Diana filed the lawsuit before the Indiana Department of Insurance as a medical malpractice case, and then later, she filed it in state court asserting negligent infliction of emotional distress and moved for a preliminary determination that Indiana’s Medical Malpractice Act did not apply to her claims. In Indiana, medical malpractice claims must go before a medical review panel before they can be prosecuted in state court. The hospital and the donor organization and its employee opposed Diana’s motion, arguing her claims were medical malpractice claims governed by Indiana’s Medical Malpractice Act. The hospital also cross-moved for summary judgment arguing that it did not search the donor registry and owed no duty of care to Russell to search the registry under Indiana’s Revised Uniform Anatomical Gift Act (RUAGA). The trial court issued a preliminary determination that Indiana’s Medical Malpractice Act did not apply to Diana’s claims, and it denied the hospital’s motion for summary judgment. 

On appeal, the Indiana Court of Appeals first reviewed whether Indiana’s Medical Malpractice Act applied to Diana’s claims. Under Indiana law, not all claims against healthcare providers fall under the Act. Claims of ordinary negligence do not fall under the Act. Indiana’s Medical Malpractice Act defines “medical malpractice” as “a tort or breach of contract based on health care or professional services that were provided, or that should have been provided, by a health care provider, to a patient.” Ind. Code § 34-18-2-18. “Health care” is defined as “an act or treatment performed or furnished, or that should have been performed or furnished, by a health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.” Ind. Code § 34-18-2-13. And “patient,” in relevant part, is defined as “an individual who receives or should have received health care from a health care provider, under a contract, express or implied, and includes a person having a claim of any kind, whether derivative or otherwise, as a result of alleged malpractice on the part of a health care provider.” Ind. Code § 34-18-2-22. 

Indiana’s Medical Malpractice Act applies to curative or salutary conduct of a healthcare provider acting within the provider’s professional capacity; it does not apply to conduct unrelated to the promotion of a patient’s health or the provider’s exercise of professional expertise, skill, or judgment. Claims fall under Indiana’s Medical Malpractice Act when there is a causal, temporal connection between the conduct complained of and the nature of the patient-health-care-provider relationship. Cases with factual issues capable of resolution by a jury without reference to the applicable medical standard of care sound in ordinary negligence, not medical malpractice.

Here, the Indiana Court of Appeals concluded that Diana’s claims did not fall under Indiana’s Medical Malpractice Act because the conduct complained of—searching a donor registry—was not “health care” under the Act, that is, curative, salutary, or otherwise intended to benefit Russell. While the healthcare providers here argued the health benefits a potential beneficiary of an organ and tissue donation might receive constitute health care, the Court reasoned that a non-claimant third party does not qualify as a traditional patient under the Act, and therefore, any health benefit such a person might receive as a result does not qualify as “health care” under the Act. In reviewing prior case precedent, Weldon v. Universal Reagents, Inc., 714 N.E.2d 1104 (Ind. Ct. App. 1999), in which a prior panel of the Court found the Act did not apply in a case involving a blood donor injected with antigens for the benefit of third parties, the Court noted that to qualify as health care, the conduct complained of must have been performed for a traditional patient, that is, a person who receives health care. As reasoned by the Court, even if conduct is curative, salutary, or otherwise intended to benefit a person, such as a potential beneficiary of an organ or tissue donation, the Act does not apply if that person is not the one bringing the claim or giving rise to another’s derivative claim. 

As for the hospital’s motion for summary judgment, however, the Court agreed with the hospital that it did not owe any duty to Russell to search the donor registry. The RUAGA states that “when a hospital refers an individual at or near death to a procurement organization, the organization shall make a reasonable search of . . . the Indiana donor registry . . . to ascertain whether the individual has made an anatomical gift.” Ind. Code § 29-2-16.1-15(a)(3). Interpreting the statute, the Court concluded it is the organ procurement organization, not the hospital, that shall make the search, and accordingly, the trial court erred in denying the hospital’s motion for summary judgment. The Court of Appeals affirmed the trial court’s preliminary determination that Indiana’s Medical Malpractice Act did not apply to Diana’s claims but reversed the trial court’s denial of the hospital’s motion for summary judgment, instructing the trial court to enter summary judgment for the hospital on remand.

You can read the full opinion here.

Oller survived the crash and filed a lawsuit against Culvey and DoorDash. Among other claims, Oller alleged that DoorDash was independently liable for its own negligence for its business model and app that incentivizes distracted and dangerous driving by “Dashers.” DoorDash, a multi-billion-dollar corporation that conducts business nationwide, including in Indiana, bases its business model for the delivery of food and other items on the speed of deliveries. Dashers are compensated on the volume of orders delivered and the speed with which they deliver them. Dashers use cell phones and DoorDash’s app, which includes a navigational component, to receive and accept orders and communicate with DoorDash and its customers.

In the trial court DoorDash moved for partial judgment on the pleadings under Indiana Trial Rule 12(C). A Trial Rule 12(C) motion tests the legal sufficiency of the pleadings and is proper only where it is clear from the face of the complaint that under no circumstances could relief be granted. With a Trial Rule 12(C) motion, the material facts alleged in a complaint are accepted as true. In its motion, DoorDash argued that it did not owe a duty to motorists, such as Oller, for its business and business practices. The trial court granted DoorDash’s motion and entered judgment for DoorDash on Oller’s independent negligence claims. Because of the trial court’s decision on DoorDash’s Trial Rule 12(C) motion, the trial court also denied two motions to compel discovery filed by Oller.

Under Indiana law, personal injury claimants must show (1) a duty of care, (2) breach of that duty, and (3) damages caused by the breach of duty. Absent a duty of care by a defendant, there can be no breach and therefore no liability. Whether a duty exists is a question of law for the court to decide. When a duty of care is well-established, courts need not redetermine whether a duty exists. However, if a duty has not been previously established, courts determine whether a duty exists by looking at a three-factor test under Webb v. Jarvis that balances (1) the parties’ relationship, (2) the reasonable foreseeability of harm to the injured person, and (3) public policy concerns.

Here, DoorDash argued that its lack of duty was well-established, therefore making application of the Webb test unnecessary. Under the Court of Appeals’ previous decision in Williams v. Cingular Wireless, DoorDash argued for a categorical rule that a third-party technology company does not owe a duty to motorists arising out of use of a product available to motorists that motorists choose to use while driving. In Williams, a claimant sued Cingular Wireless for negligence alleging that it supplied a cell phone to an at-fault driver when it knew, or should have known, the phone would be used in the operation of a motor vehicle. The Court in Williams applied the Webb test and found Cingular Wireless owed no duty of care to the claimant. However, the Court here rejected DoorDash’s categorical rule noting Williams involved a fact-specific Webb analysis that did not support a “broad pronouncement that all third-party technology companies do not owe a duty of care to the general motoring public regardless of the product they make available to motorists.” The Court of Appeals noted that DoorDash not only makes its app available to motorists, but it also requires and incentivizes Dashers to use its app while making deliveries. Accepting Oller’s allegations as true, the Court found DoorDash to be a much more involved third-party technology company whose business practices and app actively encourage distracted and dangerous driving.

Finding no established duty, or lack of duty, the Court balanced the three factors in the Webb test, ultimately finding they weighed in favor of a duty of care.

The Court found an indirect relationship between DoorDash and Oller because DoorDash conducts its business on public roads through its Dashers, directing Dashers to take the fastest routes possible and financially incentivizing speed and use of its app. Nonetheless, the Court noted that this first factor had little if any weight due to the attenuated nature of the relationship. 

As to the second factor, the reasonable foreseeability of harm to the injured person, the Court considered, consistent with Indiana law, (1) the broad type of plaintiff and (2) the broad type of harm, whereby courts, without analyzing the specific facts of the occurrence, assess whether there is some probability or likelihood of harm that is serious enough to make a reasonable person take precautions to avoid it. Here, the Court found the general motoring public to be the broad type of plaintiff and a collision with a delivery network driver (an individual who provides delivery services using a personal vehicle through a digital network) to be the broad type of harm. The Court found a collision with a delivery network driver is a “predictable byproduct of a delivery network company’s business,” as delivery companies, like DoorDash, supply digital networks to drivers to provide for deliveries and “must routinely contemplate, and even potentially require, that their drivers will personally use mobile devices to access those networks while driving.” The Court also found that a reasonable person would undoubtedly take precautions to avoid the anticipated, serious consequences of such collisions. Therefore, the Court concluded it was reasonably foreseeable that DoorDash’s business model and app would lead to a wreck between one of its drivers and another motorist, weighing in favor of a duty of care by DoorDash.

As to the third factor, public policy, the Court noted that “Indiana’s motorists have a reasonable and justifiable expectation that delivery network companies like DoorDash will conduct their operations in a reasonably safe manner, that is, without encouraging and financially incentivizing distracted and otherwise dangerous driving.” While DoorDash did not control Culvey or his vehicle and Culvey had his own personal and independent duty to drive safely, the Court found “the buck does not stop with Culvey.” DoorDash’s business financially incentivizes its drivers to deliver as many orders as possible and to use DoorDash’s app while doing so. “Indiana law cannot and does not countenance such inducements when the consequences, as alleged in Oller’s complaint, are so readily apparent and significant.” The Court also noted DoorDash is in a better position to mitigate risks and prevent future injuries arising from its business model and app, recognizing a duty would not make DoorDash strictly liable and the duty is not a blanket duty but only a duty to not financially incentivize dangerous conduct that would harm motorists.

Finding that DoorDash owed Oller a duty of care, the Indiana Court of Appeals reversed the trial court’s decision granting DoorDash’s Trial Rule 12(C) motion for partial judgment on the pleadings. The Court remanded the case back to the trial court with instructions to deny DoorDash’s motion and reconsider Oller’s motions to compel discovery from DoorDash.

You can read the full opinion here.

Writing for a unanimous panel in Brittney Best v. The Standard Fire Insurance Co. d/b/a Travelers Insurance and CSAA General Insurance Co. d/b/a AAA Insurance, Judge Vaidik reversed the Tipton Circuit Court’s dismissal of a mother’s underinsured motorist (UIM) claim, holding that a mother who received only half of a tortfeasor’s $100,000 per-person bodily injury limit following her son’s tragic death was entitled to pursue $50,000 in UIM benefits under her applicable policies.

Factual and Procedural Background

In August 2023, 17-year-old Jaxson Schooley was tragically killed when a vehicle crossed the center line and struck the car in which he was riding head-on. Jaxson’s parents, Brittney Best and Jeffrey Schooley, were never married, and Best maintained primary physical custody of Jaxson prior to his death.

The fatal collision implicated multiple insurance policies:

• The Tortfeasor’s Policy (State Farm): Had a bodily injury liability limit of $100,000 per person.
  
• The Host Vehicle’s Policy (CSAA / AAA Insurance): Provided UIM coverage with a $100,000 per-person limit.
  
• The Mother’s Family Policy (Standard Fire / Travelers Insurance): Provided UIM coverage with a $100,000 per-person limit.

It was undisputed that both Jaxson and Best qualified as insureds under both the AAA and Travelers policies.

One year after the crash, State Farm paid its full $100,000 per-person liability limit, splitting the payout equally between the parents—$50,000 to Best and $50,000 to Schooley. Because Best personally received only $50,000, she submitted UIM claims to AAA and Travelers for the remaining $50,000 balance under their $100,000 per-person limits.

