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Trick or Treat: Halloween Hardball Negotiation Tactics

Published on: October 31, 2019 | by Barsumian Law

87481771_xl-300x200 On Halloween otherwise fiscally responsible and sensible adults spend oodles of money and countless hours to costume their children and let them visit the homes of neighbors and strangers alike, knowing a hardball negotiation will ensue with the youngster proclaiming, “Trick or Treat.”

Most homeowners will relent, tossing a treat into the child’s bucket or bag, with the toughest response to the demand being the question, “And who are you supposed to be?” Some reluctant children may stand, stone-faced waiting for candy before being prompted by their parents with, “What do you say?” Homeowners who dare reject the offer or fail to arm themselves with sufficient authority, er candy, face the possibility of a trick or, more likely, a sad, dejected face.

I have yet to hear anyone say to a child, “You are not going to do anything if I don’t give you candy. Now go away.” I am sure, however, that someone somewhere has directly called a ghost, ghoul or goblin’s bluff.

Indiana Court of Appeals Says Answer to Important Question Under Indiana Medical Malpractice Act Must Wait

Published on: September 16, 2019 | by Barsumian Law

Indiana has a rather complex and parsimonious medical malpractice statute which sometimes leads to claimants seeking creative solutions to some of the obstacles they face in pursuing justice for claims with merit. Garau Germano, P.C. v. Robertson, 2019 WL 3886461, involved just such a creative approach. In Garau Germano, the Indiana Court of Appeals upheld the dismissal of a complaint for declaratory judgment and mandate filed on behalf of a law firm and one of its clients against the Indiana Patient’s Compensation Fund (PCF) and related parties. The law firm and client sought to prevent the defendants from requiring a medical malpractice claimant’s periodic payments agreement with a qualified health care provider to pay out the provider’s maximum liability under the Indiana Medical Malpractice Act (MMA) before the claimant could access the PCF. For context, the MMA provides that healthcare providers can discharge their liability to claimants by making an immediate payment of their maximum liability under the MMA, or by making an immediate payment and paying the cost of a periodic payments agreement. Ind. Code § 34-18-14-4. The plaintiffs in this case argued that the MMA does not require that a healthcare provider’s immediate payment plus the money paid out under a periodic payments agreement equal the provider’s maximum liability before a claimant can access the PCF.

The MMA provides that healthcare providers are not liable for an amount in excess of $250,000.00 for an act of malpractice that occurs after June 30, 1999 and before July 1, 2017, $400,000.00 for an act of malpractice that occurs after June 30, 2017 and before July 1, 2019, and $500,000.00 for an act of malpractice that occurs after June 30, 2019. Ind. Code § 34-18-14-3. However, if a healthcare provider’s immediate payment of money plus its expenditure for a periodic payments agreement exceeds $187,000.00 for an act of act of malpractice that occurs after June 30, 1999 and before July 1, 2017 or seventy-five percent (75%) of its maximum liability for an act of malpractice after June 30, 2017, the healthcare provider will be considered to have paid its maximum liability. Ind. Code §§ 34-18-14-4, 34-18-15-3. If a healthcare provider has agreed to settle its liability by payment of its maximum liability, either by an immediate payment or by making an immediate payment and paying for a periodic payments agreement to pay out money in the future, a claimant can thereafter file a petition to seek excess damages from the PCF. Ind. Code § 34-18-15-3.

The question raised by the plaintiffs was whether the present payment of money by a healthcare provider plus the future payments under a periodic payments agreement must equal a healthcare provider’s maximum liability. For an act of medical malpractice that occurred after June 30, 1999 and before July 1, 2017, could a claimant access the PCF if a healthcare provider makes an immediate payment of $150,000.00 and pays $37,001.00 for a periodic payments agreement that only pays out $50,000.00 in the future (a total of $200,000.00 in payments), as opposed to paying out $100,00.00 (a total of $250,000.00 in payments)? The answer to this question is important as it relates to elderly claimants, for instance, as any future payments under a periodic payments agreement may not pay out during their lifetime.

