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Kentucky Supreme Court Finds Kentucky’s Unfair Claims Settlement Practices Act Does Not Apply to Captive Insurers in Medical Negligence Case

Published on: February 18, 2021 | by Barsumian Armiger

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 $0 Whiplash and Mild Concussion “Verdict of Silence”

Published on: February 14, 2021 | by Barsumian Armiger

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.

Indiana Court of Appeals Finds Employee’s Dismissal Did Not Bar Plaintiff’s Case Against Employer Under Respondeat Superior

Published on: January 28, 2021 | by Barsumian Armiger

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.

Handing Business Card to Patient Found Insufficient Notice in Hospital Malpractice Lawsuit for Hospital to Avoid Liability for Anesthesiologist’s Actions Under Apparent Agency In Spite of Independent Contractor Relationship

Published on: December 19, 2020 | by Barsumian Armiger

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.

Indiana Court of Appeals Reverses Trial Court’s Denial of Summary Judgment in Indiana Slip-and-Fall Case

Published on: August 1, 2020 | by Barsumian Armiger

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.

Indiana Trial Lawyers Association Publishes Attorney Jonathan Armiger’s Indiana Appellate Case Update on Medical Malpractice

Published on: July 25, 2020 | by Barsumian Armiger

Verdict-Article-1-300x189 Barsumian 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).

Indiana Court of Appeals Opines Horse Riding in Arena Is a Sporting Activity Not Subject to Ordinary Negligence Instruction and Subject to Inherent and Incurred Risk Instructions

Published on: June 24, 2020 | by Barsumian Armiger

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.

Kentucky Supreme Court Addresses Ostensible Agency and Continuous Treatment Doctrine in Medical Malpractice Case in Affirming Grant of Summary Judgment to Physicians and Hospital

Published on: May 8, 2020 | by Barsumian Armiger

The Supreme Court of Kentucky recently issued a decision in Sneed v. University of Louisville Hospital affirming a trial court’s grant of summary judgment in favor of a hospital and two physicians in a Plaintiff’s medical malpractice claim arising out of a fourth-degree laceration the Plaintiff suffered during delivery on August 1, 2013, which caused a rectovaginal fistula (the most severe category of vaginal tear, often extending into the rectum), requiring surgery.

One year after the Plaintiff’s delivery and vaginal laceration, on August 1, 2014, the Plaintiff filed a lawsuit against the hospital, and on October 30, 2014, amended the complaint to add the two physicians who delivered her baby and initially repaired the laceration. The physicians moved for summary judgment based upon Kentucky’s statute of limitations, which the trial court granted. After the Plaintiff tendered expert disclosures, which did not allege a breach of the standard of care as to the hospital, the hospital moved for summary judgment, which the trial court granted, finding the hospital was not vicariously liable for the individual physicians, as they were not employees or agents of the hospital. The Court of Appeals subsequently affirmed.

The Plaintiff argued on appeal that Kentucky’s statute of limitations did not bar her action against the physicians under the continuous treatment doctrine and under the fraudulent concealment doctrine due to concealment of her records. Under Kentucky law, medical malpractice claims against physicians must be commenced within one year after the cause of action accrues, which occurs at the time the injury is first discovered or in the exercise of reasonable care should have been discovered. However, the statute of limitations can be tolled under the continuous treatment doctrine and when a party absconds, conceals himself, or by other indirect means obstructs prosecution of the case.

Indiana Court of Appeals Declines to Find Equitable Estoppel for Slip-and-Fall Claimant’s Failure to Comply with Indiana Tort Claims Act Notice Requirement

Published on: April 21, 2020 | by Barsumian Armiger

The Indiana Court of Appeals recently reversed a trial court’s decision allowing a slip-and-fall claimant’s case to move forward against a governmental entity despite non-compliance with the Indiana Tort Claims Act (ITCA). In City of Columbus v. Londeree, the Plaintiff, Debra Londeree, slipped and fell on ice in the parking lot of the Foundation for Youth of Bartholomew County (FFY). The City of Columbus (City) provided snow removal services for FFY. After the fall, Debra filed an incident report with FFY. She then spoke with the City’s risk office and was told that the City had not received her incident report. A few weeks later, a City employee called Debra and told her the insurance company would contact her. However, the City’s insurance carrier, Tokio Marine Insurance, never contacted her. FFY’s insurance carrier, Cincinnati Insurance, did contact her, but the claims representative was not working for the City or its insurer and did not tell Debra, who was relying upon the claims representative, that she was working for the City or its insurer.

