November 12th, 2011
Under Indiana law, the liability insurer for an individual who has caused an accident and injured an individual has the right to have the injured person undergo a medical examination by a physician of their choosing. This is called an Indiana Trial Rule 35 examination.
In many cases, the liability insurer will have a reputable physician perform this physical examination merely to confirm what the treating physician has to say regarding the injured person’s diagnosis and long term prognosis. On the other hand, some insurers will select a particular physician to perform this examination who has an established tendency to say in all the patients that they examine that whatever medical condition is involved was not caused by the accident question, or that the injury has long since completely healed and that whatever remaining physical problems the individual still has were not caused by the accident. In one case, the insurance company’s doctor actually stated that my client’s spinal cord injury wasn’t caused by a semi-truck crash, but was a pre-existing condition that my client just didn’t know that they had had until they got hit by a semi-truck!
In such medical examinations, sometimes the insurance company’s doctor will also say that the medical treatment that the injured person underwent after their accident was not medically necessary. For example, in one such case that I handled involving a knee injury after a semi-truck crash, my client ‘s treating orthopaedist had recommended and performed a knee surgery to remove a loose piece of bone that was floating within the knee joint. However, the insurance company’s doctor said that he thought the surgery had been unnecessary and that the treating orthopaedist should have waited longer for the bone fragment to heal on its own, even though several months had already passed.
In this fashion, the liability insurer would argue that they shouldn’t have to pay as much because the treating physician for the injured person didn’t provide proper medical care. On the other hand, if my client hadn’t undergone the surgery that his treating orthopaedist had recommended, the insurance company would have argued that they also shouldn’t have to pay as much because my client didn’t follow his doctor’s recommendations!
Fortunately, under Indiana law, a liability insurer may not claim that medical treatment that an injured person received after an accident was unnecessary or ill advised, so long as the injured person had used reasonable care in selecting the physician that treated them. The rationale for this rule is that if an injured person requires medical care because of someone’s carelessness or negligence, it is not proper for the wrongdoer to criticize what medical care the injured person should receive since the wrongdoer created the need for this medical care in the first place.
Consequently, in my case involving an injured knee, the trial judge would not permit the insurance company’s doctor to criticize or second-guess the medical treatment that my client’s orthopaedic surgeon had recommended.
Tags: Indiana personal injury attorney, Indiana personal injury lawyer
Posted in Indiana Accident Claims | Comments Off
October 31st, 2011
In a previous blog entry regarding the legal doctrine of contributory negligence and the recent Indiana State Fair tragedy, I mentioned that the law of contributory negligence applies to all claims against state or local governments, regardless whether the claim arises from a city garbage truck that runs a red traffic light and causes a car wreck, or to the negligence of State Fair officials who, among other things, apparently failed to make sure that an outdoor stage could withstand a 70 mph wind gust. In all claims against a governmental entity, the concept of joint and several liability also applies, which states that if a governmental entity was only even partially responsible for an accident, the government, or eventually their insurance company, is responsible for all damages regardless whether other individuals may also have been partially at fault.
While this doctrine at first blush sounds like a lawyer’s dream, there is a big catch, so to speak. Specifically, this legal doctrine also says that if the injured person was partially at fault or negligent to even a small degree, any financial recovery is barred. So, for example, if a motorist is involved in a car wreck with a city garbage truck that disregarded a red traffic signal, if a jury were to determine that the injured person was 5% responsible for the wreck because they didn’t get out of the way fast enough, any financial recovery for that person’s injuries would be totally barred.
Prior to 1989, the doctrine of contributory negligence and joint and several liability applied to all injury cases, not just to claims against state or local government. Because of the harsh effect of this law when claimants had only a small percentage of fault for an accident, in 1989 Indiana’s legislature enacted the Comparative Fault Act. This new law provided that instead of preventing any recovery when the injured person was also negligent, comparative fault would reduce their financial recovery but not bar it totally unless the injured person was more than 50% responsible for their accident.