Indiana Supreme Court Considers Admissibility of Expert’s Disciplinary History in Car Accident Case

Published on: August 23, 2019 | by Barsumian Law

The Indiana Supreme Court recently issued an opinion in a car accident case in which the question before the Court was whether a party may use evidence of an expert witness’s professional disciplinary history to challenge the expert’s credibility. In Tunstall v. Manning, 124 N.E.3d 1193, 1195 (Ind. 2019), the plaintiff filed a lawsuit against a defendant driver that had rear-ended the plaintiff at a stop sign, causing injuries to the plaintiff. One of the plaintiff’s treating physicians diagnosed the plaintiff with a 28% whole body impairment.

Leading up to the jury trial, counsel for the defendant inquired about the plaintiff’s physician’s past professional discipline and the reasons underlying the physician’s past discipline. While the physician admitted his medical license had previously been on probation, he refused to answer questions about the reasons underlying his past discipline. When the defendant filed a motion in court to compel the plaintiff’s physician to answer questions about his past discipline, the trial court denied the motion, reasoning that the physician’s professional disciplinary history was not relevant because his medical license was in good standing. At trial, the defendant was unable to use the physician’s licensure probation and the reasons underlying the physician’s past discipline to impeach the physician’s testimony, which was the sole medical testimony offered by the plaintiff, based upon the trial court excluding any evidence of the plaintiff’s physician’s past licensure probation and the reasons for his past professional discipline.

After an Indiana jury returned a verdict in favor of the plaintiff, the defendant appealed, arguing the trial court abused its discretion by disallowing evidence of the plaintiff’s physician’s licensure probation and the reasons underlying his professional discipline. In personal injury cases in which there are competing expert opinions as to the seriousness of a person’s injuries, expert testimony can be particularly important in affecting the amount of any jury verdict in favor of the plaintiff. Once the foundation for an expert’s opinions has been established, the accuracy, consistency, and credibility of the expert’s opinions can be challenged by the parties. The question in this case was whether the plaintiff’s physician’s expert opinions could be attacked by evidence of his professional disciplinary history.

Indiana Supreme Court Resolves Court of Appeals Split in Medical Malpractice Cases

Published on: August 3, 2019 | by Barsumian Law

We previously wrote about a split between two panels of the Indiana Court of Appeals on what constitutes preferred venue under Indiana Trial Rule 75 in medical malpractice cases in Indiana. Indiana Trial Rule 75 provides for preferred venue in “the county where… the principal office of a defendant organization is located…,” and the Indiana Supreme Court has previously interpreted the term “principal office” as “the place in Indiana where one serves the corporate registered agent.” Ind. R. Trial P. 75(A)(4); Am. Family Ins. Co. v. Ford Motor Co., 857 N.E.2d 971, 975 (Ind. 2006) (American Family).

Plaintiffs in both medical malpractice cases argued preferred venue existed in Marion County, Indiana because one or more of the defendants had registered agents with office addresses in Marion County. However, the healthcare Defendants in these cases argued that preferred venue did not lie in Marion County because a new Indiana statute provides that “[t]he address of [an entity’s registered] agent does not determine venue in an action or a proceeding involving the entity.” Ind. Code § 23-0.5-4-12.

The Indiana Court of Appeals in Morrison v. Vasquez, 107 N.E.3d 1103 (Ind. Ct. App. 2018) held that Marion County, Indiana was not a preferred venue based upon the address of the defendant’s registered agent, whereas the Court in Indiana Univ. Health S. Indiana Physicians, Inc. v. Noel, 114 N.E.3d 479 (Ind. Ct. App. 2018) held that preferred venue lied in Marion County.

Punitive Damages in Indiana

Published on: June 24, 2019 | by Barsumian Law

What are punitive damages?

Punitive damages are a creature of common law and have been allowed for under certain circumstances by Indiana’s legislature under Indiana law. Cheatham v. Pohle, 789 N.E.2d 467, 471 (Ind. 2003); Ind. Code §§ 34-51-3-0.2 to 34-51-3-6. While the purpose of compensatory damages is to make a plaintiff whole and otherwise value a plaintiff’s injury, punitive damages serve to deter and punish wrongful activity and behavior. Cheatham, 789 N.E.2d at 471.

