Author: yny_2020

As John Young explained in the blog posting below, alcohol slows reaction times, impairs judgment, and leads to car wrecks with severe injuries. Alcohol abuse is a particularly serious problem among teenage and young adult motorists. But a study from Indiana University suggests that so-called responsible drinking ads produced by public health agencies and marketing firms that target college students can actually have the reverse effect.

According to study co-author Adam Duhachek, an IU marketing professor, “The conventional wisdom from people who design these ads is, ‘If we scare people enough it’s always going to be a good thing.’ We demonstrate circumstances where they [not only] aren’t effective, but they cause a backlash where people actually drink more than if they hadn’t been exposed to the ads.”  Apparently the study findings suggest that the commercials create a defensive mindset that enables viewers to distance themselves from the serious consequences of binge drinking–that it only happens to other people. According to Prof. Duhachek, “If you’re going to communicate a frightening scenario, temper it with the idea that it’s avoidable. It’s best to use the carrot along with the stick.”  The Journal of Marketing Research plans to publish the full study.

A provocative academic study is an interesting conversation starter. It may even lead to important improvements in how media messages about risky behaviors are crafted. However, in the real world right now, drunk drivers of all ages cause all kinds of havoc on Indiana’s roads, including fatal accidents. At Young and Young in Indianapolis, we are a family firm with a legal presence in Indiana for more than 100 consecutive years, and focused solely on injury accidents for the last 55. If you have been injured in a highway accident caused by a drunk driver, we stand ready to help.

We are what we eat.  Unfortunately if we get food that is harmful due to bacteria, toxins, parasites, viruses or chemical contaminants then we feel the effects.  Often the effects can be quite serious as has been seen recently in the outbreaks of E.coli from undercooked ground beef and contaminated leafy green vegetable scare.

Consumers can reduce their risks by taking the following steps:

1. Place raw poultry in plastic bags so meat juices cannot cross contaminate other foods;

2. Do not buy foods past “sell-by” or expiration dates;

3. Cook ground beef and other meats completely and request restaurants to do the same;

4. Wash produce thoroughly;

5. Shop at farmers markets whenever possible; and

6. Drive directly home with groceries or place perishables  in a cooler with ice.

Remember – a little caution can prevent a lot of harm down the road.

There’s about a month left in winter, but it’s still too early to put away the snow shovels. That goes for the government too, and not just in connection with ice or snow. Cities, towns, and counties throughout Indiana have a legal duty under the law to keep their streets and sidewalks in a reasonably safe condition all year round. If not, they could be responsible for personal injuries suffered by citizens on those streets or sidewalks. (A separate federal law, the Federal Tort Claims Act, typically applies to personal injuries on property owned by the federal government.) 

Back in 2002, the Indiana Supreme Court ruled that Indiana government on the state, county, or local level (i.e., a governmental “entity” or unit) has a common law duty to exercise reasonable care and diligence to keep their streets and sidewalks in a reasonably safe condition for travel. 

To make matters more complicated, a governmental entity is not liable for temporary, weather-related conditions that results in injuries under Indiana law. In fact, the Indiana Supreme Court recently ruled that this form of legal immunity for the temporary weather conditions lasts until the weather condition has stabilized or stopped worsening and the government has had a reasonable opportunity to respond.

 One practical tip in the event of a winter accident: Any Hoosier who gets hurt in a slip-and fall because of icy or snowy conditions should try to take photos of the accident scene promptly. Snow has a habit of melting, even in Indiana! 

A governmental unit must have notice of unsafe conditions before it is considered legally liable, but that knowledge can be in the form of actual knowledge or “constructive” knowledge. Actual knowledge means that the state or local government entity knows about a problem on the road or sidewalk but failed to make repairs. Constructive knowledge in general means that the government should have known about the problem if it was paying attention. As a matter of law, the governmental body will be considered to have constructive knowledge of the problem if it existed long enough that had it exercised reasonable care under the circumstances, it would or should have known/discovered the unsafe defect. 

Bringing a claim, let alone proving one, against the state or federal government for personal injuries can sometimes be more challenging than a personal injury case against a private company or private citizen, so it is important to retain expert legal counsel right away. At Young and Young, we have over 55 years of experiences helping people recover the proper compensation for their injuries.  Please give us a call to set up a free consultation.

