Duty to Refer to Medical Specialists

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller concerned that her complications from a recent medical procedure were due to her doctor failing to refer her to a specialist.

She wanted to know her rights.

What lay people think of when using the term medical specialist is not necessarily the same as the legal definition of the term.

Under the law, a medical specialist is one who focuses their practice on diagnosing and treating a particular medical condition, consistent with the state of scientific knowledge at the time of treatment for that particular condition.

Where physicians hold themselves out as having special knowledge and skill in the field of medicine, they are bound to bring to the discharge of their duty to a patient, not merely the average degree of skill possessed by general practitioners, but that special degree of skill and knowledge possessed by physicians who are specialists in the treatment of such conditions.

In the caller’s case, she was concerned that all her medical issues flowed from a failure of her general practitioner to refer her to a specialist.

Under the law, a health care provider who is not qualified to treat a patient because he does not practice in a specialty, or lacks the necessary training or facilities, must advise the patient to consult a specialist.

While the caller may have a difficult time proving that her general practitioner was not qualified to treat her condition, if she can prove a lack of qualification, then yes, it may be that her doctor breached a duty to refer her to a specialist.

Nevertheless, to prevail in such as situation, the caller still would have to prove that her outcome would have been different had the referral been made.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

School Bus Crash

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller concerned about her child who was hurt in a school bus crash.

Thankfully, the injuries were not too serious.

But, the bus rolled on its side. Even at low speed, there were moving objects inside the bus which could have caused serious injury had they struck a child. Though no one was thrown from the bus, if they had been, the injuries could have been quite serious or fatal.

When you consider dangers associated with school buses, you have to include dangers beyond those associated with a collision.

For example, an occupant can get caught in the door mechanism when either entering or exiting the bus. A passenger can fall down the stairs trying to get off the bus or trying to step up onto the bus.

Poor driver training and poor driver supervision have been linked to many bus injuries. A school district can fail to do a proper background check on a bus driver, or negligently do a background check, both of which circumstances can increase the likelihood of injury.

Poor bus maintenance by a school district can also lead to injury. Mechanical issues, like worn or defective brakes, can lead to a mechanical failure, which in turn can lead to injury.

One thing to keep in mind, when investigating a public school bus-related injury is that the school will be considered a branch of the government, and will be subject to governmental immunity. This means that special notice of intent to sue must be given within a short few months following an injury incident.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

Child Hit By Car Walking to School Bus

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller concerned about her child who was hit by a car while walking to the school bus.

Motorists always have a duty to look out for pedestrians.

Child pedestrians often, despite our best efforts to protect them, are placed in danger as they walk to and from school, or to and from a school bus stop.

Any pedestrian who is struck by a moving vehicle will likely suffer serious injury, but the risk of serious injury is even greater for a small child.

The reason a child is likely to suffer greater injury when struck by a car includes the fact that a pedestrian child hit by a motor vehicle will likely be shorter than an adult. Thus, the chance of a blow to the head for smaller, younger, and shorter children is increased.

One of the reasons school zones have a very low speed limit, in most cases a 20 mph limit, is because a child is not as cognitively developed as an adult. The child isn’t able to recognize potential traffic hazards like an adult would.

Consequently, a motorist has a duty to be more careful when driving in an area frequented by children.

Distracted driving (including texting, or phone use) always is dangerous. Driving under the influence, again, is always dangerous. However, the consequences of such reckless behavior are magnified when a vehicle is operated in a school zone or residential area.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

Go-Kart Crash

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller who said her 12-year-old daughter was seriously hurt while operating a go-kart at an amusement park. She wanted to discuss her legal options.

Upon questioning, the mother revealed that her daughter was operating a go-kart which was struck by another go-kart being operated by a 20-year-old man. The man said that the brakes did not work and that he hit a pothole on the track when he was going too fast, and it caused him to lose control. And, when the brakes failed to work he struck the go-kart the woman’s daughter was operating. He apologized for the incident.

In considering the situation several things point to liability of the 20-year-old man, and other things point to the liability of the amusement park operator.

As to the 20-year-old man, he admitted going too fast for the conditions, which conditions included a track with potholes. Certainly, his conduct could be considered unreasonable under the circumstances. If the man has a driver’s license and a motor vehicle with insurance coverage, the insurance policy possibly would apply to cover his operation of the go-cart. The policy language would have to be checked.