Thus, in a car wreck case for example, if the injured person was 20% responsible for the accident and the other driver 80%, the damages that the injured person would be entitled to collect would be reduced by 20%. Similarly, if the claimant was 30% responsible or at fault for the accident in question, the monetary damages that they would be entitled to collect would be reduced by 30%. However, if the injured person was more than 50% responsible for the wreck, they would collect nothing.
In both comparative fault and contributory negligence claims, when a person is determined to be “at fault” or “responsible” for an accident, this means that their conduct was negligent, which is defined under Indiana law as the failure to do what a reasonably careful and prudent person would have done under the same or similar circumstances.
Currently, the doctrine of contributory negligence applies only to governmental entities, and oddly enough, to health care providers in medical negligence claims. Comparative fault applies in all other types of claims, such as car wrecks, construction accidents, and fall cases.
As these legal doctrines and their application to a particular case can be complicated, the best advice is to discuss your claim with an experienced lawyer. As the consultation is free, there’s no downside with having a good understanding of your legal rights.
Tags: Indiana's Comparative Fault Act, Indianapolis Personal Injury Attorney, Indianapolis personal injury lawyer
Posted in Indiana's Comparative Fault Act | Comments Off
September 21st, 2011
As mentioned in a prior blog, Indiana’s Attorney General recently announced that the State would pay its maximum liability of $5,000,000 to the 40 or so individuals who were physically injured in this tragedy. While it is commendable that the State made this decision so soon after this event, it likely did not have much choice since the law of joint and several liability would apply to any claim against the State.
Under this law, if the State of Indiana was found to be even 1% responsible for this unfortunate event, the State would be legally responsible to pay 100% of the damages up to the $700,000 per person/$5,000,000 per event limit. This would be true even if the negligence of some other corporate entity, such as the company that built the stage, was found to be the primary cause of this collapse.
Under the legal theory of joint and several liability, if one person or entity is partially responsible for causing a legal harm, that person or entity is liable to pay all damages that were suffered by the injured party, even if other persons or companies may have also caused the accident in question. The concept of joint and several liability has existed in Indiana and in most states since the 1800’s.
Interestingly, joint and several liability only applies to governmental entities in civil tort claims and to health care providers in medical negligence claims. All other persons and business entities are covered by what is called the law of comparative fault that I will discuss in my next blog.
Tags: Indiana injury attorney, Indiana injury lawyer, Indiana Joint And Several Liability, Indiana personal injury lawyer, Indiana State Fair Accident, Injury attorney in Indiana
Posted in Joint And Several Liability | Comments Off
September 12th, 2011
This past week the Attorney General for the State of Indiana indicated that the State would pay its maximum liability of $5,000,000 to the victims of this tragedy. As mentioned in my prior blog, under Indiana law the State’s maximum liability is $700,000 per person and no more than $5,000,000 per event. As there are now 7 deaths and a host of other very serious injuries, including a teenager who is paralyzed, these funds are not going to go very far in compensating these unfortunate individuals or their families.
Some state representatives have raised the question whether the Indiana Legislature should enact special legislation to raise the damage limitation or cap for this particular event. Indiana has done this once previously in the case of a 4 year girl named Emily Hunt who was paralyzed at an amusement park called the Old Indiana Fun Park in 1996. This child was paralyzed and her grandmother killed when a miniature train within the park derailed. Although the train was supposed to have been inspected by the State, the State inspector later admitted that he wasn’t qualified to make such an inspection, and there was a substantial question whether an inspection had ever been performed. In response to a public outcry, the Indiana Legislature raised the cap to $1.5 million from the $500,000 limit that then existed, but only for this child’s claim. Which raises the question why does the State have a liability cap that is so low in the first place?
