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Southern Indiana Personal Injury Lawyer Blog

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The Indiana Court of Appeals recently issued an opinion in Biedron v. Anonymous Physician 1 addressing the applicable statute of limitations in medical malpractice lawsuits in Indiana.

Biedron involved three related medical malpractice claims, which were consolidated for the purposes of the appeal. Proposed complaints for medical malpractice were filed by the plaintiffs with the Indiana Department of Insurance more than two (2) years after the alleged malpractice occurred in each of the cases. The plaintiffs in each of the cases argued that the 2-year occurrence-based statute of limitations, as set forth in the Indiana Medical Malpractice Act, should be tolled under the doctrine of fraudulent concealment. With differing trial court orders on the defendant healthcare providers’ motions for summary judgment on the statute of limitations issue, the Indiana Court of Appeals affirmed in part and reversed in part, finding in favor of the Indiana healthcare providers.

Under the Indiana Medical Malpractice Act, a medical malpractice claim, whether in contract or tort, may not be brought against a healthcare provider based upon professional services or healthcare that was provided, or that should have been provided, unless the claim is filed within two (2) yeas after the date of the alleged act, omission, or neglect, except that a minor less than six (6) years of age has until the minor’s eighth birthday to file. Ind. Code § 34-18-7-1.

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

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

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

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Our lawyers are currently investigating the FDA’s recall of Valsartan in an effort to determine whether a sufficient medico-legal basis will exist to file Valsartan lawsuits for those impacted.  At this point, it is difficult to ascertain whether those who have taken Valsartan products contaminated with NDMA may have been adversely affected by taking the contaminated drug.  The viability of such claims will depend in large part on how long the medication was taken, from whom the medication was sourced, who manufactured the medication, what dose of the medication was taken, and the amount of contaminant contained in the medication.  A Valsartan lawsuit attorney can investigate the facts necessary to form a basis for possible Valsartan litigation.  First and foremost, though, is the need for those taking a contaminated Valsartan medication to consult their physician to determine if they have been taking a contaminated Valsartan product to determine whether a different medication may be indicated.  According to the FDA, Valsartan users should not stop taking the medication until completing a physician consultation.

The biggest concern for Valsartan users appears to be an elevated risk of cancer, although other concerns are possible organ damage or tumors.  Nonetheless, and importantly, at this time, the FDA is warning those taking Valsartan do not stop taking the medication unless and until you have consulted with your prescribing physician.  It is also important to note that not all Valsartan medication was contaminated with NDMA. The FDA has published a list of the recalled and non-recalled medications, which can be found here.  Valsartan lawsuit lawyers will continue to monitor the information being developed by the FDA and companies participating in Valsartan recalls.

According to the FDA, taking the highest Valsartan does (320 mg) from the recalled batches daily for the full four years may increase the risk of cancer to the point one additional case of cancer occurs in the lifetimes of a hypothetical group of 8000 such Valsartan takers.  This may seem like a relatively insignificant risk compared to the risks of developing cancer published by the American Cancer Society.  However, this is additional risk and one additional case of this terrible disease is one too many and may very well warrant a Valsartan law firm to file a product liability or failure to warn lawsuit supported by admissible scientific and epidemiological evidence.

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In Holland v. Indiana Farm Bureau Insurance Company, the Indiana Court of Appeals decided a dispute between an Indiana lawyer and an automobile insurer concerning the reimbursement of medical payments coverage provided by the automobile insurer to the injured client of the lawyer in a personal injury lawsuit. After the lawyer’s client was injured in a vehicle collision and sustained medical bills as a result of injuries suffered in the collision, the client’s automobile insurer paid $5,000.00 towards the client’s medical bills. The automobile insurer put the attorney on notice of its subrogation claim, which entitled it to partial reimbursement of the amount it paid out of its medical payments coverage.

Under Indiana law, the amount of an automobile insurer’s subrogation claim for medical expenses paid on behalf of an injured party is diminished in the same proportion as a personal injury claimant’s recovery is diminished by comparative fault, or by reason of the uncollectability of the full value of the claim for personal injuries or death resulting from limited liability insurance. Ind. Code § 34-51-2-19. The amount of the automobile insurer’s subrogation claim is also reduced by a pro-rata share of the claimant’s attorney’s fees and litigation expenses. Id.

In this case, the personal injury lawsuit against the at-fault party was settled in the client’s favor. The client’s attorney and the automobile insurer were unable to reach an agreement as to the reimbursement amount due the automobile insurer from the personal injury settlement. More than two (2) years after the Indiana attorney and the automobile insurer reached an impasse and communication ceased between them concerning the medical payments subrogation lien, the automobile insurer filed a lawsuit in state court in Indiana against the Indiana attorney. While the trial court initially found in favor of the automobile insurer, the Indiana attorney appealed the decision, and the Indiana Court of Appeals reversed the decision of the trial court, finding in favor of the Indiana attorney based upon a two (2) year statute of limitations for breach of fiduciary duty.

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

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

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

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It’s a fear that many people have – that they or their parents will end up in a nursing home unable to care for themselves and becoming overmedicated. The fact is that many nursing home residents are suffering from Alzheimer’s or some form of dementia which can make them aggressive or anxious. That makes them difficult to care for. And for nursing home workers who are overworked in a facility that is understaffed, the solution, unfortunately, is to medicate such individuals. This often leads to overmedication. An estimated 179,000 people living in nursing homes receive antipsychotic drugs each week although they have no mental illness for which such drugs are intended.

