Indiana Injury Lawyer Blog

September 27, 2016

“Continuing Course of Treatment” Doctrine May Extend Statute of Limitations for Some Medical Malpractice Plaintiffs

by Parr Richey Frandsen Patterson Kruse LLP

Earlier this month, one state’s appellate court discussed and adopted the “continuing course of treatment” doctrine in the context of a medical malpractice case. In the case, Parr v. Rosenthal, the court determined that it would adopt the doctrine, but it held that the specifics of the case at issue prevented the doctrine from being applied to extend the statute of limitations.

Parr v. Rosenthal: The Facts

The plaintiffs were the parents of a young boy who was treated for a rare desmoid tumor by the defendant. At birth, their son had a large bump behind his right calf. For several years, the bump was undiagnosed, but eventually a team of doctors diagnosed the bump as a desmoid tumor.

The defendant was among the practice group of doctors treating the boy, but he was not initially involved. After diagnosing the boy, the treating doctors referred the parents to the defendant, who was a pioneer in the use of radio frequency ablation to treat tumors. However, the defendant had never used the technique on a desmoid tumor. After discussing the procedure with the plaintiffs, it was agreed that the defendant would perform the procedure on their son.

September 20, 2016

Court Broadly Interprets Good Samaritan Law to Include Non-Medical Professionals Who Provide Any Kind of Emergency Treatment

by Parr Richey Frandsen Patterson Kruse LLP

Good Samaritan laws were designed to protect passersby from liability when they try to help an injured person during an emergency. The idea is that if the law fails to offer protection to someone trying to help another person in peril, citizens are unlikely to ever offer such assistance for fear of civil liability. However, the type of conduct that is covered by a Good Samaritan law is not always clear.

In a recent case in front of one state’s appellate court, the court had the opportunity to interpret that state’s Good Samaritan law. Interestingly, the court broadly interpreted the law to include a wide range of actors and a wide range of conduct.

Carter v. Reese: The Facts

Carter, a truck driver, had arrived at his destination and unloaded his trailer at the loading dock. After he was finished, he pulled his trailer a few inches away from the loading dock and put the air brake on so that the truck would stay put. Carter then got out of the truck to head back inside through the loading dock doors. However, as he climbed up onto the loading dock, he fell and got his leg stuck in the small gap between the truck and the loading dock. Carter began calling for help, and Reese responded.

September 13, 2016

Case Arising from “Garden Variety” Traffic Accident Involving Paramedic Not Considered a Medical Malpractice Case

by Parr Richey Frandsen Patterson Kruse LLP

Earlier last month, an appellate court issued a written opinion in a car accident case brought by a man who was injured by an on-duty paramedic on his way to the scene of an accident. The case, Aldana v. Stillwagon, presented the issue of whether a case involving a regular traffic accident caused by an on-duty paramedic should be considered a “medical malpractice” case for the purpose of determining which procedural rules apply. Ultimately, the court determined that since the accident was “garden variety” and didn’t involve the paramedic’s professional duties, the case should not be considered a medical malpractice case.

The Facts of the Case

The defendant, Stillwagon, was an on-duty paramedic who was called to respond to a traffic accident. He was not in a marked ambulance but was instead driving a special pick-up truck that was outfitted with lights and sirens. However, at the time, neither was activated.

On his way to the accident scene, Stillwagon ran a red light and struck Aldana’s vehicle, causing him serious injuries. Aldana filed a personal injury lawsuit against Stillwagon but did so 17 months after the accident. In response to the complaint filed against him, Stillwagon asked the court to dismiss the case, arguing that the appropriate statute of limitations was one year under the state’s medical malpractice act.

September 6, 2016

Appellate Court Upholds $3.75 Million Medical Malpractice Verdict Stemming from Improperly Sanitized Medical Equipment

by Parr Richey Frandsen Patterson Kruse LLP

Earlier this month, an appellate court in Idaho issued a written opinion affirming a jury’s verdict in favor of a man who lost his wife to a serious infection after undergoing a procedure at the defendant’s cosmetic clinic. In the case, Ballard v. Kerr, the court dismissed the defendant’s approximately 20 claims of error and affirmed the jury’s verdict below. However, the appellate court did find that the award of nearly $150,000 in attorneys’ fees was not appropriate, and it reversed the lower court on that issue alone.