As to the amusement park, it is concerning that they supplied a go-kart without functioning brakes.

It is also concerning that the track the amusement park supplied to those renting go-karts was itself defective and had potholes.

Also of concern is that the man was operating too fast for track conditions. The park should be enforcing speed limits on the track or adjusting the go-karts so as to limit the maximum speed for the go-karts.

While much additional investigation will be required, the caller and her daughter certainly appear to have several options available to them to recover damages suffered by the daughter in this unfortunate situation.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

Application of Statute of Repose

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Have you noticed that the cost of repairing modern cars is getting higher and higher?

While we rarely take on a case involving only property damage, where there is no injury claim resulting from a crash, we have noticed over the years that repair costs are skyrocketing.

Also, we have noted that a big factor in high vehicle repair costs is associated with the computer components of a vehicle.

There is also a trend in people keeping older vehicles longer for a variety of reasons.

Older vehicles without computers cost less to repair, license plate fees are often lower, and insurance rates are often lower.

As we mentioned in an earlier episode, Indiana is known to be a farm state.

Farmers have also found that keeping and repairing older equipment can be a way to save money.

For example, when a brand-new tractor breaks down, you need a computer to fix it.

When a tractor manufactured in the 1970s and 1980s breaks down, you can repair it yourself or buy another old tractor.

New farming equipment, containing computers, often comes with digital rights management software. This makes simple repairs very expensive.

Instead of farmers being able to fix equipment on their own, they now have to pay to plug a computer into the onboard computer of the newest machinery and then pay a big diagnostic fee.

Keep in mind that older farm tractors manufactured in the late 1970s and 1980s look and run like modern tractors. They lack the computer components, however, which keeps repair costs low.

But, as we have discussed in another episode if someone is injured as a result of a defect in an older vehicle, whether it be a farm tractor or automobile, Indiana has a 10-year statute of repose.

This means, that if the manufacturer sold the product more than 10 years before a defect or failure to warn led to an injury, it may be too late to sue the manufacturer.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – While there, make sure you request a copy of our book “Fighting for Truth.”

Car and Train Crashes

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller concerned about her daughter who was injured when the car her boyfriend was driving was hit by a train.

She wanted to know her daughter’s legal rights.

Railroad crossing crashes are often complex and require extensive investigation.

In the caller’s case, the boyfriend driver died, and the daughter who was injured as a passenger was in a coma in the ICU.

The caller said she knew of no witnesses to the crash as it happened late at night at a rural grade crossing.

The crossing did have a flasher and bells, but no gate.

The crossing had poor visibility due to its angle, steep incline, and overgrown brush. Though the crossing had an active warning device in the form of a flasher and bells, the caller said she has to cross at the same crossing every day and has noticed that sometimes the flasher does not come on at all, or comes on when a driver is so close to the tracks that you cannot see the flasher. She says she almost got hit the week before but was lucky and slammed on her brakes.

A police report that the caller obtained said the police asked neighbors near the crossing if they heard a train whistle at about the time of the crash. No neighbor recalls hearing a whistle or horn or any other sound besides the crash.

As we analyze the legal options of the daughter of the caller, it is fair to first observe that a driver traveling on a highway must exercise ordinary or reasonable care in approaching a railroad crossing to avoid injury.

It is possible that an investigation will reveal that the deceased boyfriend was at fault, in which case his auto insurance may be required to make good up to policy limits on a judgment obtained against the estate of the deceased driver. The caller did say that there were empty beer cans found in the car, so perhaps the boyfriend was drinking.

But, what is the duty of the railroad, and the railroad engineer?

An operator of a train has a duty to exercise the care an ordinarily prudent person would use, under the same or similar circumstances. The failure to exercise such care is negligence.

In the absence of legislation regulating the speed of railway trains in rural districts, a railroad company has the right, as between it and travelers on the highways, to run its trains over country crossings at any speed it may choose, subject to the common law rule of reasonable care.

Generally, speed alone is rarely negligence in the absence of a statute or ordinance limiting speed, but railroads must regulate speed with proper regard for human life.

