A wide variety of statutes passed by the U.S. Congress as well as the state legislature impact each and every personal injury claim — both in how the claim is pursued and in how much financial recovery can be expected from aggressively litigating the lawsuit in court. The growing tort reform movement is actively campaigning to limit the monetary redress available to injured plaintiffs in this state and across the country.
Here are a few examples of powerful laws that must be considered with severe and serious personal injury claims:
Statutes of Limitations
A statute of limitations is a law that requires certain claims to be brought within a specified period of time. If the claim is not commenced within this period of time, the claim is barred, regardless of its merit. Under Indiana law, personal injury claims must generally be filed within two years of the date of the injury. However, in certain situations, the case may be filed within two years of the date the injury was discovered. Where a governmental entity may be responsible, a tort claim notice must be filed with the appropriate governmental entities well in advance of the two years. Unless each of these important deadlines are met, the claim will be barred. Therefore, it is of the highest importance to promptly consult with an attorney who is knowledgeable about the respective statutes of limitations, tort claim notice requirements, and any other limitations or procedural requirements that may apply to your claims.
Punitive Damages
Punitive damages are damages awarded by a jury to the injured party in an attempt to punish and deter the wrongdoers, and others similarly situated, from committing like offenses in the future. Under Indiana law, punitive damages are allowed. However, establishing the necessary bases for an award of punitive damages is no easy task. To obtain an award of punitive damages, the plaintiff must prove that the defendant acted with reckless indifference to the safety of others and that defendant’s acts were not the result of a mistake or other error of judgment. And, a plaintiff must prove these matters by clear and convincing evidence – a standard of proof higher than the typical ‘preponderance of the evidence’ standard applicable in most civil cases.
Once proven, the jury is left to debate and decide the amount of punitive damages to be awarded. While there is no minimum, Indiana law does technically have a maximum amount permitted. A punitive damages award may not be more than the greater of either fifty thousand dollars ($50,000) or three (3) times the amount of compensatory damages awarded by the jury. See Ind. Code § 34‐51‐3‐4.
Additionally, the United States Supreme Court has ruled on the constitutionality of punitive damage awards in several cases, warning that the jury’s determination must be “reasonable” compared to the defendant’s conduct (BMW of North America v. Gore); the punitive damages have to be based upon the acts of the defendants that harmed the plaintiffs in the case before the jury (State Farm Mutual v. Campbell); and the jury can consider harm to others when deciding how malicious the defendant’s actions were (Philip Morris USA v. Williams).
Workers’ Compensation
In an attempt to increase the fairness and efficiency of resources for employees,many states – including Indiana – have passed statutes implementing a Workers’ Compensation Act. Indiana’s Act sets up a schedule of damages that are provided to workers injured on the job while working in the State of Indiana. This is a “no‐fault” statute, meaning there is no determination of who is to blame for the injury. Rather, applicable benefits are covered by the employer – or, more typically, the employer’s insurance carrier. These benefits include medical treatment paid for by the employer, temporary total disability benefits (during the period, if any, in which the employee’s injury is temporary but also totally disabling), and permanent impairment benefits. TheWorkers’ CompensationAct does not allow damages for pain and suffering.
Workers’ CompensationActs do not allow you to sue your employer for your injury. There is no lawsuit. There is no trial by jury. Rather, a claim is filed with the Indiana Workers’ Compensation Board, which then adjudicates the claim. Employees not satisfied with the Board’s determination must follow an established administrative review process. It is important to recognize that, while you may not be allowed to sue your employer when injured on the job,there are many work‐site injury situations where claims for damages can be made. So, it is important to contact an attorney knowledgeable in the nuances of these laws and factual scenarios.
Medical Malpractice
A legal claim for medical malpractice seeks a remedy for serious injury or death caused by the medical mistake of a doctor, nurse, hospital, or other health care provider. Indiana has been the cradle of medical malpractice tort reform, being the first state to pass such legislation in 1975. Under the Indiana Medical Malpractice Act, healthcare providers may pay a surcharge to become what the Act refers to as a “qualified” healthcare provider. Once a qualified healthcare provider, each provider is personally responsible for only the first $500,000 in damages for each act of malpractice. Should damages be greater than $500,000, the Indiana Patient’s Compensation Fund will pay the excess – but not to exceed $1.3 million. Thus, the maximum amount that an injured patient may receive as a remedy for the medical mistake of a qualified healthcare provider is $1.8 million. Healthcare providers who are not “qualified” do not enjoy the protections of the Act, including the cap on damages.
To file a claim, injured patients must first file a proposed complaint with the Indiana Department of Insurance. Their claim is then evaluated by a medical review panel consisting of three healthcare providers. The panel then issues an opinion, and the plaintiff may then choose whether to proceed with filing a complaint in state court. It is important to note that the medical review panel’s opinion is admissible evidence and the members of the review panel may be called as independent expert witnesses in any resulting trial.
The Indiana Medical Malpractice Act can be disastrous for injured plaintiffs because the courts have interpreted the law to hold that any contributory negligence on the part of the injured party is a complete defense, meaning that any recovery by the plaintiff is barred. In Indiana, patients have a legal duty to exercise reasonable care. The courts have held plaintiffs must be able to prove that they gave their doctor complete and accurate diagnosing information and that they followed the doctor’s instructions. McSwane v. Bloomington Hosp., 916 N.E.2d 906, 911 (Ind. 2009).
If you or a loved one has been seriously injured or killed due to the wrongful acts of another, then you may have a legal claim for damages as well as the right to justice against the wrongdoer and you are welcomed to contact the Northwest Indiana and Chicagoland personal injury lawyers at Allen Law Group to schedule a free initial legal consultation.
