August 11, 2014

Indiana Supreme Court Allows Injury Claims Against Fraternity to Move Forward

university-campus-964649-m.jpgThe Indiana Supreme Court both affirmed and reversed a trial court's grant of summary judgment in a fraternity injury case.

In Yost v. Wabash College, Brian Yost was a freshman at Wabash College who pledged at the Phi Kappa Psi fraternity and suffered injuries at the fraternity house in 2007. Yost claimed that these injuries were due to a fraternity hazing incident and filed a lawsuit against Wabash College, the local fraternity, the national fraternity, and one of the fraternity members. The college, which owns the fraternity house, and two defendants sought summary judgment against Yost's claims, which the trial court granted. Yost then appealed to the Indiana Supreme Court.

The Supreme Court looked at each of the claims against the defendant to see whether they met the standard of summary judgment: whether there was no genuine issue of material fact, allowing the defendant to receive judgment as a matter of law. First, the Supreme Court looked at the claim against Wabash College. Wabash College argued that it did not have a duty as a college or landlord to protect Yost from a fraternity member's alleged negligence or criminal attack, and that it was not subject to vicarious liability for the actions of any codefendant. The Supreme Court concluded that Yost could not establish facts that Wabash College acted as a landlord and undertook duties designed to protect Yost from dangers on the property. Wabash College's policy on hazing was not enough to establish a landlord-guest special relationship.

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August 4, 2014

Recent Case Involving Amputated Penis Resembles Kentucky Case From 2011

Before undergoing any sort of medical procedure, patients are typically supposed to provide what is known as "informed consent." Informed consent means that all patients should understand and agree to the potential consequences of their care. While Kentucky recognizes exceptions to the rule, such as in certain emergencies, a physician who performs a procedure without the patient's informed consent may be liable for medical battery.

surgical-instruments-1183621-m.jpgRecently, an informed consent case arose in the news regarding an amputated penis. Although the case was in Alabama rather than Kentucky, it raised parallels with a case in Kentucky that was decided in 2011. In the current case, an Alabama man had a medical procedure for a circumcision at Princeton Baptist Medical Center and later learned that surgeons had amputated his penis. The patient, Johnny Lee Banks, claims that he never gave his informed consent to a complete or partial amputation procedure. Banks and his wife are now suing the Medical Center and the two doctors who performed the amputation, seeking damages for pain and suffering, medical bills, and loss of consortium, among other things. Meanwhile, the defendants have filed a motion to dismiss the case, stating that the allegations were false and that neither doctor performed a circumcision or removed any tissue from Banks' penis.

The case is very similar to one in Kentucky that was decided a few years ago. Informed consent under Kentucky law mirrors the requirements of other states. Back in 2007, a Kentucky man was undergoing a circumcision to treat inflammation when the doctor performing the procedure found a potentially deadly cancer on his penis. The doctor removed less than an inch of the penis, and after a pathologist confirmed the cancer diagnosis, a second doctor removed the rest of the penis. The doctor claimed the man had already provided permission to take any treatment action, and that there was no other reasonable option available to prevent the cancer from spreading other than removing the penis. However, the patient sued the doctors, claiming that they had amputated his penis without his informed consent and without allowing him to seek a second option. In 2011, the jury ended up siding with the doctors.

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July 31, 2014

Federal Court in Indiana Permits Inmate's Medical Claim to Move Forward

Often, an injured party must first file a claim with a state agency before being allowed to pursue the claim in court. This is known as "exhausting administrative remedies." Once that agency has reached a determination, and the injured party has had the opportunity to appeal, the injured party may decide whether to accept the agency's ruling or file a lawsuit in court. Sometimes, though, it is not always clear whether an injured party must wait for the agency action before pursuing the claim. Such was the case with Valance v. Fries.

old-melbourne-goal-1443855-m.jpgValance, a diabetic, was admitted to jail in Allen County, Indiana, as a pre-trial detainee in January 2012. At some point later, he developed sores on his feet due to the jail-issued footwear he had received. Valance claimed that the shoes were too small for him, and that the jail staff should have provided him with properly fitting footwear. He was referred to a podiatrist, who treated his sores with iodine.