With many politicians, caps on damages that can be awarded are popular because they can be viewed as curtailing so called “frivolous lawsuits”. On the other hand, any claim whose legal value is more than $700,000 is certainly not frivolous. However, if one is in the position of a liability insurance company, it is much easier to claim, at least publically, that damage caps are needed because of “frivolous lawsuits”, then it is to argue that caps are needed because people who are killed or crippled are simply being awarded too much money and insurers want more profit.
Thus far, there has been no public discussion by the City of Indianapolis to raise the $700,000 damage cap that exists for several motorcyclists, one of who was killed and another critically injured last August when an Indianapolis Metropolitan Police Officer allegedly drove his patrol car while intoxicated at a high rate of speed into several motorcyclists who were waiting at a traffic light. Criminal charges are still pending against this police officer here in Indianapolis.
Tags: Indiana personal injury attorney, Indiana personal injury attorneys, Indiana personal injury lawyer, Indiana Tort Claims Act
Posted in Indiana Personal Injury Claims | Comments Off
August 19th, 2011
Since this very unfortunate event this past Saturday, I have had a number of inquires regarding what are the legal rights of the victims of this tragedy. My thoughts are there are probably two and perhaps three culpable parties whose negligence caused or contributed to this incident and who may have legal liability for those who were injured.
First, Indiana State Fair officials appear to have been remarkably slow in making a decision to evacuate the outdoor arena where this tragedy occurred. Records indicate that the National Weather Service had issued a severe thunderstorm warning an hour or more before this storm struck the State Fairgrounds, and indeed that another nearby outdoor event where the Indianapolis Symphony Orchestra was performing was canceled and the crowd evacuated. However, under Indiana law the liability of State officials is capped at $700,000 per person and a total of $5,000,000 for the entire event. In view of the number of individuals who were killed or seriously injured, these funds are woefully inadequate.
The other culpable party who may be partially responsible for this tragedy is the company who erected and/or constructed the stage area that collapsed. It is too soon to tell exactly why this stage collapsed, but most structural engineers agree that this stage should have been able to withstand a 70 mph wind gust. Therefore, it would appear that this stage was improperly installed, designed, or manufactured. It is unknown at this point how much liability insurance was carried by the corporation who manufactured and/or installed this stage.
Another likely development will be that health insurers who have paid accident related medical expenses will also be claiming that they are entitled to be reimbursed what they have paid from these liability insurance proceeds. For victims that had no health insurance and required expensive medical care, it is also likely that the hospitals that provided this care will file hospital liens on the liability insurance proceeds for any unpaid medical expenses.
So all in all, this is likely to be a red-hot mess in sorting out what caused this stage to collapse, and how the funds that are available will be distributed. In this regard, the assistance of experienced legal counsel will be very important to make sure these victims are not shortchanged.
Tags: Indiana State Fair Accident
Posted in Indiana Personal Injury Claims | Comments Off
August 5th, 2011
INDIANA’S TORT CLAIMS ACT
In my last blog entry, I discussed various statutes of limitations that apply when a negligent person causes injury to person or property. In general, in Indiana most claims for personal injury or property damage have a two-year statute of limitations.
However, when a wreck or accident is caused by an employee of a state or local government, in addition to filing a lawsuit within the usual two year statute of limitations, the injured person must also file a written document called a Tort Claims Notice within either 180 days or 270 days after the accident, depending upon what governmental entity employed the person who caused the accident. If this Torts Claims Notice is not filed within this time, then any legal claim by the injured person against the government is forfeited, even through the two year statute of limitations may not have expired.
When an accident is caused in whole or part by an employee of local government, such as a city or county employee, a Tort Claims Notice must be filed with a specific government office within 180 days after the accident. Alternatively, if an employee of the State of Indiana caused the accident, this notice must be filed within 270 days. This notice must also be in a specific form as described in Ind. Code 34-13-3-10.
To make things even more complicated, it is not always obvious who is considered an employee of state of local government. For example, if an IndyGo Bus that operates in Indianapolis caused an accident, because this bus service is operated by the City of Indianapolis, a Tort Claims Notice must be filed within 180 days. Otherwise, any claim by the injured person is barred.
