Indiana Injury Lawyer Blog

June 27, 2013

Nursing Home Abuse Runs Rampant – Legal Solutions Available

by Parr Richey Frandsen Patterson Kruse LLP

Nursing homes, naturally, attempt to protect themselves from any lawsuit filed against them for the treatment of their residents. The extent of how far courts will consider “arbitration clauses”, clauses forcing any claim to be handled outside of the court system and by a trained paid professional chosen by the home, has been up for serious debate. This April, the United States Supreme Court declined to hear an appeal by nursing homes for serious counts of elder abuse where the lower court awarded damages ignoring arbitration clauses within the patient contracts.Arbitration clauses are often enforced but typically viewed cautiously and with suspicion. Obviously there may be an inherent bias perceived towards the party who is the repeat customer of the arbitrator and in serious cases, courts reserve the right to step in. In the case of Beverly Enterprises, Inc. v. Ping, the nursing home was potentially so negligent that it led to a patient’s death, the representatives of the estate, or family, may still have the right to bring a wrongful death suit for the egregious actions by the home.

One similar case, also declined to be heard by SCOTUS, involved a ruling against an Illinois nursing home for the wrongful death of one its residents. The contract with the family specified that controversies in the amount of $200,000 or more would be bound to arbitration. In ruling to not apply the clause, the Illinois Supreme Court found there was no mutuality of obligation since the daughter signed the agreement as the late mother’s representative and not as a representative to the deceased mother’s family who owns a valid wrongful death claim.

The tragedies of negligent nursing homes is making for big legal news in Indiana. The wrongful death lawsuit filed against Health & Hospital Corporation (HHC) of Marion County and American Senior Communities, LLC (ASC) for their alleged negligent care leading to the death of resident Betty Riley. The cause of death, according to the Coroner’s Office, was medical complications due to the blunt force trauma as a result of a physical altercation with another resident.

The nature of the lawsuit would lead to the family’s potential compensation limited to $300k with the nursing homes only responsible for slightly over half and the other portion being paid from the Indiana Patient Fund.

A report released by the National Center on Elder Abuse found that between 1999-2001 a startling one in three nursing homes in the US received citations for violations that either did or may have caused harm to residents with 10% of the violations resulting in harm or death. The Center stressed that reports by residents places physical abuse as the number one cause of injury.

Incidences of physical abuse by employees, although common, is not the only source of claims against nursing homes. Fighting between residents with failures by the administration to intervene, psychological abuse, neglect, maintenance issues, negligent hiring, improper training, falsifying documents, and other causes of injuries could lead to compensation awards against the home.
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June 20, 2013

Fourth of July, Be Safe Indiana!

by Parr Richey Frandsen Patterson Kruse LLP

In a few days, most of us we’ll be drawn away from our A/C and out of pools to celebrate America in a tradition born in 1777, a fireworks show. Fireworks, a somewhat controversial consumer good, can be fun but only with a good amount of care. Those 18 or older may legally purchase fireworks in Indiana, and anyone in possession or using fireworks must be accompanied must be accompanied someone 18 or older.The Indiana Hand to Shoulder Center reports that nearly half of the fireworks-related injuries they see are sustained by children and adolescents. Of all the injuries, about half affect the hand and/or fingers. Burns comprise over half the type of injuries. And sparklers, the commonly-held tamest firework, is the most common cause of burns and other injuries.

Steps you can take to ensure a safer firework experience:

Buy new. Only purchase fireworks from licensed dealers. Do not ever try to make your own. Class 1.4G are for consumers. Class 1.3G are intended for professional shows only.

Scout your launch pad. Ensure where you light the fireworks is free from debris and flammable materials and that the area is open to avoid setting fire to trees, power lines, structures, or anything else.

Bring supplies. Wherever you may be lighting these always have close by: fire extinguishers, water, and a first aid kit. The South Bend Tribune has found that over the past years, 1 out of 4 firework related injuries involve the eyes with the majority of those injuries stemming from lack of any eye protection.

Let children see with their eyes, not their hands. Do not let children set off, play with, or handle fireworks and keep the kids at a safe distance and where you can see them when discharging the fireworks.

Respect the dangers. No smoking around fireworks. Never relight a fizzled out firework or modify a firework. Be cautious of lighting the fireworks in windy conditions. Wind can unexpectedly alter the trajectory of rockets and can lead to hazardous embers flying near explosives.

Remember these are explosives. On May 29, 2013 a southern Indiana fireworks store caught fire and within moments leveled the two-story building. The fireworks shot in different directions making it difficult for the fire department to approach. No one was hurt in the incident but the dangers are quite clear.

