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Historically, about 5% of all non-obstetrical malpractice claims arising out of surgery involve retained foreign bodies. A 2009 report in the Journal of Robotic surgery states that 1 in 1,500 open abdominal or chest procedures results in a retained surgical item. In a significant number of those claims, the retained foreign body is a sponge, towel, pad, or other “soft” surgical supply. Until recently, hospitals and surgery centers would embed small metal threads in these soft materials so that they would be detectable by portable x-ray. This requires the surgical staff to keep a current count at all times. Such counts are time-consuming and errors can still be made. When the count doesn’t match at the end of the procedure, a portable x-ray unit is brought into the surgical suite and the patient is x-rayed to determined whether a foreign body has been retained. Such a procedure prolongs surgery, increases cost, and exposes the patient to radiation unnecessarily. In a majority of cases involving retained sponges, the nurses’ sponge count at the conclusion of the procedure was recorded as “correct,” so this procedure was not utilized.

Defending such cases is extremely difficult, although not impossible. In Indiana, as in many places, a malpractice claim based on a retained foreign body is subject to the principle of res ipsa loquitur, or “the thing speaks for itself.” In such cases, the burden of proof shifts to the surgeon to prove that he was not negligent in failing to remove the foreign body before closing the patient. And it is a long established principle that the duty to remove sponges before closing the patient cannot be delegated to nursing personnel.

A surgeon is charged, as a matter of law, with the duty to remove sponges used in the operation, which sponges will not be of use in the abdomen after the operation. Ordinary care and caution forbids a surgeon to delegate the absolute authority and responsibility to a nurse or nurses to account for sponges and to thus escape responsibility himself.

Funk v. Bonham, 204 Ind. 170, 180, 183 N.E. 312, 316 (1932).

New technology is available, however, that may cause these cases to become extinct. The FDA has approved the use of radio frequency identification (RFI) chips to automatically keep track of the sponges, pads and towels used during surgery. This allows surgeons to complete cases more quickly, without spending time confirming the absence of any such retained foreign bodies. Although RFI technology does not detect clamps or other surgical instruments, it is much quicker than using portable x-ray equipment to find sponges and towels, and does not expose the patient to unnecessary radiation.

RFI technology includes chips that are sewn into the soft surgical supplies and a wand-like instrument that is simply waved over the surgical site prior to closure. Each chip is unique and its unique identifier is displayed on a monitor that tracks each chip. As the sponge is removed from the surgical field, the technology displays it and notes that it has been counted. If there is any sponge that has not been counted, that is displayed on the device. The system also includes a wand-like device that is waved over the surgical site and detects any chips, which would indicate the presence of a retained sponge, towel, etc. When the wand detects a chip, a red LED light is displayed and an alarm sounds.

Some hospitals use the RFI technology only for high risk procedures, such as those undergoing emergency surgery, obese patients, cesarean sections, and patients undergoing surgery on more than one area of the body. Others have implemented it for all surgical procedures.
 
It is only a matter of time before the use of RFI technology will become “standard of care” in surgery. When that happens, we may have seen the last of retained sponge malpractice cases.

The article appeared on p. 1 of the Sports Section of the NWI Times on Sunday, May 6, and also in its online version at http://www.nwitimes.com/sports/columnists/john-doherty/article_6effa9dd-ad12-5a12-b981-76e2574eb68c.html

Under Ind. Code § 20-34-7-1 et seq., by July 1, 2012 the Indiana Department of Education is required to disseminate guidelines, information sheets, and forms to each school corporation for distribution to inform and educate coaches, student athletes, and parents of student athletes on the nature and risk of concussion and head injury to student athletes, including the risks of continuing to play after concussion or head injury. Starting in 2012, each year, before beginning practice for an interscholastic or intramural sport, a high school student athlete and the student athlete’s parent:

1. Must be given the information sheet and form and
2. Must sign and return the form acknowledging the receipt of the information to the student athlete’s coach. The coach must maintain a file of the completed forms.

A high school student athlete who is suspected of sustaining a concussion or head injury in a practice or game shall be removed from play at the time of the injury; and may not return to play until the student athlete is evaluated by a licensed health care provider trained in the evaluation and management of concussions and head injuries and receives a written clearance to return to play from the health care provider who evaluated the student athlete.
 
