Indiana Injury Lawyer Blog

July 25, 2017

Court Discusses Informed Consent and What Doctors Must Do To Obtain Valid Consent Prior to Performing a Medical Procedure

by Parr Richey Frandsen Patterson Kruse LLP

Medical malpractice cases can be brought under a number of different theories. For example, surgical errors and misdiagnoses are two common types of Indiana medical malpractice cases. Another theory of liability under the medical malpractice umbrella is called medical battery.

Medical battery is based on the idea that a doctor can only perform a procedure on a patient who consents to that procedure. In the eyes of the law, a surgeon who performs a procedure without a patient’s consent is no different from a person who attacks a victim with a knife against their will. Thus, for any medical procedure, doctors must obtain informed consent.

The term “informed consent” can be a tricky one and often requires more than the doctor asking the patient if they are aware of the risks and then proceeding with the procedure. In most situations, doctors must first educate the patient on what their current ailment is, how the surgery is meant to fix it, how it will be performed, and what the likelihood of complications will be. A recent case out of Oklahoma explains that the doctor should also tell the patient whether any non-doctor assistants will be helping the doctor.

July 19, 2017

The Difficulties of Dealing with Insurance Companies after a Car Accident

by Parr Richey Frandsen Patterson Kruse LLP

Anyone who has been involved in an Indiana car accident knows that dealing with insurance companies in the wake of the accident can be a real headache. While insurance is mandatory in all states and should act to provide compensation to car accident victims, the reality is that insurance companies are for-profit companies that are financially incentivized to pay out as little as possible for each claim.

In many cases, insurance companies will approach an accident victim early in the recovery process in hopes of getting to them before they speak to an attorney. An employee of the insurance company may try to act like they know what is best for an accident victim, and they will often explain that the claim is worth a certain amount and offer to settle the claim. However, accident victims should be careful when discussing their claims with anyone from the insurance company because in most cases, the offers made to an unrepresented accident victim are low-ball offers to settle claims that may be worth much more.

In other cases, insurance companies will outright deny an accident victim’s claim. This is especially the case when there are unusual facts surrounding the accident. In such cases, the accident victim may be left with no choice but to file a personal injury lawsuit, seeking to compel the insurance company to cover the claim. That is exactly what happened in a recent car accident case in Rhode Island.

July 11, 2017

Court Upholds City’s Government Immunity in Recent Slip-and-Fall Case

by Parr Richey Frandsen Patterson Kruse LLP

Earlier this month, an appellate court in Alabama issued a written opinion in a premises liability case that was brought by an accident victim against a local city that owned and operated the park where the plaintiff’s injury occurred. The case presented the court with the opportunity to discuss recreational-use immunity and what a plaintiff must show to overcome this immunity. Ultimately, the court concluded that the plaintiff failed to establish a crucial element of her claim in that she did not show that the city had actual knowledge of the hazard that caused her fall.

The Facts of the Case

The plaintiff was visiting a park owned and operated by the defendant city. The plaintiff arrived at the park on July 4, in the morning hours. After parking her vehicle, the plaintiff made her way around a set of vertical poles that established the parking area without any problem. However, hours later, when the plaintiff made her way back to her vehicle, she tripped and fell on a diagonal cross-bar that connected two of the vertical poles. Evidence presented to the court suggested that while the area was lit by overhead street lights, the general condition of the lighting was “poor.”

The plaintiff filed a premises liability lawsuit against the city, claiming that the lack of lighting combined with the condition of the vertical poles created a dangerous hazard. In response to the lawsuit, the city had a maintenance supervisor testify that the city had no actual knowledge of the dangerous condition and that there had never been a similar accident reported nor any report of a dangerous condition.

July 6, 2017

Case Claiming Toxic Exposure to MDI Dismissed for Failure to Retain Expert on Causation

by Parr Richey Frandsen Patterson Kruse LLP

In a recent opinion, a federal appellate court dismissed a case filed by an employee who claimed that he developed health issues after being exposed to a toxic substance. The employee was working on his employer’s roof and was exposed to fumes of a glue that contained methylene diphenyl diisocyanate (MDI). The employee brought a claim against the glue manufacturer, alleging that the exposure to MDI caused him neurological and psychological problems, and he was not properly warned of the health risks.

