Indiana Injury Lawyer Blog

January 20, 2020

Failure to Warn Lawsuit Draws Attention to Indiana Products Liability Claims

by Parr Richey Frandsen Patterson Kruse LLP

The state of New Mexico has recently filed suit against major company Johnson & Johnson, alleging that the company misled consumers about the safety of its baby powder and other talc-based products. According to a New York Times article covering the lawsuit, the Johnson & Johnson products are allegedly contaminated with carcinogenic asbestos, but the company has continued to market them, especially to children and Black and Hispanic women, without any warning. Although the suit was filed by New Mexico, the allegations of Johnson & Johnson’s contaminated products have important implications for Indiana consumers as well.

The attorney general of New Mexico, who is leading the suit on behalf of the state, accused Johnson & Johnson of concealing the dangers of talc products, which are associated with lung disease, ovarian cancer, and mesothelioma. Companies, including Johnson & Johnson, have a legal duty to warn consumers about the dangers posed by their products. If they conceal potentially harmful information, or even just fail to disclose it, they can be held liable—sometimes in multi-million, or even billion, dollar lawsuits. Because the stakes are so high, companies typically invest significant resources into legal teams to help them avoid liability. Johnson & Johnson, for instance, reportedly set aside $190 million in the second quarter of 2019 to defend specifically against talc-related litigation. That money does not even include money spent on non-talc-related suits.

While it is helpful for those injured by Johnson & Johnson or other products to have a state bring suit on their behalf, such a case is incredibly rare. Typically, if a plaintiff wants to recover against a large company, they have to file a suit themselves. When the company spends millions on legal teams to squash such lawsuits, filing suit can be intimidating, and a plaintiff may even feel hopeless. However, with the assistance of a dedicated personal injury attorney, plaintiffs may be able to recover against negligent, fraudulent companies who caused them harm, leveling the playing field between plaintiffs and multi-million-dollar corporations. If successful, the company may owe the plaintiff money for lost wages, past and future medical expenses, pain and suffering, loss of companionship, and more.

January 14, 2020

Nursing Home Fraud Can Suspend the Statute of Limitations in Indiana Abuse and Neglect Cases

by Parr Richey Frandsen Patterson Kruse LLP

In Indiana, nursing home abuse and neglect victims have the right to sue a facility when injuries or premature death occur as a result of an employee’s negligence or abuse. However, potential plaintiffs should be aware of one common barrier to successful recovery in these suits: the statute of limitations. Indiana law allows plaintiffs to file suit for up to two years after the abuse or neglect occurs. Generally, if a plaintiff files suit even one day late their case is barred and there can be no recovery.

Because the statute of limitations is so strict, and has potentially devastating consequences on plaintiffs, parties often argue about when the statute of limitation period begins. For example, when did the abuse or neglect actually occur? This question is the source of much litigation, with nursing homes always wanting to argue that the period of time began earlier, in order to have a better chance at barring a plaintiff’s claim. However, there are some doctrines to protect plaintiffs from this behavior.

For example, if a nursing home uses fraud and deception to conceal an injury or incident after it happens, the plaintiff may not even know there is anything to file suit about. In this situation, the court might find that the statute of limitations began at a later date, or was paused for a period of time, to give the plaintiff meaningful time to file suit. This doctrine, while helpful to plaintiffs, can be difficult to establish.

January 5, 2020

The Two Theories of Employer Liability in Indiana Personal Injury Lawsuits

by Parr Richey Frandsen Patterson Kruse LLP

In many personal injury lawsuits, one of the most important decisions that must be made is which parties to name in the lawsuit. Indeed, in many lawsuits, the at-fault party is not the only defendant named in the case. Depending on the facts surrounding the accident, the at-fault party’s employer is often named as an additional defendant.

In Indiana, when an employee’s actions cause someone injuries, there are two types of claims that can be brought against their employer. The two types of claims are negligent hiring and respondeat superior. While each of these claims allows an injured party to hold an employer responsible, they are very different and, in Indiana, mutually exclusive of one another.

