there is likely a great sense of relief. Unfortunately, that relief may be misplaced. This is because all too often nursing home residents face abuse at the hands of their caretakers.

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.

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