Signs of Overmedication

It is difficult enough to make the decision to send your loved one to a nursing facility. But, sometimes that is the only option and is required to ensure the safety of your loved one. A nursing home should be a place where residents receive adequate care while being kept safe. However, some residents go downhill fast once they’ve entered a nursing home. This is sometimes due to the fact that they are being overmedicated. If you have a loved one who resides in a nursing home, then you should look out for the following signs:

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Last week we looked at Indiana’s anti-texting statute, the unlikelihood of criminal enforcement, and asked whether punitive damages could provide an additional deterrent.  We noted the first obstacle to punitive damages is Indiana’s incentive-reducing statute that takes 75% of any uninsured, punitive judgment and requires this to be paid to the State of Indiana.

The second obstacle to punitive damages is that federal law prohibits “grossly excessive” punishment of wrongdoers as unconstitutional for violating an individual’s substantive due process rights.  Recognizing that there are many different degrees of wrongful conduct, the U.S. Supreme Court placed no arbitrary limit on punitive damages in the case of BMW of North America, Inc. v. Gore, but reversed an award of 1000x compensatory damages.  Later, in State Farm v. Campbell, the Court noted that “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.”  Luckily for State Farm, this meant the reversal of an award of $145 million in punitive damages where compensatory damages had been $1 million.

Indiana law provides wrongdoers in Indiana with even more protection than that provided by the U.S. Supreme Court.   Indiana places an arbitrary cap on any punitive damages award of the greater of $50,000 or three times the compensatory damages awarded.  Thus, even though Indiana victims of wrongful conduct would be helping victims of violent crime and sexual assault by maintaining a claim for punitive damages, Indiana believes three is the magic number when compensatory damages exceed $50,000.

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In 2011, Indiana joined the legions of States that made texting while driving illegal.  Indiana Code 9-21-8-59 bans drivers from using a telecommunications device to type a text message or an email, transmit a text message or an email, or read a text message or an email.  Excepted from the law is using the device in conjunction with hands-free or voice-operated technology, or to call 911 to report a bona fide emergency.

However, absent exceptional circumstances, the law also restricts police from confiscating cell phones and determining if the driver had been using it.  Police cannot use the law to confiscate a phone and keep it as evidence or to extract or download information from the phone.

Although criminal enforcement of anti-texting laws is rare, when a car crash occurs as a result of texting, there may be civil remedies available to deter such conduct.  Punitive damages developed under the law as a means of deterring particularly bad conduct.

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There is a misconception among some that if a product is destroyed during a fire, that it will be too difficult to prove the product had a defect because no specific mechanism can be pinpointed as the cause and origin of the fire.  However, in spite of manufacturing defendants’ attempts to take advantage of a potential legal Catch-22, Indiana law allows a manufacturing defect in a product to be proven through circumstantial evidence and a process of elimination.  This was explained by a federal court applying Indiana law in Gaskin v. Sharp Electronics.

In Gaskin, the plaintiffs claimed that a 19-inch Sharp television caught fire in Ms. Gaskin’s elderly mother’s room, causing her death.  They alleged that Sharp was strictly liable for placing an unreasonably dangerous and defective product–the television–into the stream of commerce.  Sharp filed a motion for summary judgment claiming the plaintiffs were unable to show a defect in the television after their engineering expert was excluded by the court as unreliable.

The plaintiffs responded to the manufacturer’s motion with evidence from a fire investigator who noted that based on his burn pattern analysis and other evidence examined, the fire originated to the north of the television stand.  And, circuit wiring in the room was examined and eliminated as the cause of the fire.  Although a definitive cause could not be determined,  the investigator opined that the fire had burned upward and outward from the television stand.  He conceded he didn’t know the first thing about televisions, but the television was the only ignition source among many he examined that could not be eliminated.

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You are sitting in a growing line of cars at a traffic light waiting to make a right turn onto the Lloyd Expressway. Up ahead at the exit of a parking lot sits a vehicle with a frowning senior citizen who apparently wants to make it across your lane into the left lane.  You recall how you felt the last time you were stuck in traffic and unable to move and someone waved you out.  You decide to return the favor and stop, leaving room for the vehicle to cross your lane.  You look in your rear-view mirror to make sure no traffic is approaching in the left lane, smile and kindly signal the driver to go.  Out of nowhere comes a speeding truck.  Horns honk, and brakes squeal.  Your heart races.

If the cars collide, could you be found negligent for having given the courtesy wave?  In Key v. Hamilton, the Indiana Court of Appeals explored this legal issue.  Hamilton was seriously injured when his motorcycle struck a vehicle Key had waved through traffic.  The trial court ruled that Key owed Hamilton a duty, determining that a jury should be allowed to decide whether Key had been negligent in extending a courtesy wave.  The jury returned a verdict in Hamilton’s favor, finding Key was 45% at fault, the driver who Hamilton had waved through 50% at fault, and Hamilton 5% at fault.  The jury found Hamilton’s damages to be $2.2 million and reduced this award after applying Indiana’s Comparative Fault Act to $990,000, entering judgment against Hamilton.  Hamilton appealed.

The trial court found Key’s duty to Hamilton was grounded in a principle of law embodied by the Restatement (Second) of Torts  324A (1965).  That legal concept provides that “[o]ne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”

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