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Verdict-Article-1-300x189Barsumian Injury Law attorney Jonathan Armiger’s article examining recent Indiana medical malpractice cases was published in Volume 40, No 1 of the Indiana Trial Lawyers Association (ITLA) Verdict.  The article is republished below with permission from ITLA.


The Indiana Court of Appeals has recently issued four opinions concerning whether the claims at issue constituted medical malpractice or ordinary negligence. The distinction is important as such relates to the applicability of the Medical Malpractice Act (MMA), which, among other things, caps damages, Ind. Code § 34-18-14-3, requires claims be presented to a medical review panel prior to prosecuting them in court, Ind. Code § 34-18-8-4, shortens the statute of limitations for minors, Ind. Code § 34-18-7-1(b), and, in conjunction with the Comparative Fault Act, retains contributory negligence for those providers who qualify thereunder, Ind. Code § 34-51-2-1(b)(1).

The Indiana Court of Appeals recently affirmed a jury verdict in favor of a defendant in an Indiana car accident case. In Cook v. Beeman, the Plaintiff, Edward Cook, was driving west on Tenth Street in Jeffersonville, Indiana and collided with a vehicle being driven north on Allison Lane by the Defendant, Mark Beeman. Both Cook and Beeman claimed they had a green light at the intersection of Tenth Street and Allison Lane. The jury returned a verdict in favor of Beeman, finding Cook 51% at fault and Beeman 49% at fault in causing the collision. Under Indiana’s Comparative Fault Act, a personal injury plaintiff may not recover damages if the person’s fault is greater than the fault of all other persons whose fault proximately contributed to the person’s damages.

Cook appealed and on appeal argued that the trial court erred in admitting some of Beeman’s testimony. During the trial, Beeman’s counsel asked Beeman why he did not sue Cook. Beeman replied by stating, among other things, that he did not sue Cook because he had already been compensated for the property damage to his vehicle. Cook argued on appeal that such testimony violated a motion in limine. A motion in limine is a procedural device used to prevent prejudicial, irrelevant, and otherwise objectionable matters that would interfere with a fair and impartial administration of justice from being raised in the presence of a jury before the trial court has had a chance to rule upon the appropriateness or admissibility of those matters. However, a ruling on a motion in limine is not a final ruling and a party must still object to evidence at trial falling within the scope of a motion in limine. Here, Cook did not object when Beeman was asked why he did not sue Cook and Cook did not thereafter move to strike Beeman’s answer. As such, the Court of Appeals held that Cook waived any claim that the trial court erred in admitting the testimony.

Cook also argued on appeal that the trial court erred in not granting a mistrial. On cross examination of Beeman, Cook asked Beeman who compensated Beeman for his vehicle. Beeman requested a sidebar conference with the Court, objecting to the question. Cook argued that Beeman opened the door to this question by Beeman’s testimony about being compensated for his vehicle. Under Indiana Rule of Evidence 411, evidence that a person did or did not have liability insurance is not admissible to prove negligent or wrongful conduct. The transcript provided to the Court of Appeals did not indicate what occurred during the sidebar conference as the recording was inaudible. Cook argued on appeal that the trial court sustained Beeman’s objection and that he moved for a mistrial, which the trial court denied. Beeman argued Cook did not move for a mistrial.

The Indiana Court of Appeals recently affirmed a trial court’s decision refusing to give a negligence jury instruction but giving jury instructions on inherent risks of equine activities and incurred risk in a horse-related injury case. In Burdick v. Romano, the Plaintiff, Kathleen Burdick, and the Defendant, Julie Romano, were riding horses in a horse arena. According to Burdick, Romano’s horse, which was known to be aggressive and kick other horses, kicked Burdick after being left unattended by Romano. Romano claimed that Burdick simply fell off her horse. Burdick suffered a broken shoulder and brain injury and filed a lawsuit against Romano for her injuries.

A jury trial was held, and the jury found in favor of Romano, finding Burdick to be 65% at fault and Romano 35% at fault. Under the modified comparative fault approach outlined in Indiana’s Comparative Fault Act, a plaintiff is barred from recovering damages for personal injuries when the plaintiff’s fault is greater than the fault of all other persons causing the injury. Burdick appealed the verdict arguing the trial court abused its discretion in refusing to give a negligence jury instruction and in giving jury instructions on inherent risks of equine activities and incurred risk.

The Court of Appeals upheld the trial court’s decision finding the parties were engaged in a sporting activity and therefore a negligence instruction was not warranted. The Court recognized previous cases categorizing as sporting activities non-competitive golf, riding a mountain bike alone on a bike trail, and practicing karate kicks during a karate class. Here, after examining the statutory definition of “equine activity,” Ind. Code § 34-6-2-41, which the Court found did not preclude sporting activities, the Court examined the parties’ activities, including riding in an arena (as opposed to pasture or other country terrain) and performing tricks and training related to the sport of horse-back riding, and found that the parties were engaged in a sporting activity. Under Indiana law, when a sports participant injures someone while engaging in conduct ordinary in the sport, and without intent or recklessness, the participant does not, as a matter of law, breach any duty of care. The Court of Appeals found no abuse of discretion in the trial court’s refusal to give a negligence instruction because the evidence did not support giving a negligence instruction and because giving a negligence instruction would have been confusing and misleading to the jury.