The licensed health care provider who evaluates a student athlete may conduct the evaluation as a volunteer. A volunteer health care provider who in good faith and gratuitously authorizes a student athlete to return to play is not liable for civil damages resulting from an act or omission in the rendering of an evaluation, except for acts or omissions that constitute gross negligence or willful or wanton misconduct.

Clearly, the new law raises a number of questions. What constitutes the necessary training “in the evaluation and management of concussions and head injuries?” When should a student athlete be “suspected of sustaining a concussion or head injury?” Who is required to determine when a student athlete should be removed from play? Does liability attach to the school corporation if the student athlete is not promptly removed from play? Is the coach liable? What is the role of the game officials in determining when a student athlete should be removed from play? What type of licensure qualifies one to evaluate a student athlete and authorize his/her return to play? Does the authorization for return to play apply only to the contest in which the student athlete is injured, or does it carry over to the next contest? The next practice? Are there standards which govern when a student athlete may be returned to play?

The National Federation of State High School Associations publishes rules that govern athletic competitions in most states, including Indiana. Recent NF rules changes have addressed concussions very specifically. Currently, NF rules provide that

Any player who exhibits signs, symptoms or behaviors consistent with a concussion (such as loss of consciousness, headache, dizziness, confusion or balance problems) shall be immediately removed from the game and shall not return to play until cleared by an appropriate health-care professional.

 The contrast between this playing rule and the new law are obvious. NF rules require clearance by “an appropriate health-care professional.” There is no mention of licensure, nor any requirement for formal training of the health-care professional.  The NF rule is clearly “game specific,” while it is unclear whether the new law carries over from practice to game, game to game, or game to practice. Under the new law, “clearance” must be in writing, while the NF rule does not require any documentation. The NF rule identifies some “signs, symptoms or behaviors” consistent with concussions, while the new law merely applies when a student athlete is “suspected” of having suffered a concussion.

It is not difficult to envision multiple scenarios that could give rise to potential civil liability on the part of school corporations, coaching personnel and healthcare providers in the context of a sports concussion. Given the attention being focused on concussions in youth sports, it is inevitable that this will prove to be a hotbed of litigation in the years to come.

Timothy Plank’s wife, Debra, died after doctors at Community Hospital in Indianapolis failed to diagnose her small bowel obstruction in time. Mr. Plank brought a medical malpractice action against the doctors and the hospital. The doctors were dismissed prior to trial, and the case proceeded to verdict against Community Hospital. The jury returned a verdict of $8.5 million. As is routine in cases which result in a verdict in excess of the $1.25 million cap, the hospital filed a motion after the verdict to reduce the judgment to $1.25 million. Plank objected and sought a hearing in the trial court in order to present evidence on the issue of whether the damages cap violated the Indiana Constitution. The trial court, citing a 1980 case in which the Indiana Supreme Court had upheld the constitutionality of the damages cap, refused to hold a hearing, and Plank appealed.

The Court of Appeals reversed the trial court’s denial of a hearing at which Plank could introduce evidence to challenge the constitutionality of the damages cap. The Court noted that the Supreme Court opinion on which the trial court relied utilized evidence of the “general economic conditions of the health and insurance industries” to conclude that the damages cap was rationally related to the legitimate public purposes of the Malpractice Act. The Court of Appeals acknowledged that these conditions may have changed in the 21 years since that Supreme Court opinion was issued, and that an evidentiary hearing might well be required for Plank to sustain his burden to show that the Act was unconstitutional. Instead, the Court of Appeals cited an intervening Supreme Court case that held “preferential legislative treatment for a classification which was proper when enacted may later cease to satisfy the requirements of Section 23 [of the Indiana Constitution] because of intervening changes in social or economic conditions.” Thus, the Court of Appeals’ opinion raises the prospect that the Act, which was held constitutional on the basis of general economic conditions in the healthcare and insurance industries, could now be held unconstitutional because those conditions have changed in the intervening years. The Court of Appeals also rejected the idea that if changing conditions have eroded the constitutional basis for the damages cap, it was the responsibility of the Legislature, not the courts, to address that changed circumstance. The Court of Appeals remanded the case to the trial court to hold an evidentiary hearing at which Plank would be given the opportunity to show that the damages cap is no longer rationally related to the legitimate legislative objective of addressing “an emergency which threatened the availability of the professional services of physicians and other health care providers to the people of Indiana.”

