Tag Archive | "ICLEF"

Mistakes Lawyers Make in Medical Malpractice Cases: Expert Carelessness

Welcome back to Law Tips for an expansion of  the discussion on how to avoid the issues that can cripple a medical malpractice case.  This week our faculty participants, Linda Chezen and John Boren, delve into the concerns surrounding inadequate expertise in evaluation of the case.  Their overall alert is: ….woe betides the attorney who does not adequately explain the standard of care, show causation, and prove/justify the amount requested as damages.”

Inadequate expertise in evaluation of the case: Relying on an expert who is not one!  And/or is not recognized by other experts.
The need for a witness that is not only an expert but very creditable and professional in his or her presentation is paramount. A firm that utilizes experts with questionable credentials will eventually get branded with its carelessness. I still remember the med mal case I tried where the plaintiff’s expert was not a medical doctor and the jury decided for defendant because the plaintiff did not have a “real” doctor.

There are societies and other professional organizations in which an expert can list membership but all are not equal. For medical doctors, The American Board of Medical Specialties is the key credential for an expert. The ABMS is a non-profit organization that oversees standards and certification for all twenty-four recognized medical and surgical specialties. Truly Board-Certified specialists are known as Diplomates and are identified by the words, “American Board of…”  preceding the name of their specialty. For example, “Diplomate of the American Board of Emergency Medicine”. Other copycat “boards” employ similar sounding names though they may not use the designation of “American Board”.

Utilizing an expert with questionable credentials may not keep you from getting to trial. If you need trial experience, using a fake expert can get you the experience- if not the verdict you want.  For other professionals and scientists, knowing how to evaluate the credentials of the person and the organizations is a critical skill. Questions to ask:

1. Would they have you as a member?

2. What do the university faculty know about the society?

3. The right expertise may not be an M.D.

a. Toxicology- Society of Toxicology

b. Alcohol- Research Society on Alcohol

c. Neuroscience – Society for Neuroscience

At the least, have a non-testifying expert evaluate the case.
It feels great to get that favorable expert review on a challenging case you just accepted. This may be a good time to breathe and get a second opinion, particularly when the issues are complex and the trial expenses will be high. An additional opinion from a non-testifying expert will help establish that the first expert’s analysis is on target and may give supplemental insight into the case. Non-testifying experts often remain with the case to serve as strategic consultants whose work may be protected from discovery by work-product rules. This approach can provide long-term savings in terms of both time and money.

Where to find the best medical expert witness:
Have someone familiar with the medical world and the academic qualifications evaluate expert’s CV and experience. Do not stop with your own witnesses but have the same process for the opposing side’s experts. Compare the witness to the stars of the specialty and other potential expert witnesses.

Know who is doing relevant research. See http://report.nih.gov/
“Research Portfolio Online Reporting Tools provides access to reports, data, and analyses of National Institutes of Health research activities, including information on NIH expenditures and the results of NIH supported research.”

Thanks again to Linda Chezem and John Boren for illustrating the dangers that could jeopardize medical malpractice cases. Be sure to check in here at Law Tips next week for tips from our Medical Malpractice experts on avoiding the wrong experts when evaluating your case. Meanwhile, you have the opportunity to take advantage of the excellent CLE presentation on Mistakes Attorneys Often Make With Medical Malpractice Cases through ICLEF’s On Demand CLE programming.

ICLEF also has Advanced Medical Malpractice on June 24th, as a Live In-Person only Seminar, Click Here.

Resource: Marian Langley JD, reference article: Seven Mistakes Attorneys Often Make With Medical Malpractice Caseshttp://www.ilawconnect.com/blog/seven-mistakes-attorneys-often-make-with-medical-malpractice-cases


About our Law Tips faculty participant:
John D. Boren opened his law practice in Martinsville, Indiana, in 1979 and joined with Steve Oliver to form the partnership of Boren and Oliver in 1981. Together they have  pursued numerous cases for injured clients with successful representation against the largest corporations in the world. John has also successfully defended numerous clients charged criminally, including the defense of a twelve year old boy charged with murder. His areas of practice include personal injury, medical malpractice, major criminal defense and DUI.

Hon. Linda L. Chezem is a Professor and Adjunct Professor with Purdue University and Indiana University School of Medicine as well as a former Indiana Appellate Court Judge. She resides in Mooresville. Judge Chezem’s expertise reaches into several areas. For instance, due to her extensive background in underage drinking laws, she teaches law students, graduate students and lawyers about ethical and legal issues in alcohol research. She also focuses on animal use and production law and, on the human side, informed consent and certificates of confidentiality.

