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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:

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.

Informed Consent
The Indiana Court of Appeals recently affirmed a trial court’s denial of a defendant’s motion for judgment on the evidence and motion to correct error in a medical malpractice informed consent case in which a jury awarded significant damages to the plaintiff arising out of a nerve injury during surgery. The patient in Glock v. Kennedy underwent five surgeries to his left hand, including amputations to his left index finger, which were performed by a surgeon after the patient suffered a crush injury to his left hand. During the fourth surgery, the surgeon caused a nerve injury to the patient’s thumb.

While the medical review panel formed to review the case pursuant to the Indiana Medical Malpractice Act found that the surgeon met the applicable standard of care and his conduct was not a factor of the resultant damages, the panel found there was a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court or jury as to whether the surgeon provided appropriate informed consent before the fourth surgery.

In order to prevail on a claim asserting lack of informed consent in a medical care case, a patient must prove (1) nondisclosure of required information; (2) actual damage… (3) resulting from the risks of which the patient was not informed; (4) cause in fact, which is to say that the plaintiff would have rejected the medical treatment if he had known the risk; and (5) that reasonable persons, if properly informed, would have rejected the proposed treatment. The plaintiff in Glock presented testimony from one of the medical review panel members stating that discussion of the risks of the procedure performed should include nerve injury and reoccurrence of pain or the lack of eliminating the pain. Contrary to the surgeon’s testimony, the patient testified that he was never told the likelihood of success of the procedure in which the nerve injury occurred was only 75% and that the surgeon never explained any risk of the nerves being close together between the index finger and thumb. The patient’s stepsister also testified that the patient was not told about the risk of nerve damage.

The right to a trial by a jury is considered one of our sacred rights under the Constitution. However, this guarantee means little if the impaneled jurors profess to having an unalterable belief as to the propriety of awarding money damages even when instructed by a judge that it is their duty to do so. Indiana’s guidance to trial judges is quite general when it comes to whether a juror should be stricken, as the trial court’s literal reading of the rule in Estate of Pyle v. Mattar, M.D. illustrates.

In Estate of Pyle, the personal representative of the deceased Pyle’s estate, filed a wrongful death/medical malpractice suit against Dr. Mattar and other healthcare providers seeking money damages. During jury selection (also known as voir dire), the following exchange took place between plaintiff’s counsel and a prospective juror, Miller:

[Miller]: So, we have to determine the dollar amount?

Before we meet with a prospective client about their potential car accident injury case or truck accident injury case, we will have already obtained and reviewed the crash report.  We will then go through the crash report with them and identify whether the officer determined anyone was the primary cause of the accident and whether there were any contributing factors. Sometimes the investigating officer has made a definitive decision as to the primary cause. Other times we find the officer was unable to determine what was the primary cause of the accident and has provided an “either or” type answer. Ultimately, we are asked what will the insurance company or trucking company do with the officer’s findings? Unfortunately, like many answers in the law, it depends.

An Indiana Officer’s Standard Crash Report must be completed by the investigating police officer when a car accident causes an injury or death or property damage greater than $1000. The most significant portions of the crash report for personal injury cases are the check-the-box section on contributing circumstances and the section where the officer is to provide a narrative/diagram of the incident.

The check-the-box section on contributing circumstances includes a variety of options for the investigating officer to list for the “Primary Cause” and for the other vehicle(s) involved. Options for the officer include such human factors as alcoholic beverages, illegal drugs, prescription drugs, unsafe speed, failure to yield, disregarding a signal, improper turning, using a cell phone, passenger distraction and pedestrian’s actions. Options also include mechanical factors such as brake failure, accelerator failure, tire failure, and tow hitch failure. Finally, the options include environmental factors such as glare, roadway surface, severe crosswinds, roadway construction, an animal or object in the roadway, utility work, or the view was obstructed. The primary cause is the officer’s strongest suspicion as to what caused the accident. Contributing factors are other issues that may have caused or contributed to the accident.

Indiana has a rather complex and parsimonious medical malpractice statute which sometimes leads to claimants seeking creative solutions to some of the obstacles they face in pursuing justice for claims with merit.  Garau Germano, P.C. v. Robertson, 2019 WL 3886461, involved just such a creative approach.  In Garau Germano, the Indiana Court of Appeals upheld the dismissal of a complaint for declaratory judgment and mandate filed on behalf of a law firm and one of its clients against the Indiana Patient’s Compensation Fund (PCF) and related parties.  The law firm and client sought to prevent the defendants from requiring a medical malpractice claimant’s periodic payments agreement with a qualified health care provider to pay out the provider’s maximum liability under the Indiana Medical Malpractice Act (MMA) before the claimant could access the PCF. For context, the MMA provides that healthcare providers can discharge their liability to claimants by making an immediate payment of their maximum liability under the MMA, or by making an immediate payment and paying the cost of a periodic payments agreement. Ind. Code § 34-18-14-4. The plaintiffs in this case argued that the MMA does not require that a healthcare provider’s immediate payment plus the money paid out under a periodic payments agreement equal the provider’s maximum liability before a claimant can access the PCF.