Let’s wrap up our current discussion of medical malpractice lawsuits in Indiana.

In addition to the factors that we’ve already discussed, the stress suffered by loved ones can also be an element of “non-economic” damages in a personal injury case. Indiana allows claims for negligent infliction of emotional distress for people that either witness a serious accident or come on the scene immediately afterwards and are a close family member. These are persons expected to have significant emotional problems as a result of the occurrence. Assuming this applies to the facts of a particular medical malpractice action, there are specific rules that need to be met for a valid bystander claim; however, if family member meets those requirements, the jury can award damages for emotional distress.

Note that in all civil cases (including medical malpractice), the burden of proving the case is on the plaintiff (i.e., the injured person) because the plaintiff gets the ball rolling by filing the lawsuit. In a civil case, the burden of proof is a “preponderance of the evidence” which means that the jury must be convinced that the claim is more probably true than not true. Most legal observers describe this as merely tipping the scales held by “Lady Justice” ever so slightly (even as little as 51 percent to 49 percent) for a finding of liability. In contrast, a criminal conviction requires guilt beyond a reasonable doubt, a much higher legal standard.

Another interesting fact is that Indiana has enacted a “collateral source statute” which essentially rewards individuals for protecting themselves through insurance coverage. This law says that a jury should not be advised nor take into consideration payments made by collateral sources such as health or disability insurance if the injured person or the person’s family paid for those collateral sources. The statute also considers Medicaid, Medicare, Social Security or Social Security Disability, or other government payments, as collateral sources that the jury can’t use as a reason to cut down an injured party’s damages.

As we have outlined in this series of blog postings, medical malpractice cases in Indiana require compliance with technical legal rules. Competent and careful personal injury attorneys know the rules about how and when to bring a claim against a healthcare provider or providers who made a mistake involving medical treatment. If you would like to discuss your concerns about a serious injury case involving medical care, please contact Young and Young in Indianapolis. With 55 years of experience, we have the qualifications to help you evaluate and pursue your claim.

To continue our discussion of medical malpractice, Indiana law provides the following: 

Recovery for medical malpractice in Indiana since July 1, 1999 is limited to $1,250,000; 

All qualified healthcare providers carry $250,000 of insurance and also pay a surcharge to the Indiana Patient’s Compensation Fund. The Fund is then liable for up to an additional $1,000,000 in compensation for injuries to a patient;  

In order to be able to petition the Indiana Patient’s Compensation Fund for additional damages, the patient must first use up the healthcare provider’s $250,000 insurance policy. If the patient’s damages fall below this level, he or she has no claim for additional compensation against the Patient’s Compensation Fund; 

The patient and healthcare provider can reach a settlement which pays out money damages over time through a structured settlement. The settlement has to cost the healthcare provider’s insurance company more than $187,000. Typically, the insurance company will pay $150,000 in cash and then purchase an annuity for $37,001 that will pay $100,000 over time. The payments plus the cash reaches the $250,000 threshold which allows the patient to tap into the Fund. 

In tragic circumstances, a patient can wind up not merely injured by medical negligence but passing away. A “wrongful death” claim is a legal case filed by the spouse, children, or parents against the healthcare provider to compensate them for their losses as a result of the wrongful death of their family member. Indiana also permits a so-called survival action, in which the family can additionally sue for damages suffered by the deceased person prior to death. Damages include physical pain, suffering, property damages, and medical expenses.  

Note: Indiana’s adult wrongful death statute–which only applies to unmarried adults who die without dependents–caps damages to $300,000 for loss of love and affection plus reasonable medical, funeral, and burial expenses incurred. Before this statute was enacted, a person who died with no spouse or dependents could only recover reasonable medical and funeral expenses.  

We will continue this discussion in the next blog entry.

As discussed in prior blog entries, even doctors who have developed a great deal of expertise and who might be using advanced technologies unintentionally make mistakes. That’s where a lawsuit for medical practice comes in. Case in point: A patient went in for surgery due to pain in the legs.  The surgery was to reroute the blood supply to the legs. During surgery, the surgeon failed to keep the patient’s blood thinned appropriately and clots formed which cut off blood supply to the patient’s organs. This led to overwhelming sepsis and organ failure as well as amputation of the patient’s legs. The patient sued for medical malpractice, by alleging among other things that the surgeon failed to live up to recognized and accepted standards of medical care or that the surgeon’s action or non-actions was a departure from those standards.