A respondeat superior claim is a form of vicarious liability, meaning that it allows for an accident victim to hold an employer accountable for the negligent employee’s actions. The doctrine holds the employer liable because the employee is seen as the employer’s agent, so to speak. Thus, to prove a respondeat superior claim, a plaintiff must be able to show that the negligent employee’s actions were within the scope of their employment. Otherwise, an employee may be held individually liable for a plaintiff’s injuries, but the employer cannot be liable.

December 27, 2019

Expert Witnesses Are Helpful, But Not Always Necessary, in Indiana Personal Injury Cases

by Parr Richey Frandsen Patterson Kruse LLP

As much as one may try to avoid them, accidents and injuries are far too common, and Indiana residents may find themselves injured because of another person’s negligence. Although it does not undo the damage, Indiana law allows a victim to bring a lawsuit against the negligent party to recover compensation for medical bills, pain and suffering, lost wages, and more. In order to successfully recover, the plaintiff must prove in court that the accident was the defendant’s fault and that there was real harm suffered as a result. There may be some cases in which establishing liability in an injury case is straightforward, but typically the process proves to be more complex than it initially appears. To help with this process, a personal injury plaintiff may want to use expert witness testimony to support their case.

Unlike eyewitnesses, who saw the incident in question happen, expert witnesses were not present at the scene of the incident but have relevant expertise that can help explain what happened to the judge or jury. For example, an accident reconstructionist can help explain to the court how an accident happened, or a medical professional could testify as to the severity of the injuries and likely future medical costs. Since expert witnesses offer this valuable information, they are used in many personal injury cases across Indiana.

Due to the prevalence of expert witnesses in personal injury cases, many plaintiffs may think that they need expert witnesses to make their case and that they will lose without them. However, this is not the case. While expert witnesses are helpful, they are not necessary to win every personal injury case, and many cases can be won without them. A recent state case illustrates this fact. According to the court’s written opinion, the victim was an elementary school student who was assaulted and beaten by other students on the playground during recess one afternoon. The victim’s mother brought suit against the city and the Board of Education on her daughter’s behalf, alleging negligence in failing to supervise the schoolchildren during recess. A lower court had previously ruled that, without expert testimony establishing the standard of care that the defendants owed the plaintiff, the plaintiff could not prevail. The court reversed, finding that although there are some cases in which expert testimony may be necessary, it was not necessary in this particular case.

December 19, 2019

As Winter Weather Arrives, Indiana Car Accidents Increase in Frequency

by Parr Richey Frandsen Patterson Kruse LLP

Anyone who has spent time in Indiana between the months of December and February knows that Indiana winters are no joke. Indeed, the average overnight temperature during an Indiana winter is well below freezing, at just above 20 degrees. And with an average of over eight inches of rain and more than 20 inches of snow each winter, Indiana roads can be difficult to navigate during the winter months. Not surprisingly, there are a significant number of weather-related car accidents each year.

Winter weather poses a number of challenges to motorists. For example, the presence of ice or snow on the road seriously affects a vehicle’s ability to maintain traction on the road, increasing both a car’s stopping distance and the chance of the driver losing control. During snowstorms and on foggy days, the visibility may be extremely limited, making it hard for drivers to see more than a few feet ahead of them. Unprepared motorists may also face equipment issues, such as damaged windshield wipers, bald tires, or worn brakes. These factors can all contribute to a car accident.

Despite the difficulties that winter weather presents to motorists, it is up to drivers to take the necessary precautions, regardless of the conditions. Some steps that drivers should take when driving in winter weather include:

Reduce speed: Speed limits are based on optimal conditions, and drivers should reduce their speed when there are potentially dangerous weather conditions.
Give other drivers space: What may be an acceptable following distance when driving on dry pavement may not be enough room to come to a stop on a wet or icy road. Drivers should give other motorists a little extra room.
Check the car’s tires: Improperly inflated and poorly maintained tires can contribute to a driver losing control of their vehicle.
Go easy on the brakes: In wet weather, a car’s braking system is more likely to lock up. Thus, drivers should anticipate the need to brake and apply firm, consistent pressure rather than slamming on the brakes.
Always pay attention: While distracted driving is always dangerous, it is especially hazardous during periods of inclement weather. Even a momentary glance away from the road can result in a serious accident.