What is the standard for obtaining an award of punitive damages in Indiana?

Heir Not Required to Recover Wrongful Death Damages in Indiana

Published on: April 3, 2019 | by Barsumian Law

The Indiana Supreme Court recently issued an opinion in Horejs v. Milford, 117 N.E.3d 559 (Ind. 2019), a medical malpractice wrongful death lawsuit in Indiana concerning the availability of “survivor damages” for wrongful death, including loss of love, care, and companionship. In Horejs, the surviving widower, the statutory beneficiary under Indiana’s wrongful death statute, died during the pendency of the case without an heir. The Court previously held in Bemenderfer v. Williams, 745 N.E.2d 212 (Ind. 2001) that “the wrongful death statute does not operate to preclude the statutory beneficiary who dies before judgment from recovering wrongful death damages.” Id. at 214. However, while Bemenderfer held wrongful death damages did not abate upon the death of the surviving widow under Indiana’s survival statute, which allows claims to proceed after the death of a claimant, unlike Horejs, there was an heir to recover those damages in Bemenderfer.

After the patient in Horejs died as a result of alleged medical malpractice, her surviving husband was appointed administrator of her estate and he filed a lawsuit against the medical providers for wrongful death damages, which include “survivor damages” such as loss of love, care and companionship and “final-expense damages” such as medical, funeral and burial expenses. While the lawsuit was pending, the surviving husband died intestate (without a will), leaving no heir. Thereafter, the deceased patient’s father and brothers were appointed co-administrators of the patient’s estate.

Indiana’s wrongful death statute provides that the personal representative of the decedent may maintain an action against the alleged wrongdoer if the decedent could have maintained an action had he or she lived. Wrongful death damages recovered for reasonable medical, hospital, funeral and burial expenses inure to the exclusive benefit of the decedent’s estate for payment thereof, and the remainder of damages, if any, such as loss of love, care and companionship, inure to the exclusive benefit of the widow or widower, dependent children, and dependent next of kin.

Proceed with Caution: Applicability of Indiana Medical Malpractice Act Must Be Raised Early to Avoid Post-Panel Estoppel

Published on: November 2, 2018 | by Barsumian Law

What is required of plaintiffs to protect their right to challenge the applicability of the Indiana Medical Malpractice Act when there exists a question as to whether a claim arises from medical malpractice or ordinary negligence? The Indiana Court of Appeals answered this question in Cmty. Hosps. of Indiana, Inc. v. Aspen Ins. UK Ltd., a case in which two insurance companies paid damages to persons injured in a trucking collision and then sought to recover those damages from a medical provider who had cleared the at-fault truck driver to drive a commercial motor vehicle.

The insurance companies contemporaneously filed a proposed complaint for damages with the Indiana Department of Insurance (IDOI) and an anonymous state-court complaint for damages against Community Hospitals of Indiana, Inc. (Community). Community employed a nurse practitioner who performed a physical examination of the negligent truck driver prior to the collision pursuant to a contract between Community and the truck driver’s company that required qualified Community employees to conduct physical examinations based on Department of Transportation (DOT) requirements. The insurance companies alleged that Community was negligent in not notifying the truck driver’s company of a medical condition that would have precluded the truck driver’s ability to drive a commercial motor vehicle under Federal Motor Carrier Safety Administration (FMCSA) regulations, thus preventing the trucking accident.

Medical malpractice claims are subject to the Indiana Medical Malpractice Act (IMMA), which, among other things, caps damages, maintains the doctrine of contributory negligence, and requires that claims be submitted to medical review panels prior to being presented to a jury. However, the IMMA does not apply to all cases involving healthcare providers. If a healthcare provider’s negligence is unrelated to the promotion of a patient’s health or the exercise of professional expertise, skill or judgment, then it does not constitute medical negligence, but rather ordinary negligence, falling outside the scope of the IMMA. Indiana courts have noted that a case falls under ordinary negligence when the factual issues can be resolved by a jury without regard to the applicable standard of care. Alternatively, a case sounds in medical negligence when there is a causal connection between the conduct complained of and the nature of the patient-healthcare provider relationship.

