Indiana Personal Injury Lawyer and Medical Malpractice Attorney Blog

Barsumian and Armiger Recognized by Indiana Super Lawyers in 2021

Published on: March 3, 2021 | by Barsumian Armiger

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Super Lawyers rates Indiana attorneys on a yearly basis in more than 70 different practice areas, including personal injury and medical malpractice. Following its completion of a peer review process, together with a patented evaluation process, the organization determines the lawyers in Indiana it will include on its Super Lawyers and Rising Stars list and announces those named online and in its Super Lawyers Magazine. Super Lawyers rates attorneys nationwide among their peers for their respective states and areas of practice.

This year marks Barsumian’s fourth consecutive selection as a Super Lawyer in the field of personal injury. Super Lawyers recognizes no more than 5 percent of the attorneys in Indiana. Barsumian was previously selected as a Rising Star on four occasions. Armiger, recognized for the area of medical malpractice, has now been selected to the Rising Star list on five occasions. The Rising Stars designation recognizes attorneys 40 years old or younger and represents only 2.5 percent of the attorneys in Indiana.

Barsumian and Armiger are proud of this recognition and look forward to continuing to serve their clients in the Indianapolis and Evansville area in the areas of personal injury, medical malpractice, and wrongful death.

Kentucky Supreme Court Rules Nursing Home’s Independent Nurse Consultant Reviewer’s Critical Analysis of Resident’s Care is Shielded by Federal Quality Assurance Privilege

Published on: February 26, 2021 | by Barsumian Armiger

Jacqueline McGuire was a resident of Henderson County Healthcare Corporation’s Redbanks Skilled Nursing Facility in Henderson Kentucky. After McGuire suffered bedsores and multiple injuries while at Redbanks, McGuire was transferred to another nursing home facility where she ultimately died. McGuire’s brother, as administrator of her estate, filed a nursing home negligence lawsuit with various claims against Redbanks arising out of the alleged neglect.

During the prosecution of the lawsuit, Redbanks refused to respond to discovery requests seeking documents Redbanks claimed were protected by the Federal Quality Assurance Privilege (FQAP) pursuant to 42 U.S.C. § 1396r(b)(1)(B) and 42 U.S.C. § 1395i-3(b)(1)(B). The FQAP is a subsection of the Federal Nursing Home Reform Act (FNHRA) passed in 1987. To ensure quality care of nursing home residents, the FQAP requires skilled nursing facilities and nursing facilities to establish a quality assessment and assurance committee. The FQAP protects the records of the committee from disclosure.

At times relevant to McGuire’s care, Redbanks had a Quality Assurance Performance Improvement (QAPI) committee, which then contracted with an independent contractor, Wells Health Systems (“Wells”), to consult and evaluate and provide guidance to Redbanks on the facility’s quality of care. Nurse consultants employed by Wells performed site visits monthly wherein they examined residents’ medical charts, observed Redbanks staff perform their duties, and reviewed various statistical data. These chart audits, compliance rounds, and statistics reviews were then compiled in reports provided to Redbanks QAPI. The nurse consultants were neither Redbanks’ employees, nor members of the QAPI.

Kentucky Supreme Court Finds Kentucky’s Unfair Claims Settlement Practices Act Does Not Apply to Captive Insurers in Medical Negligence Case

Published on: February 18, 2021 | by Barsumian Armiger

Unlike Indiana, Kentucky has a statute, the Unfair Claims Settlement Practices Act (“UCSPA”), KRS 304.12-230, that expressly allows for bad-faith claims to be brought against liability insurers for unfair claims settlement practices. However, so-called captive insurers have taken the position that they are excluded from the law. The Kentucky Supreme Court recently addressed the issue in Merritt v. Catholic Health Initiatives, Inc.

Harold Merritt alleged that Dr. Anthony Smith, an employee of KentuckyOne Health, was responsible for medical negligence in the deaths of his wife, Kimberly, and infant son. During her pregnancy, Kimberly developed placenta previa, a condition wherein the baby’s placenta partially or totally covers the mother’s cervix, which can cause severe bleeding during pregnancy and delivery. Although the high-risk obstetrician to whom Dr. Smith referred Kimberly recommended a caesarian section no later than at thirty-seven weeks gestation, Dr. Smith examined her at thirty-seven weeks and scheduled an appointment one week later. Shortly thereafter Kimberly was found unresponsive at home and died shortly after being transported to the hospital by EMS. The couple’s child was delivered by post-mortem caesarian section, but only survived a few hours, suffering seizures during that time.

