Medical Malpractice Cause of Action Not Tolled Pending Second Opinion

The Indiana Court of Appeals decided a case today entitled “Anonymous Physician v. Wininger”. (The physician is anonymous at this stage of litigation due to particulars about how the medical malpractice system works.)

The plaintiff had gone to the Anonymous Physician (AP) for problems with her foot. AP performed surgery on her second toe in early 2007. As of October 2007, the Plaintiff realized that her foot hurt worse than it had prior to the surgery. However, she did not go for a second opinion until April 2009. On her intake sheet, she listed the reason for her visit as “AP messed her foot up.” The second doctor said that the second toe on her foot was too short.

Plaintiff did not file her malpractice action until March 2011. The statute of limitations for a medical malpractice action is two years. (The abbreviation for statute of limitations, S.O.L., coincidentally is the same as that for Shit Outta Luck; which are, functionally, the same thing. If a would be litigant doesn’t file a claim within a certain amount of time, they are barred from doing so.)

The Plaintiff argued that the two years didn’t start to run until she got the second opinion and, therefore, knew that the pain in her foot was caused by the alleged negligence of AP. The court disagreed. If the patient is unaware of the negligence of the medical professional, the statute of limitations is tolled only “until the patient experiences symptoms that would cause a person of reasonable diligence to take action that would lead to the discovery of the malpractice.”

In this case, such symptoms were present not later than October of 2007 and, therefore, the action was barred.

As a side procedural note, it looks like the doctor got lucky. The trial court sided with the Plaintiff. However, it certified the case for an interlocutory appeal (an appeal that happens in the middle of the underlying case) and the Court of Appeals agreed to take it. Both of those things are discretionary. Either court could have declined to have the issue addressed by the Court of Appeals until after the case had concluded. If that had happened, before getting a shot at a decision on appeal, the parties would have had to incur a great deal of expense trying the malpractice case and would have faced a great deal of pressure to settle the case.

Interim Commission on Courts

Following a series of interim study committee meetings, the Commission on Courts has issued a final report (pdf). It makes a series of recommendations to the General Assembly:

1. Eliminating a trial court’s ability to grant an adoption where there is an appeal pending of a decision to terminate the parent-child relationship.

2. Allowing appointment of a second magistrate in Vanderburgh County.

3. Making a variety of juvenile records public and not subject to the current confidentiality requirements: “(a) paternity issues; (b) custody issues; (c) parenting-time issues; (d) child support issues; or (e) other related issues; concerning a child born to parents who are not married to each other.”

4. Giving trial courts more flexibility for the appointment of psychologists, psychiatrists, and physicians in insanity defense cases.

Trial by Jury

I had a jury trial this week, and I’m happy to say that I won. I don’t really do very many of them. They are really an inefficient way to resolve disputes — except for maybe the alternatives are worse. When you think about it, the civil jury trial is our substitute for what, historically, was resolved through raids and blood feuds. People have a dispute. At least one side typically thinks he/she/it is entitled to something someone else has (usually money); and they simply cannot agree on a resolution.

Now, most of these things don’t go to a jury trial – at least not for me. I am normally either able to get the case thrown out on a motion of some sort or help reach a settlement between my client and the other party. And, particularly if your motions are denied, the structural pressure to settle cases is really pretty significant. It’s surprisingly awkward to go to a court ordered mediation and offer nothing or next to nothing. You are made to feel rude and like you’re wasting everyone’s time. Very often mediation is a useful tool — but when you are determined to have your day in court, it’s an expensive hurdle to be cleared.

The jury trial itself is, for the lawyers anyway, a very labor intensive process. I have a lot of respect for those litigators who do that kind of work week-in and week-out. The hours of preparation and organization required for even simple cases is fairly significant. When I do have one, my wife and I end up commenting on what a problem it would be for our family life if I was doing these kinds of cases more frequently.

Typically, the structure of a civil jury trial process will begin with voir dire – the parties have been given a jury list a couple of days before of the panel of potential jurors. Different courts have different approaches, but for Indiana state courts, I think it’s fairly common for judges to briefly introduce the matter to the jurors and thank them for being part of the process. The judge asks some very preliminary questions about basic items that might disqualify a member of the panel from serving as a juror. Then, he gives the lawyers greater or lesser amounts of latitude to question the jurors.