When both insurers denied her claims, Best filed suit in the Tipton Circuit Court. AAA and Travelers moved to dismiss under Indiana Trial Rule 12(B)(6), contending that the tortfeasor was not underinsured because State Farm had paid an aggregate sum of $100,000 to resolve the singular wrongful death, matching the $100,000 UIM per-person coverage limits. Best moved for partial summary judgment, maintaining that statutory underinsurance is measured by what she personally received. The trial court agreed with the insurers and dismissed Best’s complaint.

The Appellate Holding: Measuring “Available for Payment”

On de novo review, the Indiana Court of Appeals reversed. The dispute centered on Indiana Code § 27-7-5-4(b), which defines an underinsured motor vehicle as one where liability limits “available for payment to the insured… are less than the limits for the insured’s underinsured motorist coverage”.

The Court anchored its analysis in controlling Indiana Supreme Court precedent:

1. Corr v. American Family Insurance Co. (Ind. 2002): The Supreme Court established that statutory UIM availability turns on what is “present or ready for immediate use by the insured,” focusing on the individual claimant rather than aggregate policy limits paid across multiple persons.
   
2. Lakes v. Grange Mutual Casualty Co. (Ind. 2012): The Supreme Court reiterated that “whether a vehicle is underinsured depends, in all cases, on whether the amount received from the tortfeasor’s policy is less than the per-person limits on UIM coverage”.

Applying these precedents, the Court held that the dispositive figure was $50,000—the amount Best personally recovered from State Farm. Because $50,000 is less than the $100,000 per-person UIM limits under both the Travelers and AAA policies, the tortfeasor’s car was underinsured as a matter of law.

Key Legal Insights: Contract vs. Tort and Policy Allocation

1. Clarifying Contractual UIM Rights vs. Child Wrongful Death Act (CWDA) Rules

The insurers relied on Hanna v. Indiana Farmers Mutual Insurance Co. (Ind. Ct. App. 2012) and the Child Wrongful Death Act (CWDA), Ind. Code § 34-23-2-1, to argue that wrongful death damages are capped at a single per-person recovery. Specifically, because the CWDA requires parents to bring a single, joint action for a child’s death, the insurers asserted that the death constitutes a single statutory injury subject to one collective per-person limit. Under their view, once State Farm paid its $100,000 limit to resolve that single wrongful death, the liability coverage fully matched the UIM coverage limits, eliminating any underinsured motorist exposure regardless of how the parents divided the proceeds.

The Court explicitly distinguished Hanna and clarified the boundary between statutory tort claims and insurance contracts:

• Distinguishing Hanna: In Hanna, two parents were covered under a single policy with one per-person limit for bodily injury sustained by one person (their child). In contrast, Best was evaluating individual availability across separate policies.
  
• Contract vs. Tort: UIM coverage represents a contractual cause of action against one’s own insurer governed by policy text and the UIM statute, whereas the CWDA governs statutory tort actions against third-party tortfeasors. Under Ind. Code § 34-23-2-1(j), the CWDA expressly does not affect or supersede other legal rights or contractual remedies. Therefore, procedural joinder requirements in wrongful death tort actions do not restrict an individual’s contractual UIM recovery.

2. Accepting Potential Allocation “Anomalies”

The insurers argued that allowing individual recovery could permit claimants to manipulate allocations to create UIM exposure. The Court noted that the Indiana Supreme Court had already addressed and accepted this possibility in Corr, concluding that looking to individual “available” amounts is far less problematic than leaving an underinsured motorist’s victim in a worse position than the victim of a wholly uninsured driver.

3. Remand on Insurer Allocation

The Court remanded the case for entry of partial summary judgment declaring Best entitled to $50,000 in UIM benefits. Because neither Travelers nor AAA had briefed or litigated how liability should be apportioned between them (e.g., primary vs. excess or pro-rata sharing) at the trial court level, the appellate court left the allocation of payment responsibility to the trial court on remand.

Key Takeaways for Policyholders & Practitioners

• Individual Claimant Focus: Insurers cannot combine settlements paid to multiple beneficiaries to deny UIM benefits. Eligibility under Ind. Code § 27-7-5-4(b) is determined strictly by the net amount the specific insured personally receives.
  
• Wrongful Death Claims Do Not Restrict Contract Rights: Joinder provisions under the Child Wrongful Death Act do not alter or defeat contractual rights under private UIM insurance policies.
  
• Multi-Policy Coordination: When multiple UIM coverages apply, practitioners should anticipate coverage allocation disputes between carriers and ensure primary/excess priorities are addressed during summary judgment proceedings.

You can read the full opinion here.

Janowiak retained counsel within a month of the crash, and her attorney corresponded with Sandhage’s personal automobile insurer, Erie Insurance. In October 2023, nineteen months after the collision, Janowiak sued Sandhage individually for negligence. After Sandhage responded to written discovery in January 2024, Janowiak learned he had been on campus that day in his capacity as a Purdue employee. She amended her complaint in February 2024 to add The Trustees of Purdue University (“Purdue”) as a defendant, alleging Purdue was vicariously liable because Sandhage was acting within the scope of his employment. Sandhage amended his answer to admit that allegation. Both Sandhage and Purdue then moved to dismiss under Indiana Trial Rule 12(B)(6), arguing the Indiana Tort Claims Act (“ITCA”) barred Janowiak’s claims. Janowiak did not provide Purdue with formal tort claim notice until April 2024, more than two years after the collision. The trial court granted both motions to dismiss, and Janowiak appealed.

The Court of Appeals first addressed the claim against Sandhage personally. Under Indiana Code section 34-13-3-5(b) and Bushong v. Williamson, 790 N.E.2d 467, 471 (Ind. 2003), a plaintiff generally may not maintain an action against a governmental employee personally when the employee was acting within the scope of his employment. Section 34-13-3-5(c) permits an individual-capacity claim only if the plaintiff alleges that the employee’s conduct was criminal, clearly outside the scope of employment, malicious, willful and wanton, or calculated to benefit the employee personally. Because Janowiak’s own amended complaint alleged, and Sandhage admitted, that he was acting within the scope of his Purdue employment at the time of the collision, and because none of the statutory exceptions applied, the Court held the trial court properly dismissed the claim against Sandhage under Rule 12(B)(6).

As to Purdue, which the parties agreed qualifies as a “political subdivision” under the ITCA because it is a state educational institution, Indiana Code section 34-13-3-8(a) requires a claimant to provide notice of a tort claim within 180 days after the loss occurs. Janowiak argued she substantially complied with the notice requirement because she gave it within 180 days of learning, through discovery, that Sandhage was a Purdue employee. The Court rejected that argument, explaining that the operative question is when the claimant knew, or in the exercise of ordinary diligence could have discovered, that she had sustained a loss resulting from tortious conduct and not when she later discovered that the tortfeasor was acting within the scope of employment for a governmental entity. Because Janowiak knew she had sustained a loss from the collision in March 2022, her notice was due in the fall of 2022 and the April 2024 notice came too late. The Court also rejected Janowiak’s argument that her counsel’s correspondence with Erie constituted substantial compliance. Erie was Sandhage’s personal automobile insurer, not Purdue’s agent, and the Court found no statutory or other basis for treating notice to Erie as notice to Purdue.

The trial court had granted both motions to dismiss under Rule 12(B)(6) alone, without considering any evidence beyond the complaint. On appeal, the Court of Appeals treated Purdue’s motion differently. Because resolving Janowiak’s equitable estoppel argument required consideration of matters outside the pleadings, including the responding officer’s crash report and deposition testimony, the Court converted Purdue’s motion to one for summary judgment and reviewed the estoppel issue under that standard, even though the trial court itself had not done so. The claim against Sandhage required no such conversion, since it turned solely on the allegations of Janowiak’s own complaint.

Janowiak’s estoppel argument against Purdue centered on the crash report’s description of Sandhage as a “visitor,” which she contended concealed his true relationship to Purdue. The Court found City of Columbus v. Londeree, 145 N.E.3d 827 (Ind. Ct. App. 2020), instructive. There, a plaintiff who mistakenly pursued the wrong party’s insurer past the ITCA notice deadline could not estop the governmental entity, because after an initial, arguably misleading phone call, the entity did nothing further to induce her belief that formal notice was unnecessary. The Court distinguished Schoettmer and Madison Consolidated Schools v. Thurston, 135 N.E.3d 926 (Ind. Ct. App. 2019), where agents of governmental entities engaged in ongoing settlement discussions and encouraged or required the claimants to wait until medical treatment was complete, thereby supporting a reasonable belief that formal ITCA notice was unnecessary. Because neither Purdue nor Sandhage thereafter engaged in conduct that induced Janowiak to believe formal ITCA notice was unnecessary, the Court held Purdue was entitled to summary judgment as a matter of law.

The Court of Appeals affirmed the trial court’s dismissal of Janowiak’s claim against Sandhage and its entry of judgment in favor of Purdue. You can read the full opinion here.

Cases like this one illustrate how quickly the ITCA’s 180-day notice period can expire and why the potential involvement of a governmental entity or employee must be investigated immediately after an injury. As Janowiak demonstrates, the notice period may begin running before an injured person knows that the individual who caused the injury was acting on behalf of a governmental entity.

At the time of the crash, the Plaintiffs were covered under their employer’s commercial automobile insurance policy with Everest National Insurance Company (“Everest”), which provided underinsured motorist (UIM) coverage of $1,000,000 per accident, with no separate per person limit. Under Indiana law, UIM coverage serves to give insureds the recovery they would have received had the underinsured motorist maintained an adequate policy of liability insurance. The UIM statute, principally codified at Indiana Code section 27-7-5-2 and supplemented by sections 27-7-5-4 and 27-7-5-5, is a mandatory, full-recovery, remedial statute. 

Here, the UIM endorsement in the Everest policy provided, “The Limit of Insurance under this coverage shall be reduced by all sums paid or payable by or for anyone who is legally responsible.” After the Plaintiffs filed a lawsuit against Everest, Everest agreed to pay the Plaintiffs $700,000, which was the $1,000,000 per accident limit of its UIM coverage less the $300,000 paid by the at-fault driver’s insurance company. The Plaintiffs, however, contended that they were entitled to $1,000,000 in UIM coverage, not $700,000, with the UIM coverage available to them to be calculated on an individual claimant basis under prior Indiana precedent. Under the Plaintiffs’ argument, each Plaintiff was entitled to $850,000 of UIM coverage (the $1,000,000 per accident UIM limit less the $150,000 each Plaintiff received), for a combined total of $1,700,000 in UIM coverage, reduced to $1,000,000 because of the $1,000,000 UIM per accident limit. Ultimately, the trial court agreed with, and entered summary judgment for, Everest, finding $700,000 was the maximum amount Everest owed in UIM coverage to the Plaintiffs. Cline appealed the trial court’s decision.

On appeal, the Indiana Court of Appeals reviewed the undisputed facts, the UIM policy language, prior legal precedent, and Cline’s arguments. The Court distinguished the Indiana Supreme Court’s decision in Lakes v. Grange Mutual Casualty Company, 964 N.E.2d 796 (Ind. 2012), as the primary question in that case was whether the at-fault driver’s vehicle was “underinsured,” which Cline and Everest did not dispute here. As to Cline’s argument that Lakes and the UIM statute provide a formula for calculating UIM coverage Everest must provide, the Court disagreed, finding the UIM statute only provides a minimum floor and maximum cap for UIM claims. In the Court’s view, the UIM statute “does not prescribe how a UIM insurer must calculate its aggregate available coverage,” and insurers can limit their liability to insureds through policy language. Since the $700,000 was more than the statutory UIM minimum of $50,000 and within the statutory maximum on individual recovery, the Everest UIM policy language controlled. Lastly, the Court rejected Cline’s argument that the Everest UIM policy language rendered its UIM coverage illusory, as there was $700,000 in UIM coverage available to the Plaintiffs under the policy.