Under the law, medical malpractice (or medical negligence) can include misdiagnosis, improper treatment, or unreasonably delays in treatment–or in general, substandard care or lack of care.

A medical malpractice claim can include elements such as past and future medical bills, past and future lost income, physical impairments, pain, emotional suffering, and for family, the loss of the affection and companionship of a deceased loved one.

Medical malpractice cases in Indiana require compliance with specific, technical procedures. For example, all cases must be presented to a Medical Review Panel before a lawsuit can be filed in court. The Medical Review Panel is made up of a lawyer who functions as a non-voting chairman and who guides the three doctors named as the actual members of the panel. The patient selects one doctor for the panel, the defendant selects a second doctor, and those two physicians select the third doctor. Both parties are allowed to submit evidence to the Medical Review Panel in written form which can include: depositions, statements, medical records, medical literature, x-rays, and any arguments they would like to make as to whether they think there was or was not malpractice.  Neither party can contact the Panel members before they issue their opinion. After the materials are submitted, the Panel members meet to discuss the case and then render their written opinion. After the Medical Review Panel completes its work, the patient can then file in state court and proceed to a jury trial. The Medical Review Panel opinion is admissible in court but it is not binding on either party.

We will continue this discussion in the next blog entry.

 When we last left off, I was describing a situation in which a client presented with nosebleeds and flu-like symptoms and was misdiagnosed with the flu by a nurse practitioner. It turned out that the client had promyelocytic leukemia and later suffered serious brain injuries. 

Going forward, we can derive some lessons from this incident, including:  

Most Hoosiers are unaware that immediate care centers are staffed with nurse practitioners as opposed to physicians. The law allows nurse practitioners to examine, diagnose, treat and prescribe medications to patients as any family physician would do. The supervision for these nurse practitioners is chart review by a supervising physician at a later time. It seems a patient would prefer to be examined and treated by a doctor rather than a nurse practitioner who may lack the same degree of education or training experience of a physician; 

It is important to note that a nose bleed can indicate a more serious issue. The healthcare provider should perform a full examination and work-up if there are other symptoms in addition to the nosebleeds; and 

Lay persons sometimes throw around the term “flu” in an all-purpose way. But the flu has very specific symptoms (ranging from mild to severe) and can even be over-diagnosed by physicians. And a flu diagnosis in and of itself doesn’t necessarily mean that the patient is out of woods. So be careful when you are diagnosed with the flu; flu-like symptoms plus other symptoms or problems could be a signal of a more serious condition. 

Medical malpractice cases in Indiana require compliance with specific, technical procedures. Competent and careful personal injury attorneys know the rules about how and when to bring a claim against the healthcare provider or providers who made a medical mistake. Young and Young, as injury lawyers for more than 55 years, are qualified to help you pursue your claim. 

We can all agree that most healthcare providers–from EMTs to our family doctor to the staff of medical facilities–do excellent work for their patients. Occasionally, however, a healthcare practitioner can make a medical error in diagnosis or treatment, commonly known as malpractice. Malpractice doesn’t mean that the provider had a specific intention to cause harm. Instead, it means that the provider acted in a negligent or perhaps careless manner (in general, negligence is what the law calls a failure to use reasonable care or acting unreasonably under the circumstances) in rendering the treatment. 

In one of the personal injury cases that I handled, a client went to an immediate care center with flu-like symptoms and five-to-six nosebleeds for several days prior to her visit. This occurred during flu season. The client saw a nurse practitioner rather than a doctor. The nurse practitioner diagnosed the client with the flu, but failed to examine her nose. Nor did she examine the patient in a gown so that she could see the skin on the torso, trunk, and upper extremities. If the nurse practitioner had followed this protocol, she would have noted bruising in various stages of healing, which–along with the nose bleeds–would have required a CBC (complete blood count). This would, in turn, have revealed the patient’s true diagnosis: promyelocytic leukemia–a cancer of the blood and bone marrow. 

My client went home but returned to the emergency room two days later with a brain bleed. She now has a very serious, permanent brain injury. Several points can be learned from this encounter; we will pick up this discussion in the next blog entry.