So, what happens now? It is likely that this case represents a real threat to the statutory scheme for medical malpractice cases in Indiana. The plaintiff’s case on appeal was supported by both the Washington D.C. Center for Constitutional Litigation, a law firm affiliated with the American Association for Justice, formerly the Association of Trial Lawyers of America. The Center for Constitutional Litigation assists by providing appellate legal support in cases involving “access to justice” in courts around the country. On the other side, both the Indiana State Medical Association and the Indiana Hospital Association filed amicus curiae briefs in support of the constitutionality of the damages cap in the Court of Appeals case, and are further expected to support the cap’s constitutionality as the case moves forward. It is likely that a petition will be filed to transfer the case to the Indiana Supreme Court, which will then have the ability to quash the plaintiff’s attempt to present evidence of unconstitutionality, affirm the Court of Appeals order of a hearing, and/or provide additional guidance on the constitutional issue. Stay tuned.

Wrongful death actions did not exist at common law. Every state has now enacted a statute that allows recovery for the death of a person caused by the wrongful act of someone else. Indiana has three such statutes. The General Wrongful Death Act provides that the personal representative of a deceased person may file a lawsuit to recover damages, including but not limited to “reasonable medical, hospital, funeral and burial expenses, and lost earnings of such deceased person,” as well as for recovery of attorney fees and expenses for administering the estate and prosecuting the lawsuit. Judicial decisions have interpreted this language to also allow a surviving spouse and/or dependent next of kin to recover “intangible” damages, such as the value of lost care, love, affection, and training and guidance of the decedent’s children.

Indiana also has a Child Wrongful Death Statute, which permits recovery for the wrongful death of a “child.” A “child” is defined as an unmarried individual without dependents who is less than 20 years of age, or less than 23 years of age if enrolled in school. The definition of “child” also includes a viable fetus, but does not include a legal abortion as a cause of “wrongful death.” The statute allows recovery by parents or the guardian for the value of the loss of the child’s services, love and companionship to the age of 20 (or 23, in the case of a child enrolled in school), as well as recovery of medical, hospital, funeral and burial expenses, and it also provides for recovery of attorney fees and expenses for administering the child’s estate and prosecuting the lawsuit.

Finally, Indiana has an Adult Wrongful Death Statute, which authorizes a wrongful death action specifically for the death of an adult person who is unmarried and without any dependents. It expressly permits recovery for specified damages including but not limited to “loss of the adult person’s love and companionship” but does not explicitly enumerate attorney fees and costs of administration of the estate and prosecution of the wrongful death action as elements of recoverable damages. In the three cases decided on the same day, the Supreme Court determined that the Adult Wrongful Death Statute, despite the lack of a provision explicitly authorizing recovery of attorney fees for administering the estate and prosecuting the lawsuit, does, in fact, allow for such a recovery. The Court reasoned that the phrase “including but not limited to” required that the Adult Wrongful Death Statute be construed harmoniously with the other two wrongful death statutes to allow recovery of the costs of administration of the deceased adult’s estate and prosecution of the wrongful death lawsuit, including the attorney fees associated with those services.

In summary, it is now clear in Indiana that, regardless of whether the decedent was an adult with or without dependents, or a child, a wrongful death action allows for the recovery of all of the costs of administering the decedent’s estate, as well as the prosecution of a lawsuit based on the wrongful death of the decedent, including attorney fees.
If you have had the unfortunate experience of the death of a loved one as a result of the fault of someone else, the personal injury attorneys at Burke Costanza & Carberry LLP can advise you on your rights and the possibility of a recovery. They know Indiana wrongful death laws inside and out. For more information contact Bob Parker or Natalie Shrader.

Mr. Bushemi defended the case under the Indiana rule of “no responsible cause.”  Under that rule, police have a duty to apprehend reckless offenders, and as long as their pursuit of the offender is reasonable, police cannot be the responsible cause of death or injury sustained by an innocent third party.  In this case, Attorney Bushemi submitted evidence that although the officer had pursued the offender earlier, the officer discontinued his high speed pursuit approximately .62 miles from the intersection where the offender ran the red light.  Evidence also indicated the offender had smoked marijuana laced with embalming fluid and at times drove 95-100 MPH. 

