Medical malpractice

Justices to hear compulsive gambling case

January 1, 2009
Jennifer Nelson
The Indiana Supreme Court will hear arguments in three cases Thursday, including a suit in which a woman claims a casino took advantage of her gambling addiction. Arguments begin at 9 a.m. in Caesars Riverboat Casino LLC v. Genevieve Kephart, No. 31S01-0909-CV-303. Caesars originally filed a suit against Genevieve Kephart after she failed to repay a gambling debt. The casino sought repayment, treble damages, and attorney fees. But Kephart counterclaimed, arguing the casino unjustly enriched itself because it knew she had...
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Court rules on tort claims and wrongful death

December 29, 2008
Jennifer Nelson
The Indiana Supreme Court tackled the issue of the interaction of the statute of limitations provision under the state's Wrongful Death Act and the statute of limitations provision for an underlying substantive tort claim in two opinions released Dec. 24.
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Justices analyze occurrence-based limitations

November 13, 2008
Jennifer Nelson
Two Indiana Supreme Court justices dissented from the majority today in two medical malpractice suits because they believed the majority's reasoning behind the decisions that both plaintiffs' claims are time-barred would foster suspicion and doubt between health-care providers and their patients.
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Sexual misconduct doesn't fall under MedMal act

November 6, 2008
Jennifer Nelson
The Indiana Court of Appeals today affirmed a trial court determination that an employee's sexual conduct with a patient can't constitute a rendition of health care or professional services, so a negligent hiring complaint against a hospital based on that conduct doesn't fall under the Indiana Medical Malpractice Act.
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Worker's comp claim bars med mal complaint

June 18, 2008
Jennifer Nelson
The Indiana Court of Appeals reversed the denial of a hospital's motion to dismiss a medical malpractice complaint because the claimant, who was employed by the hospital and on duty at the time of the injury, could only file a complaint against the employer under the Worker's Compensation Act.
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$1.25 million med mal verdict affirmed

June 3, 2008
Michael Hoskins
The Indiana Court of Appeals has upheld a $1.25 million jury verdict and in doing so ruled on three issues of first impression that will likely impact future medical malpractice suits.
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COA: Laser hair removal not 'health care'

January 1, 2008
Michael Hoskins
Laser hair removal isn't considered "health care" within the meaning of the state's Medical Malpractice Act, the Indiana Court of Appeals ruled today.A unanimous ruling today affirmed a trial court decision in OB-GYN Associates of Northern Indiana P.C. v. Tammy Ransbottom, No. 71A03-0711-CV-503, which involved a St. Joseph County case and the denial of a motion to dismiss a negligence action. In January 2006, Ransbottom had gone to a Mishawaka OB-GYN's office and underwent the cosmetic laser hair removal treatment. She went...
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COA to travel to Wabash College

January 1, 2008
Jennifer Nelson
The Indiana Court of Appeals will hear arguments Feb. 26 at Wabash College in Crawfordsville. Judges Patricia Riley, James Kirsch, and Melissa May will hear the appeal from Monroe Circuit Court of H.D., et al. v. BHC Meadows Hospital, Inc. at 3 p.m. In this appeal, the court is asked to decide whether the Indiana Medical Malpractice Act requires a juvenile and his or her parents to bring claims from a breach of patient confidentiality before a medical review panel prior...
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Court upholds damages award against doctor

January 1, 2008
Jennifer Nelson
The Indiana Court of Appeals upheld a damages award to the parents of a stillborn child against a doctor, finding the trial court properly excluded opinion testimony from two treating doctors and a letter written to those doctors before the trial by the parents' attorney. In Jeffrey L. Cain, M.D. v. Richard Back and Suzette Back, No. 20A03-0705-CV-225, Dr. Jeffrey L. Cain appealed the trial court judgment of $800,000 in damages to Richard and Suzette Back on their claim of medical malpractice.The...
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High court grants, vacates transfers

January 1, 2008
Jennifer Nelson
The Indiana Supreme Court granted transfer to a case regarding whether the Indiana Patient's Compensation Fund can introduce evidence of liability on an action seeking excess damages. The court also vacated a transfer in a case that involves an amendment to charging information that happened after the omnibus date. The court granted transfer to Jim Atterholt, Commissioner of the Indiana Department of Insurance, as Administrator of theIndiana Patient's Compensation Fund v. Geneva Herbst, personal representative of the estate of Jeffrey A....
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Majority: hospital owed duty to patient

January 1, 2008
Jennifer Nelson
Indiana Court of Appeals judges were split in their decision March 12 regarding whether a hospital that performed a surgery on a woman with suspected domestic violence injuries should have prevented her from leaving with her ex-husband and alleged abuser, who later killed both of them on the way home from the hospital. At issue in Ava McSwane and Danielle Hays v. Bloomington Hospital and Healthcare System and Jean M. Eelma, M.D., No. 53A04-0705-CV-243, is what duty the hospital owed to McSwane's daughter, Malia...
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Incurred risk not malpractice defense

