Justices deny transfer to malpractice suit against Barnes & Thornburg

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The Indiana Supreme Court will not consider the issue of whether Indiana’s largest law firm was properly granted summary judgment in a legal malpractice suit, denying transfer to a case that raised concerns about attorneys’ ability to indemnify themselves against malpractice allegations.

The high court denied transfer last week to the case of Central Indiana Podiatry, P.C., Northwest Surgery Center, LLC, d/b/a Foot & Ankle Surgery Center, f/k/a Foot & Ankle Surgery Center, LLC and Anthony E. Miller, D.P.N. v. Barnes & Thornburg, LLP, 49A02-1603-PL-498. In that case, the medical centers and Anthony Miller sued Barnes & Thornburg for alleged malpractice after the firm represented them in a lawsuit brought by podiatrist Thomas Vogel.

Vogel claimed Central Indiana Podiatry and the Foot & Ankle Surgery Center committed anti-kickback violations, various forms of fraud, money laundering, wage violations and other illegal conduct. The medical centers and Miller hired Barnes to represent them in the case, which ultimately settled, but when legal fees rose to $190,000, they sought a reduction and cap on fees.

Barnes provided a release agreement allowing the parties to pay only $145,000, but also included this provision: “The Miller Parties hereby release and forever discharge B&T, and all predecessor and successor firms, …from any and all claims, of any nature, known or unknown, which the Miller Parties now have, have had, or may later claim to have arising from or related to any aspect of B&T’s representation… .”

Because of that clause, the Marion Superior Court granted summary judgment to the firm in the malpractice suit, a decision the Indiana Court of Appeals affirmed in October 2016 and again on rehearing in March. The grant of summary judgment prompted the introduction of Senate Bill 84, which would had made any attorney-client provision that prospectively released attorneys from malpractice liability “void and unenforceable.” However, the bill, authored by Sen. Liz Brown, R-Fort Wayne, did not make it out of House committee.

Though the Court of Appeals decision was unanimous, Judge Terry Crone expressed concern in a concurring opinion about attorneys’ ability to shield themselves from malpractice liability, expressing a sentiment similar to what was found in SB 84.

“(I)n my view, allowing lawyers to prospectively limit liability to clients for future acts of malpractice subverts the very nature of the attorney-client relationship,” Crone wrote in his October opinion. “Until and unless our supreme court abolishes this practice, Hoosiers seeking competent and diligent legal representation may be left to fend for themselves against lawyers who wish to avoid liability for future acts of malpractice.”

The Miller and the medical centers moved for the Supreme Court to grant transfer to the case in April, but all justices concurred on the denial of transfer last week.

The court denied transfer to nine other cases last week. The full list of transfer actions can be read here.


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  1. The voices of the prophets are more on blogs than subway walls these days, Dawn. Here is the voice of one calling out in the wilderness ... against a corrupted judiciary ... that remains corrupt a decade and a half later ... due to, so sadly, the acquiescence of good judges unwilling to shake the forest ... for fear that is not faith ..

  2. So I purchased a vehicle cash from the lot on West Washington in Feb 2017. Since then I found it the vehicle had been declared a total loss and had sat in a salvage yard due to fire. My title does not show any of that. I also have had to put thousands of dollars into repairs because it was not a solid vehicle like they stated. I need to find out how to contact the lawyers on this lawsuit.

  3. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  4. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  5. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.