Ostensibly the process is for lawyers to probe jurors for information that might reveal a juror who is unable to evaluate the case in an unbiased fashion. All the strategy books, however, pretty much tell you that, even now, you should be framing and arguing your case — softening up the jury to see things from your point of view. In my mind, the voir dire is in some ways the most awkward because it is the least structured. And first impressions are so important – there is a decent chance the jury will be fairly persuaded before you even get to the evidence.

During the voir dire process each side gets three peremptory challenge where they can dismiss a juror for pretty much any reason. Each side is trying to divine which jurors will be favorable to their case through inexact proxies — “people who do this kind of work have these kinds of tendencies” and so forth. (Incidentally, the juror questionnaires have a question about favorite TV shows – “The Big Bang Theory” is a runaway winner.) For civil cases, once you have six jurors and an alternate, the rest of the pool is dismissed and the jurors are sworn in. (The job of an alternate has to be so frustrating — you aren’t allowed to participate in deliberations. That would be torture for me; particularly if I felt like the rest of the jury was missing something important. I like to make my opinion known. Hence, this blog.)

After that, the jurors are given the preliminary instructions – a basic introduction to what the case is about and how the process works. Then the parties can give opening arguments — which is and isn’t a misnomer. Technically, I think you aren’t so much supposed to “argue” as simply explain to the jury what sorts of evidence they will see. But, of course, you are framing that evidence in a way that supports your case; so there is an argumentative element in there by nature. There isn’t a bright clear line where descriptions of the facts stop and impermissible argument begins.

Then the plaintiff opens his evidence. This is witness testimony and documents. Depending on the case, introducing evidence in this way, may not create the most comprehensible narrative for the jury. If there was a series of events, you won’t take the events one-by-one, getting the account of each witness for that event — rather, you will get what one witness knows about all the events before moving on to the next one. The jury might have to wait for a couple of days to hear what another witness recalls of a particular event.

Generally, if a party calls the witness, that party’s questions will have to be more open ended; relying on the witness to recall and supply details — occasionally straying into unanticipated territory. This is followed by cross-examination. On cross, you can ask leading questions – which leads to much more narrowly focused responses. The attorney doing the cross examination does most of the talking, with the witness often just confirming or denying what the attorney says.

Technology in the court room has improved. One thing I really appreciate in the Tippecanoe County court rooms is a sort of opaque projector that displays documents on a big screen to the jurors. I think that’s very helpful when you are asking a series of questions to a witness about a particular document.

After the plaintiff goes through his or her witnesses and documents, the plaintiff rests and then the defendant goes through his or her evidence in much the same fashion. After the defendant closes, the plaintiff may or may not put on some rebuttal witnesses. (There were none in the case I recently concluded.)

Once the evidence is concluded, the next step is to hammer out the details of the final jury instructions. This is done outside of the presence of the jury and seems like part of the process that has a lot of room for improvement. Ostensibly, I think, this is done at the last minute because the final instructions have to be based on the facts that were introduced during the presentation of evidence. So, the sides exchange the instructions, often at the 11th hour. They are based on model jury instructions. However, a party is also entitled to have non-pattern language included if it is a correct statement of the law, implicated by the facts of the case, and not otherwise covered by the rest of the court’s instructions. So, quite often, you are faced with language that is supported by case law you, as an opposing party, only have very limited time to review. And the clock is ticking because you have a jury waiting. Even if you send the jury home for the night, you are racing to craft and present arguments about what the law is and is not over the course of an evening and perhaps the next morning. The court, with the help of the attorneys, then has to merge at least three sets of instructions – the courts and each party’s. (More if there are multiple defendants). The court has to throw out the instructions that are duplicates, exclude the ones that aren’t permitted, and modify others if they partially misstate the law or partially duplicate others. It is quite an editing job done on the fly. However, I think that much of it could be done earlier in the process — this would require the court to make earlier (if potentially preliminary) declarations about what the law is and would reduce a certain amount of potential gamesmanship by the parties.