Since this law was enacted to limit even legitimate claims that governmental entities may have to pay, the best advice is to consult with a lawyer who is familiar with these types of claims as soon as possible after an accident to make sure that a Tort Claims Notice is properly filed.
Tags: Indiana personal injury attorney, Indiana personal injury attorneys, Indiana personal injury lawyer, Indiana Tort Claims Act
Posted in Indiana Tort Claims Act | Comments Off
July 25th, 2011
The law does provide that if someone is injured in an accident because of another person’s negligence, a lawsuit must be filed within a certain period of time. If a lawsuit is not filed within this time period, then any legal claim that the injured person may have is forever barred. This is known as the Statute of Limitations.
In Indiana, most personal injury claims have a statute of limitations of two years. Thus, if a lawsuit is not filed within the two years following an accident, any legal claim that the injured person may have is forever barred. Although many people are aware of this time requirement, I have had a number of cases where the injured person waits until shortly before the expiration of the statute of limitations before they seek the advice of a lawyer.
However, if the crash or incident that caused the injury involved multiple individuals, as in common in trucking accident cases, there may be several corporations that may have legal liability to the injured person. Similarly, if the case involves a fall on a commercial property such as a grocery store or shopping mall, it is not always clear who owned the property where the fall occurred and who had legal responsibility for maintaining it in a safe condition. Thus, waiting until shortly before the statute of limitations expires may make it more difficult to find an attorney who is willing to take the case because it may not be possible to ensure that the responsible persons or corporations are sued.
An exception to the two-year statute of limitations is where the injured person is less than 18 years of age at the time of this injury. In this situation, the two-year statute of limitations does not begin until the child becomes 18 years of age. Thus, for example, a child who is injured in a car crash has until they turn 20 years of age before a lawsuit must be filed against the person who caused their accident. However, this is not true in medical malpractice or product liability claims.
In medical negligence cases, the two-year statute of limitations begins to run when the child becomes 8 years of age. If the child was 8 years old or older at the time of the possible malpractice, the usual two-year statute of limitations applies to the child’s claim. In product liability claims, the age of the child does not matter—a two-year statute of limitations applies in all such cases. As many individuals may not realize that they have a medical negligence or product liability claim, the best advice is to consult an experienced Indiana personal injury attorney as soon as possible after an injury.
Another trap for the unwary, so to speak, in Indiana is something called a Tort Claims Notice. This applies in all cases where an employee of state or local government has caused the injury in question. I will discuss the requirement of a Tort Claims Notice in next week’s blog.
Tags: Indiana personal injury attorney, Indiana personal injury attorneys, Statute of Limitations In Indiana
Posted in Statute of Limitations | Comments Off
July 18th, 2011
In the course of my law practice, I am occasionally hired to take over a case where the client has fired their previous lawyer and hired my firm. In a recent case, I discovered that the previous lawyer had failed to sue the correct corporation that was responsible for the client’s injury. Unfortunately, when I was hired, the Statute of Limitations had already expired and there was nothing that could be done to correct the first lawyer’s mistake.
Equally unfortunately, when I contacted the previous lawyer to discuss this issue, he informed me that he didn’t have any malpractice insurance that could be used to pay for his mistake. He also told me that his firm was deeply in debt and that he didn’t have any money to pay to his former client, but that if I wished I could contact a bankruptcy attorney that he had recently hired!
Although many people never think about this issue, Indiana law does not require attorneys to have malpractice insurance. Thus, if your lawyer does make a mistake on your case, they may have no way to pay for their error.
So what is one to do? The easiest solution is to ask your lawyer if they have malpractice insurance and to ask to see a copy of the declaration page of their insurance policy. While this may make some lawyers uncomfortable, it really should not. An experienced personal injury lawyer should rarely make a mistake on any case, but if they do, they should be more concerned with compensating their former client, rather than with avoiding responsibility for their error.