A Woman Undergoes an Elective Cosmetic Surgery and Suffers a Serious Infection

Ms. Ballard underwent an elective liposuction procedure whereby the doctor was to implant the removed fat from her stomach into her buttocks. During the procedure, as is common, the doctor used both disposable and reusable medical equipment. The procedure seemed to go as planned, and Ms. Ballard returned home later that day.

However, within a few days, Ms. Ballard called the doctor’s office to move her follow-up visit forward due to immense pain she was experiencing in her buttocks. The doctor inspected the area but did not see any signs of infection. Out of an abundance of caution, he prescribed her antibiotics.

August 25, 2016

Discrepancies in Insurance Contracts Are Often Resolved in Favor of the Insured

by Parr Richey Frandsen Patterson Kruse LLP

Auto insurance coverage is required in Indiana, and most motorists are familiar with the coverage they have and how to go about using it when the need arises. However, the contract that is entered into between a motorist and an insurance company is lengthy, and most motorists do not take the time to read over the entire policy but instead skim the declarations page to gain a basic understanding of their coverage.

However, insurance contracts are long, complicated documents that often require trained eyes to understand and interpret. In fact, there may even be errors or internally inconsistent clauses in an insurance contract that can create confusion for motorists hoping to seek reimbursement for expenses related to property damage or personal injuries. In fact, a recent case in front of the Indiana Supreme Court illustrates how these confusions can arise and what courts can do to resolve problems when they arise.

State Farm Mutual Auto Insurance v. Jakubowicz

Jakubowicz and her two children were injured as a result of an accident caused by a third party. After the accident, Jakubowicz filed a personal injury claim against the third party’s insurance company, seeking compensation for her family’s medical expenses. However, while that claim was being processed, Jakubowicz realized that the total available amount available under that driver’s policy was not going to cover her family’s injuries. She then filed a claim under her own insurance with State Farm, under the underinsured motorist provision. This claim was filed over three years after the accident.

August 18, 2016

Product Liability Lawsuit Dismissed Based on “Optional Equipment Doctrine”

by Parr Richey Frandsen Patterson Kruse LLP

Earlier this month, a federal appellate court affirmed the dismissal of a product liability case filed against a ride-on lawnmower manufacturer. In the case, Parks v. Ariens, the court held that the defendant manufacturer was not negligent in failing to install a roll-over protection system (ROPS) on a ride-on lawnmower because it offered the ROPS as optional equipment at an additional cost.

The Facts of the Case

In 2006, Parks purchased a used ride-on lawnmower from a licensed dealer. At the time of the purchase, the roll-over-protection system, which consisted of a roll-cage and seatbelt, was optional equipment that a buyer could purchase at an additional cost. When Parks was discussing the purchase of the mower with the defendant’s salesperson, the salesperson discussed the type of terrain where Parks would be using the mower. While the salesperson did not recall whether he offered the ROPS package to Parks, he did testify that it was his common practice to always ask if the customer wanted the package.

Parks decided to purchase the mower but not to add the ROPS. About seven years after the purchase date, Parks was killed when the mower rolled, trapping him underneath. His wife filed a lawsuit against the manufacturer of the lawn mower. She claimed that the manufacturer was negligent in failing to install the ROPS on the mower before selling it to her husband.

August 11, 2016

Dividing Up Liability Among Defendants in Indiana Personal Injury Cases

by Parr Richey Frandsen Patterson Kruse LLP

While some accidents only involve one plaintiff and one defendant, others involve multiple defendants. This can create an issue when it comes to determining which defendants are responsible for compensating the plaintiff in the event of a plaintiff’s verdict. Jurisdictions around the country have different methods of determining how defendants are required to compensate a plaintiff when there are several at-fault defendants, some of whom may not be present at all or may not be able to afford to compensate the plaintiff.