The Court found that “the plain and ordinary language of the unambiguous UIM endorsement” provided Everest with a $300,000 setoff from the $1,000,000 UIM coverage limit and “the maximum UIM coverage benefit available to Plaintiffs” was $700,000. Therefore, the Court affirmed the trial court’s judgment in favor of Everest.

You can read the full opinion here. 

Navigating available UIM coverage in multi-claimant cases in Indiana can be challenging. The Indiana injury lawyers at Barsumian Armiger Injury Lawyers have decades of experience handling complex personal injury matters involving uninsured and underinsured claims. 

On May 2, 2022, Marietta Gelanie Jones (“Jones”) was admitted to Baptist Health Paducah (“BHP”) for symptoms associated with liver disease. During her stay, Jones fell while walking to the bathroom, accompanied by a single BHP caregiver. Her medical condition left her in an altered mental state, and she had no recollection of the fall. The following day, caregivers discovered that Jones had suffered a fractured hip, and she underwent surgery on May 4, 2022, before being discharged roughly a week later. Jones sued BHP, alleging negligence in failing to prevent or appropriately respond to her fall.

During discovery, Jones requested “any and all incident reports” relating to her fall. BHP identified two responsive documents, an eight-page incident report (also referred to in the record as a “SAFE Report”) and a forty-page root cause analysis, but declined to produce either. BHP asserted that both documents were protected by the federal patient safety work product privilege found in the Patient Safety and Quality Improvement Act (“PSQIA”), 42 U.S.C. § 299b-22(a), and by Kentucky’s peer review privilege, KRS 311.377(2). Broadly speaking, the federal privilege exempts from discovery materials related to a covered entity’s retrospective review and reporting of medical errors to a patient safety organization, while the state privilege exempts materials related to a covered entity’s retrospective review of the professional conduct of its health care providers.

After conducting an in camera review, the McCracken Circuit Court concluded that BHP was mandated by law to prepare both documents. It ordered production of the entire incident report and ordered production of the root cause analysis with redactions permitted for portions that would not normally appear in state-mandated reports. The trial court reasoned that Jones’s medical records contained no information about where or how she fell, her resulting injuries or surgery, or the treatment she was provided afterward, and that she should be able to access the factual portions of these documents to balance BHP’s privilege interests against her need for the information. BHP petitioned the Court of Appeals for a writ of prohibition. The Court of Appeals held that the incident report was not privileged, but disagreed with the trial court as to the root cause analysis, concluding that the mere absence of fall-related information in Jones’s medical records did not override the federal privilege protecting that document. Both sides sought review in the Supreme Court, with BHP challenging the ordered production of the incident report and Jones challenging the protection afforded the root cause analysis.

Because a discovery order requiring production of assertedly privileged documents presents the kind of “certain special case” in which an appellate remedy is inadequate, the Supreme Court agreed that a writ was an available form of relief, noting that privileged information “cannot be recalled once it has been disclosed.” Turning to the merits, the Court first examined the federal privilege. The PSQIA defines protected “patient safety work product” to include data, reports, records, memoranda, analyses (expressly including “root cause analyses”), or written or oral statements that are assembled or developed by a provider for reporting to a patient safety organization, are in fact reported to such an organization, and could result in improved patient safety, health care quality, or health care outcomes. 42 U.S.C. § 299b-21(7)(A). Relying on the affidavit of BHP’s Director of Patient Safety, the Court found that the root cause analysis satisfied each element: it was an analysis of the type the statute specifically identifies, it was prepared for and reported to a patient safety organization, and it contained detailed analysis of care processes, operational suggestions for process improvements, and key takeaways aimed at improving patient safety.

Critically, the Court held that the federal privilege protects such a document in its entirety, with no exception carved out for factual portions, even upon a showing of need for use in litigation. The statute contemplates that the privilege will attach to whole “reports, records, memoranda, [and] analyses,” and it contains no language allowing a party to extract factual content from an otherwise protected document. The trial court therefore erred in ordering disclosure of the factual portions of the root cause analysis. The Court took care to note, however, that a party is not left without recourse: the underlying facts of an incident remain fully discoverable through other avenues, including requests for production of other documents, interrogatories, and depositions.

The incident report received different treatment. The PSQIA expressly excludes from its protection “information that is collected, maintained, or developed separately, or exists separately, from a patient safety evaluation system.” 42 U.S.C. § 299b-21(7)(B)(ii). Consistent with post-enactment guidance from the Department of Health and Human Services, the Court explained that documents a provider is independently obligated to create to satisfy external regulatory obligations do not become privileged simply because they are also submitted to a patient safety organization. Here, Kentucky regulation 902 KAR 20:016 Section 3(4)(g) requires hospitals to maintain effective procedures for tracking incidents at their facilities, and BHP’s own falls policy required nursing staff to complete a SAFE Report before the end of the shift in which a fall occurred. Because the incident report was generated on the day of Jones’s fall pursuant to this external regulatory obligation, rather than as part of BHP’s patient safety evaluation system, it fell outside the federal privilege. The Court rejected BHP’s argument that a fall is not the kind of “incident” contemplated by the regulation, observing that the regulation’s use of “including” signals a non-exhaustive list.

Finally, the Court held that Kentucky’s peer review privilege under KRS 311.377 did not shield the Incident Report either. That privilege applies to records created by an entity engaged in the retrospective review and evaluation of the competency of health care providers. The record undercut BHP’s characterization of the Incident Report as such a review: BHP’s own privilege log described the document as one that documented “the circumstances of the alleged incident,” it was generated the same day as the fall, and, by BHP’s account, it “triggered” the root cause analysis rather than forming part of it. In other words, the incident report was an immediate, post-event description of the relevant facts, not the substantive retrospective evaluation the privilege is designed to protect. The Supreme Court accordingly affirmed the Court of Appeals, leaving the root cause analysis protected while confirming that the incident report is discoverable.

For patients pursuing hospital negligence claims in Kentucky, Kitchen provides a useful framework for anticipating what internal hospital documentation can and cannot be obtained. A hospital’s root cause analysis, prepared for and reported to a patient safety organization, will generally be off-limits in its entirety under the PSQIA. But contemporaneous incident reports that a hospital is separately required to generate under state regulatory tracking obligations remain fair game, and the facts underlying an injury can always be pursued through depositions, interrogatories, and other discovery tools. The decision is a reminder that the label a hospital places on a document, or the fact that it was routed to a patient safety organization, does not control the privilege analysis; what matters is why the document was created and what obligation prompted it.

You can read the full opinion here.

In a recent decision, Murphy v. City of S. Bend, the Indiana Court of Appeals agreed with Judge Brown’s dissent, finding the City of South Bend (City) was not entitled to immunity for injuries John Murphy (Murphy) suffered when he stepped into a pothole, fell, and injured his leg during a St. Patrick’s Day Parade on a street owned by the City. In the trial court, the City raised immunity, arguing its street maintenance was a discretionary function. The City designated statements from its Department of Public Works Streets Manager and Executive Director, who testified the City had a 10-year improvement plan called “Rebuilding Our Streets Plan” for paving or resurfacing streets, under which the street in question was not due for resurfacing, and “a separate process for responding to complaints about individual potholes,” including patching potholes as part of routine inspections and “pothole repairs sweeps.” Based upon the evidence presented, the trial court found the City was entitled to discretionary function immunity. 

Indiana law uses a “planning/operational test” in analyzing discretionary function immunity. Planning functions include the formulation of basic policy decisions characterized by official judgment or discretion in weighing alternatives and choosing public policy, and government decisions about public policy involving the assessment of competing priorities and weighing budgetary considerations or the allocation of scarce resources. Courts analyze (1) the nature of the governmental actions and the decision-making process involved, (2) whether the action is one intended to be immune, and (3) whether the purposes of immunity are furthered by extending immunity to the act in question. Non-determinative “Peavler Factors” include (a) the nature of the conduct (i.e., whether the conduct or decision has a regulatory objective, involved the balancing of factors without reliance on a readily ascertainable rule or standard, requires a judgment based on policy decisions, involved adopting general principles or only applying them, involved the establishment of plans, specifications, or schedules, and whether the conduct or decision involved assessing priorities, weighing of budgetary considerations, or the allocation of resources); (b) the effect on governmental operations (i.e., whether the decision affects the feasibility or practicability of a government program and whether liability will affect the effective administration of the function in question); and (c) the capacity of courts to evaluate the propriety of the government’s action (i.e., whether tort standards offer an insufficient evaluation of the claim).

On appeal, the Indiana Court of Appeals in Murphy surveyed past cases, including Indiana Supreme Court cases, noting that “determining whether a governmental entity is entitled to discretionary immunity and thus summary judgment has resulted in close—and sometimes disputed—calls,” and “[the Court of Appeals] has continued to split on what evidence is sufficient to establish discretionary function immunity.” In agreeing with Judge Brown’s dissent in Johnson, the Murphy Court noted that, even if the “Rebuilding Our Streets Plan” arose from the City’s policy-oriented decision-making process, the City’s individual pothole repair process was admittedly “a separate process” and there was no evidence that the City’s individual pothole repair process was part of the “Rebuilding Our Streets Plan.” As to the City’s individual pothole repair process, the Court noted there was insufficient evidence for it to determine what Peavler Factors, if any, existed, as the record only demonstrated that “if the [City] is notified of or one of its crews observes a pothole, the pothole is fixed.” In reversing the trial court’s grant of immunity, the Court concluded that it could not determine whether the failure to repair the pothole arose from the City’s judgment based on policy considerations, as “the City presented no evidence from which [the Court could] evaluate the nature of its conduct in failing to repair potholes, the potential effect of liability on the City’s operations, or the capacity of the court to judge the City’s actions.”

The Indiana Court of Appeals found the trial court erred in granting summary judgment to the City of South Bend based upon discretionary function immunity. The Court reversed the trial court’s decision and remanded the case to the trial court for further proceedings.

You can read the full opinion here.

Pennington and her husband sued Beacon for her injuries. Beacon asserted a nonparty defense naming Spear Corporation (Spear) and Panzica Building Corporation (Panzica) as nonparties for their alleged fault in designing or building the pool. Under Indiana law in comparative fault cases, juries apportion the fault of any named defendants with the fault of any nonparties that caused or contributed to the cause of the claimed injuries. Defendants are only liable for their percentage of fault. After the Penningtons added Spear and Panzica as named defendants in the case, Spear and Panzica moved for summary judgment. The trial court granted summary judgment for Spear and Panzica, and the Indiana Supreme Court affirmed, finding the designated evidence failed “to create an issue of fact over whether Spear or Panzica’s work fell below their professional standard of care.” On remand, however, the trial court nonetheless allowed Beacon to reassert its nonparty defense again naming Spear and Panzica as nonparties at fault for Pennington’s injuries. 

During trial, Beacon presented evidence and argument “pointing the finger” at Spear and Panzica, with counsel for Beacon referencing Spear and Panzica over one hundred times. The jury instructions also included several references to Beacon’s nonparty defense regarding Spear and Panzica. After the jury returned a verdict in favor of Beacon, concluding Beacon was not at fault, the Penningtons appealed, arguing the trial court erred in allowing Beacon to reassert its nonparty defense naming Spear and Panzica, as their lack of fault had already been determined. 

