Justia Lawyer Rating
The National Trial Lawyers
Lead Council Rated Attorney
Super Lawyers
Avvo rating 10.0 - Top Attorney
Avvo rating 10.0 - Top Attorney
Top One
America's Top 100
Expertise - Best Car Accident Lawyers in Indianapolis
Expertise - Best Medical Malpractice Lawyers in Indianapolis
Expertise - Best Personal Injury Lawyers in Indianapolis 2022
Expertise - Best Personal Injury Lawyers in Fishers 2022
Expertise - Best Personal Injury Lawyers in Evansville 2022

The Indiana Court of Appeals recently affirmed a trial court’s order directing patients in related medical malpractice claims to redact portions of their submissions tendered to medical review panels formed to review the cases under the Indiana Medical Malpractice Act. In Bojko v. Anonymous Physician, 215 N.E.3d 376 (Ind. Ct. App. 2023), six patients filed medical malpractice claims against a physician and the physician’s practice (the “physician”). After medical review panels were formed in each of the cases, the patients tendered separate, but in parts similar, submissions to the panels. Among other things, the patients’ submissions referenced a medical malpractice complaint filed by the physician’s wife on behalf of the physician’s estate (the physician was allegedly killed after being prematurely discharged from a hospital ER) wherein the physician’s wife stated the physician suffered from chronic alcohol and drug abuse with signs of mental illness. The physician in Bojko objected and filed a petition in court requesting the trial court order non-evidentiary allegations in the patients’ submissions be redacted. After a hearing, the trial court granted the physician’s petition and ordered the patients to redact “any and all references to the [malpractice complaint]” filed by the physician’s wife and “any and all references to allegations of drug and/or alcohol abuse or mental health issues of [the physician].”

Indiana patients pursuing medical malpractice claims against healthcare providers covered under the Indiana Medical Malpractice Act must first present their cases to medical review panels, which are comprised of one non-voting advisory attorney and three healthcare providers selected by the parties, and receive opinions from the medical review panels before pursing those cases in court. Ind. Code §§ 34-18-8-4, 8-7, 10-3 to 10-10. After the panels are formed, the parties are to submit “evidence,” which “may consist of medical charts, x-rays, lab tests, excerpts of treatises, depositions of witnesses including parties, and any other form of evidence allowable by the medical review panel.” Ind. Code § 34-18-10-17. Panels are then to “express [their] expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards 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. Under the Indiana Medical Malpractice Act, “[a] party, attorney, or panelist who fails to act as required by [the Act] without good cause shown is subject to mandate or appropriate sanctions upon application to the court… having jurisdiction.” Ind. Code § 34-18-10-14.

On appeal the patients in Bojko argued the trial court lacked subject matter jurisdiction to grant the physician’s petition ordering them to redact portions of their submissions. However, in its decision affirming the trial court, the Indiana Court of Appeals referenced its prior decision in Sherrow v. GYN, Ltd., 745 N.E.2d 880 (Ind. Ct. App. 2001), in which it found that Indiana Code section 34-18-10-14 of the Medical Malpractice Act supplied subject matter jurisdiction to trial courts to order redaction of legal argument in “evidentiary submissions because legal argument is not ‘evidence.’” Sherrow, 745 N.E.2d at 884-885. Similar to legal argument, the Court in Bojko reasoned “unsworn [and] unsubstantiated allegations in a third-party proposed medical malpractice complaint are not evidence as described in Indiana Code Section 34-18-10-17.” Bojko, 215 N.E.3d at 380. According to the Court, Indiana Code sections 34-18-10-17 and 10-22 of the Medical Malpractice Act require panel opinions to be “based on the actual facts (and sworn testimony regarding those facts) of the particular case before the panel and not on mere allegations raised in another case or cases,” which are “non-evidentiary matters [that] are ‘inappropriate in evidentiary submissions’ to a medical review panel.” Bojko, 215 N.E.3d at 381. Finding the trial court had authority under Indiana Code section 34-18-10-14 to mandate compliance with Indiana Code section 34-18-10-17, the Court affirmed the trial court’s order requiring redactions of the patients’ submissions.

In Z.D. v. Community Health Network, Inc., the Indiana Supreme Court addressed a patient’s claim for invasion of privacy and negligence against a hospital that disclosed her private health information to a wrong person.