However, the sores failed to heal, and by April 2014, the affected area was red and badly swollen. The swelling began in Valance's toe but later spread to the rest of his foot. His toe turned black. Valance was finally taken to a hospital, where his toe and part of his foot were amputated. After Valance was discharged from the hospital, he returned to jail, but he had to go to the emergency room after a follow-up appointment revealed inflammation and one of his other toes turning black. Valance was sent back to jail after the visit, with emergency room staffers telling jail medical staff that if the infection spread up the foot, or if the toe began to rot off, Valance must return to the emergency room. Three days later, this exact scenario occurred. Valance claimed that he alerted jail medical staff, but they refused to send him to the emergency room, instead placing him on sick call for the day. Valance eventually had to have his leg amputated below the right knee. He claimed that, had the jail medical staff acted sooner, this outcome could have been avoided.

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July 24, 2014

Indiana Nursing Home Nurse Has License Revoked After Reporting to Work Intoxicated

Earlier this month, a registered nurse from Muncie, Indiana lost her license after showing up to work at a hospital and three nursing homes smelling of alcohol.

wheelchair-945156-m.jpgThe Indiana board of nursing revoked the license of Linda Bullinger, age 55, who has a history of alcohol problems dating back several years. In 2008, Bullinger received a suspension from her employer, IU Health Ball Memorial Hospital, after her coworkers reported that she came to work in the emergency unit glassy-eyed and smelling of alcohol. Two months later, she was terminated from her position after being arrested on the basis of driving drunk and resisting arrest.

However, Bullinger was soon back to work in 2009, when she began working at the Edgewater Woods nursing home after entering an agreement with the Indiana State Nurses Assistant Program to take part in a recovery monitoring program. Less than a year into the position, Bullinger was terminated for coming to work smelling of alcohol.

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July 17, 2014

Indiana Driver of Stolen Car Dies After Driving the Wrong Way on Interstate 70

A man from Richmond, Indiana died after the stolen car he drove collided with a Greyhound bus on Interstate 70. Nineteen people on the bus were injured.

do-not-cross-road-1444063-m.jpgThe situation began on early Sunday, when Wayne County emergency personnel received calls about an accident in the eastbound lane of Interstate 70. Wayne County sheriff's deputies later determined that the deceased car driver had been driving a 1990 Ford Mustang stolen from Love's Truck Stop in Richmond. Before the crash, the driver was navigating the Mustang the wrong way, driving westbound in an eastbound lane. Since the divider along that portion of the interstate has a cable barrier, it is unclear why or for how long the Mustang had been driving the wrong way, or whether the driver had been aware of it.

The Mustang met head on with a Greyhound bus bound for New York. Of the 23 passengers on the bus, 19 were injured, although fortunately none of the injuries appeared to be very serious. One passenger was taken by helicopter to an Indianapolis hospital, while two were admitted to Reid Hospital in good condition. Twelve of the passengers were treated at Reid and released, and Reid Hospital staff were optimistic that all would be treated and released in time. The staff further noted that it was fortunate the injured passengers happened to come during a shift change in the emergency room, so staff from both shifts were available to assist them.

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July 10, 2014

Sixth Circuit Dismisses Claims of Those Harmed By Generic Drugs in In re Darvocet

Recently, the Sixth Circuit Court of Appeals gave a temporary victory to drug manufacturers when it upheld a motion to dismiss the plaintiffs' case, stating that they had not met the necessary elements to survive the motion.

pills-1111305-m.jpgIn In re Darvocet, Darvon, and Propoxyphene Products Liability Litigation, the plaintiffs sought to hold Darvocet's manufacturer, Eli Lilly and Company, responsible for damage caused by the generic drug based on a misrepresentation legal theory. The painkiller Darvocet was first patented in 1957, and other manufacturers began to market generic versions after 1984. Darvocet had a troubled history, having been withdrawn from the UK market in 2005. The federal Food and Drug Administration (FDA) eventually requested that it be removed from U.S. markets in 2010. The plaintiffs in In re Darvocet claimed to have ingested Darvocet shortly before the FDA's request. They argued that manufacturers continued to market generic Darvocet even after they knew or should have known that the risks of the drugs exceeded their benefits. The plaintiffs sought to hold one or more brand names responsible, alleging that the brand name manufacturers made misrepresentations that led the plaintiffs' physicians to prescribe generic versions of Darvocet.

