ILNews

COA reverses trial court in malpractice case

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The Indiana Court of Appeals has sided with the commissioner of the Indiana Department of Insurance in a medical malpractice case.

In Commissioner of the Indiana Dept. of Insurance v. Tim Black, as Husband and Personal Rep. of Kay Black, Deceased, No. 64A05-1104-CT-240, the commissioner contended the trial court erred in denying his motion to dismiss for failure to state a claim. However, for the first time on appeal, Tim Black disputes the characterization of the commissioner’s motion as a motion to dismiss pursuant to Ind. Trial Rule 12(B)(6). He asserts that because additional supporting documents were attached to the motion to dismiss, the commissioner’s motion was converted into a motion for summary judgment pursuant to T.R. 56. The appellate court agreed.

Indiana’s medical review panel had unanimously concluded that Dr. Fred Harris of Porter Memorial Hospital failed to comply with the appropriate standard of care with regard to Tim Black’s wife, Kay Black. Kay Black had gone to the hospital’s emergency room in 2000, complaining of severe chest pain radiating down her left arm and nausea. An abnormal blood enzyme test indicated she might have suffered a heart attack, but when consulted by phone, Harris did not order heart monitoring or repeat enzyme testing. Hours later, Kay Black suffered a severe cardiac arrest that resulted in her needing a heart transplant.

Kay Black died in 2008 of an unrelated cause. In 2009, Tim Black, as his wife’s personal representative, filed a petition for payment of damages from the Patient Compensation Fund, asserting that Harris had agreed to make payment of his liability limit in the amount of $250,000, thereby establishing liability of the PCF under the Medical Malpractice Act.

The COA held that Black failed to provide sufficient evidence to establish an agreement with Harris and remanded on the motion for summary judgment for further proceedings.


 

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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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