After the parties engaged in discovery, the court dismissed the claim. It found that under Indiana law, a toxic tort claim required an expert on the issue of causation, and the employee did not provide such evidence. He only identified an expert on the language warnings but did not provide an expert on causation.

The employee argued that six treating physicians who provided reports were experts, even though they were not identified as experts in discovery. However, the court found that the employee was required to disclose who he planned to offer as an expert witness. In addition, the physicians’ reports the employee attached only summarized the employee’s symptoms and suggested a course of treatment. The court determined that the experts did not discuss causation and failed to state that they believed the MDI caused the employee’s health issues or explain why the glue may have caused his neurological and psychological problems. In contrast, the defendant provided an assessment from the World Health Organization, stating that MDI can irritate lung tissues and cause asthma-like symptoms, but it is not associated with other bad outcomes. As a result, the court dismissed the case.

June 26, 2017

Court Prohibits Playground Injury Lawsuit Against School

by Parr Richey Frandsen Patterson Kruse LLP

Earlier this month, a state appellate court issued a written opinion in a lawsuit that was brought by the parents of a young girl who was injured while playing on a zip-line at her school’s playground. The case required the court to determine if the zip-line constituted a “dangerous condition” under the state’s government immunity statute. Finding that it did not, the court dismissed the plaintiff’s lawsuit against the school.

The Facts of the Case

The plaintiff’s daughter was playing on a zip-line in her school playground when she fell to the ground, fracturing her wrist and arm. The parents filed a premises liability lawsuit, claiming that the school was negligent in placing the zip-line in the playground, where children could access it without the assistance of an adult.

Before the case reached trial, the school filed a motion for summary judgment, asking the court to dismiss the case based on the school’s asserted government immunity. The state statute at issue provided that a government entity is entitled to immunity from any personal injury lawsuit unless an exception applies. One such exception is the recreational area waiver, which removes immunity when an injury was caused by a “dangerous condition” of any public facility.

June 20, 2017

Appellate Court Finds in Favor of Medical Malpractice Plaintiff, Invalidating Medical Release Waiver

by Parr Richey Frandsen Patterson Kruse LLP

Earlier this month, one state appellate court issued a written opinion in a medical malpractice case brought by a woman who suffered serious injuries after a surgery that was performed by the defendant doctors. The case presented the court with the opportunity to determine the validity of a medical release waiver that the plaintiff had signed prior to undergoing the surgery. Ultimately, the court concluded that the waiver was ambiguous and contained contradictory statements. Thus, the court decided that the lower court was improper to dismiss the plaintiff’s claim based on the waiver.

The Facts of the Case

The plaintiff was required to have a spinal fusion surgery. Prior to the surgery, the plaintiff signed a release, stating:

As of January 1, 2003, [the defendants] will not carry any medical malpractice insurance. Being of sound mind and sound body, I hereby acknowledge this fact and agree not to [the defendants] for any reason. My reason for doing this is that I realize that [the defendants] will do the very best to take care of me according to community medical standards.

June 12, 2017

Appellate Court Allows Evidence of Non-Party Negligence in Recent Medical Malpractice Case

by Parr Richey Frandsen Patterson Kruse LLP

Last month, an appellate court in Maryland issued a written opinion in a medical malpractice case that required the court to determine if evidence of the alleged negligence of several non-parties should have been admitted at trial. Ultimately, the court concluded that the alleged negligence of the non-parties was properly admitted because it was required to give the defendant doctor a fair trial.

The Facts of the Case

The plaintiffs in the case were the surviving loved ones of a man who passed away from a stroke after being treated by the defendant doctor. The man’s original injuries stemmed from a racquetball accident. At the time of the accident, the man suffered from various health issues that put him at a higher risk for a stroke, such as moderate obesity and hypertension.

