Southern Indiana Personal Injury Lawyer Blog

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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.

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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.

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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.

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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.

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You have exhausted every other option with your aging parent. Keep them in their own home and stop by regularly to help with meds, food, upkeep of the home, shopping. For a while that may work and you feel good about helping your parent and giving back when they have given so much to you during your lifetime.

As time progresses, your parents may find themselves unable to care for themselves on a daily basis. It is difficult for them to accomplish tasks and you may come to the point where you cannot trust their judgment. What if they leave the stove on? Or, wander outside and not know where they live. Worse yet, they get behind the wheel of their car when they are unable to drive responsibly.

We do not know what the future holds. It is impossible to promise your parent things like “we will never put you in a nursing home”, when we have no idea what situations will arise as they age with regard to their health and physical capabilities. It is hard not to feel guilty when you have run out of in-home care options. At this point, a tough decision may be in order. You have done the best you can and tried to honor their request. Because of modern medical advances, people live longer now than they did in the past. There comes a point in time when both their mental and physical capabilities may have deteriorated so much they cannot take care of themselves.

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A personal injury can happen in many bizarre ways.  As reported by the New York Times, one of the oddest incidents leading to severe injuries and scarring was caused by a group of New York teenagers who thought throwing a frozen turkey at a car seemed like a good idea back in November of 2004.  The frozen turkey struck the driver causing her severe injuries.  Luckily, with the help of a passenger, the car was kept under control and no one else was injured.

There can be little argument that the injured woman was entitled to pursue civil remedies against the negligent teenager who threw the turkey and, likely, his accomplices.  In fact, the story reports that she and her lawyers planned to file a civil suit and that there was a criminal price to pay for the teenagers as well.

May your travels this Thanksgiving be uneventful, but if you are injured by another’s negligence or reckless behavior, know that Barsumian Law is only a phone call away for a free consultation about your legal options.

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When someone runs a stop sign and a collision occurs, the results can be devastating, even deadly. This very dangerous scenario recently led a car accident at an Indiana intersection. Car accidents of this nature can lead to legal action, both criminal and civil, particularly when alcohol plays a role in why the accident occurred.

The accident occurred on a Wednesday evening as a 44-year-old woman was driving her Tahoe north. A 37-year-old man was driving west and ran a stop sign. He hit the Tahoe on the passenger side, and both vehicles ended up leaving the roadway and coming to a rest in a field. Police think the Tahoe may have rolled over.

A 10-year-old girl who was a passenger in the Tahoe died at the scene of the accident. The woman driving the Tahoe was flown from the scene for treatment of injuries she sustained. The driver who presumably caused the crash was also flown from the scene for treatment. Police have stated that alcohol played a role in the car accident.

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I’m looking forward to seeing what my son thinks up for his “Trick or Treat” negotiations this year.  Here is a look back to some thoughts from last year.

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.

Frankly, 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.

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A car accident caused by one car passing another on the roadway has recently taken lives. The Indiana state police indicate two victims died as a result of the crash. Car accidents caused by one car passing another can lead to injuries or death and completely upend the lives of the victims and the families left behind.

The recent accident on an Indiana roadway happened on a Thursday night. A minivan was headed northbound. The minivan attempted to pass a car in front of it and ended up sideswiping the car. This caused that car to lose control and then roll over.

There were two people ejected from inside of the car that was sideswiped and subsequently rolled over. Both of those occupants died from the injuries they received in the car accident. The driver of the minivan that apparently caused the accident needed medical attention for injuries that were reported to be minor.

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