CORONAVIRUS UPDATE: How We Are Protecting and Serving Our Clients
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A few months ago we wrote about an Indiana Supreme Court decision granting a plaintiff a new trial as a result of a trial court’s refusal to strike a biased juror for cause which caused the plaintiff to lose a peremptory strike of another juror.

In Floyd v. Neal, the Kentucky Supreme Court reversed the Kentucky Court of Appeals decision to give an alleged medical malpractice wrongful death victim’s spouse and her late husband’s estate a new trial under similar circumstances albeit with a twist of facts.

The Kentucky Court of Appeals had concluded that a juror was biased and should have been struck for cause and that the plaintiff should have thus been able to use a peremptory strike on another prospective juror who was ultimately empaneled.  In other words, a peremptory strike was utilized unnecessarily, depriving the plaintiff of utilizing it later.  The Supreme Court, over a lone dissent, concluded that the plaintiff failed to preserve the error, even though the error apparently would have been preserved under the language of then-existing precedent.  The dissent took issue with the Court’s retroactive application of a clarified striking procedure and the constitutionality of allowing a juror with an admitted bias to sit on the jury. Of significance to the Supreme Court’s decision was that in identifying the peremptory strikes she would have used, the plaintiff identified not one, but two jurors, when she only had one peremptory strike remaining.

The Indiana Court of Appeals recently resolved a dispute between an apartment complex property manager, Buckingham Management, L.L.C. d/b/a Bradford Place Apartments (Bradford), and a snow-and-ice removal contractor, Tri-Esco, Inc. (Tri-Esco), arising out of a slip and fall injury that Deborah Perez (Perez) suffered when she slipped and fell on ice at the Bradford Place Apartments in Lafayette, Indiana on February 23, 2015. According to a services agreement for snow removal, Tri-Esco was to remove snow and ice from the parking lot where Perez fell. If it snowed two inches or more, Tri-Esco was to clear ice and snow without an explicit request by Bradford to do so. While the agreement stated that Tri-Esco would otherwise perform salting without a request as warranted by ice and snow conditions, the agreement also had conflicting provisions providing that Tri-Esco would salt the parking lot only upon Bradford’s specific request and salting would be authorized by the maintenance supervisor or the property manager of the apartment complex.

Tri-Esco performed snow removal at the apartment complex on February 21, 2015, two days prior to Perez’s fall. Bradford, which had an on-site maintenance crew and snow and ice removal equipment, applied nine bags of ice melt. Neither Tri-Esco nor Bradford performed any additional snow and ice removal services in the two days prior to Perez’s fall. Bradford did not request that Tri-Esco perform any additional snow and ice removal services. It was undisputed that Tri-Esco never performed any discretionary salting at the apartment complex, was not required to make periodic inspections of the property, had no contractual obligation to be on site after the snow or ice removal services it performed on February 21, 2015 because the two-inch snowfall provision was not thereafter triggered, and Bradford had no expectation that Tri-Esco would provide any snow or ice removal services after February 21, 2015 on February 22 or February 23, 2015.

Perez filed a lawsuit for the personal injuries she suffered as a result of her fall on ice, which necessitated various surgeries. Tri-Esco moved for summary judgment. Tri-Esco argued that it had no duty to apply salt to the parking lot during the two days prior to Perez’s fall; there had been no additional snowfall and no explicit request by Bradford to provide additional services and it was not obligated to preemptively inspect the property or provide services. The trial court granted Tri-Esco’s motion for summary judgment, and Bradford appealed.

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

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

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

The Indiana Court of Appeals recently issued an opinion in Strickholm v. Anonymous Nurse Practitioner reversing a trial court’s grant of summary judgment based upon the statute of limitations. Under the Indiana Medical Malpractice Act (MMA), a claim for medical malpractice may not be brought against a health care provider based upon professional services or health care that was provided or that should have been provided unless the claim is filed within two (2) year after the date of the alleged act, omission, or neglect. Health care is defined by the MMA as an act or treatment performed or furnished, or that should have been performed or furnished, by a healthcare provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.

On October 29, 2015, the patient, Peter Strickholm, established primary care with Anonymous Nurse Practitioner (Anonymous NP). Anonymous NP thereafter saw Peter on December 1, 2015, at which time she prescribed a blood pressure medication to manage his high blood pressure and recommended that he return for a blood pressure check the following week. When Peter returned on December 8, 2015, a blood pressure check was performed by a licensed practical nurse (LPN). On December 11, 2015, the Anonymous NP electronically reviewed and approved the LPN’s report, but the Anonymous NP did not recommend any further testing or treatment despite the results. On December 15, 2015, Peter went to the hospital and was diagnosed with low sodium. He then suffered a cardiopulmonary arrest and hypoxic event causing a permanent brain injury.