About our Law Tips blogger:
Nancy HurleyLaw Tips blogger, has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page. Also, you are encouraged to comment below or email Nancy.  She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you onLaw Tips.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Amateur Life Coach: Undefeated! Pilot Episode

Amateur Life Coach: Undefeated! Pilot Episode

James J. Bell, ICLEF's Amateur Life Coach


Twice each month through January, The Amateur Life Coach (also known as attorney James J. Bell of Bingham Greenebaum Doll) will provide you insights to both law and life in his own, unique way.

In this episode, The Amateur Life Coach answers a question about truth in lawyer advertising. Special thanks to attorney Adam Christensen, Mallor Grodner LLP, for being this week’s “Guest Viewer”.

Written and performed by James J. Bell, produced by the Indiana Continuing Legal Education Forum. Submit questions for the Amateur Life Coach to scottking@iclef.org  or @JamesJBell on Twitter.
This video is for informational purposes only and should not be used as a substitute for professional advice.


James focuses his practice in the areas of criminal defense; attorney discipline defense and health care law. As a Marion County Public Defender, he represented clients in numerous jury and bench trials. James also represents clients in juvenile delinquency, appeals and post-conviction proceedings. James is a frequent ICLEF speaker on ethics, trial practice and criminal procedure. James just completed his first semester as an adjunct professor at the Indiana University Robert H. McKinney School of Law where he teaches a course on professional responsibility. To date, no student has yet stood on their desk and shouted “Oh captain, my captain!” Follow James on Twitter @jamesjbell 

Questions for the amateur life coach?  Email them to scottking@iclef.org or iclef@iclef.org

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Things to Know Before an Administrative Law Hearing – The AOPA & The Culture

Persuasive advocacy remains the same no matter what forum you are in, but there are different rules and traps for the unwary if you don’t understand your environment. Have you prepared lately for an appearance in front of the Alcohol and Beverage Commission seeking an alcohol permit, Natural Resource Commission because you built an unapproved bridge over a creek, or contesting an IOSHA fine at the Department of Labor? Practicing law in our Indiana state agencies, even for experienced litigators, can be a new experience.

Our faculty participant, Lori Torres, Ice Miller LLP, Indianapolis, has generously agreed to provide her expert direction into where to watch for the land mines. Here’s her jump start into preparing to appear at the Indiana state agencies:

Administrative Orders and Procedures Act
The Administrative Orders and Procedures Act, commonly known as AOP A, was passed in 1986, and has seen few changes since then. AOPA can be found at Ind. Code 4-21.5-1 et seq.  It has 7 chapters, each one devoted to a different aspect of administrative law. (Editor’s Note: Ms. Torres includes the full Act in her published CLE materials for the seminar entitled Revealing the Mysteries of Administrative Law:  A Practitioner’s Guide to Indiana State Agencies.” The manual is available from ICLEF.)  Part of what AOPA was intended to accomplish was to provide a more streamlined way for state agencies to regulate in their substantive areas, as well as unclutter the court system with administrative issues. [Final Report of the Administrative Adjudication Commission].

The first order of business before you work at the state agency level is to ascertain whether AOPA applies.  Chapter 2 has a fairly long list of agencies and actions in which AOP A does not apply, either in specific agencies or specific actions. See Ind. Code 4-21.5-2-4 and 5.  For example, AOPA does not apply to the Indiana Utility Regulatory Commission, the Department of Workforce Development or the Unemployment Insurance Review Board there. And while it applies to the Indiana Civil Rights Commission as a whole, neither a determination of probable cause or no probable cause, or fact finding conferences of the Civil Rights Commission are subject to AOPA. Ind. Code 4-21.5-2-5(2) and (3). These exceptions have been carved out over many legislative sessions, and run the gamut.

First things first – does AOPA apply, and if not, what does? For example, a driver isn’t entitled to notice and a hearing before the BMV suspends a driver’s license, permit or vehicle title of that person as a result of a

dishonored check. But a driver would have the benefit of AOPA in the case where he or she believes that the BMV erred in the type of suspension. Likewise, since the Indiana Utility Regulatory Commission is specifically exempted from coverage by AOPA, (Ind. Code 4-21.5-2-4(a)(8)), a practitioner has to look to the statutes governing the commission or its administrative code (see 170 lAC 1.1 for Practice and Procedure Before the Commission).

Notice is a primary concern under AOPA. Nearly all of section 3 of AOPA deals with who is entitled to notice, how it must be made, what time frames apply for notice and response to matters. Ind. Code 4-21.5-3-1 to 6. Any sanction or termination of a legal right, duty, privilege, immunity or other legal interest may only be done after a proceeding described by AOPA, unless it is an emergency or temporary order. Ind. Code 4-21.5-3-8.

