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The Indiana Court of Appeals recently reviewed whether under Indiana law the mother of a disabled child who was sexually abused by a school instructional assistant could bring a claim for the emotional distress she experienced as a result of her child’s sexual abuse. In K.G. by Next Friend Ruch v. Smith, Melody Ruch (“Ruch”) filed a lawsuit individually and on behalf of her daughter, K.G., arising out of sexual abuse of K.G. by Morgan Smith (“Smith”), an instructional assistant at New Augusta North Public Academy. New Augusta North Public Academy and the Metropolitan School District of Pike Township (the “School Defendants”) filed a motion for summary judgment on the individual claims brought by Ruch, including her emotional distress claim. After the trial court granted the School Defendants’ motion, Ruch appealed.

Indiana law allows for the recovery of damages for mental distress or emotional trauma under the traditional impact rule, the modified impact rule, and the bystander rule. Under the traditional impact rule, a plaintiff can recover if the plaintiff can prove (1) an impact on the plaintiff, (2) which causes physical injury to the plaintiff, and (3) which physical injury, in turn, causes the emotional distress. Under the modified impact rule, a plaintiff can recover if the plaintiff suffers a direct impact by another’s negligence, and by reason of that direct involvement suffers an emotional trauma which is serious in nature and of a kind and extent normally expected to occur in a reasonable person, without regard to whether the emotional distress arises out of or accompanies any physical injury to the plaintiff. Under the bystander rule, a plaintiff can recover if he or she actually witnessed or came on the scene soon after the death or severe injury of a loved one, with a relationship to the plaintiff analogous to a spouse, parent, child, grandparent, grandchild or sibling, caused by a defendant’s wrongful conduct, even if he or she was not directly impacted.

In this case, Ruch conceded she could not recover emotional distress damages under the traditional impact rule, the modified impact rule, or the bystander rule, as she was not touched by Smith and did not witness the sexual abuse. However, Ruch argued that Indiana should adopt another rule providing for recovery in cases in which the wrongful conduct would never be witnessed, such as sexual abuse, which occurs in secret. Ruch argued Indiana should allow for recovery when “(1) the genuineness of a claim is beyond question, (2) the facts present a unique and rare occurrence, and (3) the tort would never happen with a witness present.” Unfortunately, the Indiana Court of Appeals rejected Ruch’s invitation to expand the parameters of recoveries for emotional distress damages. The Court also held the Article I, Section 12 of the Indiana Constitution did not require recognition of such claims if not otherwise recognized by law.

Governmental entities in Indiana have a duty to exercise reasonable care to keep roadways and sidewalks reasonably safe for travel. However, governmental entities also enjoy immunity under certain circumstances. In two recent cases dealing with governmental immunity for losses caused by temporary conditions of roadways resulting from weather, the Indiana Court of Appeals has questioned and raised concerns with the Indiana Supreme Court’s analytical framework set forth in the 2002 decision of Catt v. Bd. of Comm’rs of Knox Cty., 779 N.E. 2d 1 (Ind. 2002).

The plaintiff in Catt was injured when his vehicle slid and crashed into a ditch in Knox County caused by a washed-out culvert following a rainstorm the night before. The culvert had washed out many times prior to Catt’s car accident and had been repaired. The plaintiff alleged Knox County had negligently inspected, designed or maintained the roadway. However, the Indiana Supreme Court held Knox County, despite any negligence, was immune from liability under section 34-13-3-3(3) of the Indiana Tort Claims Act, which provides “[a] governmental entity… is not liable if a loss results from… [t]he temporary condition of a public thoroughfare… that results from weather.” Ind. Code § 34-13-3-3(3). The Court framed the question as whether the washed-out culvert was due to weather and whether Knox County had the opportunity to repair the washed-out culvert and failed to do so (i.e., whether it was temporary versus permanent), regardless of any prior negligent inspection, design or maintenance or the frequency with which the culvert may have washed out on prior occasions. Since the washed-out culvert was caused by weather, Knox County had not received notice that it had washed out on this occasion prior to the collision, and Knox County was busy repairing other washed-out culverts and had previously repaired this one, the Court found the washed-out culvert was caused by weather and was a temporary condition.