After Cincinnati Insurance denied the claim on behalf of FFY, Debra and her husband Dan filed a lawsuit against FFY and the City. Neither Debra nor Dan served a notice of tort claim on the City within 180 days from the fall as required by the ITCA. Under the ITCA, a notice of claims against a political subdivision, which includes cities, must be filed with the governing body of the political subdivision and the Indiana political subdivision risk management commission within one hundred eighty (180) days after the loss. Ind. Code § 34-13-3-8. A claimant must describe “in a short and plain statement the facts on which the claim is based,” including the circumstances which brought about the loss, the extent of the loss, the time and place the loss occurred, the names of all persons involved if known, the amount of the damages sought, and the residence of the person making the claim at the time of the loss and at the time of filing the notice. Ind. Code § 34-13-3-10.

The City filed a motion for summary judgment against Debra and Dan due to their non-compliance with the notice requirements of the ITCA. The trial court denied the City’s motion as to Debra finding there was a genuine issue of material fact as to whether the City should be estopped from raising the ITCA notice defense due to Debra’s understanding of the relationship between the City and FFY and whether her reliance on the representations of FFY and the City were reasonable. As to Dan’s derivative claim, the trial court granted the City’s motion based upon precedent providing that a spouse claiming loss of consortium must file a separate notice of tort claim.

Indiana Court of Appeals Reverses Trial Court In Personal Injury Case Dealing with Indiana’s Claims Against Public Schools Act

Published on: December 12, 2019 | by Barsumian Armiger

The Indiana Court of Appeals recently reversed a trial court’s dismissal of an Indiana automobile accident case in which the injured motorist was alleged not to have complied with the notice provisions of Indiana’s Claims Against Public Schools Act (“CAPSA”). In Smith v. Franklin Twp. Cmty. Sch. Corp., Benjamin Smith (“Smith”) was injured when his vehicle collided with a school bus owned and operated by the Franklin Township School Corporation (“the School”). A few months after the accident, Smith provided notice of his tort claim to the School in accordance with the Indiana Tort Claims Act (“ITCA”). A year and a half after the accident, Indiana’s legislature enacted CAPSA which provides notice requirements in all civil actions or administrative proceedings against public schools. After Smith filed a lawsuit against the School, and after the applicable statute of limitations had run, the trial court granted the School’s motion to dismiss Smith’s complaint without prejudice on the basis that he had failed to comply with CAPSA.

The ITCA governs tort claims against governmental entities or public employees. Under the ITCA, a claim against the state of Indiana is barred unless notice of the claim is filed with the attorney general or the state agency involved within two hundred seventy (270) days after the loss occurs. Ind. Code § 34-13-3-6. Claims against political subdivisions, for example cities or counties, must be filed with the governing body of the political subdivision and the Indiana political subdivision risk management commission within one hundred eighty (180) days after the loss. Ind. Code § 34-13-3-8. To comply with the notice provision of the ITCA, a claimant must describe “in a short and plain statement the facts on which the claim is based,” including the circumstances which brought about the loss, the extent of the loss, the time and place the loss occurred, the names of all persons involved if known, the amount of the damages sought, and the residence of the person making the claim at the time of the loss and at the time of filing the notice.” Ind. Code § 34-13-3-10.

CAPSA was enacted on July 1, 2018 and provides that claimants may not initiate a civil action or administrative proceeding against a public school “unless the individual or entity submits a written notice to the public school and the governing body… that notifies the public school and the governing body… of the alleged violation of law and indicates a proposed remedy.” Ind. Code § 34-13-3.5-4. The proposed remedy must provide “a specific request for relief” and “[a]llow the public school to offer [the claimant] the relief requested,” to which the public school must respond within fifteen (15) days after the notice is submitted, before the claimant can initiate a civil action or administrative proceeding. Ind. Code §§ 34-13-3.5-5, 34-13-3.5-6. If a claimant does not provide the required notice under CAPSA, the action “shall [be] dismiss[ed]… without prejudice.”