Some more specific statutes in place to keep you free from trouble this holiday:
Only set off fireworks on your property, on someone who has consented to their use, or anyplace specially designated by the Indiana State Fire Marshall.
Setting off fireworks must be done within the specific time parameters of 9am to 11pm (or until midnight on July Fourth)
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June 13, 2013

Indiana Patients – Beware Medical Misdiagnoses

by Parr Richey Frandsen Patterson Kruse LLP

When one imagines a medical malpractice lawsuit, typically the scenario that comes to mind is clumsy surgery gone wrong. However, the reality of medical malpractice is that, in most cases, it occurs much earlier.Much research on the field of malpractice has come out of Johns Hopkins School of Medicine with hopes to curb the nearly $3.6 billion dollars a year spent on these suits, with misdiagnoses being the most easily preventable type of malpractice. A recent study by Dr. David Newman-Toker found that late or incorrect diagnoses accounted for approximately 35% of all medical malpractice suits.

Some diseases are more prone to misdiagnosis. It is estimated by the Journal of Clinical Oncology that some cancers have a misdiagnosis rate of 44%. A study by Indianapolis-based Eli Lilly and Co. found that nearly 1 in 5 Alzheimer’s patients are wrongfully diagnosed with Alzeimher’s when the condition is not present.

Medical misdiagnosis lawsuits do not always stem from missing a condition or a late discovery. As an example, in the case of Mr. Strout, the misdiagnosis was traumatizing but, ultimately, the worst part of his health concerns. When Strout visited his doctor, he was told he had pancreatic cancer. The diagnosis described it as extremely aggressive and Strout was told he had months to live. However, when the tests returned, the diagnosis was wrong and Strout actually had Hodgkin-lymphoma, which is much more easily treatable. Strout sued and was awarded $200,000 in his medical malpractice suit for his “tremendous emotional distress”.

Studies of ICU units have reported incidences of misdiagnoses at anywhere from 20-40%. Here are some important steps to take to avoid and/or survive a misdiagnosis:

1.) Speak with a doctor – Nurses, physician assistants, and a spectrum of other medical professionals can be liable for medical malpractice. So when something is bothering you, it is best to get a diagnosis from a licensed doctor before dismissing it. A Pennsylvania woman was examined by a physician’s assistant for sinus issues, to which a steroid treatment was suggested. This treatment, without antibiotics, led to a life threatening brain abscess and a $3 million dollar medical malpractice award.

2.) Be prepared – You only have so much time in the examination room, so prepare your questions, tally your symptoms as you experience them, and detail your medical history including medications and previous medical treatments. Your physician is a doctor, not a psychic.

3.) Find a second opinion – Do not feel shy about addressing your health concerns with another medical professional. Not only could you avoid a costly and dangerous misdiagnosis but, more often, it can give you the chance to get more answers and a more detailed understanding of your ailments.

4.) Contact an experienced malpractice attorney. Due to the complicated and expensive nature of medical malpractice litigation, the majority (93%) are settled out of court. Settlement agreements can be detailed and have long-lasting implications, and you will want an attorney to ensure each harm you have or will have suffered is addressed.
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June 6, 2013

Indiana’s Month of Bizarre Lawsuits

by Parr Richey Frandsen Patterson Kruse LLP

Every month in America, plenty of bizarre lawsuits get filed (like suing Jessica Simpson for baby snatching) but Indiana has had one strange May, with three ‘unique’ cases making national headlines.

Funny Fuzz
The ACLU is stepping up to represent a Greenfield, Indiana police corporal attempting to exercise his constitutional right of speech. The police officer was attempting to exercise this freedom on his license plate through a vanity plate. Corporal Rodney Vawter had a sense of humor when he bought the vanity license plate “0ink” with the obvious humorous self-referencing slang “pig” for police officers. Vawter actually had acquired the license plate years ago, but only was recently denied renewal under a statute referencing Indiana Bureau of Motor Vehicles’ (BMV) right to refuse vanity license plates for “offensive or misleading content”.

The suit beginning with Vawter has developed into a full class action suit against the BMV. The vague content restriction is not constitutional, according to Vawter’s attorney. In furtherance of confusion and unfair enforcement, Vawter’s choice to use a zero for the “o” in oink was as a result of “oink” already have been taken by another Indiana driver.