If you or a loved one has been seriously injured in an accident, give me a call to discuss your legal rights. The consultation is free, and there is no fee until I make a successful recovery. And yes, I will have no problem in showing you a copy of my insurance policy!
Tags: does your lawyer have any?, Indiana personal injury lawyer, malpractice Insurance
Posted in Malpractice insurance | Comments Off
June 26th, 2011
It is a fact of life in today’s society that lawyers advertise—a lot. In fact, some firms here in Indiana spend well over a million dollars each year to convince potential clients to hire them. However, because they have so many cases to keep track of, some firms may neglect to move a case along in a timely fashion or to keep the client informed what is going on with their case. As a consequence, in my practice I occasionally will get a phone call from a person who tells me that they are dissatisfied with their existing attorney and want to find out how they can change lawyers.
In Indiana, the right of a client to choose their legal counsel, and to change their choice of counsel if they are unsatisfied with the services they are receiving is a very important right. No one should stay with a lawyer who is providing poor service because they are afraid what they might have to pay if they fire their lawyer.
Fortunately, in the context of a contingency fee contract which is common in personal injury cases, the law provides that if a client fires their existing lawyer and hires a new one, the new lawyer, rather than the client, is responsible for paying the previous lawyer whatever amounts that they are due for the services they provided before they were fired.
In this way, the client ends up only paying one fee.
Thus, in my practice, when a client has fired their existing lawyer and hired me instead, it is my job to pay the former lawyer whatever amount is legally owed for their services, rather than the client. If the former lawyer and myself can’t agree what they are owed, then a judge decides how much the former lawyer should be paid based upon the reasonable value of the services that they provided.
Changing lawyers is of course a decision that should not be taken lightly. If you are unhappy with the legal services that you are receiving from your existing lawyer, you should first meet with the lawyer and discuss why you are not satisfied. However, if this doesn’t work, a viable option is to hire new counsel.
If you or a loved one has been seriously injured in an accident, or have a relative who was killed because of someone’s negligence, feel free to give me a call to discuss your legal rights.
Tags: Can I fire an Indiana personal injury attorney?, Indianapolis personal injury lawyer
Posted in FAQs ABout Attorneys | Comments Off
June 20th, 2011
I was recently consulted on a case in which a 45-year-old man was killed while riding on a motorcycle when a 21-year-old young woman ran a red traffic light and struck his motorcycle. At the time of this crash, the young woman only had $100,000 in liability insurance, and the motorcyclist only had $100,000 in Underinsured Motorists coverage.
As mentioned in my recent blog on the topic of Underinsured Motorists coverage, unfortunately the amount of Underinsured coverage that the man had was “set-off” or reduced by the amount of liability insurance which this young woman had, thus resulting in no additional coverage for the man and his family. However, if the man had purchased a Liability Umbrella policy prior to this crash, then there would have been an additional $1,000,000 in coverage to compensate his surviving family.
A liability umbrella insurance policy is a policy that provides additional liability coverage in an amount not less than $1,000,000. When a Uninsured/Underinsured Motorists rider is added to the policy, $1,000,000 of Uninsured/Underinsured Motorists coverage is also included. The typical cost of such a policy is usually between $300-$400 per year, or only approximately $29 per month.
Despite the relatively small cost of such a policy, for some unknown reason many insurance agents do not strongly recommend such a policy, even when their insured has assets and/or a family to protect. However, if tragedy strikes, these additional monies can make all the difference in the financial well being of the surviving family.
If you have questions regarding what insurance coverage should be included with your auto policy, feel free to give my office a call for a free consultation. As an Indianapolis personal injury attorney, I provide a free initial consultations to help people understand their legal rights when injured in accidents.
Tags: Indianapolis Personal Injury Attorney, Liability Umbrella Insurance policies
Posted in Insurance Claims | Comments Off
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