The Indiana Court of Appeals recently reversed a trial court’s grant of summary judgment for a healthcare provider in a medical malpractice case which was based upon a motorist’s prior settlement with the Plaintiff and the Indiana Medical Malpractice Act’s cap on damages. In Batchelder v. Indiana Univ. Health Care Associates, Inc., the Plaintiff filed a lawsuit against a healthcare provider arising out of a radiologist’s failure to diagnose her late husband’s unstable cervical spine fracture which he suffered in a motor vehicle collision with another driver. After settling the motor vehicle case for $1.25 million, the Plaintiff filed a medical malpractice lawsuit against the healthcare provider as a joint tortfeasor with joint and several liability for the death of her husband.

The healthcare provider filed a motion for summary judgment arguing that the Plaintiff could not recover any more money because she had already received $1.25 million arising from her husband’s death, which was, at the time, the cap of damages set forth by the Indiana Medical Malpractice Act. The Plaintiff, on the other hand, argued that the $1.25 million-dollar setoff from her settlement with the motorist should be deducted from the total amount of damages, which she valued between six and ten million dollars, as opposed to the Indiana Medical Malpractice Act’s cap on damages. Without any determination of the total amount of damages in the case, the trial court granted summary judgment in favor of the healthcare provider applying the $1.25 million settlement setoff to the Indiana Medical Malpractice Act’s $1.25 million cap on damages.

The Indiana Court of Appeal reviewed prior decisions and Indiana’s “one satisfaction” principle in joint and several liability cases, which provides that courts should credit the funds received from a defendant against amounts recoverable from other co-defendants. In Palmer v. Comprehensive Neurologic Services, P.C., the Indiana Court of Appeals previously upheld a trial court’s judgment of $0 for a plaintiff after a jury awarded $375,000 to the plaintiff against a medical provider where the plaintiff had previously received more than $375,000 from non-healthcare providers. Similarly, in Indiana Dept. of Ins. v. Everhart, the Indiana Supreme Court upheld a $1 million-dollar judgment against the Indiana Patient’s Compensation Fund where the trial court found the Plaintiff’s total damages were $3.15 million and where the Plaintiff had already received $2.15 million from a non-healthcare provider and the underlying medical providers.

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

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

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

The Indiana Court of Appeals recently resolved a dispute as to the availability of underinsured coverage in an Indiana motor vehicle accident case. In Catanzarite v. Safeco Ins. Co. of Indiana, the Plaintiff, Christine Catanzarite, suffered severe injuries when another driver, Timothy Smith, turned his vehicle in front of her vehicle, causing a collision. Catanzarite incurred $269,841.32 in medical expenses at Memorial Hospital in South Bend, Indiana. Smith had a $100,000.00 liability insurance policy. Catanzarite had a $100,000.00 underinsured policy with Safeco.

Smith’s auto insurer offered Catanzarite Smith’s liability insurance limits of $100,000.00. Memorial Hospital asserted a hospital lien for the medical bills incurred by Catanzarite, which it subsequently reduced to $25,000.00. A perfected hospital lien gives a hospital a direct right to insurance proceeds which are paid to the patient by an at-fault party. Catanzarite filed a motion for declaratory judgment against Safeco, upon which she filed a motion for summary judgment, seeking a determination that Smith, as a result of Memorial Hospital’s hospital lien, was an underinsured driver and Catanzarite was entitled to $25,000.00 in underinsured coverage.

Underinsured motorist coverage ensures an insured person receives the recovery he or she would have received if the at-fault driver had carried adequate insurance; it helps protect persons against inadequately insured negligent motorists. Under Indiana law, an underinsured motor vehicle is an “insured motor vehicle where the limits of coverage available for payment to the insured under all bodily injury liability policies covering persons liable to the insured are less than the limits for the insured’s underinsured motorist coverage at the time of the accident…” Ind. Code § 27-7-5-4(b).

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

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

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

The Indiana Court of Appeals recently issued another decision reversing a trial court for giving a failure-to-mitigate jury instruction in an Indiana car accident case. We had previously written about a similar decision in Humphrey v. Tuck. In this case, Harris v. Jones, the Plaintiff, Marlo Harris, was rear-ended on the interstate by the Defendant, Joe Jones, Jr. Harris filed suit against Jones for compensatory damages for her injuries and punitive damages alleging Jones was intoxicated while driving. She also filed an uninsured/underinsured claim against Allstate.

Harris experienced low back pain following the car crash that continued to worsen. Her treating physician diagnosed her with acute lumbar disk disease with left radiculopathy. He treated her with pain medications and injections and referred her for an MRI to determine the cause of her radicular symptoms. Harris never underwent the MRI test. During the four years prior to trial, Harris continued to experience back pain; however, she did not have any medical treatment.