On appeal, the Indiana Court of Appeals agreed with the Penningtons. The Court first found that the trial court erred in granting Beacon’s motion to amend to reassert its nonparty defense. The Court noted that the Indiana Supreme Court’s decision affirming summary judgment for Spear and Panzica “necessarily determined that Spear and Panzica were not negligent,” and “because there can be no fault without negligence,” the Indiana Supreme Court “necessarily rejected Beacon’s affirmative defense that Spear and Panzica were at fault.” Therefore, “the jury should not have been allowed to consider whether to apportion fault to Spear and Panzica.”

The Indiana Court of Appeals next had to decide whether the trial court’s error was harmless. A jury verdict will be upheld, even in the case of error, if the error was harmless, that is, “where its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.” Ind. R. App. P. 66. Parties seeking relief from a jury verdict for error in the proceedings must show “how, in light of all the evidence in the case, the error’s probable impact undermines confidence in the outcome of the proceeding below.” 

Here, the Indiana Court of Appeals found the trial court’s error was not harmless. Beacon’s nonparty defense was one of two central elements of its trial strategy. The Court rejected Beacon’s argument that the error was harmless because the jury ultimately found Beacon was not at fault. While Spear and Panzica’s lack of fault had already been adjudicated, the jury was nonetheless repeatedly asked to consider Spear and Panzica’s fault in deciding the case. The Court found the circumstances “fundamentally undermine[d] confidence in the jury’s verdict.” The Court also rejected Beacon’s argument that, even without the nonparty defense, the jury would still have heard all the same evidence as Beacon could still argue it relied on Spear and Panzica. While recognizing evidence of Beacon’s reliance could still be presented, the Court distinguished using such evidence to show Beacon was not at fault, as opposed to evidence that others, Spear and Panzica, were at fault. The Court noted that Beacon did not rely on Spear and Panzica in operating the pool and would not be able to argue that fault should be attributed to Spear and Panzica.

The Indiana Court of Appeals found the trial court’s decision allowing Beacon to reassert its nonparty defense was error and that error affected the Penningtons’ substantial rights. As a result, the Court reversed the judgment and remanded the case for a new trial. 

You can read the full opinion here.

In Martinez v. Smith, Yerano Martinez (“Martinez”) collided with a truck and suffered severe injuries after driving through a stop sign obstructed by an overgrown bush on property owned by Jeffrey Smith (“Smith”). While the bush did not intrude upon the travelled portion of the roadway, it did partially extend into Miami County’s right-of-way, an easement where the stop sign was located. Martinez argued the bush was not “wholly contained” on Smith’s property because it was within Miami County’s right-of-way. Smith argued there was a difference between a public right-of-way, that is, a roadway, and a county right-of-way easement. Based upon Reece, the trial court granted summary judgment in favor of Smith, which the Court of Appeals affirmed. The Indiana Supreme Court had to decide, therefore, what it meant when it referred to the “roadway” in Reece. 

Ultimately, the Indiana Supreme Court held the “Reece rule” encompasses, not only encroachments upon the paved portion of the roadway, but also hazardous conditions obstructing traffic control devices in the public right of way. First, looking at Indiana’s common law and various dictionary and statutory definitions, the Court found the terms “roadway” and “public right of way” are not limited to the paved portion of the roadway. Second, the Court agreed with Martinez that a stop sign, like any traffic control device, is part of the roadway as an integral part of the roadway, without which the roadway simply cannot function. Third, the Court noted that its clarification of the “Reece rule” comes with no additional burden to Indiana landowners; it does not change the bright-line rule established in Reece, but simply “clarifies where, under [the] bright-line rule, the landowner’s responsibility begins and where it ends.” 

The Indiana Supreme Court next applied the clarified “Reece rule” to the facts in this case. Although the parties disputed whether the bush was “wholly contained” on Smith’s property, Smith had admitted that his bush fell within the county right-of-way. Under the Court’s holding clarifying the “Reece rule,” the condition was not therefore “wholly contained” on his property. Reversing the trial court’s decision, the Court concluded that “under Reece, a landowner’s common-law duty to refrain from creating hazardous conditions for passing motorists on adjacent highways encompasses traffic-control devices within the public right-of-way,” and “because the hazardous condition here, by Smith’s own admission, impermissibly encroached into the public right-of-way,” “the trial court erred by granting summary judgment in [Smith’s] favor.”

You can read the full opinion here, along with Justice Molter’s concurring separate opinion in which he discusses a “law-and-economics approach” based on the legally famous Learned Hand formula of balancing the burden of taking precautions against the probability and gravity of harm, and Justice Slaughter’s dissent with separate opinion in which he faults the majority for eschewing common law precedent and relying on irrelevant dictionary definitions and inapposite statutes. 

Caryl Rosen (Rosen) tripped and fell over a floor mat inside the main entrance of Community Hospital in Munster. A hospital security supervisor viewed video footage from three cameras in the area, but he only preserved a short clip of footage from one of the cameras which was approximately 75 feet or more away from the entrance. While the preserved video footage captured Rosen’s fall, it did not show the state of the mat where Rosen alleged she fell, as it was pixelated and obscured by an object, likely a wheelchair. Because the hospital’s security system automatically records over old footage after about 45 days, the footage from the other two cameras, as well as the footage from before and after the incident on the one camera, was destroyed.

Rosen claimed the hospital should have preserved more video footage, as such may have shown whether the mat was disheveled prior to Rosen’s fall. The trial court denied Rosen’s requests for spoliation sanctions, refused to give a spoliation instruction to the jury, and excluded any evidence of the unpreserved video footage. The jury returned a verdict in favor of the hospital. Rosen appealed and the Indiana Court of Appeals reversed the trial court and remanded for a new trial, reasoning that the destroyed footage might have shown the state of the mat before the fall.

In a 4-1 decision, the Indiana Supreme Court, emphasizing that appellate courts review trial court spoliation decisions only for an “abuse of discretion,” found the trial court made “reasonable judgment calls” within the trial court’s discretion. The Supreme Court found it was reasonable for the trial court to conclude the hospital had no duty to preserve more video. The Court noted the preserved video taken from 75 feet away was highly pixelated as Rosen reached the mat, making it reasonable to doubt that earlier footage of the mat would have been any more enlightening. Also, because the other cameras did not capture the fall, it was reasonable to conclude that they did not capture the allegedly raised portion of the mat, which Rosen claimed was only the size of her foot. The Court also found it was reasonable for the trial court to conclude that the hospital’s evidence preservation was reasonable, as the security supervisor followed his routine practice for preserving video after someone falls and there was no suggestion of bad faith in the preservation efforts. Lastly, the Court concluded it was reasonable for the trial court to exclude any evidence of the unpreserved video, as the unpreserved video that did not show the fall or mat was irrelevant.

In its decision, the Indiana Supreme Court noted that while a preservation letter helps trigger the legal duty to preserve evidence, preservation letters do not create a safe harbor for defendants, nor an outer limit for proper discovery requests. However, compliance with a preservation letter is a relevant consideration in evaluating the reasonableness of a party’s evidence preservation efforts. 

Justice Goff dissented, arguing the fact-sensitive nature of spoliation makes it an issue more appropriately decided by a jury rather than a judge. The Court found Rosen forfeited this argument on appeal by not raising it before the trial court. Justice Goff, however, credited Rosen with having proffered a spoliation jury instruction and noted there existed differing reasonable interpretations of the facts. He thought the jury should have been permitted to decide the spoliation issue.

You can read the full opinion here.

While proponents of the bill (backed heavily by business groups, hospitals, and the Kentucky Chamber of Commerce) argue that it will “modernize” Kentucky’s legal liability system and contain insurance costs, organizations like the Kentucky Justice Association warn that the legislation will create additional procedural requirements shifting the burden away from wrongdoers and onto injured victims and taxpayers. Here is a closer look at what SB 195 proposes and how it could severely impact your rights if you are injured in the Commonwealth.

Eliminating Accountability Through Changes to Comparative Fault 

Kentucky has long followed a pure comparative fault system. Under that framework, fault is apportioned precisely. A plaintiff who is 10% at fault recovers 90% of their damages. A plaintiff who is 70% at fault still recovers 30%. The guiding principle is straightforward: each party pays for the harm they caused.

That structure reflects a policy choice. Kentucky law recognizes that accidents are often messy. Multiple actors can contribute to an event. Under pure comparative fault, the focus remains on proportional responsibility rather than all-or-nothing outcomes.

SB 195 would replace that approach with a modified comparative fault bar. If a plaintiff is found 50% or more at fault, recovery would be eliminated entirely. This would fundamentally alter the structure of liability in Kentucky. In close cases that threshold creates a cliff effect. A single percentage point can mean the difference between substantial recovery remedying negligence found by a jury and no recovery at all. Kentucky’s current system promotes personal responsibility by ensuring you fix exactly what you break. 

Across the river in Indiana, under IC 34-51-2-6, if an injured individual is more than 50% at fault, they are unable to recover any damages whatsoever. If SB 195 were to be enacted, it would actually be slightly stricter than Indiana’s system in that under a 50% bar, even where a defendant is equally responsible for causing the harm, the plaintiff would recover nothing. And, interestingly, in such a case of equal fault where both drivers are suing one another, neither party owes the other anything and the liability insurers do not have to pay any judgment for either. 

The Kentucky Justice Association has illustrated the danger of the shift from pure comparative to modified comparative with this example: imagine a drunk driver runs a red light and crashes into your spouse, causing a totally disabling, lifelong injury. If your spouse happened to be traveling 60 mph in a 55-mph zone, a jury might split the fault 50/50. Under SB 195, the wrongdoer who chose to drive drunk and run a red light could avoid financial responsibility despite being equally responsible for the collision. This undermines accountability.

The “Empty Chair” Defense: Scapegoating Non-Parties 

Kentucky already allows juries to apportion fault among multiple parties under KRS 411.182 and Hilen v. Hays. In a negligence case, a jury may assign percentages of fault to the plaintiff, the defendant, and even certain properly identified non-parties. Each defendant then pays only the percentage of damages corresponding to their share of fault. This system reflects Kentucky’s shift away from joint and several liability and toward proportional responsibility.

However, Kentucky’s current framework requires that non-party fault be properly raised and supported by evidence. It operates within established comparative fault principles and existing case law.

SB 195 appears to broaden that structure in important ways.

Under the proposed bill, defendants could potentially ask juries to assign fault to third parties who cannot be sued or held financially responsible — including immune government entities, bankrupt companies, or other legally protected actors. While this may reduce a defendant’s percentage of fault on paper, the injured person may have no practical way to recover the portion attributed to that third party.

The practical result is significant. If a jury assigns 40% fault to a defendant and 60% to an immune entity, the defendant pays only 40%, and the plaintiff absorbs the remaining loss. In effect, liability is reduced without a corresponding source of compensation.

Supporters argue this promotes fairness by ensuring defendants pay only for their share. Critics respond that expanding third-party apportionment shifts financial risk from negligent actors to injured individuals.

Regardless of perspective, SB 195 represents a meaningful change to Kentucky’s existing comparative fault system that could materially affect how fault is allocated and how much compensation injured Kentuckians are ultimately able to recover.

“Healthcare Premium Theft” and Protecting Insurance Profits 

If you pay your hard-earned money for health insurance premiums, you expect those benefits to protect you. Under SB 195, defendants and their liability insurers would be the ones reaping the benefits of your foresight. Unfortunately, Indiana already allows this under the case of Stanley v. Walker, which allows the introduction of the billed amounts and paid amounts, allowing the jury to determine the reasonable value of services. SB 195 appears to limit recoverable medical expenses to amounts actually paid or owed, rather than the full value of the services rendered, intentionally ignoring the premiums and out-of-pocket costs the plaintiff has already paid themselves. Furthermore, it prevents juries from knowing the actual charges billed by doctors and hospitals. Even Indiana courts allow the introduction of billed charges, allowing the jury to exercise discretion. The Kentucky Justice Association refers to this as “Healthcare Premium Theft,” noting that previous attempts to pass similar measures were struck down by courts as unconstitutional.