Z.D. received medical care at Community Health Network’s emergency department in 2018. A hospital employee called Z.D. to discuss her health matters but could not reach her. The employee then prepared a letter containing Z.D.’s diagnosis and treatment, but placed it in an envelope addressed to Jonae Kendrick, a teenager who knew Z.D.’s daughter. Kendrick opened the letter, posted it on Facebook, and tried to tag Z.D. Z.D.’s daughter saw the post and notified her mother. Kendrick declined Z.D.’s daughter’s request to remove the post. However, Kendrick later relented and removed the post in response to Z.D.’s request that she remove the post and return the letter in exchange for $100. Z.D. sued the hospital for invasion of privacy and negligence, seeking damages for emotional distress and other losses.

The trial court granted summary judgment to the hospital on all of Z.D.’s claims. The court found that the hospital was not the proximate cause of Z.D.’s damages, that Z.D. could not recover emotional-distress damages in her negligence claim due to the modified impact rule, and that Z.D. did not bring a claim for public disclosure of private facts.

The Indiana Supreme Court recently examined whether an individual who pleaded guilty but mentally ill to voluntary manslaughter can sue his mental health providers for negligence and emotional distress. The case presented quite a complicated procedural and factual history and, ultimately, generated a strongly worded dissent by the Chief Justice.

By way of background, Plaintiff, Zachary Miller (Miller) pleaded guilty but mentally ill to the voluntary manslaughter of his grandfather, which left his grandmother, Betty Miller, widowed. The conduct and killing arising out of Miller’s actions generated two previous appeals arising out of the same conduct. In Miller I, a case we previously blogged about here, the Court found that the federal Emergency Medical Treatment and Labor Act’s (EMTALA) statute of limitations did not preempt a state rule allowing for amendments relating back to an original pleading. Next, in Miller II, which opinion can be found here, the Indiana Court of Appeals, in reviewing Betty Miller’s claim arising out of her husband’s death, found Zachary Miller’s mental health providers were not immune from liability under two statutory provisions for failing to warn or take precautions to protect others from a patient’s violent behavior.

In the subject of this blog, Miller v. Patel, et al. decided on June 29, 2023 (Miller III), the Court first examined the case background. Miller, who suffered from severe mental illness, killed his grandfather in January 2017 after receiving allegedly negligent care from his mental health providers. Miller pleaded guilty but mentally ill to voluntary manslaughter and was sentenced to 20 years in prison, 12 executed. Miller filed a civil lawsuit against his providers, alleging that they failed to comply with the appropriate standard of care and caused him permanent injuries, pain, emotional distress, and loss of freedom from his incarceration. A medical review panel found that the providers were negligent, and their conduct was a factor of Miller’s damages. However, the trial court granted summary judgment for the providers, finding that Miller’s damages were not compensable under Indiana public policy and that he was estopped from relitigating his responsibility for the crime. The Court of Appeals reversed and remanded, holding that 1) the providers failed to show there were no genuine issues of material fact and 2) collateral estoppel did not apply to Miller’s guilty plea.

The Indiana Court of Appeals recently reversed a trial court’s denial of a motion for summary judgment filed by the Indiana Department of Insurance and the Indiana Patient’s Compensation Fund (the Fund) in a negligent credentialing claim. In Indiana Dep’t of Ins. v. Doe, a doctor sexually molested a minor child during a physical exam. The child’s parents (the Does) filed a medical malpractice claim against the doctor and the hospital for which the doctor worked. In their lawsuit, the Does asserted the hospital was negligent in credentialing the doctor. The Does and the hospital thereafter entered into a settlement agreement, which was contingent on the Does obtaining access to excess damages from the Fund. After the Does filed a petition against the Fund for excess damages, the Fund moved for summary judgment, with the hospital as an intervening party. The Fund argued the Does’ negligent credentialing claim was not medical malpractice within the scope of the Indiana Medical Malpractice Act (the Act), and therefore, it had no liability to pay excess damages, thereby making the settlement between the Does and the hospital null and void. The trial court denied the Fund’s motion for summary judgment and the Fund appealed.

Under Indiana law, the Act applies to claims for malpractice against healthcare providers qualified under the Act. The Act provides a monetary cap on the liability of healthcare providers, and if a healthcare provider agrees to settle a claim under the Act, claimants may then pursue excess damages from the Fund. Over the years, there have been a variety of cases setting forth what is, and what is not, medical malpractice under the Act, as the Act does not cover all claims against healthcare providers. Whether a claimant can recover excess damages from the Fund depends on whether the Act applies. The Act applies to curative or salutary conduct of a healthcare provider while acting in a professional capacity. The Act does not apply to conduct unrelated to the promotion of a patient’s health or a healthcare provider’s exercise of professional expertise, skill, or judgment. Courts analyze (1) whether the alleged negligence involved the provision of medical services and (2) whether the provision of medical services was to a patient for the patient’s benefit.