The United States Supreme Court then issued a ruling in Mutual Pharmacy Co. v. Bartlett (2013) that state design defect claims based on the adequacy of the drug's warnings were preempted by federal law. Included was a footnote that stated that this ruling did not address state design defect claims that "parallel" the federal misbranding statute. The plaintiffs in In re Darvocet therefore brought their claims against the brand name manufacturers based on the theory of parallel misbranding.

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June 24, 2014

National Transportation Safety Board to Study Reasons For Increase in Truck-Related Deaths

After the accident involving Tracy Morgan and a truck driver who failed to stop for slowing traffic, the National Transportation Safety Board (NTSB) is looking at truck driving safety and practices across the nation, including in Kentucky and Indiana.

i-haul-299523-m.jpgMorgan's accident happened in the early morning on the New Jersey turnpike, after an exhausted Wal-Mart truck driver slammed his truck into Morgan's limo van, resulting in one person's death. The NTSB pointed out that similar accidents had happened in Kentucky, Tennessee, Illinois, and Maryland. The agency is focused on aspects of commercial truck safety such as drug and alcohol testing of drivers, driver fatigue, medical qualifications, vehicle maintenance, and technology. This includes whether Wal-Mart's collision-avoidance system, which the company began installing in 2010, is effective. Wal-Mart claims that its trucks are programmed to begin braking automatically when they sense traffic is slowing down, to pick up blind spots, and to limit the trucks' top speeds to 65 miles per hour. Yet that did not help the driver in the Morgan accident, who had been awake for 24 straight hours.

Since 2009, the number of fatal crashes involving large trucks has increased steadily, with 3,921 deaths in 2012 alone. The American Trucking Associations, the industry's greatest trade group, claims that the cause is simple: truckers are driving more. During the recession, there were fewer goods being shipped over the country's interstate highways; as the economy improves, the truck traffic has grown accordingly.

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June 17, 2014

Bicycle Rider Raising Money For Cancer Killed By a Truck in Kentucky

An assistant coach for Catholic University's basketball team recently died in Kentucky while on a charity bicycle ride from Baltimore, Maryland to Portland, Oregon. The 24-year-old woman was struck and killed by a truck in Scott County, just outside of Lexington.

bicycle-crossing-sign-1431139-m.jpgThe woman and roughly 30 other bicycle riders had been riding cross country to raise money for the Ulman Cancer Fund. The objective was to cover 4,000 miles in 70 days. The woman had paused on the side of U.S. Route 25 to change a tire when the truck struck her. She was pronounced dead at the scene, while the riders around her suffered injuries that were not life threatening. There is no indication as to whether the truck driver stopped to aid the injured riders, or whether the truck driver was being negligent, or was under the influence of drugs or alcohol.

Those who knew the woman praised her for her fun-loving personality and her willingness to take on challenges. She knew ahead of time that the 4,000-mile bicycle ride was going to be her greatest challenge yet, but she was prepared to see it through. She would be remembered for "her caring nature, considerable warmth, subtle sense of humor, and consistent thoughtfulness."

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June 10, 2014

Indiana Officials Concerned About the Recent Increase in ATV Accidents

Indiana law enforcement officials are investigating the causes of three all terrain vehicle (ATV) accidents that happened on the same day in Harrison and Washington Counties.

quad-rally-1094665-m.jpgThe Washington County incident took place on Ramsey Lane, outside of Pekin. A 36-year-old man from Salem was in the process of crossing a field while riding an ATV when he lost control and flipped over on an embankment. Fortunately, his injuries to his head and ankle were not life-threatening. Washington County investigators believe that alcohol use may have been a factor.

One of the Harrison County accidents was more serious. A 17-year-old was traveling at a high speed on Stuckey Road outside of Elizabeth on an off-road motorcycle that was unregistered, when he lost control of his vehicle. The vehicle flipped over, and he suffered a skull fracture and head trauma. In both this case and the one in Washington County, neither victim was wearing a helmet or other safety gear.