The bill also makes it significantly harder for injured plaintiffs to pursue “bad faith” claims against insurance companies that unreasonably delay or deny legitimate payouts. All of this comes at a time when national statistics indicate that property and casualty insurance companies made staggering profits in 2024. According to an industry analysis by Verisk and the American Property Casualty Insurance Association, the U.S. property and casualty insurance industry generated roughly $170 billion in net income nationwide in 2024, making 2024 one of the highest profit levels ever recorded.

“Gotcha” Red Tape Designed to Dismiss Cases 

Perhaps one of the most concerning parts of SB 195 is the creation of complex, detailed new procedures for initiating and pursuing lawsuits. The bill mandates written notifications to defendants, full explanations of damages, signed authorizations for paperwork, and strict, unforgiving deadlines. According to Maresa Fawns, chief executive of the Kentucky Justice Association, this is nothing more than “gotcha red tape”. The underlying goal is not to seek the truth or promote fairness, but to trap plaintiffs in technicalities. If an injured person misses a notice deadline or fails to check a specific box, their entire case could be dismissed before a jury ever hears a single piece of evidence. This represents a significant procedural departure from existing Kentucky practice, as Kentucky already requires a lawsuit in non-MVA cases to be filed in one year and requires loss of consortium claims to be filed in one year. There can be little rational reason for such a provision other than simply hoping wrongdoers can avoid responsibility by running out the clock.

The Myth of the Litigation Crisis in Kentucky 

Supporters of the bill, including lobbyists for hospitals and corporate businesses, argue that the legislation is necessary because Kentucky allegedly ranks 40th nationally for its legal liability climate. However, this ranking is based entirely on subjective surveys of corporate in-house lawyers. These are the very individuals whose primary job is to avoid paying for corporate liability.

The actual numbers tell a very different story about the state of litigation in Kentucky. According to recent statistics cited by the Kentucky Justice Association, despite there being 139,663 traffic collisions in 2024, only 2% of those crashes resulted in a circuit court case filing. Similarly, out of approximately 12 million healthcare encounters annually, a mere 0.002% result in a medical negligence lawsuit.

Proponents also claim that every Kentucky family pays $2,800 a year in a “tort tax,” but this figure misleadingly lumps in insurance company profits, CEO compensation, advertising, and payouts for unrelated property issues like weather damage. Ironically, proponents’ own data reveals that this $2,800 figure makes Kentucky the third lowest among surrounding states for these costs, sitting well below neighbors like Illinois ($4,200) and Missouri ($3,400). The Kentucky Justice Association notes that the push for this bill is so corporately driven that its supporters are utilizing a 501(c)(4) dark-money fund to solicit anonymous contributions to push the legislation through the General Assembly. As critics point out, if this bill were genuinely good for Kentucky families, it wouldn’t require secret money to sell it.

Ultimately, the Kentucky Constitution clearly guarantees its citizens access to the courts when they are harmed and expressly prohibits the legislature from limiting the amount recovered for injuries or death. SB 195 attempts to circumvent these constitutional protections to the detriment of ordinary citizens.

SB 195’s Procedural Roadblocks: Destined to be Ruled Unconstitutional?

While proponents of SB 195 claim it merely updates the legal system, many of its provisions appear destined for a constitutional challenge, much like previous “tort reform” efforts in the Commonwealth. As we noted eight years ago in our blog, in 2018, the Kentucky Supreme Court delivered a landmark ruling in Commonwealth v. Claycomb, striking down a state law that mandated medical review panels for malpractice claims. The reasoning in that decision provides a clear blueprint for why the procedural hurdles in SB 195 may also be deemed unconstitutional.

Kentucky’s founders explicitly protected citizens’ rights to the civil justice system. 

Article I, Section 14 of the Kentucky Constitution guarantees that “All courts shall be open,” and that every person who suffers an injury shall have a remedy by due course of law, with justice administered “without sale, denial or delay”. In Claycomb, the Kentucky Supreme Court emphasized that the right to access the courts for a remedy is “possibly the most important” right guaranteed by the state’s Bill of Rights. The Court found that forcing injured individuals through a mandatory medical review panel process before filing a lawsuit was an unconstitutional “mandatory process” that created an unlawful delay in accessing the courts.

SB 195 attempts to implement similar roadblocks under the guise of detailed new procedures for initiating lawsuits. The bill mandates written notifications to defendants, full explanations of damages, signed authorizations, and strict, unforgiving deadlines. If an injured person misses a tight deadline or fails to check a specific box, their entire case could be dismissed on a technicality. Just as the medical review panels forced a mandatory delay on claimants, SB 195’s “gotcha red tape” creates technical trapdoors that delay justice and threaten to deny it altogether.

Furthermore, the Kentucky Supreme Court noted in Claycomb that the constitutional guarantee of open courts restricts both the judiciary and the legislative branch. Section 28 of the Kentucky Bill of Rights explicitly states that these constitutional rights “shall forever remain inviolate” and that any laws contrary to the Constitution are void. According to this precedent, the legislature may not enact laws that conflict with constitutional guarantees of open courts.

If SB 195 passes, its intricate procedural requirements and “gotcha” dismissals will likely face immediate legal scrutiny. Under the strong precedent set by the Kentucky Supreme Court, citizens should be assured that legislation placing arbitrary roadblocks in the way of an individual wanting to seek redress in court “without delay” should continue to be found unconstitutional. Reasonable people can debate how to balance business costs and civil accountability. But when proposed reforms alter long-standing constitutional protections, careful scrutiny is warranted. You may read SB 195 here.

Barsumian Armiger Injury Lawyers is Here to Help 

At Barsumian Armiger Injury Lawyers, Todd Barsumian is licensed to practice in Kentucky and proudly serves clients throughout Indiana and Kentucky, including Henderson, Owensboro, and Madisonville. He understands the tactics used by insurance companies to deny liability and minimize payouts and remains committed to fighting for the maximum compensation our clients deserve, regardless of legislative hurdles.

Schultz grew up on his family-owned property next to Sandy Pines Golf Club (“Sandy Pines”) in Wheatfield, Indiana. His family owned the property for over 50 years. After moving away, Schultz returned in 2008 to take care of his aging mother. In 2018, Sandy Pines added a driving range, and thereafter thousands of golf balls began falling onto the property. Schultz had to park his car at the far end of the driveway and sit under a tent when in the backyard to avoid the falling golf balls. While Schultz complained to Sandy Pines and Sandy Pines took some steps to alleviate the situation, golf balls continued to regularly fall onto the property. In 2020, Schultz’s mother transferred title to the property to Schultz so that he would have clear legal standing to sue.

Schultz filed a lawsuit against Sandy Pines for negligent design, nuisance, and trespass. The trial court entered summary judgment in favor of Sandy Pines on Schultz’s negligent design and nuisance claims. As to his nuisance claim, the trial court applied the doctrine of “coming to the nuisance,” since Schultz took title to the property knowing golf balls landed on it. Since Indiana law does not have a similar “coming to the trespass” doctrine, however, the trial court held a bench trial with respect to Schultz’s trespass claim. The trial court found the thousands of golf balls falling onto Schultz’s property constituted trespass by Sandy Pines. However, the trial court found that Schultz was 95% at fault and incurred the risk of trespass by taking title to the property with knowledge of the golf balls, and therefore, based upon Indiana’s Comparative Fault Act, was entitled to nothing. Schultz thereafter appealed the trial court’s decision as to his comparative fault.  

Indiana’s Comparative Fault Act, with limited exceptions, applies to “any action based on fault that is brought to recover damages for injury or death to a person or harm to property.” Ind. Code §§ 34-51-2-1, 2-2. As to the Act, “fault” is defined as “any act or omission that is negligent, willful, wanton, reckless, or intentional toward the person or property of others,” and includes “unreasonable assumption of risk not constituting an enforceable express consent, incurred risk, and unreasonable failure to avoid an injury or to mitigate damages.” Ind. Code § 34-6-2.1-68(b). The Comparative Fault Act provides for proportionate damages based on relative degrees of causation attributable to the responsible actors, and it bars recovery if the claimant’s fault “is greater than the fault of all persons who contributed to the injury.” Ind. Code §§ 34-51-2-5, 2-6.

On appeal the Indiana Court of Appeals distinguished intentional torts, such as trespass, from torts based on negligence. While three elements must be proven in negligence claims (duty, breach, and damages caused by the breach), with the required standard of care varying depending on the circumstances, intentional torts are not a matter of degree or circumstance. Intentional torts instead focus exclusively on whether the defendant intentionally committed a wrongful act, where the intentional wrongful conduct itself constitutes the injury. The Court noted that in trespass cases, for instance, “the unauthorized entry itself is the invasion of property rights” that establishes the tort. Additionally, the Court noted differences in moral culpability between negligence and intentional torts. 

After reviewing Indiana law, including prior precedent and Indiana’s Comparative Fault Act, the Court ruled that, while negligent and intentional acts can both be considered in comparative fault analysis in negligence cases, such analysis does not apply in cases of intentional torts to reduce liability for intentional torts. The Court reasoned that in intentional tort cases “there is no such thing as acting 20% intentionally” and the intentional conduct itself “wholly constitutes the injury,” leaving no one else (other than perhaps joint intentional tortfeasors) to contribute to the harm. Finding fault allocation under the Comparative Fault Act “conceptually incompatible with the nature of intentional torts,” the Court reaffirmed prior precedent that in cases of intentional torts the plaintiff cannot be assigned fault, and the defendant is 100% liable for the intentional tort. 

Applying its analysis to the facts of this case, the Indiana Court of Appeals found the trial court erred when it engaged in fault allocation after finding Sandy Pines liable for trespass. According to the Court, Sandy Pines should have remained 100% liable for the tort of trespass. The trial court could then have addressed any failure to mitigate damages by Schultz, which is a separate inquiry. As noted by the Court, comparative fault “concerns who caused the injury and allocates responsibility” to those contributing to the harm, whereas mitigation of damages “concerns the victim’s conduct after the tort occurs and affects only the amount of damages,” not liability. A claimant’s post-tort conduct, like failing to limit the extent of harm, may reduce damages, but that conduct does not reduce or shift liability for the tort. Accordingly, the Court reversed and remanded for additional proceedings with respect to Schultz’s damages for trespass and any failure to mitigate.

You can read the full opinion here.

From serving lawsuits via social media to the end of “general objections” in discovery, the amendments to Indiana’s Trial Rules make these 7 significant changes in 2026. 

1. No More “General Objections” in Discovery Responses

Parties can no longer rely on a preamble of boilerplate objections in their discovery responses. 

The 2026 amendments to Indiana Trial Rule 33 (Interrogatories), Trial Rule 34 (Production of Documents), and Trial Rule 36 (Requests for Admission) explicitly ban “general objections,” which the new rules define as objections that are not directed to a specific request, do not specifically state the grounds on which they are based, or apply globally. Under the new rules, “[g]eneral objections must not be made and will have no effect.”