January 1, 2008
Jennifer Nelson
A doctor cannot use evidence of a patient's previous surgeries or pursue an incurred-risk defense against a medical malpractice suit, the Court of Appeals ruled today. In Brenda Spar v. Jin S. Cha, M.D., No. 45A05-0611-CV-683, Spar appealed the jury decision in favor of Dr. Cha in her medical malpractice claim against the OB/GYN for a surgery he performed on her. Spar previously had been in a serious automobile accident and as a result had numerous abdominal surgeries. When she decided to...
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Court upholds damages award

January 1, 2008
Jennifer Nelson
The Indiana Court of Appeals affirmed a trial court decision that excluded arguments and evidence from the Indiana Patient's Compensation Fund relating to the survival rate of the decedent because their argument regarded liability, which had already been established through a settlement. In Jim Atterholt, Commissioner of the Indiana Department of Insurance as Administrator of the Indiana Patient's Compensation Fund v. Geneva Herbst, personal representative of the estate of Jeffrey A. Herbst, No. 49A04-0702-CV-106, the Indiana Patient's Compensation Fund appealed the grant...
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Settlement may be largest of its kind: State agency resolves federal lawsuit that began with legal malpractice claim

January 1, 2008
Michael Hoskins
An Indianapolis law firm has been holding its breath for two years. Ever since getting hit with a potentially devastating $17.9 million jury verdict on a legal malpractice claim in state court, the 45-year-old law firm Fillenwarth Dennerline Groth & Towe hasn't been able to put the focus on its daily client business without acknowledging that dark storm cloud hovering overhead. Now, the storm cloud has dissolved. In what may be the state's largest-ever liquidation return of its kind, the Indiana...
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Supreme Court rules on med mal fees

January 1, 2007
Michael Hoskins
Medical malpractice attorneys are sighing in relief after a much-anticipated ruling by the Indiana Supreme Court this afternoon.Justices granted transfer and issued a per curiam opinion this afternoon on a case that had the potential to dramatically change how med mal attorneys recover fees in these types of cases.But instead of altering that, the unanimous ruling stipulates that the fee structure often used by these med mal attorneys can stand, and the court offers guidance for attorneys seeking to ensure fee...
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Supreme Court will hear 5 arguments this week

January 1, 2007
Michael Hoskins
A mobile home demolished more than a year ago is the subject of one of several oral arguments the Indiana Supreme Court will hear this week.Justices will hear three cases Tuesday, and two more are scheduled for Thursday, but the court has granted transfer in only two of those cases so far.The mobile home-related argument tomorrow is in Ernestine Waldon v. Donna Wilkins, 18A04-0604-CV-199, which comes out of Delaware County. After deciding a mobile home was unfit to live in, the...
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High court rules doctor can sue in med mal case

January 1, 2007
Jennifer Nelson
The Indiana Supreme Court ruled that summary judgment should not have been granted because it prohibited a doctor from asserting a statutory negligence claim against a medical malpractice claimant, her attorney, and her attorney's law firm.In the ruling Wednesday, Justices Brent Dickson and Ted Boehm concurred, with Chief Justice Randall Shepard concurring in a separate opinion. Justice Frank Sullivan concurred in part and dissented in part with a separate opinion in which Justice Robert Rucker concurred.In Eusebio Kho M.D. v Deborah...
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Supreme Court grants 5 transfers

January 1, 2007
Michael Hoskins
Indiana's top jurists granted transfer Wednesday in five cases and will consider issues involving physicians who leave foreign objects in a patient's body, parental termination hearings conducted without the parent, timely court-filing deadlines, and the sentencing options courts have after probation violations.In Russell Prewitt v. State of Indiana, No. 10A04-0610-CR-589, the Court of Appeals in April reversed a Clark County case in which the judge revised a sentence after the defendant violated his probation. The appellate judges held that the lower...
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Court: Wrongful death claim timely filed

January 1, 2007
Jennifer Nelson
Indiana's professional statute of limitations does not trump the state's Wrongful Death Act's statute of limitations, ruled the Indiana Court of Appeals. In The Estate of Martha O'Neal, by personal representative Therese Newkirk v. Bethlehem Woods Nursing and Rehabilitation Center, LLC, No. 90A05-0705-CV-271, the appellate court was asked to decided if the statute of limitations had expired prior to O'Neal's estate filing a wrongful death complaint against Bethlehem on Oct 22, 2003. O'Neal was admitted to Bethlehem for rehabilitation on Sept. 10,...
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Court rules on med mal statute of limitations

January 1, 2007
Michael Hoskins
The Indiana Court of Appeals today reversed and remanded to Lake Circuit Court a medical malpractice case, holding that it is unconstitutional to apply the state statute's "occurrence-based" nature to the man suing a surgeon.In Victor Herron v. Anthony A. Anigbo, M.D. http://www.in.gov/judiciary/opinions/pdf/05230712jsk.pdf , No. 45A03-0608-CV-378, the three-judge panel ruled the trial court erred in concluding that Herron's discovery date allowed for sufficient knowledge to discover the malpractice.The suit stems from Herron's fall outside his home and his admittance to a...
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  1. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  2. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  3. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  5. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

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