ILNews

Worker's comp claim bars med mal complaint

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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.

In ProCare Rehab Services of Community Hospital v. Janice S. Vitatoe,  No. 49A02-0707-CV-583, Janice Vitatoe, who was employed as a registered nurse by Community, slipped and fell during her shift and injured her right hamstring. She began treatment with an orthopedic surgeon at Central Indiana Orthopedics and underwent outpatient physical therapy at ProCare Rehab Services, which is a department of Community.

Vitatoe filed a worker's compensation claim against Community. After she was no longer employed by the hospital, she filed a proposed medical malpractice complaint with the Indiana Department of Insurance, alleging negligence of her orthopedic surgeon, Central Indiana Orthopedics, and ProCare.

Vitatoe and Community settled the worker's compensation claim and Community moved to dismiss the medical malpractice complaint for lack of subject matter jurisdiction. The trial court denied Community's motion.

The Worker's Compensation Act contains an exclusivity provision that the rights and remedies granted to an employee through the act "shall exclude all other rights and remedies of such employee ... at common law or otherwise ..." The Indiana Supreme Court has ruled that the Worker's Compensation Act's exclusivity provision bars a court from hearing any common law action brought by the employee based on the same injuries.

Community argues that Vitatoe's injuries arose out of and in the course of her employment so her medical malpractice claim against Community is barred under the Worker's Compensation Act. Vitatoe counters that the injuries that form the basis for her complaint didn't arise from and in the course of her employment but during treatment for the original injury.

Citing previous caselaw, the Indiana Court of Appeals ruled that if an employee's injury happened during the course of her employment is aggravated by treatment for that injury, regardless of where, when, by whom, and for how long the treatment was provided, the injury caused by the treatment will be deemed as a matter of law to have come out of and in the course of her employment for purposes of the Worker's Compensation Act. As a result, the employee's exclusive remedy against the employer for the injury caused by the treatment is under the act, wrote Judge Terry Crone.

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  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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