In his medical malpractice complaint, Merritt named Catholic Health, an entity that sponsors KentuckyOne Health and its affiliates, and First Initiatives, a foreign, wholly-owned subsidiary of Catholic, which provided self-insurance coverage to Catholic, its affiliates and employees including KentuckyOne Health and Dr. Smith. First Initiatives provided coverage and Catholic paid assessments to First Initiatives, although Catholic’s affiliates did not pay for the coverage. Merrit included a claim that First Initiatives violated the UCSPA, KRS 304.12-230, by engaging in bad faith settlement negotiations.

The $0 Whiplash and Mild Concussion “Verdict of Silence”

Published on: February 14, 2021 | by Barsumian Armiger

How does a $1,000,000 verdict in a car-accident-whiplash case become a $250,000 verdict and then ultimately become a $0 judgment? That is the query recently answered by the Seventh Circuit in Spinnenweber v. Laducer.

Spinnenweber was driving a minivan on I-94 in Indiana when he was rear-ended by a truck driven by Laducer. Spinnenweber refused medical care at the scene and only five days later sought care at an urgent care center for pain in his neck and possible ringing in the ears, which is also commonly known as tinnitus. Three months later Spinnenweber reported to his doctor that he was suffering tinnitus and short-term memory loss. Spinnenweber ultimately treated with seventeen medical providers.

Spinnenweber sued Laducer and Laducer’s employer. At trial, Spinnenweber did not seek damages for anything but physical injuries, waiving any request for medical expenses or lost wages or psychiatric, mental, or emotional injuries. The Defendants conceded responsibility for causing the crash.

Seventh Circuit Court of Appeals Asks Indiana Supreme Court to Answer Questions Regarding Application of Indiana’s Medical Malpractice Act

Published on: February 11, 2021 | by Barsumian Armiger

The United States Court of Appeals for the Seventh Circuit recently requested the Indiana Supreme Court address two questions through a process known as certification of questions. Both Seventh Circuit Rule 52(a) and Indiana Rule of Appellate Procedure 64 recognize federal courts may seek guidance from a state’s highest court on questions arising under the law of that state which will control the outcome of a case pending in federal court.

The questions arose out of a tragic car crash in Gibson County, Indiana, which claimed the lives of two drivers and a passenger. Sylvia Watson was driving from a repair shop in Owensville, Indiana to Princeton, when she approached a red light and exclaimed to the sole survivor of the crash, her granddaughter/passenger, Brandy Mayer, that she could not stop the vehicle. Watson’s vehicle struck a vehicle driven by Claudine Cutchin, whose daughter, Adelaide, was in the passenger seat. Claudine died at the scene and Watson and Adelaide died later from the injuries suffered.

A blood test on Watson revealed opiates in her bloodstream and Mayer recounted Watson had taken two pills before leaving the repair shop. It was later discovered that a physician had prescribed Watson eight different medications, including an opioid and muscle relaxers.

Indiana Supreme Court Affirms Claims Against Public Schools Act Dismissal Due to Personal Injury Claimant Failing to Timely and Appropriately Challenge Dismissal

Published on: February 3, 2021 | by Barsumian Armiger

We previously wrote on the Indiana Court of Appeals’ decision in Smith v. Franklin Twp. Cmty. Sch. Corp. in which the Court of Appeals reversed a trial court’s dismissal of a personal injury lawsuit concerning a motor vehicle accident finding the pre-suit notice requirements of Indiana’s Claims Against Public Schools Act (“CAPSA”), which was enacted a year and a half after the subject accident, could not be retroactively applied. Recently, on a petition to transfer, the Indiana Supreme Court weighed in and affirmed the trial court’s dismissal on procedural grounds.

The personal injury lawsuit arose when Benjamin Smith (“Smith”) was injured when his vehicle collided with a school bus owned and operated by the Franklin Township School Corporation (“the School”). After Smith filed a lawsuit, the School filed a motion to dismiss arguing that Smith failed to comply with the notice provisions of the newly enacted CAPSA. Smith did not file a response to the motion to dismiss, and when the trial court dismissed Smith’s complaint without prejudice, he did not appeal. Instead, after two months had passed, Smith filed a series of filings requesting reinstatement of his complaint pursuant to Indiana Trial Rule 41(F), which the trial court denied.

The Indiana Supreme Court did not review whether Smith’s tort claim notice pursuant to the Indiana Tort Claims Act satisfied the notice requirements of CAPSA, or whether CAPSA could be retroactively applied given it was enacted after the subject accident. Instead, the Court focused on whether Smith followed the proper procedure in challenging the trial court’s dismissal.