Peter, and his parents, as his guardians, filed a proposed medical malpractice complaint on December 4, 2017. Anonymous NP filed a motion for preliminary determination of law and motion for summary judgment on February 1, 2018 claiming that the complaint was barred by the two (2) year statute of limitations because the last day Anonymous NP provided health care to Peter was on December 1, 2015 with the complaint having been filed more than two (2) years after that date. The trial court granted summary judgment in favor of Anonymous NP holding that the continuing-wrong doctrine (which provides that the statute of limitations can be extended when an entire course of conduct of a continuous nature combines to produce an injury) did not apply to Anonymous NP’s single act of prescribing the medication on December 1, 2015, Anonymous NP did not provide health care on December 8, 2015 because she did not see Peter on that date, and Anonymous NP’s review and approval of the LPN’s report on December 11, 2015, did not constitute the provision of health care to a patient. The plaintiff appealed the trial court’s decision.

Goshen Health Hospital and Emergency Room has recently alerted patients undergoing surgical procedures between April 1, 2019 and September 30, 2019 that they may have been exposed to infectious diseases such as the hepatitis B virus, the hepatitis C virus, and the human immunodeficiency virus (HIV) due to their failure to fully complete a multistep sterilization process for certain surgical instruments. According to articles in the Elkhart Truth and The Goshen News, it is possible that around 1200 patients may have been affected by one of Goshen Health’s seven surgical instrument sterilization technicians failing to complete a step in their sterilization process. The situation has gained national attention.

Goshen Health is currently offering free testing to potentially affected patients, and has, according to reports, put additional policies and safety measures in place to make sure that it does not happen again.  Depending upon the circumstances surrounding the technician’s error, injuries arising out of a failure to complete a sterilization process step could constitute ordinary and/or professional negligence and could give rise to personal injury and/or medical malpractice claims for physical and emotional injuries by the affected patients.

The Centers for Disease Control and Prevention (CDC) has offered a Guideline for Disinfection and Sterilization in Healthcare Facilities. These guidelines discuss appropriate and recommended sterilization cycle verification (verification of sterilizers with biological and chemical indicators prior to routine use), physical facilities (including areas designed for decontamination, packaging, and sterilization and storage), cleaning (cleaning and decontamination after use to prevent residual debris), packaging (in accordance with guidelines set forth by the Association for the Advancement of Medical Instrumentation (AAMI) and other organizations), loading (allowing for sterilant circulation with proper placement of trays and items), storage (including proper wrapping and handling), and monitoring (routine checking of mechanical, chemical and biological indicators).

Personal injury lawyers must often navigate complex and confusing insurance policies that might be available to compensate their injured clients. Insurance policy types may include general liability, professional liability, medical payment, health insurance, and in a recent truck accident case decided by the Indiana Court of Appeals, an MCS-90 Endorsement.  An MCS-90 is known to truck-accident attorneys as a federally-mandated endorsement to an insurance policy that ensures federally-regulated motor carriers will meet their public financial responsibility obligation in the event of a breach of the terms of the policy by the insured motor carrier.  This has been described by at least one court as “suretyship by the insurance carrier to protect the public.”

In Prime Insurance Co. v. Wright, a motorist injured in a truck accident filed a state-court lawsuit against multiple defendants, including the at-fault truck driver and multiple trucking companies. One of the insured trucking companies, Riteway Trucking, Inc., did not cooperate with Prime Insurance and did not appear or present any defense. Choosing not to defend Riteway, Prime also filed a separate federal court declaratory judgment action seeking a declaration that it had no duty to defend or indemnify Riteway or any of the defendants. The injured motorist then moved for default judgment against Riteway and other defendants on both liability and damages. Prime was next granted permission to intervene in the state-court lawsuit. The state court then entered a default judgment in favor of the injured motorist against the trucking companies, including Riteway, in the amount of $400,000. Prime filed an answer and sought to set aside the default judgment and to obtain discovery in the state-court action. The state court denied the motion to engage in discovery but stayed the state court action pending the federal court action.

The federal court entered an order that Prime did not owe any duty to defend or indemnify Riteway, because Riteway had failed to meet its obligations under its insurance policy with the insurance carrier. However, the insurance policy also contained an MCS-90 Endorsement, which was separate from and in addition to the liability policy issued to Riteway. Under Federal law, motor carriers must maintain proof of financial responsibility, and an MCS-90 Endorsement is in effect a guarantee by an insurance company to protect the public where a federal motor carrier is responsible for an accident causing personal injury to a member of the public. The federal court ordered that Riteway would be liable for any payments the insurance carrier made under the MCS-90 Endorsement under the policy.

Slip and Fall Accident
The Tri-State’s first accumulating snow of the season is melting. The wintry conditions we just experienced inevitably lead to slips and falls, some of which will lead to traumatic brain injuries, neck and back injuries, broken ankles and wrists, fractured hips, and muscle and ligament tears, strains and sprains.