December 16, 2019

Indiana Medical Malpractice Lawsuits Involving Children

by Parr Richey Frandsen Patterson Kruse LLP

According to the American Academy of Pediatrics (AAP), medical malpractice claims involving babies and children are among the most common types of lawsuits that go to trial. This is likely because negligently treated babies and children often have the worst injuries and outcomes. When a baby, child, or teenager suffers injuries because of a negligent Indiana health care provider, the medical professional may be liable for the damages that they caused. Babies and children are particularly vulnerable to medical malpractice, since these groups either are unable to communicate or have difficulty effectively communicating their symptoms and conditions.

Under the Indiana Medical Malpractice Act, most physicians, nurses, midwives, dentists, chiropractors, psychologists, paramedics, and other medical professionals may be liable for injuries that their negligence causes. Pediatric negligence takes many forms and can have devastating consequences. Pediatric malpractice lawsuits often arise after birth injuries, misdiagnoses, delayed diagnoses, incorrect prescription orders, inaccurate laboratory results, failures to follow up, and botched surgeries.

When a medical professional fails to adhere to their standard of care and commits medical malpractice, the consequences can be dire. Pediatric malpractice injuries often cause irreversible damage because babies and young children cannot always effectively fight off infections and recover from severe trauma to their bodies. For example, recently, a mother filed a lawsuit against a medical provider after her infant died following his routine vaccinations. The infant was born prematurely but was generally in good health when he received his vaccinations. Shortly after his shots, he became feverish, and his parents gave him fever medication and put him down for a nap. A few hours later, his mother found him unresponsive in his crib. The defendants successfully argued that they were not liable for his death because medical examiners established that he died of Sudden Infant Death Syndrome. However, this case highlights the importance of follow-up care, especially when patients are very young.

December 5, 2019

Indiana Hospital Errors May Be the Basis of a Medical Malpractice Claim

by Parr Richey Frandsen Patterson Kruse LLP

When a hospital or medical provider deviates from a generally accepted standard of care and causes harm to a patient, they may be liable for the patient’s injuries through an Indiana medical malpractice lawsuit. All personal injury lawsuits require plaintiffs to present a significant amount of evidence to establish their claim to damages. In addition to the typical evidentiary burdens that a plaintiff has to meet, Indiana medical malpractice laws impose additional obstacles on injury victims. There are various forms of medical malpractice, and injury victims should seek the representation of an Indiana malpractice attorney when pursuing these lawsuits.

The most common types of medical malpractice lawsuits stem from diagnosis errors, surgical errors, treatment failures, birth injuries, prescription drug errors, and laboratory mistakes. Laboratory professionals are responsible for the proper collection, handling, interpretation, and reporting of their results. Laboratory testing and their accompanying results are a critical part of an individual’s medical treatment, as these reports may affect diagnosis and dictate treatment. Moreover, laboratory machines, products, or devices may also cause severe injury or death to a patient. Injuries can occur if the handler does not know how to use the equipment correctly or if the device is defective. Defective devices may include, drains, tubes, pumps, measuring instruments, centrifuges, and catheters. When a lab error occurs, the consequences can be life-altering, or even fatal.

For example, recently, a national news report detailed the tragic death of infants receiving treatment at a neonatal intensive care unit in a hospital. Late last summer, several infants began to show signs of illness, and three subsequently died of a bacterial infection. During an investigation, the hospital discovered that the infants died after exposure to infected donor milk. The hospital’s infection control unit determined that the laboratory equipment used to measure the donor milk contained the deadly bacteria. The bacteria generally only present a threat to fragile individuals, such as preterm immunocompromised babies. Following the deaths and discovery of the bacteria, the hospital began diverting the care of premature babies to other hospitals. So far, one of the families who lost a child has filed a lawsuit against the hospital.