Mr. Bushemi commented on the verdict: 

“This case is a tragic story of an offender, high on drugs, driving recklessly and killing an innocent victim.  The Hobart patrol officer attempted to intervene and stop the offender’s reckless driving, but terminated his high speed pursuit prior to the collision.  Despite the officer’s efforts to protect the public, the offender sped on and ran the red light killing the victim.  Municipalities that employ police officers are not insurers of the conduct of criminals they attempt to apprehend.”

The definitive case in Indiana is the 2002 decision of the Indiana Court of Appeals in P.T. Barnum’s Nightclub v. Duhamell, 766 N.E.2d 729 (Ind. Ct. App. 2002) (trans. den.). In that case, a female patron who was attending a party at a nightclub was injured when a male dancer lifted her, lost his balance, and landed on her hand when they fell. While preparing the patron’s personal injury action against the nightclub for trial, the patron’s attorney contacted Stewart Lobosco, a former nightclub employee and the general manager of the Club on the night of the accident. After he determined that Lobosco was not represented by legal counsel, he obtained an affidavit from him. When the nightclub filed a motion for summary judgment, the patron’s attorney used the affidavit to successfully oppose the motion. The nightclub had moved to strike the affidavit, contending it was procured in violation of Rule 4.2. The trial court denied that motion to strike, and the Court of Appeals affirmed that decision. The Barnum’s decision carefully set out the restrictions on an adverse party’s counsel making contact with employees of a party to litigation. It is clear that no unconsented contact is permitted with the employee if the employee himself is represented by counsel. It is also clear that no unconsented contact is permitted with a current employee if:

1. the employee holds a managerial position; or 
2. the employee’s conduct could be imputed to the organization and thereby establish the organization’s liability; or
3. the employee’s statements could constitute an admission that is binding on the organization in the litigation.

Other than these restrictions, adverse attorneys are free to communicate with current employees about a pending case. Moreover, there are absolutely no restrictions on such contact with former employees who no longer have any connection to the organization, regardless of their position in the organization when they were employees, or their role in the events out of which the litigation arose. The Court did make clear, however, that the adverse attorney’s contact with the former employee is still governed by other rules which require the attorney to make clear his or her role in the matter and the identity and respective positions of the parties involved at the outset of the communication, and to refrain from inducing the former employee to violate the attorney-client privilege.  Except for those restrictions, however, there is no limitation on the ability of the adverse attorney to communicate with former employees of the business organization.

In Bell v. Grandville Cooperative, Inc., the Court reversed a summary judgment granted by the trial court to the owner of an apartment complex in a case brought by a visitor to the complex who slipped and fell in the complex’s parking lot, injuring herself. The apartment complex indisputable removed ice and snow from the parking lot during the normal business hours. The plaintiff came to the complex in late afternoon for the purpose of babysitting her grandchild who lived there. When she arrived, there was no ice in the parking lot. The complex had plowed the parking lot days before, and piles of snow were at various locations around the lot. The evidence showed that during the day, the piles of snow would melt and then, at night, the snowmelt would freeze, forming ice on the lot, which would then either melt or be removed by the complex the following morning. When the plaintiff’s babysitting job was over during the night, and she went to the lot to get into her car, she fell on ice that had been created by the freezing snowmelt that night. Clearly, the apartment complex managers had no knowledge that the ice had formed that night.

In a case of first impression, the Court of Appeals remanded the case for a trial, holding that:

This was not a situation in which a sudden change in weather occurred in the middle of the night, or where ice formed suddenly and with little-to-no warning before a person slipped and fell on it. There was an established pattern of ice forming in the Grandville complex for several days, and for much longer than that even with respect to the area where Bell slipped and fell. Grandville did not do anything to counteract the possibility of ice forming on the premises between the hours of 5 p.m. and 8 a.m. … [T]here is a question of fact as to whether Grandville had actual or constructive knowledge of a dangerous condition on the premises—which does not require that they knew of the actual formation of the ice patch Bell slipped upon—and whether it acted reasonably in response to such knowledge.

Thus, the Court seemed to impose a duty on the landlord to anticipate the formation of a dangerous condition, and to take pro-active steps to prevent the hazard from being created, as opposed to removing it once it does exist.

It takes little imagination to construct numerous scenarios where a business hereafter might be required to “anticipate” that a hazard may exist sometime in the future, and take expensive (and sometimes unnecessary) steps to protect the public.  It remains to be seen what the eventual import of this duty to “anticipate” dangerous conditions might be to the business community.