After the instructions are settled upon, the parties make their closing arguments. The plaintiff goes first, followed by the defendant, followed by rebuttal by the plaintiff. My client thought this was very unfair that the plaintiff got to go first and last. In most cases, you can’t help but feel like the jury has made up their mind. Probably, you’d be just as well saying something like, “thank you for your time, please treat us fairly.” But, I have never had the confidence to pull that one. I tend to walk them through an outline of why my opponent’s version doesn’t make sense and mine does. I tend not to have a flair for emotional appeals; but I think I’m fairly good at showing the jury the world from my client’s perspective.

Then, when each side has made their arguments, the judge reads the final instructions, and the case is handed to the jury. (See this post if you’re interested in my experience as a juror.) Turning the case over to a jury is nerve wracking for a lawyer. You have been in control of the case for so long; have prepared so much; and now it’s out of your hands. A group of people you have only known for a couple of days will decide the outcome. You have no ability to address their arguments or correct any misunderstandings they may have. If they forgot about a key piece of evidence you presented, you have no way of reminding them of what it was. You are in limbo while the jury is out. You don’t know how much time you have – whether you and your client should just hang out or if you should go about your business until the court calls you to let you know the jury has returned with a verdict. You try to guess whether the time the jury has spent deliberating is a clue as to success or failure.

In this last case, the jury returned very quickly. I had gone to the Black Sparrow and ordered a beer and a pizza. It was about 1 in the afternoon, and the lunch shift waitress remarked that she had never seen me order a beer during the day. I told her this was a different sort of day. I’d had about half of my beer and two pieces of pizza when I got the call that the jury had returned. As a defendant, this was good news because it seemed unlikely that the jury had had time to do any math. I was cautiously optimistic, but still had to prepare my client for bad news. I also like to give my client instruction on how to comport themselves with either good or bad news. In this case, there was a tremendous amount of bad blood because my client felt like the opposing party was flat out lying about him. There is often a difference in perspective for any event, even where both sides are trying their level best to remember and tell the truth. This was not one of those cases. Someone was obviously lying. I very much believe my client was telling the truth – but I’m hardly unbiased and, at the end of the day, I wasn’t there when the event happened.

My optimism about the verdict notwithstanding, there was still a huge amount of anxiety during that period when you arrive at your spot in the court room and watch the jury file in. At this point, you get to see which juror was selected as foreman. Again, you try to figure out whether that is a good sign or a bad sign. The foreman hands the verdict form to the bailiff who hands it to the judge. Now the anxiety hits a crest. Fortunately, in this case, the jury found that my client was not at fault. Even though I was very happy with the result, it’s important to temper my enthusiasm at that point. Because, on some level, I felt bad for opposing counsel. These are guys you work with year in and year out and they worked every bit as hard as I did. I don’t know for certain the details of their contract with their client, but I suspect they were working on contingency and probably won’t get paid for all that work. Now, I know my client – angry about being dragged through the whole process – does not share my feelings about opposing counsel. But, I’m part of the system. I know that plenty of people on the other side of my cases probably have hard feelings for me.

The following days are spent recovering from the physical impact of the trial. First off, I need plenty of sleep for a couple of days. Then, there is the post-trial let down to deal with. Even though I won, there will inevitably be an emotional crash. Because that focus of so much hard work has suddenly been removed, I’ll feel out of sorts for several days. But, before too long, I’ll shake it off and have another war story in the books.

Authorization to Use Force Against Public Servant

The Internet is alive with reports that IMPD officer Rod Bradway was shot and killed responding to a domestic disturbance.

Per the IMPD:

At approximately 1:52 am, officers with the Indianapolis Metropolitan Police Department (IMPD) were dispatched to the 6700 blk. of Eagle Pointe Dr. (Eagle Point Apartments) reference a disturbance.

When the first arriving officer arrived, he heard screams for “help” from an unidentified woman who was inside an apartment. The officer fearing for the safety of this woman made entry. As the officer entered the apartment, gunshots were exchanged between the officer and the suspect and the officer was struck with gunfire.

Based on these limited facts, the Supreme Court case from 2011, Barnes v. State (pdf) came to my mind (from my blog entry at the time):

The police got called to the apartment to respond to domestic violence in process. Husband was throwing stuff around the apartment and had apparently ripped a phone out of Wife’s hands and thrown it against the wall. When the police got there, Husband & Wife met the police in the parking lot. Police followed them back to the apartment, Husband barred entry while Wife said things like “just let them in.” Police tried to force their way, and Husband resisted physically.