2. Parties Must Identify Non-Produced Responsive Materials When Objecting to Discovery

Under the old and new rules, parties are required by Trial Rule 26(B)(5) to provide a privilege log when they withhold otherwise discoverable information claiming it is privileged or protected trial preparation material. The new rules add a related and somewhat broader requirement when objecting to requests for production. Under the new Trial Rule 34(E), parties objecting to a request for production, for whatever reason, must state whether any responsive materials are being withheld on the basis of that objection. Notably, though, the new Trial Rule 34(E) does not explicitly require that parties describe the nature of the documents withheld in a manner that will enable other parties to assess the applicability of the objection, unlike Trial Rule 26(B)(5). How parties will comply with this Rule’s new requirement in practice remains to be seen.

3. Parties Can Serve Lawsuits via Social Media and Other Technology

Indiana’s new trial rules provide flexibility when it comes to hard-to-locate defendants. For instance, Indiana Trial Rule 4.14, as amended, allows for service via social media, email, or other technology under some circumstances. Under the new rule, if a party files a verified motion with facts sufficient to show that prior attempts to obtain service under the rules have been unsuccessful, the court can order service in “any other manner that is reasonably calculated to give the defendant actual knowledge of the proceedings and an opportunity to be heard.” The new rule provides that “[s]uch other forms of service may include social media, email, or other technology.” 

The new rules also simplify service in other ways. For instance, registered agents can be served electronically if they have consented to it under Rule 4.6(B), and Rule 5(B)(2) now allows for service by mail via third-party commercial carriers, like FedEx or UPS, in addition to U.S. Mail. 

4. Requests for Admission Must be Served Separately

Indiana litigators often combine written forms of discovery and serve them together. It is commonplace, for instance, to see interrogatories combined with requests for production with both served on adverse parties in one document. Prior to the new amendments, parties could also include requests for admission, which can be a serious problem for responding parties who fail to recognize they were included, as requests for admission are admitted if not answered within 30 days. Trial Rule 36(B) now provides that requests for admission cannot be “combined in the same document with any other pleading and must be served separately from any other form of discovery.”

The new Trial Rule 36(B) also adjusts the timing of when requests for admissions can first be served to “not earlier than ten days after the issues are first closed on the merits or thirty days from commencement of the action in cases where no responsive pleading is required.”

5. Timelines for Non-Party Requests and Procedures for Objections Have Changed

The timing of service of non-party requests for production has changed under the new trial rules. Under the new Trial Rule 34(G)(2), a party need only wait 10 days (as opposed to 15 days) after serving a copy of a non-party request for production on an adverse party before serving the request on the non-party. Trial Rule 34(G)(3) also provides new procedures to follow when a party objects to a non-party request. A party must object to a non-party request within the 10-day waiting period, providing specific grounds for the objection and a proposed date and time to meet and confer under Indiana Trial Rule 26(F). If no agreement is reached, the objecting party must move to quash or modify the non-party request within 20 days of the objection, or the request can be served. 

6. Parties Must Confer in Good Faith 15 Days Before 30(B)(6) Depositions

Indiana Trial Rule 30(B)(6) governs depositions of persons designated by organizations to testify on their behalf. It is not uncommon for disputes to arise amongst the parties as to the matters for examination, which under the old and new rules are to be designated with reasonable particularity in the deposition notice. However, under the new rule, parties must now meet and confer in good faith about the matters of examination at least 15 days prior to the deposition.

7. There is a New Standard for Spoliation of Electronically Stored Information (ESI)

The 2026 amendments to Indiana Trial Rule 37 remove the “safe harbor” provision regarding the failure to preserve electronically stored information (ESI). Prior to the amendments, absent exceptional circumstances, courts could not impose sanctions on a party for failing to provide ESI lost as the result of “the routine, good faith operation of an electronic information system.” Under the amended Rule 37(D), courts can now impose sanctions on parties for “failing to take reasonable steps to preserve [ESI]” that is relevant, material, should have been preserved in anticipation of or during litigation and is lost because of the failure to take reasonable steps to preserve it, cannot be restored or replaced through additional discovery, and either prejudice results to another party or the party acted with intent to deprive another party of the information’s use in litigation. Sanctions can include a presumption and jury instruction that the lost information was unfavorable to the party, dismissal of the action, entry of default judgment, or other orders to cure any prejudice.

The Order Amending Rules of Trial Procedure with annotations as to the changes can be found here. A full copy of the new Indiana Trial Rules can be found here.

In Gierek v. Anonymous 1, Linda Gierek (Gierek) was one of over a thousand patients who received a letter from healthcare providers (collectively referred to as the Hospital) informing them that a technician failed to fully sterilize surgical instruments, which may have exposed them to infectious diseases, including Hepatitis C, Hepatitis B, and HIV. Gierek and her husband filed a class-action complaint for negligent infliction of emotional distress, negligence, and medical malpractice in state court and before the Indiana Department of Insurance (IDOI) and moved for class certification for similarly situated patients and their spouses. The Indiana Patient’s Compensation Fund (the Fund) intervened and moved for partial summary judgment arguing Gierek’s claims sounded in ordinary negligence, not malpractice, and therefore Indiana’s Medical Malpractice Act (MMA) did not apply. While Gierek supported the Fund’s position, the Hospital cross-moved for summary judgment arguing the MMA did apply. The trial court ruled the MMA applied and it denied Gierek’s motion for class certification concluding it lacked subject matter jurisdiction to rule on class certification while the claims were pending before a medical review panel.

The Indiana Supreme Court first determined the MMA applied to Gierek’s claims. While noting the parties generally disputed the MMA’s applicability based upon whether the technician’s conduct constituted ordinary negligence versus medical malpractice, the Court focused instead on whether the MMA applied to Gierek’s claimed injury—emotional harm—as the MMA states, “a patient or the representative of a patient who has a claim under [the Act] for bodily injury or death on account of malpractice may… [f]ile a complaint in any court of law having requisite jurisdiction” and “exercise the right to a trial by jury.” Ind. Code § 34-18-8-1 (italics added). As noted by the Court, the term bodily injury generally means physical damage to a person’s body. 

Nonetheless, relying on the full text of the MMA, “decades of precedent,” legislative history, the overall purpose of the MMA, and the MMA necessarily having to cover potential bodily injury, not just contemporaneous bodily injury, for patients to comply with the MMA’s two-year occurrence-based statute of limitations, the Court concluded the MMA applies to all claims for “malpractice” by a “patient” against a “healthcare provider,” as those terms are defined by the MMA, and not just claims involving bodily injury or death. The Court also concluded that even if the MMA required “bodily injury or death,” Gierek’s emotional-distress claims sufficiently alleged bodily injury. The Court noted Indiana’s modified-impact rule, which allows a claimant to recover damages when the claimant suffers a direct impact by the negligence of another and because of that direct involvement suffers an emotional trauma serious enough to affect a reasonable person, and Indiana’s impact rule, under which “it took little to establish” a “physical injury.” The Court concluded “the Hospital’s alleged tortious conduct here—the use of unsterilized surgical instruments that potentially exposed [Gierek] to infectious diseases—sufficient to constitute a “bodily injury” under the impact rule governing claims for emotional distress.” 

Next, the Court determined the trial court had jurisdiction to preliminarily determine class certification. Under the MMA, trial courts have limited jurisdiction while a claim is pending before a medical review panel. Ind. Code § 34-18-8-7(a)(3). They are expressly prohibited from making a preliminary determination on “any affirmative defense or issue of law or fact reserved for written opinion by the medical review panel,” Ind. Code § 34-18-11-1(b), including whether “[t]he evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint” and whether “[t]he conduct complained of was or was not a factor of the resultant damages,” Ind. Code § 34-18-10-22(b)(1), (4). However, trial courts have authority to, among other things, such as setting a trial date and compelling discovery, “preliminarily determine an affirmative defense or issue of law or fact that may be preliminarily determined under the Indiana Rules of Procedure.” Ind. Code § 34-18-11-1(a)(1).

In concluding class certification is an appropriate preliminary determination under the MMA, the Court first distinguished the “overly narrow approach to preliminary jurisdiction” set forth by the Court in Griffith v. Jones, 602 N.E.2d 107 (Ind. 1992), which limited trial court jurisdiction to preliminary determinations under Trial Rule 12(D). The Court noted prior precedent and the MMA’s reference to “the Indiana Rules of Procedure,” not just Trial Rule 12(D). As stated by the Court, “[t]he Act only prohibits a trial court from issuing a preliminary determination on an ‘affirmative defense or issue of law or fact’ reserved for the panel’s expert opinion—i.e., whether the defendant ‘failed to comply with the appropriate standard of care’ and whether the conduct factored into the ‘resultant damages.’” The Court found a class-certification determination does not dictate the substance of a review panel’s opinion, class certification aligns with the MMA’s overall purpose, and while class certification may tend to potentially chill disclosure by healthcare providers in similar circumstances as a policy consideration, “[a] healthcare provider must warn of a subsequently discovered medical error with potentially harmful consequences.”

Justice Slaughter concurred in the judgment in part and dissented in part with a separate opinion in which Justice Molter joined.  

You can read the full opinion here, Gierek v. Anonymous 1, 250 N.E.3d 378 (Ind. 2025).

Under Indiana law, insurance companies must offer uninsured (UM) and underinsured (UIM) insurance coverages to policy holders to provide a minimum level of compensation if they suffer injuries by someone with no insurance (uninsured motorists) or inadequate insurance coverage (underinsured motorists). Ind. Code § 27-7-5-2; Kearschner v. Am. Fam. Mut. Ins. Co., S.I., 192 N.E.3d 946, 954 (Ind. Ct. App. 2022).  The purpose of UM and UIM coverage is to promote the recovery of damages by innocent victims of auto accidents when the at-fault party either has no insurance coverage or limited insurance coverage. See 192 N.E.3d at 954. 

Under Michelle’s State Farm insurance policy, State Farm promised that it would “pay compensatory damages… for bodily injury… an insured is legally entitled to recover from the owner or driver of an uninsured motor vehicle,” provided that “the bodily injury… [was]… sustained by an insured… and… caused by an accident that involves the operation, maintenance, or use of an uninsured motor vehicle as a motor vehicle.” In Michelle’s insurance policy with State Farm, an uninsured motor vehicle was defined as “a land motor vehicle” the “ownership, maintenance, and use of which is… not insured… for liability at the time of the accident,” or which, with respect to bodily injury damages, “the owner and driver of which remain unknown and which causes bodily injury to the insured.”

On appeal, the Indiana Court of Appeals noted that insurance contracts are interpreted the same as any other contract, with courts giving contractual terms their plain and ordinary meaning. While “land motor vehicle” was not defined in the State Farm insurance policy, the parties agreed, as did the Court, that “land motor vehicle” unambiguously means a “motor vehicle” designed to operate on “land.” And there was no apparent dispute that “land” means “the solid part of the surface of the earth,” as defined by Merriam-Webster’s Online Dictionary. However, the parties disputed the meaning of “motor vehicle” and whether “motor vehicle” includes electric scooters. 

State Farm argued for the definition of “motor vehicle” under Indiana’s Motor Vehicle Code, which excludes electric foot scooters. Under the Code, “motor vehicle” means “a vehicle that is self-propelled” and does not include “a farm tractor, an implement of agriculture designed to be operated primarily in a farm field or on farm premises, an electric bicycle, an electric foot scooter, or an electric personal assistive mobility device.” Ind. Code § 9-13-2-105(a). However, the Court of Appeals referenced Merriam-Webster’s Online Dictionary, which defines “motor vehicle” as “an automotive [or self-propelled] vehicle not operated on rails,” the American Heritage Online Dictionary, which defines “motor vehicle” as “[a] self-propelled conveyance with wheels and a motor, such as a car or truck, for use on roads,” and Black’s Law Dictionary, which defines “motor vehicle” as “[a] wheeled conveyance that does not run on rails and is self-propelled, [especially] one powered by an internal-combustion engine, a battery or fuel-cell, or a combination of these.” 