It is also the duty of railroad companies to give signals required by statute when approaching a public crossing, and a breach of this duty constitutes negligence. So if a statute requires a horn or whistle, the train operator must give the signal required and it can be negligent if a warning signal is not given.

In the caller’s case, it also would be advisable to investigate federal law dealing with grade crossing protection. Perhaps the railroad was required to have gates. Perhaps the flashers were set to activate so as to give a motorist enough warning for a train going 45 mph but did not activate soon enough because the train was going 70 mph, as confirmed by the event recorder on the train.

Another area to investigate would be federal and state laws governing the removal of overgrown brush at a crossing. Especially brush that would block the view up and down the tracks by drivers stopped at the crossing. This may be grounds to hold the railroad negligent given the angle of the crossing and the steep incline, both of which would magnify the danger posed by failing to clear away overgrown brush.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – While there, make sure you request a copy of our book “Fighting for Truth.”

Proving Future Medical Expenses

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

We have alluded to in past episodes that Indiana has an evidence rule, called Rule 413, which provides that statements of charges for medical, hospital, or other health care expenses for diagnosis or treatment occasioned by an injury are admissible into evidence and constitute proof that the charges are reasonable.

The rule does not explicitly limit itself to medical charges that have already been incurred.

Can this rule be used to admit proof of medical bills likely to be incurred in the future?

I would argue no.

However, some attorneys have tried, so far unsuccessfully, to admit a letter from a doctor stating that in the future the injured person will need to have surgery and that the surgery will cost X dollars for the surgeon and hospital care required.

It makes sense to not permit future charges to be proven simply by a handwritten estimate of future charges.

The thing that makes existing charges credible is that they are for services already rendered and the charges can be compared against existing billing practices to determine if the charges are fair and reasonable.

No such protections exist for future charges.

So far, court decisions hold that the only way to establish future medical costs is through the admissible testimony of a competent medical witness.

The witness must be competent to testify as to charges for services. Further, the medical need for the future services in question must be supported by the testimony of a medical witness who has testified that the proposed care is reasonable and necessary and related to the injury incident in question.

Could Indiana courts change in the future, and rule that you can prove future medical bills by just submitting an estimate from a doctor?

I suppose anything is possible. That’s what makes the future such an interesting place to visit.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

Vehicle Crash Photos

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Often times when a case is taken to trial there will be an issue involving the admissibility of vehicle photos taken following a collision.

Usually if little or no vehicle damage is visible in the photos the defense will want the photos admitted into evidence. The plaintiff in such cases will typically want the photos excluded.

Why would the defense want a juror to see a photo that shows very little vehicle damage?

Usually, the defense will seek to admit a photo showing minimal damage in the hope that they can get the jury to draw an inference that the occupant of the car could not have been injured.

In other words, the defense will want to use the photo to argue to the jury that because there was no serious damage to the vehicle the occupant could not have been seriously harmed.

Keep in mind that this conclusion does not follow either logically or scientifically.

We’ve all seen an egg carton where the carton is undamaged but one of the eggs inside is damaged.

One cannot scientifically draw any valid conclusions from a photograph that shows little or no damage to a vehicle upon impact as to the nature and extent of any injuries suffered by the occupants.

Without an expert to link the vehicle damage photo to the forces felt by an occupant at impact, it is generally impermissible for a judge to allow a jury to see a photo that shows little damage on grounds of a lack of relevancy to the question of occupant injuries.

As a threshold matter to admissibility the defense must establish that a photograph is relevant.

Where the sole issue to be tried by the jury is the causation of the nature and extent of a plaintiff’s injuries, photos will not be relevant as photos cannot show whether an occupant was damaged.

However, if the suit is seeking compensation for vehicle damage, then of course the photos will likely be relevant.

The Society of Automotive Engineers has published papers on the subject and made it very clear that vehicle damage and occupant damage are not capable of being causally linked. Still, a juror might be tempted to link vehicle crash damage due to collision to the degree of occupant injury. Which is why a judge likely will exclude the photos from evidence.

Where medical causation is the only issue, then only medical causation evidence is admissible on the subject of occupant injury.

Unless one of the parties offers an expert opinion causally linking the property damage photos to the nature and extent of the injuries the photos will not be admissible.

Further, even if relevant, the photos may be unfairly prejudicial and thus excludable on the issue of unfair prejudice.