Prior to trial Jones made a qualified settlement offer to Harris in the amount of $25,000.00. Under Indiana law, qualified settlement offers can be made at any time after a complaint has been filed but not within thirty days of trial. Ind. Code § 34-50-1-2. Qualified settlement offers must resolve all claims and defenses. Ind. Code § 34-50-1-3. They must be in writing, signed by the offeror or the offeror’s attorney with his or her name and address, be designated as a qualified settlement offer, be delivered by registered or certified mail or another method verifying the date of receipt, set forth the complete terms of the proposed settlement, and revoke all prior qualified settlement offers. Ind. Code § 34-50-1-4. If a party does not accept a qualified settlement offer, and a final judgment is less favorable than the terms of the qualified settlement offer, the party that made the qualified settlement offer is entitled to attorney’s fees, costs and expenses, not to exceed $1,000.00. After the jury awarded Harris only $10,000.00, the Court awarded Jones $1,000.00 in fees.

Persons involved in car accidents in Indiana due to no fault of their own have numerous claims for damages that they can pursue against the at-fault parties that caused the collisions. Claimants can pursue claims for wrongful death, physical and permanent injuries, medical costs and other expenses, lost wages, lost time, loss of enjoyment of life, emotional distress, mental anguish, loss of services, support and consortium of a spouse, and property damage. In the recent case of Shield Glob. Partners-G1, LLC v. Forster, the Indiana Court of Appeals addressed the availability of one of those items of damage, diminished value of a vehicle as part of a property damage claim.

The case arose out of an automobile collision between Lindsay Forster and Lance Ingersoll in Bloomington, Indiana. Forster rear-ended Ingersoll, and as a result of the collision, Ingersoll’s Chevy Silverado pickup truck was damaged. The truck was repaired for a cost of $6,852.55. Shield Global Partners-G1, LLC (“Shield”), which held an assignment of any claims for any diminished value, sought reimbursement for the diminished value of the truck, despite the repairs that had been satisfactorily performed. Shield presented an in-house appraisal that the truck had a fair market value of $36,550 before the collision, according to the National Automobile Dealers Association, and that after the collision, despite the repairs, its fair market value was $32,529.50, for a diminished value of $4,020.45. Shield also presented a second appraisal from an auto appraiser who estimated that the diminished value of the truck amounted to $7,400.00.

Shield filed suit against Forster for the diminished value of the truck. A bench trial was held. The trial court denied Shield’s claim for the diminished value of the truck. The trial court found that Shield’s diminished value claim amounted to a claim for “stigma of defect” damage, which per the trial court, Indiana law does not per se recognize without permanent damage. The trial court also found that Shield had failed to present sufficient evidence to support its claim of diminished value. The trial court, therefore, found the repair costs to be an adequate measure of damages.

“[A]n insured is an insured is an insured is an insured for purposes of an insurer’s duty of good faith and fair dealing,” the Indiana Court of Appeals wrote in its recent decision in Schmidt v. Allstate Prop. & Cas. Ins. Co. In this case, Monika Schmidt was injured in a car accident. She was riding as a passenger in a vehicle being driven by her friend, Deborah Fisher. The driver of the other vehicle was Robert Bromley. Bromley had a Progressive insurance policy with $50,000 per person liability coverage. Fisher had an Allstate insurance policy with $100,000 per person liability coverage and $100,000 in underinsured motorist coverage. Schmidt was an “insured” under the provisions of Fisher’s Allstate policy. Schmidt sued Bromley and Fisher for her injuries. After Allstate refused to tender Fisher’s policy limits for underinsured coverage, Schmidt amended her lawsuit and added an underinsured claim and bad faith claim against Allstate. Ultimately, Schmidt and Allstate settled the underinsured claim and Fisher and Bromley were dismissed from the case.

Allstate filed for summary judgment on Schmidt’s bad faith claim. Under Indiana law, while an injured third party cannot sue an at-fault party’s insurance company for handling the claim in bad faith, there is an implied duty of good faith in all insurance contracts that an insurer will act in good faith with its insured, and insureds can sue their insurers in tort when their insurers act in bad faith in handling their claims. The duty of good faith and fair dealing owed by insurers includes, among other things, the obligation to refrain from making an unfounded refusal to pay policy proceeds, causing an unfounded delay in making payment, deceiving the insured, and exercising an unfair advantage to pressure an insured into a settlement. Here, Allstate argued that an insurer does not owe a duty of good faith and fair dealing to an insured who is not the policyholder.

On appeal, the Indiana Court of Appeals reviewed prior court decisions relied upon by the trial court in granting summary judgment in favor of Allstate, including Cain v. Griffin, which the Court distinguished on the basis that it involved a third-party beneficiary claim for medical payments coverage as opposed to a claim by an additional insured. The Court also reviewed the duty analysis under Webb v. Jarvis, which provides that courts should balance the following three factors in determining the existence of duty: (1) the relationship between the parties, (2) the reasonable foreseeability of harm to the person injured, and (3) public policy concerns.

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