In subsequent cases based on Catt, the Indiana Supreme Court has further explained that governmental immunity for temporary conditions resulting from weather applies during the “window of reasonable response” to the road condition. That window lasts until the condition stabilizes. That is, if the condition continues to worsen or is still evolving, the condition has not stabilized and is therefore deemed temporary, and the government is immune.

Barsumian-Armiger-Personal-Injury-Medical-Malpractice-Indiana-Super-Lawyers-1-300x157

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.

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.

How does a $1,000,000 verdict in a car-accident-whiplash case become a $250,000 verdict and then ultimately become a $0 judgment? That is the query recently answered by the Seventh Circuit in Spinnenweber v. Laducer.

Spinnenweber was driving a minivan on I-94 in Indiana when he was rear-ended by a truck driven by Laducer. Spinnenweber refused medical care at the scene and only five days later sought care at an urgent care center for pain in his neck and possible ringing in the ears, which is also commonly known as tinnitus. Three months later Spinnenweber reported to his doctor that he was suffering tinnitus and short-term memory loss. Spinnenweber ultimately treated with seventeen medical providers.

Spinnenweber sued Laducer and Laducer’s employer. At trial, Spinnenweber did not seek damages for anything but physical injuries, waiving any request for medical expenses or lost wages or psychiatric, mental, or emotional injuries. The Defendants conceded responsibility for causing the crash.

The Indiana Court of Appeals recently reversed a trial court’s grant of summary judgment for an assisted living facility reaffirming long-standing Indiana precedent that in injury lawsuits arising out of the negligence of employed individuals acting within the course and scope of their employment, the plaintiff can sue 1) the employee, 2) the employer, or 3) both the employee and employer.

In Hogan v. Magnolia Health Sys. 41, Mary Hogan (“Hogan”), and subsequently her Estate, sought damages for a personal injury that occurred when an employee of Magnolia Health Systems 41, LLC (“Magnolia”), which owned and/or operated Crown Pointe of Carmel, an assisted living facility, caused a buffet table to fall on Hogan’s walker causing Hogan to fall and hit her head. Hogan sued Magnolia, and, not knowing the name of the employee, “John Doe.” After later learning of the employee’s name, Hogan moved to amend her complaint to name the employee. However, because the amendment occurred more than two years after the incident, the employee filed a motion to dismiss based upon the statute of limitations, which the trial court granted. Magnolia then filed a motion for summary judgment arguing it could not be held vicariously liable for the employee’s actions under respondeat superior because Hogan’s claim against the employee was barred. After a hearing, the trial court granted Magnolia’s motion, and Hogan appealed.

The legal theory of respondeat superior imposes liability on employers for the wrongful conduct of employees committed within the course and scope of employment. To be within the course and scope of employment, the act must have been incidental to authorized conduct or in furtherance of the employer’s business to an appreciable extent. Thus, although an employer may not have committed any wrongful or negligent act itself, when an employee commits a negligent act in the course and scope of employment, the employer can be held liable for the employee’s negligence. However, no liability applies under respondeat superior if the employee was not negligent.

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.

The Indiana Court of Appeals recently found in favor of a restaurant and winery in an Indiana slip-and-fall case. In Cooper’s Hawk Indianapolis, LLC v. Ray, the Plaintiff, Katherine Ray, while at Cooper’s Hawk Winery & Restaurant (“Cooper’s Hawk”), went to use the restroom and slipped and fell on her way out of the restroom door. Ray filed a complaint against Cooper’s Hawk alleging she slipped and fell on an accumulation of water and was injured as a result of her fall. Cooper’s Hawk filed a motion for summary judgment, which the trial court denied, arguing that Cooper’s Hawk did not have actual or constructive notice of the defective condition that allegedly caused Ray to fall and that any breach of any duty was not the proximate cause of Ray’s injuries.