The MMA provides that healthcare providers are not liable for an amount in excess of $250,000.00 for an act of malpractice that occurs after June 30, 1999 and before July 1, 2017, $400,000.00 for an act of malpractice that occurs after June 30, 2017 and before July 1, 2019, and $500,000.00 for an act of malpractice that occurs after June 30, 2019. Ind. Code § 34-18-14-3. However, if a healthcare provider’s immediate payment of money plus its expenditure for a periodic payments agreement exceeds $187,000.00 for an act of act of malpractice that occurs after June 30, 1999 and before July 1, 2017 or seventy-five percent (75%) of its maximum liability for an act of malpractice after June 30, 2017, the healthcare provider will be considered to have paid its maximum liability. Ind. Code §§ 34-18-14-4, 34-18-15-3. If a healthcare provider has agreed to settle its liability by payment of its maximum liability, either by an immediate payment or by making an immediate payment and paying for a periodic payments agreement to pay out money in the future, a claimant can thereafter file a petition to seek excess damages from the PCF. Ind. Code § 34-18-15-3.

The question raised by the plaintiffs was whether the present payment of money by a healthcare provider plus the future payments under a periodic payments agreement must equal a healthcare provider’s maximum liability. For an act of medical malpractice that occurred after June 30, 1999 and before July 1, 2017, could a claimant access the PCF if a healthcare provider makes an immediate payment of $150,000.00 and pays $37,001.00 for a periodic payments agreement that only pays out $50,000.00 in the future (a total of $200,000.00 in payments), as opposed to paying out $100,00.00 (a total of $250,000.00 in payments)? The answer to this question is important as it relates to elderly claimants, for instance, as any future payments under a periodic payments agreement may not pay out during their lifetime.

The Indiana Court of Appeals recently issued an opinion on whether a trial court properly instructed a jury in a rear-end automobile accident case in Indiana. In Torrence v. Gamble, 124 N.E.3d 1249, 1250 (Ind. Ct. App. 2019), the defendant rear-ended the plaintiff as the plaintiff was stopped waiting for oncoming traffic to clear before making a left-handed turn. After the collision, the plaintiff filed a lawsuit against the defendant for the substantial damage to her vehicle and for personal injuries she suffered in the collision. The defendant denied liability and asserted the plaintiff had comparative fault in causing the collision, namely, that the plaintiff’s brake lights were not illuminated, and her left turn signal was off.

Under Indiana’s Comparative Fault Act, which follows a modified comparative fault approach, a personal injury claimant is barred from recovery if the claimant’s fault is greater than the fault of all persons whose fault proximately contributed to the claimant’s damages. Ind. Code § 34-51-2-6. In other words, if the fault of the claimant is greater than fifty percent (50%) of the total fault of all persons involved in the incident giving rise to the injury or death, the jury has to return a verdict in favor of the defendant or defendants. Ind. Code §§ 34-51-2-7, 34-51-2-8. If the plaintiff’s fault is not greater than fifty percent (50%) of the total fault of all persons involved in the incident giving rise to the injury or death, the jury has to return a verdict in favor of the plaintiff. Id.

Indiana’s Comparative Fault Act provides that a court shall instruct a jury to determine its verdict taking into account the percentage of fault of the claimant/plaintiff, of the defendant/defendants, and of any person who is a nonparty. Id. The Act further provides that the trial court shall provide the jury with forms of verdicts that require only the disclosure of the percentage of fault of each party and nonparty and the amount of the verdict against each defendant. Ind. Code § 34-51-2-11.

The Indiana Supreme Court recently issued an opinion in a car accident case in which the question before the Court was whether a party may use evidence of an expert witness’s professional disciplinary history to challenge the expert’s credibility. In Tunstall v. Manning, 124 N.E.3d 1193, 1195 (Ind. 2019), the plaintiff filed a lawsuit against a defendant driver that had rear-ended the plaintiff at a stop sign, causing injuries to the plaintiff. One of the plaintiff’s treating physicians diagnosed the plaintiff with a 28% whole body impairment.

Leading up to the jury trial, counsel for the defendant inquired about the plaintiff’s physician’s past professional discipline and the reasons underlying the physician’s past discipline. While the physician admitted his medical license had previously been on probation, he refused to answer questions about the reasons underlying his past discipline. When the defendant filed a motion in court to compel the plaintiff’s physician to answer questions about his past discipline, the trial court denied the motion, reasoning that the physician’s professional disciplinary history was not relevant because his medical license was in good standing. At trial, the defendant was unable to use the physician’s licensure probation and the reasons underlying the physician’s past discipline to impeach the physician’s testimony, which was the sole medical testimony offered by the plaintiff, based upon the trial court excluding any evidence of the plaintiff’s physician’s past licensure probation and the reasons for his past professional discipline.

After an Indiana jury returned a verdict in favor of the plaintiff, the defendant appealed, arguing the trial court abused its discretion by disallowing evidence of the plaintiff’s physician’s licensure probation and the reasons underlying his professional discipline. In personal injury cases in which there are competing expert opinions as to the seriousness of a person’s injuries, expert testimony can be particularly important in affecting the amount of any jury verdict in favor of the plaintiff. Once the foundation for an expert’s opinions has been established, the accuracy, consistency, and credibility of the expert’s opinions can be challenged by the parties. The question in this case was whether the plaintiff’s physician’s expert opinions could be attacked by evidence of his professional disciplinary history.

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