Indiana Court of Appeals Finds Uninsured Motorist Coverage Inapplicable

Published on: October 22, 2018 | by Barsumian Law

The Indiana Court of Appeals recently resolved an insurance dispute in an automobile accident case concerning uninsured motorist coverage. In Progressive Se. Ins. Co. v. Smith, a passenger, Smith, was injured in his own vehicle that was involved in a single-vehicle collision.

Smith had given the driver, Clayton, permission to drive the vehicle when the two had left a company event. Smith’s liability insurance covered his vehicle damage and he received medical payments under the medical payment portion of his policy. Smith then brought suit against Clayton which resulted in Clayton’s insurer, Allstate, tendering its policy limits to Smith to settle.

Smith then asserted an uninsured motorist (UM) claim with Progressive. Progressive, in turn, filed a complaint for a declaratory judgment against Smith, requesting a determination under the terms of the policy that Smith was not covered under the UM coverage portion of the policy. Smith then filed a motion for summary judgment seeking coverage and damages under the policy. The trial court granted Smith’s motion and Progressive appealed.

Expert Testimony Required in Nearly All Medical Malpractice Cases

Published on: October 17, 2018 | by Barsumian Law

The Indiana Court of Appeals recently issued an opinion in St. Mary’s Ohio Valley Heart Care, LLC v. Smith concerning claims of medical malpractice against a cardiothoracic surgeon, a pathologist, and their respective medical groups arising out of a lung lobectomy performed for suspected, but not confirmed, lung cancer.

During the wedge resection portion of the procedure, the pathologist interpreted the intraoperative frozen section pathology slides as cancerous or suggestive of cancer, which was communicated to the cardiothoracic surgeon, who then proceeded to perform the lobectomy. The permanent section slides, however, were later interpreted as being benign, and the patient filed a lawsuit for damages.

A medical review panel was convened to review the case pursuant to the requirements of the Indiana Medical Malpractice Act and it returned a unanimous expert opinion in favor of the Defendants. After the patient filed an amended complaint for medical malpractice in state court, the Defendants filed motions for summary judgment based upon the opinion of the medical review panel that the evidence did not support the conclusion that the Defendants failed to meet the applicable standard of care.

Indiana Court Upholds Award of Prejudgment Interest in Trucking Accident Case

Published on: September 28, 2018 | by Barsumian Law

A recent memorandum decision from the Indiana Court of Appeals in J.B. Hunt Transport, Inc. v. Guardianship of Zak affirmed an Indiana trial court’s order awarding the guardianship of a passenger injured in a semi-truck collision $4,810,000.00 in prejudgment interest.

Ten months after an Indiana jury found in favor of the passenger and against the driver of the semi tractor-trailer and the trucking company he was working for at the time of the trucking accident, the passenger requested prejudgment interest on the $32,500,000.00 jury award. The driver of the semi tractor-trailer and the trucking company appealed the trial court’s order of pre-judgement interest arguing that the guardianship of the injured passenger had failed to comply with Indiana’s Tort Prejudgment Interest Statute (TPIS), as set forth in Indiana Code section 34-51-4-6, and that the request for prejudgment interest was untimely. The Court of Appeals affirmed the judgment.

Prejudgment interest is allowed under Indiana law as an additional element of damages to achieve full compensation for the prevailing party at trial. The truck driver and trucking company argued that the guardianship of the injured passenger did not comply with the TPIS because it did not make an offer of settlement within one year of filing the lawsuit and the settlement offer that was eventually made did not allow the truck driver and trucking company sixty (60) days to pay the amount of the settlement offer. In affirming the trial court on these issues, the Indiana Court of Appeals noted that the statute is not meant to serve as a trap for the wary but is meant to put a party on notice of a claim and encourage settlement. The Indiana Court of Appeals found that the trial court acted within its discretion in determining that the guardianship’s settlement offer satisfied the statute because the guardianship had established good cause for the delay in tendering its settlement offer due to critical documents being withheld by the truck driver and trucking company during discovery, and because the settlement offer included time-limiting language.