Know the Culture
You have to do your own “situational analysis” before starting a matter before an agency with whom you are unfamiliar. Agencies differ, and woe to the practitioner that hasn’t studied up or done some kind of prep work in advance. Some are incredibly formal, and mimic a court trial. IOSHA hearings have a judge, court reporter and often multiple lawyers on each side. Utility Regulatory Commission hearings are very formal with many interested stakeholders (including the media) in attendance. Hearings in front of a board of the Professional Licensing Agency can be attended by members of the public and often are attended by aggrieved parties.  Others are very informal, like those at the BMV, where only the complainant has a stake in the outcome. You should know if members of the media will be there. Nearly every hearing or meeting is subject to the Open Door Law (Ind. Code IC 5-14-1.5), which provides that they are open to the public at large, and the media in particular.

The best way to understand the environment in which you will be working is to attend one or more of the agency’s hearings in advance of your own. If you have a State Department of Health hearing coming up, attend the meeting the month before (remember that Open Door Law?). Call the agency’s general counsel and ask questions. Even though they may be involved in the disputed matter, my personal observation is that most agency general counsel are focused on fairness and just outcomes, so it is worth asking some questions. Find out when the agenda will be published, and make sure you get a copy in advance. I’ve never done an administrative case without first trying to attend a similar meeting or hearing (without billing the client) to understand the flow, hear the fact finder or adjudicator explain rulings or process. Know whether parties are usually represented by attorneys or they appear generally pro se.

All of this will aid you in your situational analysis, and make you look like a pro in front of your client (and hopefully avoid any embarrassment so you don’t miss an important point of the protocol).

Many thanks to Lori Torres for her valuable insights into Indiana’s state agencies.  Keep your ears open as we continue with her specific examples of “Things To Know Before An Administrative Hearing.”  If you are interested in the CLE covering the ins and outs of practicing administrative law in Indiana, take a look at ICLEF’s On Demand or Video Replay of “Revealing the Mysteries of Administrative Law:  A Practitioner’s Guide to Indiana State Agencies.” 


About our Law Tips faculty participants:
Lori Torres, Ice Miller LLP, Indianapolis, is of counsel in the law firm’s Public Affairs Group. She concentrates her practice in the areas of public affairs, public policy planning, economic development, real estate, and labor and employment focusing on state wage and hour issues.  Torres is a veteran of Indiana state government, having served in a cabinet post position in the Indiana Department of Labor under Gov. Mitch Daniels for more than six years. Prior to her appointment to the DOL, Torres spent 20 years in private practice in Johnson, Marion and surrounding counties in Indiana.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Dismissal of a Paternity Matter Acts to Terminate…

Case: Belinda Douglas v. Neil Spicer and L.S.
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: The dismissal of a paternity matter acts to terminate any related preliminary orders that were issued in the case, much like a preliminary order in a dissolution case terminates with dismissal of the dissolution matter.

HELD: The trial court correctly calculated a child support arrearage by looking at the time from when the preliminary child support order was issued, until the paternity case was dismissed.

Mother and Father were unmarried and living together when, in early 1994, Mother gave birth to Child. Father was listed on Child’s birth certificate, and the parties continued living together and sharing household expenses. However, when Child was four, Father moved out.

In 2004, Mother initiated a paternity action. In early 2005, the trial court issued a preliminary child support order of $200 per week. However, eight months later — after both parties failed to appear at a status hearing — the trial court dismissed the matter. Father never made any of the $200 court-ordered payments.  But, Father continued to provide regular and consistent financial support for Child, including providing health insurance coverage.

In 2012, Mother filed a “Motion to Re-Open the Case” along with a request to adjudicate the child support arrearage. After a hearing, the trial court found an arrearage of $6,600, which the court calculated as $200 per week from the entry of the preliminary support order, through when the case was dismissed. Mother appealed, arguing that Father’s arrearage was $74,000, relying in part upon a common law support theory.

The Court of Appeals concluded that the trial court acted within its discretion in calculating the arrearage. First, the formal obligation for Father to pay $200 per week terminated by operation of law with the dismissal of the case. Second, the evidence presented to the trial court about the substantial and consistent informal financial support that Father provided for Child supported the trial court’s decision to decline finding any additional arrearage.

The trial court’s judgment was affirmed.

To view the text of this opinion in its entirety, click here: Belinda Douglas v. Neil Spicer and L.S.


The Indiana Family Law Update is a free service provided by the Matrimonial Law Group of Bingham Greenebaum Doll, LLP. While significant efforts are made to ensure an accurate summary and reproduction of each opinion, readers are advised to verify all content and analysis with a traditional case law reporter before relying on the content and analysis offered here.
ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Family Law Case Review0 Comments