After his fall, the man was treated by a number of doctors, one of whom was the defendant in this case. After the defendant doctor treated the man, he was then treated by several other doctors prior to ultimately suffering from the stroke that claimed his life.

June 2, 2017

Court Determines City May Be Liable in Dog Bite Case for Failing to Take Action

by Parr Richey Frandsen Patterson Kruse LLP

Earlier this month, an appellate court in West Virginia issued an interesting opinion involving the potential liability of a government entity in a dog bite case. The case required the court to determine if a city may be held liable for a plaintiff’s injuries sustained after being attacked by a dog when the plaintiff had made the city aware of the dog and the dangers it posed. The court ultimately decided that a jury should be able to decide if the city should be held liable.

The Facts of the Case

The plaintiff’s husband was viciously attacked by several dogs and later passed away due to his injuries. The dogs were not in any way owned or managed by the city. However, the plaintiff filed a wrongful death claim against the city’s dog warden, claiming that the warden was reckless in failing to address the dangerous animals.

Evidently, the plaintiff had called 911 to report the dogs on at least one prior occasion. In response to her calls, the dog warden told the plaintiff that “the county would take care of it.” The plaintiff also presented evidence that the dog warden knew of the dogs’ dangerous temperament. Specifically, the dog warden had been out to the owners’ home, and one of the dogs that attacked the plaintiff’s deceased husband jumped on the warden’s car. The warden later issued the owner a citation for failing to keep the dog caged or chained.

May 25, 2017

Appellate Court Allows Defendant’s Previous DUI Convictions into Evidence in Recent Drunk Driving Case

by Parr Richey Frandsen Patterson Kruse LLP

Earlier this month, an Indiana appellate court issued a written opinion in a personal injury case involving allegations that the plaintiff was seriously injured when he was involved in an accident that was caused by the defendant, who was drunk at the time. The case presented the court with the opportunity to discuss when previous convictions for driving under the influence are admissible, and if such evidence is admissible, for which purpose the jury may consider it.

The Facts of the Case

The plaintiff was driving to work when the defendant’s vehicle inexplicably crossed over the center median and collided with the plaintiff’s vehicle head-on. Police arrived on the scene and conducted a blood-alcohol test on the defendant, which revealed he was legally intoxicated. The defendant was subsequently arrested, charged, and convicted for driving under the influence.

The plaintiff later filed a personal injury case against the defendant, seeking compensation for the injuries he sustained in the accident. During the trial, the plaintiff presented evidence of the defendant’s driving history, which contained two prior instances in which the defendant was cited for driving while under the influence of alcohol in 1996 and 1983. The defendant objected to the introduction of this evidence, claiming that it was “more prejudicial than probative” and violated the rules of evidence. The court disagreed and admitted the evidence, and the jury awarded the plaintiff over $1,444,000 in compensatory damages and an additional $182,500 in punitive damages. The defendant appealed.

May 17, 2017

Court Dismisses Personal Injury Case, Applying “Firefighter’s Rule”

by Parr Richey Frandsen Patterson Kruse LLP

Earlier this month, an appellate court in California issued a written opinion in a car accident case that was brought by a woman who was run over by a truck as she was on location fighting a wildfire. The court ultimately determined that since the woman’s injuries were caused in the course of her employment as a firefighter, she was not able to pursue a case against the driver of the vehicle that ran her over.

The Facts of the Case

The plaintiff was a firefighter who was called out to assist in fighting a particularly serious wildfire. The team of firefighters had set up a base camp in the middle of a race track, where there were restrooms and showers. Most of the firefighters camped a short distance from the racetrack. However, by the time the plaintiff arrived at the camp, all of the sites were taken, and she had to search for another place to sleep.

The plaintiff sought permission from her supervisor to set up camp in the middle of the race track, near where base camp was set up. She was granted permission and set up camp. However, on the second night staying there, a truck that was driven by a government contractor ran over the plaintiff as she was sleeping. She sustained serious injuries and filed a personal injury lawsuit against the truck’s driver and several other government entities.