The Supreme Court held at that time that the husband had no right to use force to stand his ground notwithstanding the husband’s contention that the entry of the officer in that case was unlawful. This led to the passage of SB 1-2012. The law makes it permissible to use force against a public servant if the individual using force reasonably believes it necessary to prevent the public servant from unlawfully entering the individual’s residence.

I’ll be watching this case with interest to see if the facts are such that the shooter might contend that this new law justified his actions.

Updated Abdul advises me that the shooter is dead. One less problem, I guess.

From the news release:

Investigators have not yet identified the suspect who was also fatally shot and killed in the exchange of gunfire with police. Investigators are also working to ascertain the exact circumstances of the shooting, and have detained the woman, who was not injured, for questioning. Further updates will be provided as they become available.

Lake County Judge Strikes Down Right To Work Under Indiana Constitution

Tom LoBianco, writing for the Associated Press, reports that Lake Superior Court Judge John Sedia struck down Indiana’s right to work law under Indiana Constitution Article 1, section 21 which provides that “No person’s particular services shall be demanded, without just compensation.”

I haven’t read the decision, but the theory appears to be that requiring that the terms of union negotiated contracts apply to non-union workers who do not pay dues or a dues equivalent is, in effect, requiring the union to provide service without just compensation.

I’m not a fan of right to work as a policy, but unless there is something fairly compelling in that opinion I haven’t yet seen; I would bet against this opinion being upheld on appeal.

Ind. Supreme Court overturns Ind.Ct.App. on “Very Duty” case

Way back in May 2012, I had a post entitled “Imposing Liability Where There Is Insurability” discussing the Court of Appeals decision in Santelli v. Rahmatulah (pdf).

Yesterday, the Supreme Court issued an opinion overturning the Court of Appeals and affirming the trial court.

The issue had to do with how to allocate fault when you have an intentional actor, the bad acts of whom it was allegedly the duty of a negligent actor to prevent. In the older blog, I described the case:

Santelli was a guest of a hotel. Pryor had been an employee of the hotel. Pryor retained a key card after he walked off the job. Pryor gained access to Santelli’s room and murdered him. The hotel (owned by Rahmatullah) hadn’t performed a background check on Pryor and, at the time he was hired, there was a warrant for Pryor’s arrest for some type of probation violation. Santelli’s estate sued the hotel for negligence in performing its duty to provide security to its patrons. The hotel named Pryor as a “non-party.” (In Indiana’s comparative negligence scheme, the default is that a jury is supposed to allocate a percentage of negligence as between the Plaintiff and Defendant that combines for 100%. A Defendant can add a “non-party” to whom the jury is permitted to distribute some of the percentage of fault. The amount the Defendant owes the Plaintiff is the Defendant’s percentage of fault multiplied by the Plaintiff’s total damages.)
The Plaintiff protested Pryor’s inclusion as a non-party and asked for an instruction that informed the jury that it could not allocate fault to Pryor if Pryor’s actions were the “very duty” imposed on the hotel to protect against. In other words, the hotel has a duty to responsibly provide security so as to protect patrons against guys like Pryor. The trial court did not give the instruction requested by the Plaintiff. The jury came back with total damages of $2 million for the Plaintiff but allocated the fault at 1% for Santelli, 2% for the hotel, and 97% to Pryor the murderer. Under that ruling, the hotel was liable to the estate of the decedent in the amount of about $40,000.

The Court of Appeals reversed the trial court and ordered a new trial, reasoning:

If the allocation of fault to a criminal defendant reduces the liability of the negligent defendant whose action or inaction allowed the harm to occur, as it did here, the injured party will not be adequately compensated. In addition, the criminal defendant who has been identified and convicted for his intentional act likely will be both judgment proof and without insurance coverage from which the injured person could be compensated. Further, the negligent business owner can insure against liability arising from inadequate security. Combining the allocation of fault of the criminal defendant with the negligent defendant imposes liability where there is insurability. Holding the negligent proprietor liable as provided under § 14 also serves as a deterrent to breaching one’s very duty.

The Indiana Supreme Court disagreed, determining that the Indiana General Assembly could design its comparative fault system in the manner desired by the Court of Appeals but finding that it had not done so.