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June 3, 2014

Federal Court in Indiana Rejects State Farm's Product Liability Lawsuit Against General Motors

Recently, a federal court in Indiana ruled against State Farm Fire and Casualty Company, which had claimed that a vehicle fire at a customer's home was due to the vehicle being defective.

car-fire-1240763-m.jpgIn January 2010, Kenneth Burkhart's vehicle, a 2006 GMC Sierra, caught fire, damaging his home as well as his personal property. Three years later, his insurer, State Farm, filed a product liability lawsuit against General Motors, claiming that the fire was caused by defective manufacturing of the vehicle, defective design of the vehicle, negligent manufacturing of the vehicle, negligent design of the vehicle, and breach of implied warranty of merchantability.

General Motors removed the case to federal court and argued that it should be dismissed because each claim was outside of the applicable statute of limitations and must therefore be dismissed due to being time-barred. Since State Farm conceded that the warranty of merchantability claim was time-barred, that left the federal court to determine whether the other four claims were still good.

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May 22, 2014

Doctor Not Liable for Medical Battery in Kentucky

Screen Shot 2014-05-21 at 3.25.43 PM.pngIn a recent case, a Kentucky estate administrator appealed a jury verdict finding that the defendant was not liable for medical malpractice and medical battery. The case arose when a woman came to a medical center complaining of pains in her jaw, chest and arm. A cardiologist put her on Plavix and did a cardiac catheterization. He found blockages in her arteries.

The cardiologist consulted with the defendant, also a cardiac doctor, to determine if she would be a good candidate for coronary artery bypass grafting. The defendant talked to her about different medical options such as CABG surgery and medical management. The patient decided to undergo CABG surgery. She signed a consent form and her Plavix was discontinued. She was taken to surgery and her anesthesiologist decided it would be better to insert a catheter into her right internal jugular vein. This procedure didn't work and while he was trying he accidentally punctured her superior vena cava, located behind her heart.

No one knew she had been punctured. Her blood pressure suddenly dropped during surgery, causing the defendant to dissect her pericardium to look at her heart. He couldn't figure out why there was blood. He finished the procedure. Before he closed her up, he nicked her pleura (the membrane around the lungs) to take out fluid. He saw a lot of blood and figured out where it was coming from. He asked for assistance and repaired it. At first the plaintiff seemed to be recovering. But later she suffered setbacks that resulted in serious respiratory problems. She died in 2002, 16 months post-surgery. Before her death, her attorney sued the doctor and anesthesiologist for medical negligence and also sued their employers for vicarious liability. Later the administrator of her estate added a party and claimed the defendant who had performed the surgery had committed medical battery, among other things. The court granted summary judgment in favor of the defendant for the medical battery claim. The medical negligence trial commenced.

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May 15, 2014

Lincoln County, Kentucky, Officials Vow to Improve School Bus Safety After Accident Kills One Driver, Sends Two Dozen Children to the Hospital

Following a crash that left more than two dozen children injured, school buses in Lincoln County, Kentucky, will be investigated for school bus safety.

school-bus-red-light-655548-m.jpgThe accident occurred on May 7, when two school buses were riding along Kentucky 78 outside of Stanford. When the first school bus stopped due to traffic, the driver of the second bus, Judy Asbery, could not slow down in time to avoid collision. Instead, she swerved the bus into the oncoming lane of traffic and hit a white pickup truck head-on. Afterward, more than half of the 48 children on the bus had to be taken to local hospitals. Fortunately, none had life-threatening injuries, and most were released from the hospital that day. The 36-year-old driver of the other vehicle was not so lucky. He recently died due to injuries caused by the crash.

Kentucky 78 is known for causing a large number of vehicle collisions, but many thought that would change after it was recently rebuilt to be wider and straighter. Although the driving record of the bus driver was unavailable, Lincoln County school officials claim that there were no previous complaints about her driving. Now attention has turned to the safety of the Lincoln County school buses. The Kentucky Department of Education had conducted an audit on the county's transportation department three weeks prior and found that the bus conditions were "inefficient" and maintenance was considered to be "marginal."