There are two basic methods that states use to determine which defendants are responsible for compensating the plaintiff. Under one method, called “joint and several liability,” any defendant found to be at fault can be held completely responsible for any and all damages the plaintiff suffered. This is a very plaintiff-friendly rule because it allows for a plaintiff to seek full recovery from just one defendant, if the other defendants are either not present or unable to pay. A defendant that ends up paying for other defendants’ shares can then sometimes seek compensation on their own through what is called “contribution.”

The other manner in which courts split up liability is called “several liability,” under which a defendant is only held responsible for their own percentage of fault. For example, if a defendant was 20% at fault, and the total damages suffered by the plaintiff were $1 million, the defendant would be only responsible for up to $200,000. Indiana uses this method. A recent case in front of an Arizona appellate court illustrates how several liability can play out in the real world.

August 4, 2016

Statutes of Limitations in Indiana Medical Malpractice Cases

by Parr Richey Frandsen Patterson Kruse LLP

Personal injury and medical malpractice cases are subject to a maximum amount of time that a plaintiff can wait before bringing the lawsuit. This amount of time is outlined in what is called a statute of limitations. There are several types of statutes of limitations, and determining which statute of limitations applies in any given case is not always straightforward. Similarly, it can also be difficult to determine when a statute of limitations begins to run.

In a recent medical malpractice case in front of a state appellate court, the court determined that under the “continuing course of treatment” doctrine, the plaintiff was excused for not filing the case within the normal statute of limitations. In the case, Cefaratti v. Aranow, the court determined that, although the plaintiff’s case was technically filed after the statute of limitations, under the “continuing course of treatment” doctrine, the statute of limitations didn’t actually begin to run until after the plaintiff stopped being treated by the allegedly negligent doctor.

Indiana Statutes of Limitations

In Indiana, the general rule is that a medical malpractice plaintiff has two years to file their lawsuit against the defendants. This two-year timeframe usually begins on the date when the alleged negligence occurred. Thus, for example, if a plaintiff is claiming medical negligence based on a surgical error, the clock would start on the date of the surgery.

July 27, 2016

Recreational Use Statute Prevents Paralyzed Accident Victim from Seeking Compensation

by Parr Richey Frandsen Patterson Kruse LLP

Earlier this month, an appellate court in Rhode Island issued an instructive opinion regarding that state’s recreational use statute and how the statute may be used by defendants to avoid liability in a premises liability case. The case is also instructive to potential premises liability plaintiffs, since it shows which facts must be pleaded and proven in order for the case to survive a summary judgment challenge by the defense.

Roy v. State: The Facts of the Case

Roy was with some friends at a state-run park. The park had a medium-sized pond in which people routinely swam, despite there being signs that swimming was prohibited. In fact, on some days, the government agency in charge of the park would staff the pond with lifeguards and allow swimming. There were, however, a number of “no diving” signs placed around the pond. Generally, the prohibition on diving was enforced, but there was an old diving platform that was still left from previous years when diving was permitted.

On the day in question, Roy got out of his parked car, ran up to the edge of the pond, and quickly inspected it before diving in. Roy later testified that the pond looked deep enough and that if it hadn’t looked safe to dive in, he would not have done it. When Roy did dive into the pond, his head struck the bottom, and he was paralyzed as a result. He later filed a lawsuit against the state agency in charge of the park’s maintenance.

July 20, 2016

Court Finds Dangerous Placement of Parking Lot May Give Rise to Liability in Premises Liability Case

by Parr Richey Frandsen Patterson Kruse LLP

Premises liability cases, like most other cases brought under the legal theory of negligence, require that the plaintiff establish the defendant owed them a duty of care. In many cases, this element is the easiest for the plaintiff to prove, but in others there may be substantial litigation over whether a duty of care exists. In a recent case in front of a state appellate court, the court had to decide if a church had a duty to its churchgoers in providing them some assistance in crossing a dangerous street to get from the church parking lot to the church itself.

In the case, Vasilenko v. Grace Family Church, the court ultimately determined that a duty did exist, requiring the church to take some precautions to ensure that churchgoers could safely cross the street.

The Facts of the Case

Grace Family Church is located on a busy five-lane road. The church has a small parking lot next to it that fills up quickly when busy church events are being held. To help accommodate the additional cars, the church contracted with a local business to use the business’ parking lot across the five-lane road.