Indiana Court of Appeals Finds Employee’s Dismissal Did Not Bar Plaintiff’s Case Against Employer Under Respondeat Superior

Published on: January 28, 2021 | by Barsumian Armiger

The Indiana Court of Appeals recently reversed a trial court’s grant of summary judgment for an assisted living facility reaffirming long-standing Indiana precedent that in injury lawsuits arising out of the negligence of employed individuals acting within the course and scope of their employment, the plaintiff can sue 1) the employee, 2) the employer, or 3) both the employee and employer.

In Hogan v. Magnolia Health Sys. 41, Mary Hogan (“Hogan”), and subsequently her Estate, sought damages for a personal injury that occurred when an employee of Magnolia Health Systems 41, LLC (“Magnolia”), which owned and/or operated Crown Pointe of Carmel, an assisted living facility, caused a buffet table to fall on Hogan’s walker causing Hogan to fall and hit her head. Hogan sued Magnolia, and, not knowing the name of the employee, “John Doe.” After later learning of the employee’s name, Hogan moved to amend her complaint to name the employee. However, because the amendment occurred more than two years after the incident, the employee filed a motion to dismiss based upon the statute of limitations, which the trial court granted. Magnolia then filed a motion for summary judgment arguing it could not be held vicariously liable for the employee’s actions under respondeat superior because Hogan’s claim against the employee was barred. After a hearing, the trial court granted Magnolia’s motion, and Hogan appealed.

The legal theory of respondeat superior imposes liability on employers for the wrongful conduct of employees committed within the course and scope of employment. To be within the course and scope of employment, the act must have been incidental to authorized conduct or in furtherance of the employer’s business to an appreciable extent. Thus, although an employer may not have committed any wrongful or negligent act itself, when an employee commits a negligent act in the course and scope of employment, the employer can be held liable for the employee’s negligence. However, no liability applies under respondeat superior if the employee was not negligent.

Handing Business Card to Patient Found Insufficient Notice in Hospital Malpractice Lawsuit for Hospital to Avoid Liability for Anesthesiologist’s Actions Under Apparent Agency In Spite of Independent Contractor Relationship

Published on: December 19, 2020 | by Barsumian Armiger

Delivery of a business card to a patient during registration for a surgical procedure does not itself, as a matter of law, constitute meaningful written notice, acknowledged at the time of admission, to a patient that a physician is an independent contractor for which a hospital has no liability arising out of the doctor’s alleged malpractice. This is what the Indiana Court of Appeals recently held in the case of Jernagan v. Indiana Univ. Health.

Richard Jernagan (“Jernagan”) underwent spine surgery at IU Health North Hospital. The anesthesiologist was Dr. Michael Miller, a partner with Anesthesia Consultants of Indianapolis. Prior to the procedure, an IU Health guest relations representative, Mary Mosby (“Mosby”), registered Jernagan and gave Jernagan Dr. Miller’s business card, which stated Dr. Miller’s name, employer, and contact information. Mosby did not tell Jernagan Dr. Miller was an independent contractor and not an employee of the hospital. During the surgery, Jernagan suffered a cardiac arrest requiring resuscitation and admission to the ICU due to a sudden drop in blood pressure and significant blood loss. Jernagan filed a lawsuit against the surgeon and the hospital. A medical review panel found no malpractice on behalf of the named defendants and did not address the conduct of Dr. Miller, who had not been named in the lawsuit. After the hospital filed a second motion for summary judgment, Jernagan filed an expert affidavit as to Dr. Miller and argued the hospital was vicariously liable for his conduct based upon apparent agency pursuant to Sword v. NKC Hospitals, Inc. The trial court granted the hospital’s motion and Jernagan appealed.

The Court of Appeals first resolved a procedural issue concerning the timeliness of Jernagan’s response to the hospital’s motion for summary judgment. There had been an agreement for an extension of time reached between Jernagan and the hospital as noted on an entry to the Chronological Case Summary (CCS) with defense counsel directed to circulate an order regarding the summary judgment deadline. Indiana law has a bright-line rule that, unless a party responds to a motion for summary judgment within the applicable timeframe or requests an extension, a trial court has no discretion to alter the time limits for a response. The Court of Appeals agreed with the trial court’s analysis that the CCS entry’s direction that defense counsel circulate an order was meant to separately express the order stated in the CCS entry, and with Jernagan having requested an extension, which was granted by the trial court, Jernagan’s response was timely.