The Court, noting that courts are to interpret insurance policies “from the perspective of an ordinary policyholder of average intelligence,” concluded the general dictionary definitions controlled and the scooter was a “land motor vehicle” under the term’s plain and ordinary meaning. While State Farm also argued that there was a genuine issue of material fact as to whether the scooter was “uninsured,” the Court of Appeals found State Farm waived that issue because it did not raise it in the trial court. Accordingly, the Court of Appeals affirmed the entry of partial summary judgment in Michelle’s favor, entitling her to uninsured coverage from State Farm for the injuries she suffered in the electric scooter crash. 

You can read the full opinion here.

Fergerson was 63 years old and a chronic alcoholic. He also suffered from sciatica. He had a license but used IndyGo buses for transportation. In the morning on the day he was killed, Fergerson relapsed from an 8-day alcohol abstention and was briefly hospitalized for intoxication. He was released later that day. In the evening, after grocery shopping, Fergerson attempted to board an IndyGo bus to go home. One IndyGo bus driver refused to let him board because he had a liquor bottle. Later, another IndyGo bus pulled up to the bus stop. As two passengers exited the bus, Fergerson grabbed his two grocery bags and walked toward the front door of the bus. The bus driver checked his mirror for a “split second” and then pulled away from the curb. The driver did not remember checking his mirrors for proper alignment or having approached the stop in accordance with IndyGo’s policies. When the bus pulled away, Fergerson lost his balance and, with his arm outstretched towards the bus, fell off the curb and onto the road where he was run over by the bus’s rear wheels, causing his death two weeks later. His blood alcohol concentration was over three times the legal limit to drive. 

Fergerson’s mother, for his estate, filed a wrongful death lawsuit against IndyGo. A Marion County jury returned a jury verdict of $6 million dollars, which was reduced to $700,000 because of a limit on damages against governmental entities under Indiana law. At trial IndyGo argued Fergerson was contributorily negligent as a matter of law, referencing his intoxication and video footage of the incident. The trial court denied both of IndyGo’s motions, a motion for judgment on the evidence pre-verdict and a motion to correct error post-verdict. IndyGo appealed the denial of the post-verdict motion to correct error. A panel of the Indiana Court of Appeals reversed the trial court, with one judge dissenting. The Indiana Supreme Court granted transfer and ultimately affirmed the trial court’s denial of IndyGo’s motion to correct error.

As a preliminary matter, the Indiana Supreme Court first determined that its standard of review was de novo, that is, without deference to the trial court’s decision, as opposed to abuse of discretion, since IndyGo had asserted the jury’s verdict was clearly erroneous as contrary to the evidence. 

Next the Court reviewed whether the evidence supported a reasonable inference that Fergerson was not contributorily negligent, as a finding of contributory negligence as a matter of law is only proper when there exists only one inference to be drawn from the evidence, that of contributory negligence proximately causing the claimed injuries. Under Indiana law, a person is contributorily negligent if they fail to exercise the degree of care that an ordinary, reasonable, and prudent person would exercise for their own protection and safety under similar circumstances. Evidence of intoxication alone is insufficient; there must be evidence that a person’s intoxication proximately caused the person’s injuries. Contributory negligence, that is, fault on behalf of a person injured, however slight, acts as a complete bar to recovery against governmental entities in Indiana.

The Indiana Supreme Court reviewed and dispensed with IndyGo’s two arguments: first, that the video footage showed Fergerson was contributory negligent in reaching out to touch a moving bus, particularly given his intoxication, and two, that Fergerson was contributory negligent for violating Indiana Code § 9-21-17-5, which states “[a] pedestrian may not suddenly leave a curb or other place of safety and walk or run into the path of a vehicle that is so close as to constitute an immediate hazard” and Indiana Code § 7.1-5-1-6, which prohibits a person from being intoxicated when using public transportation if the person’s intoxication endangers their own life.

As to IndyGo’s first argument, the Court noted that when the bus pulled away, the video footage did not show Fergerson’s legs and feet, and thus, a single, undisputed account of his conduct at the time of the incident. While noting one could certainly infer negligence finding Fergerson, possibly because of his intoxication or sciatica, lunged for or reached out to touch the moving bus, two other possible inferences also existed: first, that “Fergerson, through no unreasonable action and simply by accident, stumbled and then raised his arm in an involuntary attempt to brace himself as he fell,” and two, that “the bus’s sudden and unexpected momentum caused him to lose his balance as he carefully approached the bus and involuntarily reached out to stop himself from falling.” 

As to Fergerson’s intoxication, the Court noted that negligence cannot be presumed solely because an accident occurs and there was evidence Fergerson had ridden IndyGo buses many times while intoxicated without issue, chronic alcoholics can develop a tolerance to alcohol, and Fergerson’s mother could not say Fergerson “sounded drunk” when she spoke with him that evening. The Court reasoned, “[f]rom this evidence, coupled with the video footage, a reasonable jury could have inferred that Fergerson’s tolerance for alcohol minimized any impairment from his BAC level and thus concluded that his intoxication was not a proximate cause of his injuries.” 

As to IndyGo’s second argument, negligence per se based upon violation of Indiana law, the Court found a reasonable inference could be drawn from the video footage that Fergerson did not suddenly leave the curb by walking or running into the path of the bus under Indiana Code § 9-21-17-5 and, as noted with respect to IndyGo’s first argument, that his intoxication was not a proximate cause of his injuries endangering his own life under Indiana Code § 7.1-5-1-6. 

Finding “multiple, reasonable inferences” that the jury could have reached, the Indiana Supreme Court found IndyGo had not established Fergerson’s contributory negligence as a matter of law and therefore affirmed the trial court’s denial of IndyGo’s motion to correct error. While noting this was a “close case,” the Court recognized that its role is not to “stand in the place of the factfinder.” The Court noted the jury members were attentive, were properly instructed on the law, and found Fergerson was not contributorily negligent. Similarly, the Court noted the trial court and a judge on the Indiana Court of Appeals found Fergerson was not contributorily negligent as a matter of law. 

Justice Slaughter dissented with a separate opinion in which Justice Massa joined.

You can read the full opinion here.

Areche sued the City of Indianapolis and other defendants for the injuries he suffered in the Indianapolis electric scooter crash. Indianapolis filed a motion to dismiss, which was eventually converted to a motion for summary judgment, based upon an Indianapolis ordinance prohibiting the operation of electric scooters on Indianapolis sidewalks. The Indianapolis ordinance, Indianapolis Revised Code § 441-320.1, provides: “It shall be unlawful for any person to operate an electric foot scooter on (1) A sidewalk, (2) A greenway, or (3) Any pedestrian or multimodal path [which does not include a path set aside for exclusive use of bicycles] that is paved or unpaved in the city.” The City of Indianapolis argued Areche was negligent per se for violating the scooter ordinance and was, therefore, contributorily negligent as a matter of law, thus barring his personal injury claim against Indianapolis.

Negligence arises from (1) a duty owed to the claimant/plaintiff, (2) breach of that duty by a failure to comply with the applicable standard of care, and (3) injury proximately caused by the failure. Negligence per se, which satisfies the second element, breach of duty, is the unexcused violation of a statute or ordinance if the statute or ordinance protects (1) the class of persons in which the claimant is included (2) against the type of harm that has occurred as a result of the violation. Importantly, while comparative fault applies to many Indiana lawsuits, for tort claims against governmental entities in Indiana, the common-law defense of contributory negligence applies, which bars any recovery when claimants have any fault at all.

The trial court granted summary judgment for the City of Indianapolis finding Areche negligent per se for violating the scooter ordinance and thus contributorily negligent as a matter of law, barring his claim. While not denying he violated the ordinance, Areche argued on appeal that (1) he did not owe any duty to himself, (2) he was not part of the class of persons the ordinance was meant to protect, and (3) he did not suffer the type of harm the ordinance was meant to protect.

The Indiana Court of Appeals quickly dispensed with Areche’s first argument. The Court noted that all claimants owe a duty of reasonable care to themselves—if that were not the case, no one could ever be contributorily negligent. As for Areche’s second argument, the Court found the ordinance protected, not only pedestrians, but also scooter operators, based upon the plain language of the ordinance and as a matter of common sense in protecting against foreseeable accidents. Lastly, the Court found the ordinance protected against the type of harm here, that is, a single scooter hitting a pothole (or any other obstacle such as a sign, bench, or stand) in the sidewalk, and not just the risk of harm occasioned by scooter-pedestrian collisions. 

Judge Scheele dissented with a separate opinion. He disagreed the ordinance protected against the type of harm Areche suffered: hitting a large hole with gravel while riding his electric scooter on the sidewalk. He felt the majority interpreted the ordinance too broadly to encompass a type of harm not contemplated by the ordinance. He distinguished foreseeable obstacles, like pedestrians, signs, benches, and stands, from the unforeseeable obstacle presented by the hole. 

You can read the full opinion here.

Barsumian Armiger Injury Lawyers advocates for clients in Indianapolis accident cases, including crashes and accidents involving motorized and electric scooters.

In Allen, a medical malpractice claimant filed a medical malpractice case against several providers. During the medical review panel process, the parties selected a medical review panel chairperson, who, after the medical review panel had been formed, set forth a schedule for the submission of evidence. The patient timely tendered his submission. The providers, however, failed to timely tender their submission, and the patient filed a petition in court seeking default judgment as a sanction for the providers’ failure to timely tender their submission. 

The Indiana Medical Malpractice Act provides that “[t]he panel shall give its expert opinion within one hundred eighty (180) days after the selection of the last member of the initial panel.” Ind. Code § 34-18-10-13. Medical providers in Indiana have been effective in using this 180-day timeline to get courts to dismiss patient claims. See, e.g., Quillen v. Anonymous Hosp., 121 N.E.3d 581 (Ind. Ct. App. 2019); Reck v. Knight, 993 N.E.2d 627 (Ind. Ct. App. 2013); Adams v. Chavez, 874 N.E.2d 1038, 1043-44 (Ind. Ct. App. 2007) (citing numerous cases in which patient claims were dismissed). However, there are no reported cases in which default judgment has been entered against medical providers for their failure to timely tender a submission.

Here, after months of delay, the medical providers tendered their submission to the medical review panel four days after the patient filed his petition seeking default judgment. While recognizing the providers’ delay, the trial court found “good cause” for the delay based upon defense counsel being “credible” in vaguely explaining “a misunderstanding” of the case’s status. The trial court also noted that even without good cause, default judgment, which is disfavored under Indiana law, was not an appropriate sanction. With the trial court noting no other sanction had been requested by the patient, the Court entered an order denying the patient’s petition for default judgment. After months of delay by the medical providers, and delay occasioned by the request for sanctions, which stayed the medical review panel process, the patient was left with the trial court’s “strong[] encourage[ment]” to the panel chairperson to expedite the remaining panel process.

On appeal the patient did not fare any better in holding the defense accountable. The Indiana Court of Appeals noted that the trial court’s decision was reviewable only for an abuse of discretion, a standard of review extremely partial to the decisions of trial courts. While sympathetic to the patient, the Court of Appeals ultimately affirmed the trial court’s decision declining to enter default judgment against the providers. Noting trial courts are to consider whether conduct is intentional or contumacious and whether prejudice resulted in deciding what, if any, sanctions are warranted, the Court of Appeals found it “cannot say” the trial court abused its discretion.