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May 8, 2014

Indiana Woman Forgives Off-Duty Officer Who Caused a Crash That Killed Her Husband

A young Indiana woman who lost her husband in a car accident, and nearly lost the child she was carrying, has recently stated that she forgave the driver of the other vehicle. In early April, she gave birth to a baby girl just hours after her husband was killed.

car-accident-671890-m.jpgOn April 6, the young couple were driving in their 1996 Buick from church services when they were slammed into from behind by an SUV driven at 92 miles per hour. The impact caused their car to veer off of the road and slam into a utility pole. The other car was driven by an off-duty police officer, James Foutch of Edgewood, who was later found to be high on the anti-anxiety drug Xanax and the painkiller hydrocodone. While Foutch escaped without serious injury, the young couple were not so fortunate. The husband died almost instantly when he leaned over his pregnant wife to shield her from the impact of the crash. The young wife held him as he took his last breath.

She was later rushed to an area hospital, where the doctors -- fearing for her baby's life - delivered the baby via Caesarian section, before rushing her to another hospital to treat her broken bones and other internal injuries. The baby and her mother were reunited one week later, with the baby healthy and suffering no damage from the accident.

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May 1, 2014

Seventh Circuit Finds That Insurers Not Responsible For Injuries Caused By Energy Drinks Mixed With Alcohol

When someone sues for injuries from a vehicle accident and there is alcohol involved, the shop that served the alcohol might also get sued. If the shop is liable, its insurance company might pay at least part of the outstanding claims. However, when it comes to energy drinks containing alcohol, insurance companies have resisted making payments -- and the Seventh Circuit has supported them.

the-last-drop-1083566-m.jpgThe circumstances involving energy drinks are in some ways quite different from alcohol providers. Unlike alcohol providers, energy drink providers may have insurance carriers with a liquor liability exclusion. This becomes quite problematic for the energy drink providers because -- not surprisingly -- those who consume energy drinks with alcohol can become severely injured. In one recent case, Netherlands Ins. v. Phusion Projects, Inc., the company Phusion was a manufacturer and distributor of "Four Loko," a beverage that contained alcohol, caffeine, guarana, taurine, and wormwood. After one consumer drank it, he was unable to fall asleep for 30 hours and accidentally shot himself in the head. In another case, a passenger in a car was injured after the driver drank Four Loko and drove recklessly, at speeds above 100 miles per hour. In a third case, a consumer drank the beverage, had a fit of paranoia, and ran onto a busy highway, where he was struck and killed. Finally, in a fourth case, one consumer complained of heart problems after drinking Four Loko and blamed the beverage for his condition.

In all cases, there were lawsuits. Netherlands, the insurer, claimed that it was not required to compensate these cases due to the fact that there was a liquor exclusion. The Seventh Circuit ultimately agreed, finding that none of the tortious acts committed by Phusion were separate from the act of providing alcohol. Therefore, Phusion could not ask Netherlands to issue payouts for the accidents because of the alcohol exclusion. Phusion would be required to pay for the injuries itself.

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April 29, 2014

Federal Court in Kentucky Grants Motion For Summary Judgment in Product Liability Case

The following case demonstrates the importance of having some very basic evidence to back up your product liability claim. In In re Darvocet, the injured party, Judith Schiller, filed a claim stating that she had been harmed by ingesting prescription medication containing propoxyphene. Although she initially filed the case in federal court in New Jersey, it was moved to Kentucky for pre-trial proceedings.

pills-1111305-m.jpgThe defendant, Xanodyne Pharmaceuticals, filed a motion for summary judgment on the grounds that Schiller failed to provide evidence that her injury was caused by ingesting the pharmaceutical company's specific drug. Schiller failed to file an opposition to the motion.

The federal court noted that the threshold requirement for product liability under both Kentucky and New Jersey law was that the plaintiff assert that the defendant's product caused the injury. A defendant cannot be held responsible for an injury caused by a product it did not sell, manufacture, or otherwise supply to the plaintiff.

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