November 25, 2019

Comparative Fault in Indiana Medical Malpractice Cases

by Parr Richey Frandsen Patterson Kruse LLP

The Indiana Medical Malpractice Act governs most lawsuits based on injuries that a person suffers because of the negligence of an Indiana hospital or medical provider. When an Indiana pharmacist, medical resident, nurse, doctor, or surgeon causes injuries because they deviated from a reasonable standard of care, they may face liability under the Act. To collect damages, a medical malpractice victim must also overcome any issues surrounding their own fault or contribution to their injuries.

Under Indiana, law, courts measure negligence by comparing the negligent actor’s conduct against that of someone acting under similar circumstances. Using this framework, a plaintiff must prove that the healthcare provider breached a reasonable standard of care. To meet this burden, plaintiffs must present testimony from a similarly situated healthcare provider. This provider must be able to address applicable standards of care and opine on whether the defendant departed from this standard.

Further, plaintiffs may need to address a defendant’s assertion that the plaintiff contributed to their injuries and damages. Generally, Indiana negligence lawsuits apply the modified comparative fault standard. Modified comparative fault means that each party’s fault will factor into the total amount of damages that the plaintiff can receive. Under Indiana law, a plaintiff that is more than 51% responsible for their injuries will not be eligible to recover for their damages. However, the state’s Comparative Fault Act does not apply to medical malpractice lawsuits.

November 19, 2019

When Can Indiana Businesses Be Held Liable for Providing Alcohol to Intoxicated Persons?

by Parr Richey Frandsen Patterson Kruse LLP

Drunk driving is still a widespread issue throughout the country, which is why many states have developed strict laws to try to address it. In Indiana, the state’s Dram Shop Act (the Act) holds providers of alcoholic beverages liable in Indiana personal injury cases where the providers knowingly serve alcohol to a visibly intoxicated person. In those cases, the providers can be held responsible for any reasonably foreseeable consequences.

There are both criminal and civil penalties under the Act. A provider can be held liable for damages in a civil case if the provider furnishes an alcoholic beverage, and the provider has actual knowledge that the person was visibly intoxicated at the time the alcoholic beverage was provided. The person’s intoxication must also be a proximate cause of the plaintiff’s injuries. This also means that if a person is injured because of the person’s own voluntary intoxication, the person may be able to recover from the provider who furnished the person an alcoholic beverage.

Actual knowledge means that the provider knew that the person was visibly intoxicated. Of course, a provider will not always admit to knowing that, so courts will make reasonable inferences based upon the evidence presented in the case. This might include how many drinks the person consumed and during what period, and the person’s behavior at the time. Experts are often used in these cases because they can provide information about at what point a person would show signs of visible intoxication.

November 12, 2019

Negligent Entrustment Liability in Indiana Premises Liability Cases

by Parr Richey Frandsen Patterson Kruse LLP

When an individual suffers an injury at an Indiana business, they should explore all possible avenues of relief against all potentially liable parties. In addition to the person or entity that is directly responsible for their injuries, Indiana injury victims should consider third-parties, who also contributed to the damages they sustained. In some cases, business owners may be accountable under a negligent entrustment theory when an injury results from a dangerous instrumentality.

For example, recently, a state appellate court issued an opinion in a case stemming from injuries a woman suffered at a grocery store. Among other issues, the woman filed a negligent entrustment claim against the grocery store when a customer driving a motorized cart struck her. The woman alleged that the grocery chain provided the cart to customers without any instruction or warnings and assumed that the drivers knew how to operate the cart. The lower trial court found in favor of the woman; however, the appellate court ultimately concluded that the woman did not meet the causation element of a negligent entrustment case. Further, they held that she could not prove that the store should have known that the driver would operate the cart negligently or recklessly.

An individual or entity may be liable under the theory of negligent entrustment when they allow a person to operate a dangerous instrumentality, and that person causes an injury to a third party while using that instrumentality. Often, these cases arise when a person entrusts someone with a vehicle or a firearm. Victims in these cases can prevail based on the idea that the person entrusting the item to the negligent party should have known that the person could harm others with the object based on the negligent party’s inexperience or age.