Archaic Law’s Last CallNot all lawsuits in themselves are bizarre; rather, some attempt to take down the bizarre status quo. One does not need to live in Indiana for long to become familiar with the rather odd way the state of Indiana micro-manages beer sales. The temperature of beer to be sold has long been regulated by Indiana, with cold beer being banned to consumers. However, chilled wines, containing higher levels of alcohol could be sold cold. This archaic unnecessary statute has recently been modified to permit liquor stores to sell beer cold. With this one-sided exception, the Indiana Petroleum Marketers and Convenience Store Association has initiated a lawsuit to be treated equally.

Currently, alcohol ranks third for items purchased at convenient stores. However, according to store owners, if they are allowed to sell beer cold, the item would leap to the number two spot. This would lead to great gains for convenience stores, simplicity for consumers, constitutional fairness, and simply the abolishment of an outdated, silly law (Oklahoma is the only other US state which puts any sort of regulation on the temperature of beer).
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May 30, 2013

Indiana Law – Sports Injuries

by Parr Richey Frandsen Patterson Kruse LLP

In the past month we have blogged about a series posts covering important personal injury information for Spring/Summer activities. In today’s post, we will give a brief overview of current Indiana sports law.

A preliminary report released this month released by USA Football and conducted by Datalys Center for Sports Injury Research and Prevention, based out of Indianapolis, examined the safety of youth tackle football and the long and short term injuries associated with play.In America today, 2.8 million children (age 6-14) play in an organized tackle football league. The study involved nearly 2,000 athletes in 10 football leagues spanning six states, although the findings are not complete as the study is expected to span another whole year.

The report found that nearly 10% of youth athletes suffered an injury. Approximately two-thirds of those injuries were minor enough that the athlete could return to the field that same day. No catastrophic head or neck injuries were reported but almost 4% suffered a concussion.

Lawsuits stemming from Sports Injuries
Sports related injuries fall into a field of negligence in which “assumption of risk” becomes a deciding factor. Assumption of risk is not always cut-and-dry but rather involves what the injured party knew or expected or should have expected before entering the activity and whether the activity was foreseeable. Severe head/brain injuries can have long unforeseen damages associated with them. The personal injury suit will likely require expert witness testimony to predict the long term costs and damages associated with such injuries.

Indiana law, as of 2012, requires any student athlete who is suspected to have sustained a head injury or possible concussion to be removed from all play until the athlete is evaluated by a trained health care provider.

The NHL and player’s union may now face liability in a wrongful death suit brought on behalf of Derek Boogaard for the brain injuries he suffered during his hockey career and the subsequent narcotics addiction allegedly caused by his condition.
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May 22, 2013

Indiana Adoption Agency Sued for Addicted Baby

by Parr Richey Frandsen Patterson Kruse LLP

A Zionville adoption agency is now facing liability after being sued by a couple for failing to disclose information relating to the baby’s drug addiction. The Indiana Court of Appeals overturned the previous dismissal of the suit by a lower court.A Canadian couple, Jesica and Gerson Urbina, sought out the services of A Bond of Life Adoptions (ABLA) to adopt the child of a pregnant woman based in the Noblesville area.
After communication with the agency and the mother, the couple came to Indiana to spend time with the newborn child. Over the span of several days, the couple proudly acquired photos of the infant to share with friends and family. The baby then, however, began to display signs of drug withdrawal stemming from alleged methadone use by the birth-mother during the pregnancy. The hospital began monitoring for problematic symptoms and alerted ABLA. It wasn’t until several days later that the news of their baby’s addiction was shared to the parents, by a social worker.

The couple, horrified at the news, mulled over their options and painfully withdrew from the adoption process, citing that they may not be capable to take care of a special needs child. The couple then proceeded to file a complaint against ABLA for negligence, fraud, breach of contract and fiduciary duty, infliction of emotional distress. On appeal, the court commented with regards to the Urbanis’s breach of contract claim on the basis that vital information gathered by the adoption agency regarding the baby is important to the parents’ decision and should thereby be disclosed.

The family has claimed that they do not believe they will attempt the adoption process again.

The contractual nature of the Urbanis relationship with ABLA allowed for the Urbanis to recover. However, the contract was also relied upon by ABLA to dismiss the claim. According to the contract, there is release which limits ABLA’s liability from claims based upon unknown medical conditions of the family or child. The court’s most pointed concurring opinion, authored by Judge Bradford, identified the problem of adoption agencies hiding behind this clause. Hon. Bradford lists a history of cases where agencies use this clause and “public policy” concerns to limit recovery. The purpose of the clause is protect upstanding organizations when information passed on to the agency turns out to be incorrect. In the Urbanis’s case, ABLA had information that was not incorrect, just unfortunate, and ABLA failed to inform parents making a lifelong decision.
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May 15, 2013