For many who slip and fall, their first emotion is embarrassment and their first instinct is to blame themselves. After-all, we know that we learned to walk long ago and the idea that we have somehow failed to stay on our feet as an adult perhaps suggests some sort of weakness or failure on our part. Similarly, many premises owners will be quick to claim they cannot be at fault for folks who venture out into wintry conditions and happen to slip and fall. Thus, for many guests and premises owners alike there is a perception that a premises owner will not be liable when a guest does slip and fall in wintry conditions. Reaching such a conclusion without consideration of Indiana law and surrounding circumstances could be costly.

Personal injury lawyers in Indiana have several significant decisions to rely upon when making out a case of negligence against a premises owner for a winter-weather related slip and fall.  The Indiana Court of Appeals proclaimed in Rossow v. Jones that:

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In Tyus v. Indianapolis Power & Light, the Indiana Court of Appeals held that the Indiana Utility Regulatory Commission (IURC) acted unlawfully and unreasonably in granting Indianapolis Power & Light (IPL) immunity from personal injury and property damage caused to noncustomers, by IPL’s own negligence, and in conjunction with an interruption of IPL service. Consequently, the Court reinstated dismissed negligence claims arising out of a tragic automobile crash with catastrophic injuries.

In March of 2016, IPL filed a tariff (2016 Tariff) with the IURC that provided a release from liability for injuries to third persons resulting from an interruption of service or supply of electricity absent “willful default or neglect.” The IURC approved the 2016 Tariff. During a storm less than a month later, IPL-operated traffic signals went dark in an Indianapolis intersection. Eight hours later, the signals were still down despite numerous complaints. That night, a mother and her three minor sons were t-boned in the dark intersection. In this tragic motor vehicle crash, the mother suffered severe fractures and orthopedic injuries and two of the children suffered severe brain injuries, while another suffered bodily injuries and emotional damage from witnessing the crash and his family’s condition.

In 2016, under a contract with Indianapolis, IPL agreed to supply equipment and electricity to the City’s traffic signals, including those at the intersection where the crash occurred. After the crash, the family, who were not IPL customers, brought claims alleging IPL was negligent in several respects including for failing to timely and properly restore power to the intersection.

87481771_xl-300x200On Halloween otherwise fiscally responsible and sensible adults spend oodles of money and countless hours to costume their children and let them visit the homes of neighbors and strangers alike, knowing a hardball negotiation will ensue with the youngster proclaiming, “Trick or Treat.”

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

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

The Indiana Court of Appeals recently found a trial court erred when it instructed a jury on the plaintiff’s alleged failure to mitigate damages in an Indiana truck accident case. In Humphrey v. Tuck, the plaintiff filed a lawsuit against a truck driver and a trucking company arising from a trucking collision in which the trailer of the tractor-trailer being driven by the truck driver struck the plaintiff’s vehicle while the plaintiff was driving on the highway. As a result of the impact, the plaintiff hit his head on something inside his car and his windshield cracked. The following day the plaintiff experienced problems with his left eye and removed a sliver of glass from his eye.

The plaintiff thereafter sought and received medical treatment from numerous providers, including an ophthalmologist, optometrist, neurosurgeon, and endocrinologist. During his treatment, an MRI revealed a pre-existing tumor on the plaintiff’s pituitary gland, which was secreting prolactin and causing high prolactin levels. The plaintiff’s neurosurgeon opined that the plaintiff had pituitary apoplexy, which he described as an abrupt sudden event that occurs spontaneously in many cases of large pituitary tumors but which can be associated with trauma. After the plaintiff’s neurosurgeon removed the tumor, the plaintiff’s endocrinologist prescribed a medication, bromocriptine, to help lower his prolactin level. While the plaintiff did not always take the medication as prescribed because he could not afford it and it made him ill, he did take it consistently for a period of at least six months, and as a result, his prolactin levels decreased significantly. His endocrinologist eventually advised him to stop taking the medication altogether. The plaintiff’s optometrist also prescribed eyeglasses, but the plaintiff never got them.

The trucking company argued at trial that the plaintiff failed to mitigate his damages because he did not take the bromocriptine as prescribed and did not get the eyeglasses as prescribed. Failure to mitigate damages is an affirmative defense that can reduce the amount of a plaintiff’s damages when the plaintiff’s conduct aggravates or increases the plaintiff’s injuries. In order to prove a failure to mitigate damages, a defendant must prove (1) the plaintiff failed to exercise reasonable care to mitigate his post-injury damages, and (2) the plaintiff’s failure to exercise reasonable care caused the plaintiff to suffer an identifiable item of harm not attributable to the defendant’s negligent conduct. A defendant’s burden of proof includes proof of causation, namely, that the plaintiff’s unreasonable post-injury conduct increased the plaintiff’s harm, and if so, by how much.

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