Here, the Does sought to recover excess damages from the Fund based upon their negligent credentialing claim against the hospital. However, Indiana caselaw has found the Act inapplicable to claims of sexual misconduct by healthcare providers, and under prior precedent, claimants are required to prove underlying malpractice to succeed on a negligent credentialing claim. The Indiana Court of Appeals reaffirmed its prior position in holding “an underlying act of medical malpractice is a necessary predicate and condition precedent to a medical credentialing malpractice claim,” and concluded that, since the Does’ underlying claim against the doctor was not malpractice under the Act, the Does’ negligent credentialing claim also fell outside of the Act, thereby preventing the Does access to excess damages from the Fund.

The Indiana Supreme Court recently affirmed a trial court’s judgment dismissing a personal injury lawsuit based upon issue preclusion and Indiana’s Comparative Fault Act. In Davidson v. State, Kathryn Davidson (“Davidson”) sustained severe injuries and was rendered a quadriplegic when she was ejected from the passenger seat of a semi-truck that crashed into an overpass-bridge pier in a construction zone on I-69. Davidson’s boyfriend, Brandon Nicholson, fell asleep while driving the semi-truck for his employer, J Trucking, LLC. Davidson filed a lawsuit against J Trucking, LLC and obtained a $3.2 million judgment after a bench trial. Thereafter, Davidson filed a second lawsuit, for the same injuries and damages, against the State of Indiana and five other defendants (“the Defendants”) for their role in the construction of the section of I-69 where the truck crash occurred, including their alleged failure to appropriately place barriers in front of the bridge pier.

In the second lawsuit, the Defendants moved to have Davidson’s case dismissed based upon, among other things, the legal doctrine of issue preclusion, which prevents a party who has previously litigated an issue and lost from relitigating the same issue in a second lawsuit when that issue was necessarily decided in the prior lawsuit by a court of competent jurisdiction. In applying issue preclusion against a party, courts must consider whether the party had a full and fair opportunity to litigate the issue in the first lawsuit and whether it would be unfair under the circumstances for issue preclusion to be used against the party in the second lawsuit. Here, the trial court dismissed Davidson’s second lawsuit with prejudice, the Indiana Court of Appeals reversed finding issue preclusion did not apply, and the Indiana Supreme Court granted transfer.

Ultimately, the Indiana Supreme Court held Davidson’s claims in her second lawsuit were barred by issue preclusion based on its interpretation of Indiana’s Comparative Fault Act. Under the Comparative Fault Act, a trier of fact must consider the fault of all persons who caused or contributed to cause an injury or death and apportion 100% of the damages in the case between parties and nonparties. Nonparties are persons who caused or contributed to cause an alleged injury or death but who have not been joined in a lawsuit as defendants. A defendant may raise a nonparty defense to have fault attributed to a nonparty, thereby lessening any fault attributable to the defendant, and in turn, any judgment that must be paid. However, for fault to be attributed to a nonparty, the Comparative Fault Act requires the nonparty be named in the lawsuit.

The Supreme Court of the United States has spoken on nursing home resident rights. In a landmark decision, it has affirmed the right of nursing-home residents to sue for violations of their dignity and freedom under federal law. The case was brought by Ivanka Talevski, whose father Gorgi suffered from dementia and was subjected to chemical restraints and forced transfers by his nursing home, Valparaiso Care and Rehabilitation, which was owned by the Health and Hospital Corporation of Marion County and managed by American Senior Communities. Talevski sued all three entities. She claimed they had breached the Federal Nursing Home Reform Act (FNHRA), which was passed in 1987 and signed into law by President Reagan to protect residents from unnecessary restraints and requires advance notice of discharge. She brought claims under Section 1983 of Title 42 of the United States Code (“Section 1983”), which is a statute that allows anyone to sue for deprivation of federal rights and reads in relevant part:

[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

The nursing home argued that Talevski could not maintain Section 1983 claims because the FNHRA was enacted under Congress’s spending power and did not create individual rights.