Medical Malpractice Mailing – Commercial Carriers are the Wrong Choice

by Parr Richey Frandsen Patterson Kruse LLP

The Statute of Limitations governs each and every civil claim plaintiffs may have. These are statutorily established periods of time from the date the cause of action is created to when the plaintiff must have filed his claim with the court. The periods of time vary with the type of action, and certain “tolls” on the time may apply which extend the period, such as for infants, fraudulent concealment, or undiscovered injuries. But after the time period is over the claim may be dismissed upon motion by the opposing counsel. Although Statute of Limitation issues seem clear, cases like Moryl v. Ransone discussed below stress the importance of consulting with an experienced knowledgeable attorney.A LaPorte area woman was offered no leniency by the Indiana Court of Appeals in the filing of her claim. This woman had a potentially valid medical malpractice claim against LaPorte Hospital in relation to the wrongful death of her husband. Indiana Medical Malpractice claims have a two-year statute of limitations and are governed by the Indiana Medical Malpractice Act, which requires all claims to both be filed first with the Department of Insurance (DOI) then the Indiana Court. As the deadline approached, the woman sent in the complaint on the day before the statutory period expired. Because of the urgency, the woman sent the documents in through FedEx. The papers arrived one day after the deadline.

Traditionally, Indiana, and most jurisdictions, consider the complaint filed on the day it is delivered to a third-party carrier. Indiana Trial Rule 5(F) extends a deadline three days when delivered through a commercial carrier, such as FedEx, to the court. This rule only applies, however, to courts, not to the DOI.

Judge John Baker, writing the opinion for the Court of Appeals, explained that Indiana law only recognizes registered or certified mail through the U.S. Postal Service as valid “third-party carriers” for the purposes of a Medical Malpractice claim filed with the DOI. The court ruled against the woman 3-0.

The unique unfortunate factor in this case is that there is no statute of limitations time listed for the DOI portion of the filing. The prerequisite that the filing be made at the DOI before it may be validly filed with the court leads to an imposed statute of limitations for the DOI filing which then fails to recognize any extension for a commercial carrier.
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May 10, 2013

Indiana Drivers Beware the Perils of Texting, Pt 2

by Parr Richey Frandsen Patterson Kruse LLP

Last month, Indiana Injury Blog detailed many of the potential dangers and harms that come with texting and driving. To summarize, Indiana is one of 39 states to ban texting while driving.Statistics are revealing some facts about texting and driving safety, which are somewhat surprising and counter-intuitive. Mary Allen, Director of the Indiana Criminal Justice Institute has recommended police raise their vigilance this summer as a result of the prevalence of driving while texting since her institute released their alarming study. Their study analyzed driving habits and accident rates and concluded that drivers who text are twenty-three percent more likely to be involved in an accident. In addition, their findings uncovered that adults are actually more likely than teens to be texting behind the wheel. But despite a lower rate, teens tend to suffer more as their driving experience requires the utmost attention, and 16 year-olds happen to have the highest accident rate of any age driver.

Drivers must beware of a false sense of safety while driving. A recent study conducted through A&M University revealed that voice-to-text technology actually provides no less distraction than standard texting methods. The study involved drivers on a track distraction-free, then creating texts using voice-to-text devices, then typing texts. The reaction time nearly doubled in both texting scenarios, regardless of methodology. Researchers described that when using voice-to-text software the participants needed to proofread more carefully and browse through their text to correct unforeseen errors.

Texters behind the wheel lead to an obvious danger to other drivers and expose themselves to legal liability but, unlike ever before, at-home texters may find themselves in court for their irresponsible distractions.

Soon, the New Jersey Appeals Court will be hearing an initially dismissed claim filed against a texter who was not physically behind the wheels of the accident-causing vehicle. New Jersey, like Indiana, also prohibits texting while driving. So when a texting teen driver hit a couple riding a motorcycle, most expected liability to end at the driver. The couple was severely hurt in the accident, both losing a leg. The drivers were able to settle with the teen’s insurance for $500,000, but costs still remained. This is when the lawyers for the plaintiffs developed a new methodology to attack the epidemic of texting – sue the “remote” texter for “aiding and abetting”, provided she knew her texts were being read and responded to by a driving recipient.