Indiana’s Good Samaritan Law Protects Truck Driver Rear-Ended by Motorist While Stopped to Provide Assistance to Prior Car Accident

Published on: December 9, 2020 | by Barsumian Armiger

The Indiana Court of Appeals recently ruled in favor of Eric McGowen (“McGowen”) in a counterclaim filed by Bradley Montes (“Montes”) for injuries Montes suffered when he rear-ended McGowen’s semi-truck, which was stopped on a county road while McGowen was attempting to assist another motorist who had been involved in a prior car accident. The collision occurred on an early foggy morning in Tippecanoe County, Indiana. McGowen, driving under the speed limit due to poor visibility, stopped in the road when he noticed a heavily damaged truck in a ditch on the side of the road and a man, Ryan Patton (“Patton”), appearing drunk or injured. McGowen stopped in the road, with his brake lights illuminated, rolled down his window, and asked Patton if Patton wanted him to call 911. Patton asked McGowen to call 911. Within fifteen to thirty seconds from McGowen stopping in the road, Montes collided into the rear of McGowen’s semi-truck.

McGowen filed a motion for summary judgment asking the trial court to find that he was shielded from liability under Indiana’s Good Samaritan Law (“GSL”), Indiana Code § 34-30-12-1. The GSL states in pertinent part that “a person who comes upon the scene of an emergency or accident… and, in good faith, gratuitously renders emergency care at the scene of the emergency or accident is immune from civil liability for any personal injury that results from (1) any act or omission by the person in rendering the emergency care; or (2) any act or failure to act to provide or arrange for further medical treatment or care for the injured person; except for acts or omissions amounting to gross negligence or willful or wanton misconduct.” Ind. Code § 34-30-12-1(b). The trial court found that McGowen was rendering emergency care when the collision occurred but there was a genuine issue of material fact for the jury as to whether his stopping in the road was grossly negligent or willful or wanton misconduct. McGowen and Montes both appealed.

Montes argued on appeal that McGowen was not rendering “emergency care” and there was no emergency at the time of the collision. As a matter of first impression, the Indiana Court of Appeals held that stopping and asking if a person who has been in an accident needs help is “emergency care,” reasoning that “emergency care” as outlined in the statutory language of the GSL encompasses actions other than direct medical treatment or first aid and includes an “act or failure to act to provide or arrange for further medical treatment or care for the injured person.” Ind. Code § 34-30-12-1(b)(2). As to whether an emergency existed, the Court relied upon previous precedent defining an “accident” as a “sudden calamitous event,” and held that McGowen coming upon the scene of an accident with a potentially injured person qualified as an emergency under the GSL.

Indiana Court of Appeals Finds Landowner Owed No Duty to Motorist Injured As a Result of Tall Grass on Land Adjoining Roadway

Published on: November 23, 2020 | by Barsumian Armiger

The Indiana Court of Appeals recently affirmed a trial court’s grant of summary judgment in favor of a property owner finding it had no duty to the traveling public as a result of tall grass on its property. In Reece v. Tyson Fresh Meats, Inc., a 92-year-old motorist, Harold Moistner (“Moistner”), pulled out into an intersection and collided with a motorcycle being driven by Walter Reece. Walter suffered catastrophic brain injuries in the motorcycle-vehicle collision. The investigating police officer completed a report and documented that tall grass on the northwest side of the intersection would have limited or prohibited Moistner’s view of Walter on his motorcycle. Judy Reece (“Reece”), individually and as Walter’s guardian, filed a lawsuit against various defendants, including Moistner and Tyson Fresh Meats, Inc. and Tyson Foods, Inc. (collectively “Tyson”), which owned a plant on the northwest side of the intersection. Tyson moved for summary judgment as to duty, which the trial court granted.

To prove negligence in Indiana, a plaintiff must show the defendant owed a duty to the plaintiff, the defendant breached that duty, and the breach proximately caused injuries to the plaintiff. Whether one party owes another party a duty is generally a question of law for the court to decide. If there is no duty owed by the defendant, there can be no breach and therefore no negligence. Although Moistner certainly owed Reece a duty under the rules of the road applicable to motorists, whether a landowner owes a motorist operating a vehicle on a public roadway presents an interesting question for auto accident attorneys and the courts.

Under well-established Indiana law, a landowner owes a duty to the traveling public to exercise reasonable care in the use of his property so as not to interfere with the safety of public travelers on adjacent roadways. Courts have, for instance, found a duty of care on behalf of a railroad when its employees started a fire that caused smoke to blow over a nearby road obstructing the view of motorists, on behalf of a manufacturing plant that created a congestion of vehicles exiting the plant resulting in a collision, and on behalf of a landowner whose tree fell on a roadway. However, there is generally no liability for harm caused outside land by a natural condition on the land, except for unreasonable risks of harm from trees in urban areas, and even with respect to artificial conditions, there is no liability except for the creation of hazardous conditions that intrude upon a roadway. Thus, there is no duty where the activity is wholly contained on a landowner’s property.