The Indiana Court of Appeals recently affirmed a trial court’s grant of summary judgment to the Indiana Department of Transportation (INDOT) based upon immunity provided under the Indiana Tort Claims Act (ITCA), Indiana Code Chapter 34-13-3. In Cranfill v. Dep’t of Transp., Josephine Cranfill was killed when the vehicle in which she was riding as a passenger was struck while crossing a problematic intersection in 2019 in Hendricks County, Indiana. The INDOT had known of safety concerns at the intersection since 2014, including a history of “right angle crashes.” In 2016 the INDOT installed extra signage at the intersection. Concerns about the intersection increased prior to the collision in 2019 because I-65 was closed and traffic from I-65 was detoured through the intersection. While at the time of the collision the speed limit on the main roadway going through the intersection was 55 MPH, after the collision, the INDOT temporarily reduced the speed limit to 45 MPH pending the installation of a traffic signal at the intersection.

Matthew Cranfill (“Cranfill”), Josephine’s father and the personal representative of Josephine’s estate, sued the INDOT for Josephine’s wrongful death. As applicable here, Cranfill alleged that the INDOT was negligent for failing to reduce the speed limit on the main roadway prior to the collision. While Indiana’s common law provides that governments have a duty to exercise reasonable care to keep streets and sidewalks in a reasonably safe condition for travel, the ITCA provides enumerated instances in which governments have immunity from tort liability. In the trial court, the INDOT moved for summary judgment based upon the ITCA, including, as applicable here, Indiana Code § 34-13-3-3(a)(8), which provides that “a governmental entity… is not liable if a loss results from… [t]he adoption and enforcement of or failure to adopt or enforce… a law (including rules and regulations).” The trial court agreed with the INDOT that the INDOT had immunity that was a complete bar to Cranfill’s claims, and therefore, entered final judgment in favor of the INDOT. Cranfill thereafter appealed to the Indiana Court of Appeals.

On appeal, Cranfill argued the trial court erred in finding the INDOT had immunity. Cranfill relied on the Indiana Supreme Court’s decision in Ladra v. State, a case discussed in one of our prior blogs. In Ladra, the Indiana Supreme Court adopted a new rule removing governmental immunity for the temporary condition of public thoroughfares when the government knows of an existing defect in a public thoroughfare that manifests during recurring weather conditions and has ample opportunity to respond. Here, Cranfill argued the INDOT should not have immunity because it knew about the dangerous condition at the intersection and had ample time to respond. However, the Indiana Court of Appeals noted the rule in Ladra did not apply to the ITCA subsection applicable here, Indiana Code § 34-13-3-3(a)(8). While the INDOT has statutory authority to alter speed limits and despite knowing of the dangerous condition of the intersection with ample time to respond, based upon prior precedent and the plain meaning of Indiana Code § 34-13-3-3(a)(8), the Court found the INDOT was immune for failing to lower the speed limit prior to the collision. The Court held that “[t]he Department’s failure to lower the speed limit on [the roadway] involved the ‘adoption and enforcement of or failure to adopt or enforce’ a rule and/or regulation,” and therefore, under the ITCA, the INDOT was immune from Cranfill’s claims.

The Indiana Court of Appeals recently affirmed a trial court’s grant of summary judgment to a rental home landlord in a lawsuit for injuries and damages brought by a mail carrier who was attacked by two pit bull dogs at the landlord’s rental home. In Fields v. Gaw, Constance Gaw (Gaw) rented a home to Jason McClurg (Jason), who, along with Jill Fields (Jill), resided at the home and owned the dogs. The rental lease stated Jason could have two dogs or cats in the home. Tiffance Fields (Fields), a USPS mail carrier, was delivering mail to Jason’s home and was attacked by Jason and Jill’s dogs. Fields thereafter filed a lawsuit against Jason, Jill, and Gaw alleging they were liable for her injuries and damages under Indiana’s Dog Bite Statute, Ind. Code § 15-20-1-3.

Indiana’s Dog Bite Statute provides that an owner of a dog that bites a person, without provocation, is liable for all damages suffered by the person if the person was acting peaceably and was in a location where the person may be required to be in order to discharge a duty imposed upon the person by the laws of Indiana, the laws of the United States, or the postal regulations of the United States. Ind. Code § 15-20-1-3(a). An “owner” is defined in the Dog Bite Statute as the owner of a dog, including any person who “possesses, keeps, or harbors a dog.” Ind. Code § 15-20-1-2. Under the Dog Bite Statute, an owner is liable for damages even if the dog had not previously behaved in a vicious manner and the owner had no knowledge of prior vicious behavior by the dog. Ind. Code § 15-20-1-3(b). In essence, Indiana’s Dog Bite Statute renders dog owners strictly liable when their dogs bite the class of individuals set forth in the Statute without provocation.