The reason is that a jury member, despite being instructed not to do so, may upon seeing the photos want to draw a causal conclusion.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

Farm Equipment Injuries

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Indiana is a farm state.

Agriculture is a big industry and includes not only farmers, but grain elevator operators, machinery manufacturers, and all the people who work in this sector of business.

There are many types of injuries which can occur on the farm.

Most of the agricultural machinery has safety guards in place to protect operators and those assisting the operators. However, often times the safety equipment does not work, or for a variety of reasons people end up getting injured.

Today most farm tractors have an enclosed cab, much like the inside of a car or truck. A farmer may take a child in the cab to ride the tractor with them as they pull tilling equipment around a field. But what if the cab door pops open, as the tractor hits a rough spot, causing the child to fall out and be injured? Can the manufacturer be held responsible? It will often depend upon the facts.

There are other types of equipment that can lead to injury. For example, a hay bailer is a complex machine with a lot of moving parts. Suppose a farmer reaches over a tying mechanism and his sleeve is caught in the gears. Such contact with spinning gears can result in amputation very quickly.

Consider another situation where a farmer is trying to remove a stump by wrapping a chain around the stump and pulling it with the tractor. What happens if the tractor flips and crushes the farmer or those standing nearby assisting the farmer? Is an injury of this type one where compensation can be obtained for the injury or death suffered? Would the chain manufacturer be potentially liable? Or, the tractor manufacturer? Or both?

As in most situations, the answers will depend upon the facts. But keep in mind that the statistics are very high for disabling farm injury and death claims.

Farm machinery is often extremely powerful. Sometimes safety mechanisms fail as the equipment ages. Sometimes safety equipment is bypassed.

Sometimes the equipment is so large that an operator will not be able to see around blind spots and may end up running over someone. This danger has led manufacturers to place remote Bluetooth-operated cameras at key points connected to a screen in the cab to enable the operator to essentially see around corners or see camera images when backing. But are such safety features enough? And, what if one machinery manufacturer offers such cameras, but competitors do not?

As in all equipment injury cases, the Indiana Products Liability Act will come into play. The Act applies where there is any alleged design defect in a product or a failure to provide adequate warnings or instructions regarding the use of the product or other circumstances that have led to the product being unreasonably dangerous to the ultimate users of the product.

Often you’ll find in these types of cases an injury involving a farm worker getting hurt, who is perhaps a teenager, or someone not well trained.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – While there, make sure you request a copy of our book “Fighting for Truth.”

Legal Assistants Are Not Lawyers

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Experienced legal assistants and paralegals can be instrumental in helping a lawyer prepare a case for trial. But only lawyers can practice law.

Sounds simple, but just what does it mean to “practice law?” Is there a comprehensive definition of what constitutes the practice of law?

In simple terms, the practice of law includes having a license that permits the lawyer to appear in court and represent another person. But, in a broader sense, the practice of law is primarily characterized by the giving of legal advice and counsel.

But, if the core element of practicing law is giving legal advice and counsel, where do legal assistants and paralegals fit in?

Can assistants give legal advice?

The answer is a definite no. Legal assistants are not permitted to provide legal advice.

Giving legal advice and counsel is the sole role of the lawyer.

To be effective the lawyer has to have the confidence of the client, and the two need to establish a sensitive working relationship wherein the client feels free to share confidential information with the attorney, and the client feels comfortable letting the attorney manage the affairs of the client.

Nevertheless, a legal assistant can be extremely helpful in gathering information that the attorney and client need for the attorney to give advice and assist the client. A legal assistant can coordinate meetings, organize and summarize information, research aspects of the facts and law of a case, and report their findings to the lawyer.

Still, it is the attorney who must analyze the gathered information and advise and assist the client.

Legal assistants and other law office staff members cannot operate an attorney’s law office or conduct business on behalf of clients while an attorney is out of the office.

Nor can a lawyer delegate or subcontract out the management of a client matter to a non-lawyer.

A lawyer cannot leave non-lawyers in charge of a case.

In short, while the work of legal assistants is critical to the practice of law, the activities of legal assistants and other law office staff members must be carefully supervised by the lawyer.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – While there, make sure you request a copy of our book “Fighting for Truth.”