[W]e will discuss it more generally as an argument against allocating fault to intentional actors where another, negligent actor owed a duty to the victim such as Rahmatullah owed Santelli.
. . .
[Discussion of the Indiana Comparative Fault Act and noting that the definition of "fault" includes intentional acts.]
Thus, the [Comparative Fault] Act now mandates that when determining how to assign percentages of fault, a jury must consider the intentional acts of non-parties like Pryor in addition to the negligent acts of defendants like Rahmatullah. We thus find that the trial court did not err in permitting the jury to allocate fault to Pryor and in refusing the Estate’s tendered instruction that would have permitted the jury to hold Rahmatullah liable for Pryor’s intentional act.

The Indiana Supreme Court noted that it would be possible in some situations for a jury to allocate more fault to a negligent landowner than to a criminal intentionally causing injury and permitted the opportunity to do so by the negligence of the landowner.

Court upholds judgment against embezzler’s ex-wife

Interesting case out of my neck of the woods entitled Landers v. Wabash Center, Inc. (pdf). The Indiana Court of Appeals affirmed the trial court. The legal issues weren’t ground breaking, but I thought the fact pattern was interesting.

Wabash Center is a non-profit that provides educational assistance to children with disabilities and independent living, employment, and community involvement assistance to adults. From 1986 to 2009, a guy named Stephen McAninch worked for them. For a lot of that time, he was also embezzling from them. He had created a fake corporation, ginned up board minutes approving payment of claims to that corporation, and then submitted those claims to the controller for payment. In October 2009, an outside auditor requested confirmation that the company had actually performed some of the claimed services. He committed suicide on October 31, 2009.

The defendant in this case was McAninch’s ex-wife. They divorced in 1998. Wabash Center sued her and the trial court awarded a judgment in favor of Wabash Center and against the ex-wife in excess of $1 million.

She tried to say that the statute of limitations had passed. This didn’t fly because Wabash Center exercised ordinary diligence in managing its finances, it did not discover the loss until 2009, and it filed its lawsuit diligently after becoming aware of the loss.

Having made that determination, the Court of Appeals mentioned but did not resolve the possibility that the statute of limitations may have been tolled by her own fraudulent concealment. Apparently she made out very well in the divorce. From footnote two in the Court of Appeals decision:

During the marriage, Landers knew McAninch was bringing in additional income through “moonlighting.” Tr. p. 66. During divorce negotiations in 1998, Landers told McAninch, “I am . . . giving you advance warning of what to come, if you refuse to settle this my way. . . . You will be totally destroyed if this community finds out what you have been up to.” Appellee’s App. p. 4. She further stated that if the divorce was not resolved on her terms, “I will be completely truthful to family, friends, your employer, the court and the community with any and all information that I currently have concerning your personal integrity. I hope you realize you have a lot at stake and potentially have a lot more to lose.” Id. at 6. McAninch told Landers, “If we can’t make [the settlement] work between the two of us, we will all lose out in the end. We both have a lot to lose.” Id. at 1. He also stated, “If . . . you carry out your vengeance, everyone loses in the end.”

The defendant also claimed that she was not unjustly enriched by receiving benefits from McAninch’s fraudulent actions. The benefits she received, the argument seemed to go, flowed from her ex-husband’s clean money. He kept the dirty money for himself. As part of its discussion, the court mentioned a long standing rule I found interesting. “[W]here ill-gotten gains are commingled with other funds and the thief draws upon the commingled funds, the thief is presumed to draw out his own money first, and the remainder belongs to the source of the ill-gotten gains.”

Based on that, and reasoning that the couple couldn’t have lived as well as they did on McAninch’s legitimate income, the Court of Appeals upheld the trial court’s judgment against the defendant.

IN Supreme Court: With Hospital Bills, You Have Agreed to Buy a Pig in a Poke

The Indiana Supreme Court has disagreed with the Court of Appeals and affirmed a trial court’s dismissal of a declaratory action in the case of Allen v. Clarian Health Partners (pdf). (See my prior blog post here.)