Thus, after months of delay occasioned by the defense, months of delay with litigation in the trial court, and around a year of delay appealing the trial court’s decision, the patient’s case will continue under Indiana’s medical review panel process, with no remedy provided to the patient. 

Judge Brown wrote a separate dissent, opining that the defense’s “repeated and ongoing failure to provide a timely submission to the medical review panel” warranted default as a sanction. Judge Brown thought the trial judge, who had some familiarity with the defense, “may have confused credibility as to counsel’s lack of intentionality with a showing of good cause,” and in any event, without regard to the lack of good cause shown, the defense’s “cavalier disregard for the statutory timelines and complete lack of communication” was intentional or contumacious conduct. Judge Brown noted that “[h]ealthcare provider defendants will continue to thumb their noses at the statutory requirements until and unless they are shown they will also be sanctioned appropriately for such behavior,” and  “it is unfair that our courts are quick to strictly hold plaintiffs accountable for their failures to adhere to evidentiary submission schedules but are reluctant or unwilling to hold defendant healthcare providers accountable for those same failures.” 

You can read the full opinion and Judge Brown’s dissent here.

Background: Improper IV Placement Leads to Severe Injury

In July 2015, Hetep Bilal Neter-Nu, a truck driver, visited the emergency department at Methodist Hospital with complaints of nausea and vomiting. After two IV lines became dislodged from his arms, a nurse—without a physician’s order and despite lacking training—placed an IV in Neter-Nu’s foot. Although he later complained of pain in the foot, and early signs of infiltration were documented, Neter-Nu was discharged two days later.

Several days later in Iowa, Neter-Nu was hospitalized with blackened toes and no blood flow in his foot. Doctors determined the foot was unsalvageable. On August 19, 2015, he underwent a below-the-knee amputation.

Neter-Nu submitted his claim to a medical review panel as required under Indiana’s Medical Malpractice Act. The panel unanimously found that the evidence did not support a conclusion that the healthcare providers failed to meet the applicable standard of care. Undeterred, Neter-Nu filed suit in Lake Superior Court against Methodist Hospital, Nurse Morgan Mittler, and Dr. Zainab Abbas, alleging that Mittler’s negligent IV placement and Abbas’s failure to recognize and respond to signs of injury led to the amputation of his leg, and that Methodist was vicariously liable for their conduct. Despite the unfavorable panel opinion, the case proceeded to a two-week jury trial in late 2022.

A jury found Nurse Morgan Mittler, Dr. Zainab Abbas, and Methodist Hospital liable and awarded Neter-Nu $11 million. The trial court reduced the award to $1.25 million under the then-applicable statutory cap imposed by the MMA (now $1.8 million) and awarded prejudgment interest on the then-applicable single $250,000 cap (now $500,000).

The Court of Appeals Reverses Jury Verdict and Remands for New Trial

The Indiana Court of Appeals had previously reversed the jury verdict and ordered a new trial, finding that the trial court erred in denying Methodist Hospital’s motion for judgment on the evidence and in instructing the jury that it could find the hospital liable for the actions of unnamed employees beyond the nurse and physician. The Court of Appeals also concluded the trial court should have given a superseding cause instruction and committed multiple evidentiary errors in excluding impeachment and habit evidence.

Supreme Court Affirms Verdict but Orders Correction on Prejudgment Interest

The Indiana Supreme Court granted transfer and vacated the Court of Appeals opinion, holding that while the trial court erred in some respects, those errors did not warrant a new trial given the application of joint-and-several liability, the adequacy of the jury instructions as given, and the defendants’ waiver of key evidentiary arguments. The Indiana Supreme Court largely upheld the trial court’s rulings and the jury’s verdict but found one key error: the trial court miscalculated prejudgment interest.

Under Indiana’s then-applicable MMA caps, qualified healthcare providers were liable up to $250,000 individually (now increased to $500,000), with the Patient’s Compensation Fund paying amounts above the cap up to the statutory maximum (presently capped at $1.8 million). The trial court awarded prejudgment interest based on just one $250,000 cap, despite both Mittler and Abbas being separately liable.

The Supreme Court clarified that each provider’s full $250,000 liability is subject to prejudgment interest. In other words, where multiple providers are liable, prejudgment interest applies to each defendants’ pre-Fund cap individually. The Court remanded the case for the trial court to recalculate prejudgment interest accordingly.

This aspect of the ruling represents an important clarification for plaintiffs and trial courts alike, ensuring that interest compensation is not artificially limited when multiple defendants are involved.

Hospital Liability: No Direct Liability Without Expert Testimony

The Court agreed with the defendants that the trial court erred in instructing the jury that it could find Methodist Hospital directly liable or vicariously liable for the acts of unnamed agents. The plaintiff had not presented expert testimony showing that any Methodist employee other than Mittler or Abbas breached the standard of care.

Nevertheless, the error was found to be harmless. The hospital had conceded that it was vicariously liable for both Mittler and Abbas, and the jury was properly instructed on joint-and-several liability. Because the jury’s damages award was not apportioned among defendants and the hospital’s liability flowed through the two employees already at issue, the verdict stood.

Jury Instructions: Superseding Cause and Hindsight

The defense had also requested jury instructions on superseding cause (arguing that Neter-Nu’s delay in seeking care broke the chain of causation) and on avoiding hindsight in assessing the standard of care. The Court found no abuse of discretion in the trial court’s refusal to give these instructions.

The Court explained that the trial court’s standard instructions on proximate cause and reasonable care under the circumstances adequately covered these issues. Importantly, the Court reiterated that superseding cause requires an independent and unforeseeable intervening act—which was not established here. Neter-Nu had been discharged on narcotic medications and was not medically trained, making his delay in seeking additional care foreseeable as a matter of law.

Evidentiary Rulings: Defendants Waived Key Objections

A recurring theme in the decision was the defendants’ failure to preserve certain evidentiary arguments. The providers attempted to introduce past medical records to show that Neter-Nu had a tendency to remove IVs during prior hospitalizations, arguing this showed a habit and could be used to impeach his credibility.

However, the Court found the trial court properly excluded the records. The defendants failed to establish the frequency and consistency necessary for “habit” under Indiana Evidence Rule 406. The Court also found the records constituted inadmissible character evidence under Rule 404(b), and that their introduction posed a risk of unfair prejudice by inviting the jury to infer that Neter-Nu was responsible for the IV dislodgement based on prior conduct.

Crucially, while the defense later argued on appeal that the records could have been used to impeach Neter-Nu’s testimony that he was a “compliant patient,” they did not make that specific argument at trial. By failing to preserve this basis, the Court held the issue was waived.

The same waiver occurred in the defendants’ attempt to impeach Neter-Nu’s expert witness, Dr. Tripp, using an earlier email. The trial court excluded the email after finding the defense had not properly laid the foundation to use it to refresh the expert’s recollection. Although the defense later characterized the email as impeachment evidence, that argument, too, was not clearly raised at trial and was thus waived.

The Court’s ruling serves as a reminder that trial counsel must clearly articulate the legal grounds for evidence admission at the time of the objection or offer of proof—arguments raised for the first time on appeal will not be considered.

Takeaways for Medical Malpractice Litigants

This case provides meaningful guidance on multiple fronts:

• Prejudgment interest applies to each provider’s full statutory cap, not just one, when multiple providers are liable.
• Individual provider defendants are each responsible for a full statutory pre-Fund cap (now $500,000) even if agents or employees of the same healthcare entity.
• The doctrine of superseding cause does not apply to patient actions, but rather applies to an unforeseeable act of a third person or other force.
• A provider raising a defense of superseding cause or other causation-based defense has the burden of coming forward with expert testimony meeting the evidentiary standard for causation, not mere speculation.
• Preserving objections and evidentiary theories at trial is critical—appellate courts will not consider new arguments raised after the fact.

At Barsumian Armiger Injury Lawyers, we remain committed to monitoring and explaining key legal developments affecting personal injury and medical malpractice claims across Indiana. If you or someone you love has been harmed by negligent medical care, our attorneys are here to help you pursue the justice and compensation you deserve. You can read the Indiana Supreme Court’s full opinion here.

Kiera Isgrig (Isgrig), a student at Indiana University in Bloomington, suffered injuries when a window, including its frame and casing, in one of the university’s buildings fell out of the wall and landed on her head while she was studying for finals with friends. The building, Swain Hall, was open and accessible to students and the public at large. IU staff came and examined the window and found two broken sash springs, but no defect that would have caused it to fall. IU would perform reactionary maintenance, as opposed to proactive maintenance, on its windows when notified of issues with its windows. IU last serviced the window that fell on Isgrig in repairing its blinds a little over a year prior to the incident. No other damage was found at that time.

Isgrig filed a personal injury lawsuit against IU in which she asserted the legal doctrine of res ipsa loquitur, which translated from Latin means the “thing speaks for itself.” Res ipsa loquitur provides an inference of negligence when something happens that would not normally happen without someone’s negligence. IU moved for summary judgment, which the trial court granted. The Indiana Court of Appeals reversed. The Indiana Supreme Court accepted transfer.

Claimants attempting to use res ipsa loquitur must show the injuring instrumentality was under the “exclusive control” of the defendant and what happened does not normally happen if those who have control over the injuring instrumentality use proper care. Importantly, exclusive control “focuses upon who has the right or power to control and the opportunity to exercise it” and can be found even where there may be multiple defendants or multiple possible causes. It is not necessary that a claimant eliminate every other possible cause other than the defendant’s negligence. If the elements of res ipsa loquitur are shown, the inference of negligence remains in the case to be considered by the factfinder, even if the defendant has an explanation for what happened. 

In this case, IU argued that it cannot be held liable under Indiana’s premise liability standard because it did not have actual or constructive knowledge of any issue with the window, res ipsa loquitur is inapplicable when, as here, a claimant cannot establish the elements of premise liability, and it did not otherwise have exclusive control of the window, as required by res ipsa loquitur. In its decision, the Indiana Supreme Court framed the question before it as “whether a plaintiff can utilize the doctrine of res ipsa loquitur to infer negligence in a premise liability case.”

After examining Indiana premise liability law, the doctrine of res ipsa loquitur, and the application of res ipsa loquitur in premise liability cases, including prior case precedent, the Indiana Supreme Court held “res ipsa loquitur is appropriate in premise liability where the injuring instrumentality is a fixture and where such an incident would not normally occur absent negligence,” and importantly, a claimant need not first establish the elements of premise liability. The Court found duplicative and unnecessary its recent requirement in Griffin v. Menard, Inc., 175 N.E.3d 811 (Ind. 2021) that a claimant show a defendant’s actual or constructive knowledge under Indiana’s premise liability law before proving the elements of res ipsa loquitur. “[W]here the injuring instrumentality is a fixture and if the plaintiff is relying on res ipsa loquitur, they do not need to first establish that the defendant had actual or constructive knowledge of the fixture’s defect.” 

Analyzing the facts of this case, the Indiana Supreme Court found Isgrig could use res ipsa loquitur to defeat IU’s motion for summary judgment. The Court agreed that “the window was under the exclusive control or management of the University” and “windows do not ordinarily fall out of walls if those who have management or control have exercised proper care.” The Court reasoned, “[g]iven the well-established duty of care that landowners owe to invitees, it follows that landowners should bear responsibility if invitees are injured by defective fixtures in buildings on their land.” However, the Court noted that the inference of negligence supplied by the doctrine of res ipsa loquitur does not equate with a finding of negligence. While the inference of negligence supplied by res ipsa loquitur is enough for claimants to overcome summary judgment, ultimately, it is up to the trier of fact—a judge or jury—to determine whether a defendant was negligent.

You can read the full opinion here.