Pursuing a dram shop case following an injury or death at the hands of a drunken driver is often much more financially rewarding than simply filing a lawsuit against the drunken driver. Many drunken drivers turn out to have little or no automobile liability insurance. On the other hand, commercial establishments frequently have liquor liability insurance coverage, with liability limits running into the millions of dollars. And even private individuals who may “over-serve” guests in their home usually have homeowners insurance. A typical homeowners policy covers such liquor liability in most instances.

At first blush, it may seem a difficult obstacle to prove that the drunken driver was intoxicated at the time he was furnished the alcoholic beverages. But in reality, there are many ways to establish such proof. Drunken drivers usually have their blood alcohol content measured by law enforcement authorities following an accident. There are well-established mathematical calculations which can work backward from that number to determine how much alcohol the driver had “on board” at any particular time before the accident. Moreover, lay witnesses are perfectly competent to testify to opinions about intoxication, based on common observations such as slurred speech, bloodshot eyes, and the other common signs and symptoms of alcohol intoxication.

While drunken driving accounts for the overwhelming percentage of Dram Shop liability cases, injuries caused by alcohol intoxication can give rise to liability for damages in other contexts, too. Industrial or workplace accidents and assaults are two other common results of alcohol intoxication, and there have been many cases where victims have recovered large jury verdicts or settlements in both. In Indiana alone, Dram Shop cases have resulted in millions of dollars in verdicts and settlements for injured victims and their loved ones.

Burke Costanza & Carberry LLP’s attorneys are experienced in evaluating and handling cases arising out of alcohol intoxication, including Dram Shop liability cases. If you or someone you know has suffered a significant injury as a result of someone else’s fault while drunk, contact us for a no-cost consultation about a potential claim.

When Cassie Pfenning was 16, her grandfather took her to a golf outing. While he played, she drove the beverage cart. An errant tee shot from another golfer hit her in the mouth, causing considerable injuries. She sued the golfer who hit the ball, the tavern that promoted the event, the golf course, and (believe it or not) her grandfather’s estate, since he died before suit was filed. The trial court granted a summary judgment to all the defendants on the ground that she was a willing participant in a sporting event and, therefore, the defendants did not owe her any duty to protect her from “the inherent risks of the sport.” The Court of Appeals agreed and affirmed the decision. She appealed to the Indiana Supreme Court and, in a decision handed down May 18, 2011, the Justices affirmed most of the summary judgment, but their language in doing so seems to leave the door open to liability in some readily foreseeable circumstances.

Specifically, the Justices said that “We reject the concept that a participant in a sporting event owes no duty of care to protect others from inherent risks of the sport, but adopt instead the view that summary judgment is proper when the conduct of a sports participant is within the range of ordinary behavior of participants in the sport and therefore is reasonable as a matter of law.”

Pfenning v. Lineman, 2011 Ind. LEXIS 376 (Ind. May 18, 2011)  (emphasis supplied). The Court explained further that “we agree with the Court of Appeals in permitting liability when an athlete intentionally causes injury or engages in reckless conduct.” Id. at p. 26, n. 3.

Consider how this might apply to the game of high school football. Player A runs with the ball and, after a nice gain, he’s knocked out of bounds on the opponent’s sideline. While he’s in the bench area, a few players from the other team make some remarks to which Player A takes offense. He loses his temper and takes a swing at one of them. Unfortunately, he connects with a kid who doesn’t have either his helmet on or his mouthguard in. The result is a broken jaw, loss of a couple of teeth, and a possible concussion. Player A is immediately ejected from the game for “fighting.”

The parents of the injured youth are hopping mad and they make a beeline to their lawyer’s office. The lawyer has read the Pfenning decision discussed above. He gets his hands on a high school football rulebook and sees that the definition of “fighting” is “any attempt by a player or nonplayer to strike or engage a player or nonplayer in a combative manner unrelated to football.” (National Federation Rule 2-11 (emphasis supplied)) He then compares that to the language in the Pfenning opinion that seems to allow liability for conduct that it outside “the ordinary behavior of participants in the sport,” and “intentional or reckless.” And then he’s off to the courthouse faster than you can say “contingent fee.”

It is debatable whether the Supreme Court intended liability to attach in the example hypothesized, or in any of hundreds of other scenarios that could arise during sporting events, or even practices or during training. But the door is clearly open. All that remains is to determine how wide.