If a price term is sufficiently vague in a contract, courts impute an agreement to pay a “reasonable” price for the goods or service. Plaintiffs argued that since the agreement they signed for hospital services did not specify a price, their agreement was to pay the reasonable price of services. When the hospital charged them more than the reasonable price, the patients argued that the hospital had breached the contract and requested a declaratory judgment to that effect. The trial court dismissed the action for failure to state a claim. The Court of Appeals disagreed, holding that because the contracts did not specifically reference the chargemaster or other extrinsic document (and noting that the chargemaster was not, in any case, a document available to a patient), the contract was open ended and, therefore, ambiguous as to price, meaning that a reasonable fee would be imputed.

The Indiana Supreme Court disagreed, deciding that, when you sign such an agreement with a hospital, you are really agreeing to pay – not the reasonable price – but, rather, whatever the hospital’s chargemaster says. The Indiana Supreme Court did not, however, address this difficulty highlighted by the Indiana Court of Appeals:

As we have already noted, Clarian contends that the chargemaster rates are “unambiguous” and “express[,] binding obligation[s]” on Allen and Moore. Appellee’s Br. at 5. But at oral argument counsel for Clarian stated that Clarian considers its chargemaster rates confidential and proprietary. Left unanswered by Clarian is how a patient and a provider can mutually agree to an “unambiguous” and “express” chargemaster fee schedule that is not available to the patient.

The decision was 5-0. Hopefully this at least undermines hospital claims that their chargemasters are confidential, proprietary, and/or trade secrets of some sort. One of the problems with our health care system is that pricing is so opaque.

District Court Rejects Constitutional Challenge to Marriage Solemnization Statute

A case brought by the Center for Inquiry challenged Indiana’s marriage solemnization statute on the grounds that it does not permit secular celebrants to solemnize marriages. The United States District Court for the Southern District of Indiana rejected that challenge.(pdf)

The solemnization statute is IC 31-11-6-1:

Sec. 1. Marriages may be solemnized by any of the following:
(1) A member of the clergy of a religious organization (even if the cleric does not perform religious functions for an individual congregation), such as a minister of the gospel, a priest, a bishop, an archbishop, or a rabbi.
(2) A judge.
(3) A mayor, within the mayor’s county.
(4) A clerk or a clerk-treasurer of a city or town, within a county in which the city or town is located.
(5) A clerk of the circuit court.
(6) The Friends Church, in accordance with the rules of the Friends Church.
(7) The German Baptists, in accordance with the rules of their society.
(8) The Bahai faith, in accordance with the rules of the Bahai faith.
(9) The Church of Jesus Christ of Latter Day Saints, in accordance with the rules of the Church of Jesus Christ of Latter Day Saints.
(10) An imam of a masjid (mosque), in accordance with the rules of the religion of Islam.

A secular celebrant is someone who has some background in performing weddings, memorials, and other “milestones of life” ceremonies but who is not affiliated with any religion.

I think the District Court was probably correct, particularly under existing precedent, that this statute does not violate the establishment or free exercise clauses. It is maybe slightly more burdensome for an atheist to get married than a religious adherent. But, the fact is, the secular celebrant can still preside at your ceremony. You just might have to do a little extra paperwork at the Clerk’s office to have your marriage recognized by the State whereas the Muslim can just have the imam solemnize the marriage.

That said, the Center for Inquiry should lobby the General Assembly to amend the solemnization statute to allow for secular celebrants to solemnize marriages.

In the Supreme Court (of Indiana) Revisited

Just a follow up on a post from this past March when I had the opportunity to argue a case in front of the Indiana Supreme Court. The Court issued its opinion today, and I’m pleased to report that my client was on the winning side.(pdf) My description back then:

[B]asically, it had to do with whether an employee was discharged for just cause or not. If so, the employee is not entitled to unemployment benefits. If not, the employee is. The primary wrinkle for the Supreme Court had to do with the fact that IC 22-4-15-1(d) has a number of examples of ‘just cause’ for termination. The Court of Appeals felt like the example selected by the Review Board was not well supported. I made the argument that even if that particular example wasn’t well supported, some of the others were. The Court of Appeals said they couldn’t look to any other example other than the one chosen by the Review Board. I said they could and asked the Supreme Court to say so as well.

The Court agreed with my argument that an appellate court is permitted to affirm a finding of just cause by the Review Board under an alternate legal basis, not analyzed by the Review Board, so long as the findings of fact by the Review Board support that alternate legal basis.