In this case, the texters had exchanged upwards of sixty text messages leading up to the accident. In the opening oral arguments for the plaintiffs, it was argued that the texter knew she was distracting a driver and knew of the dangers of distracted driving. Attorneys for the defense denied any evidence of such knowledge and denied that the texter had insisted on and intended for the driver read her texts while he was driving.
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April 29, 2013

Indiana Uninsured Motorist Coverage

by Parr Richey Frandsen Patterson Kruse LLP

In February, we covered a recent case involving a motorcyclist and uninsured motorist insurance. As Winter turns to Summer and drivers take to the roads for day trips and recreational driving, it is important to understand Indiana’s Uninsured Motorist Statute and recent case law.For those unfamiliar with uninsured motorist insurance, the purpose of the clause in an insurance policy is to protect a driver if they should find themselves needing compensation from an uninsured, or only partially insured, driver.

Consider this situation: A responsible, fully insured driver encounters an accident with a negligent driver. The not-at-fault driver’s insurance covers a certain threshold of property damage and personal injury, but there are still outstanding medical bills. Typically, the driver could recover these additional costs from the negligent driver’s insurance but when that driver is underinsured then the driver must find other means of compensation. A lawsuit against the party might yield a judgment but, oftentimes, the underinsured party does not have the assets to immediately satisfy that judgment.

For these reasons, insurance companies offer a clause in many insurance policies to provide the uninsured motorist coverage. The clause would insure the policy-holder in the amount they would recover if the other driver, being uninsured, had been insured. The different policies cover property, bodily injury, and/or economic-only damages. Basic uninsured coverage is typically included in auto insurance policies and must be explicitly rejected if the driver wishes to exclude it. This is not advisable as the slightly increased premiums are worth the additional coverage.

Despite clear policy language, uninsured motorist coverage has led to numerous cases in Indiana to settle certain ambiguities. Indiana Code section 27-7-5-4(b) mandates that nearly all insurance policies in Indiana include uninsured motorist coverage. But what happens when the individual carrying full coverage (including uninsured motorist coverage) is the negligent party causing an accident with the uninsured driver?

In Lakes v. Grange Mutual Casualty Co., the Indiana Supreme Court considered this question. In that case, an injured party moved for the underinsured motorist coverage to compensate her costs in excess of the standard coverage. The court examined the meaning of underinsured and deteremined that if coverage by the tortfeaser was greater than or equal than the per-accident limit of the injured persons, the tortfeasor would not be considered underinsured and the coverage would not apply. This determination affirmed the 2002 decision in Corr v. American Family Insurance, which held the amount actually recovered to the policy limit would be the basis for determining underinsured. A decade later, the Indiana Supreme Court reiterated this understanding to state that the uninsured motorist coverage should be “read in a light most favorable to the insured.”
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April 11, 2013

College Claims to be Decided by Indiana Supreme Court

by Parr Richey Frandsen Patterson Kruse LLP

Soon, the Indiana Supreme Court is scheduled to hear the argument of a former Wabash student against Wabash College for injuries sustained during hazing incidents with his fraternity. The suit against Wabash College, and the on-school fraternity Phi Kappa Psi (otherwise known as Phi Psi), will hinge on whether either institution had the duty to ensure his safety.In 2007, the victim had suffered his injuries when his fellow Phi Psi members attempted to force him into a shower. The ritual of “showering” is revealed to pledges through distributed information packets and pledges are encouraged to uphold these traditions. During the struggle to force the victim into the shower, he was choked to the point of unconsciousness and hit his head on the bathroom floor. The victim suffered severe brain damage.

This suit makes its way to the State Supreme Court after the Indiana Court of Appeals ruled (2-1) against the plaintiff citing his failure to prove that either Wabash or Phi Psi violated Indiana’s codified hazing law (IC § 34-30-2-150). The plaintiff will now bring his action to the Supreme Court under civil negligence liability attempting to prove the college was negligent in failing to protect him from the hazing – a “reasonably foreseeable” danger.

As of 2000, the college has had to deal with a slew of hazing incidences, including two student deaths in 2007 and 2008. And unlike other colleges who have faced similar hazing claims, Wabash University owns the fraternity house where the injuries occurred, and it was aware of previous incidents of fraternity abuse. The ownership status may place premise liability on Wabash, which would require Wabash to protect certain guests from “reasonably foreseeable” dangers.

This will be the first Indiana case to examine the civil liability and the duty of colleges in connection with hazing of their students.

Professor Andrew Klein of McKinney School of Law described the ramifications this case will have on schools. “Institutions are going to need to understand that there could be greater consequences for their failure to more actively engage in the behavior of institutions that are on university-owned property.”

Schools are taking notice, and actions are being taken to limit liability in the wake of hazing incidences. This lawsuit comes the same month that another Indiana institution is dealing with hazing. Indiana University in Bloomington has suspended a chapter of the Omega Psi Phi after reports of providing an unsafe environment resulting in numerous hazing incidences.
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