Under Indiana premises liability law, property owners must maintain their property in a reasonably safe condition for business invitees. A possessor of land is subject to liability for physical harm caused to its invitees by a condition on land if it (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees; (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. An inviter must exercise reasonable care to discover defects or dangerous conditions on the premises, and will be charged with knowledge of, and held liable for injuries that result from, any dangerous conditions that could have been discovered in the exercise of reasonable care. However, inviters are not insurers of their invitees’ safety and must be shown to have actual or constructive knowledge of the dangerous conditions on their premises before liability will attach. Negligence cannot be inferred from the mere fact of a fall and constructive knowledge can only be found if it is shown that a condition had existed for such a length of time that under the circumstances it would have been discovered if the inviter or its agents or employees had used ordinary care.

In this case, it was raining outside around the time of Ray’s fall. Ray testified she did not observe anything, any water, or any wet spots on her way to the restroom. She did not observe any slippery substance or wet spot outside the women’s restroom in the hallway after she exited the restroom. She did not feel any liquid substance or anything like that on her body after she fell. She did not see any wetness on her clothing. While Ray’s husband testified that after EMS arrived he noticed that one of the EMS personnel had a damp knee, Ray’s jeans were damp, and there were a few very small puddles or mist on the floor, he could not testify as to what the liquid was, where it came from, and how long it would have been there, and he did not recall seeing it when he first got to the area of the fall. An employee of Cooper’s Hawk submitted an affidavit stating she was working on the day of the fall, did not know how Ray fell, neither she nor Cooper’s Hawk were notified of the presence and had no knowledge of any type of hazard or liquid substance, employees would inspect the restrooms and hallways every twenty to thirty minutes, and when she inspected the area of the fall, she found no sign of a hazard, water, or other liquid on the floor.

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).

The Indiana Court of Appeals recently affirmed a trial court’s decision refusing to give a negligence jury instruction but giving jury instructions on inherent risks of equine activities and incurred risk in a horse-related injury case. In Burdick v. Romano, the Plaintiff, Kathleen Burdick, and the Defendant, Julie Romano, were riding horses in a horse arena. According to Burdick, Romano’s horse, which was known to be aggressive and kick other horses, kicked Burdick after being left unattended by Romano. Romano claimed that Burdick simply fell off her horse. Burdick suffered a broken shoulder and brain injury and filed a lawsuit against Romano for her injuries.

A jury trial was held, and the jury found in favor of Romano, finding Burdick to be 65% at fault and Romano 35% at fault. Under the modified comparative fault approach outlined in Indiana’s Comparative Fault Act, a plaintiff is barred from recovering damages for personal injuries when the plaintiff’s fault is greater than the fault of all other persons causing the injury. Burdick appealed the verdict arguing the trial court abused its discretion in refusing to give a negligence jury instruction and in giving jury instructions on inherent risks of equine activities and incurred risk.

The Court of Appeals upheld the trial court’s decision finding the parties were engaged in a sporting activity and therefore a negligence instruction was not warranted. The Court recognized previous cases categorizing as sporting activities non-competitive golf, riding a mountain bike alone on a bike trail, and practicing karate kicks during a karate class. Here, after examining the statutory definition of “equine activity,” Ind. Code § 34-6-2-41, which the Court found did not preclude sporting activities, the Court examined the parties’ activities, including riding in an arena (as opposed to pasture or other country terrain) and performing tricks and training related to the sport of horse-back riding, and found that the parties were engaged in a sporting activity. Under Indiana law, when a sports participant injures someone while engaging in conduct ordinary in the sport, and without intent or recklessness, the participant does not, as a matter of law, breach any duty of care. The Court of Appeals found no abuse of discretion in the trial court’s refusal to give a negligence instruction because the evidence did not support giving a negligence instruction and because giving a negligence instruction would have been confusing and misleading to the jury.

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