Gaw filed a motion for summary judgment arguing that she had no duty of care to Fields, with her noting that Jason had full possession or control of the rental property, she was not present on the property when the incident occurred, and she was not the owner of, and did not have control over, the dogs. In response, Fields argued that because the lease agreement between Gaw and Jason allowed Jason to have dogs at the rental home, Gaw thereby “harbored” the dogs, making her an “owner” under the Dog Bite Statute. The trial court granted summary judgment for Gaw, finding Gaw was not “the owner of the dog at issue,” with “not even any inference… that supported [Fields’] argument that Gaw possessed, kept, or harbored the dog at issue.” The trial court also found no common law liability on behalf of Gaw and denied Field’s cross-motion for summary judgment. Fields only appealed the trial court’s judgment as to the applicability of Dog Bite Statute as to Gaw.

The Indiana Court of Appeals recently affirmed a trial court’s grant of partial summary judgment in favor of a fireworks company and against a homeowner whose house was set on fire by a firework shell mortar. In Hunter v. J & M Displays, Inc., J & M Displays, Inc. (J & M) performed a fireworks display on Lamb Lake in Johnson County, Indiana on July 5, 2019. Faye Hunter (Faye) was asleep in her bed when J & M commenced the fireworks display. While Faye was sleeping, a firework shell mortar launched by J & M crashed into Faye’s home and started a fire in her home. When the shell mortar hit, Faye’s bed shook, and she heard dishes rattling in her home. A man came to her door pounding on her door and escorted her out of her home. Faye did not sustain any physical injuries as a result of the incident.

Faye and James Hunter (the Hunters) sued J & M for the property damage to their home and for the personal injury of negligent infliction of emotional distress to Faye. J & M thereafter filed a motion for partial summary judgment in the trial court arguing that Faye could not recover emotional distress damages under Indiana law. The trial court held a hearing and, agreeing with J & M, entered partial summary judgment in favor of J & M on Faye’s negligent infliction of emotional distress claim.

Over the years Indiana law has changed with regards to the recovery of damages for negligent infliction of emotional distress. Currently, Indiana law allows for the recovery of such damages under four circumstances. First, under the impact rule, a plaintiff can recover emotional distress damages if he or she suffers a direct physical impact resulting in physical injury with emotional trauma resulting from the injury. Second, under the modified-impact rule, a plaintiff can recover when, without any physical injury, he or she sustains a direct physical impact and the defendant’s negligence caused an injury or death to a third party, so long as the emotional trauma is serious enough to affect a reasonable person and resulted from the plaintiff’s direct involvement. Third, under the bystander rule, a plaintiff can recover when, without any direct impact, he or she witnesses a relative’s severe injury or death or viewed the immediate aftermath of the incident. Fourth, a parent or guardian of a sexually abused child can recover for negligent infliction of emotional distress when the wrongdoer has a duty of care to the parent or guardian, there is irrefutable certainty of the act’s commission, the act is one that rarely, if ever, is witnessed by parents or guardians, and the abuse severely impacts the emotional health of the parent or guardian.

Penny Chappey and her husband Gregory Chappey (the Chappeys) sued a tow truck driver, Joseph Paul Storey (Storey), and his company for injuries Penny suffered when she fell from the flatbed of Storey’s tow truck while he was loading and securing her vehicle. Penny was at a CVS with her bulldog puppy when her SUV wouldn’t start. She called for a tow and Storey responded. Penny asked Storey whether her puppy could stay in her vehicle, and Storey said yes. Storey got into Penny’s vehicle to put her vehicle in neutral and Penny’s puppy was jumping all over him.

After Storey loaded Penny’s vehicle, Penny got onto the flatbed of the tow truck. While Penny said Storey asked her to get on the flatbed to restrain her puppy so that Storey could put her vehicle in park, Storey said he did not ask Penny to get onto the flatbed, did not know Penny was on the flatbed, and believed Penny being on the flatbed was in violation of industry standards. After Penny restrained her puppy on the flatbed, she pivoted to walk towards the back of the flatbed and fell several feet to the ground, suffering injuries. While Penny didn’t know exactly why she fell, she noted it was a tight space to traverse without the ability to have her feet side by side.

In personal injury negligence claims in Indiana, claimants must prove (1) the defendant owed the claimant a duty, (2) the defendant breached that duty, and (3) compensable injuries proximately caused by the defendant’s breach of duty. Storey and his company moved for summary judgment arguing that there existed no genuine issue of material fact as to proximate cause, which is generally a question of fact for the jury, because Penny did not know what caused her to fall. The trial court held a hearing and three months later issued an order granting summary judgment for the defendants.

Contact Information