Friday, February 01, 2013
Ind. Decisions - 7th Circuit decides one Indiana case today, a reversal
In Devbrow v. Dr. Eke Kalu (SD Ind., McKinney), a 12-page opinion, Circuit Judge Sykes writes:
This case arises out of a delay by prison medical staff in ordering a prostate biopsy for a prisoner. Eugene Devbrow entered the Indiana prison system in 2000. During the intake process, he told the medical staff that he had prostate problems and would need to be tested for prostate cancer within two to four years. In February 2004 a prison doctor ordered a PSA test (for “prostate-specific antigen”), which revealed an elevated PSA, but the medical staff did not order a prostate biopsy until April 2005. In a follow-up biopsy six months later, Devbrow was diagnosed with prostate cancer, but by that time the disease had spread to his spine and treatment options were severely limited.
In October 2007 Devbrow sued two prison doctors and a prison nurse practitioner under 42 U.S.C. § 1983 for deliberate indifference to his serious medical needs in violation of the Eighth Amendment. He alleged that their long delay in ordering a biopsy prevented the discovery of his cancer while the odds of successfully treating it were still good. The district court entered judgment for the defendants based on the two-year statute of limitations. The court construed the claim as a continuing constitutional violation that began in February 2004—when, according to Devbrow, his PSA test and prostate history showed the need for a biopsy—and ended in April 2005 when the biopsy was ordered. At that point, the court said, the defendants’ deliberate indifference ceased, the cause of action accrued, and the limitations clock started ticking. Because Devbrow filed suit more than two years later, the court dismissed it as untimely.
We reverse. The statute of limitations for a § 1983 deliberate-indifference claim brought to redress a medical injury does not begin to run until the plaintiff knows of his injury and its cause. Judged by that standard, Devbrow’s suit is timely. He did not know of his injury in April 2005 when the defendants finally ordered a biopsy; he discovered it six months later when he learned he had cancer that might have been diagnosed and treated earlier but for the defendants’ deliberate indifference. The limitations period runs from that discovery, and Devbrow filed suit just before the time expired.
Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)
For publication opinions today (1):
In Travis Koontz v. State of Indiana , a 4-page opinion, Chief Judge Robb writes:
In Koontz v. State, 975 N.E.2d 846 (Ind. Ct. App. 2012), we held that Travis Koontz waived any claim of an illegal sentence by entering into a plea agreement which reduced his penal exposure. Id. at 849-50 (Baker, J., dissenting). Both Koontz and the State of Indiana have filed petitions for rehearing. We grant the petitions for the purpose of correcting a misstatement of the law, but reaffirm our original disposition. * * *NFP civil opinions today (3):
[We stated] [B]eing convicted of the per se offense rather than operating while intoxicated reduces Koontz’s exposure if he were to be arrested again for operating while intoxicated. * * *
As both parties have pointed out, this is a misstatement of the law. * * *
Even without this consideration, however, the other factors we mentioned remain viable and we continue to believe that, given the circumstances in which Koontz was charged with all misdemeanors, two of the four misdemeanors were dismissed, and Koontz agreed to the sentence as part of his plea agreement, he has waived any illegality in the sentence. Accordingly, we again affirm the trial court’s denial of his motion to correct erroneous sentence.
BRADFORD, J., concurs.
BAKER, J., would reverse as previously stated in his dissenting opinion.
NFP criminal opinions today (3):
Law - "Reuters: Hospital chain defies NLRB rulings after court decision"
How Appealing has just pointed to this Reuters exclusive, reported by Terry Baynes. The lede:
A California-based hospital company says it will not comply with at least two National Labor Relations Board rulings from the past year after a federal court invalidated three of President Barack Obama's recess appointments to the NLRB last week.
Ind. Law - "Indiana legislature unlikely to vote on same-sex marriage in 2013"
So reports Mary Beth Schneider in a lengthy story today's Indianapolis Star.
Also today in the Star, a story headed "13 gay and lesbian couples 'marry' in ceremony led by Bloomington mayor," written by Kristine Guerra. A quote:
The couples participated in a mass wedding ceremony presided by Bloomington Mayor Mark Kruzan at the Buskirk-Chumley Theater in downtown Bloomington. It was meant as a protest against a proposed constitutional amendment that would ban same-sex marriage in Indiana. * * *
“People ask us why we’re doing this…It’s about equality and opportunity,” Kruzan said. “History simply will not smile kindly upon those who advocated against equality. It’s time that same-sex marriage be recognized by all.”
Ind. Courts - Indiana Roll of Attorneys Site much improved
Check it out here.
Ind. Law - “Loser pays” tort reform bill withdrawn
Eric Bradner of the Evansville Courier & Press reports today:
INDIANAPOLIS — Indiana Gov. Mike Pence was dealt the first legislative loss since taking office earlier this month on Thursday. It came when state Sen. Mike Delph, R-Carmel, gave up his efforts to push a “loser pays” tort reform bill that was part of the Republican’s first-year legislative agenda.From Mary Beth Schneider's story in the Indianapolis Star:
Delph, who was carrying the measure on Pence’s behalf, filed a motion to pull the bill from further consideration this year. He said he will focus instead on the governor’s proposal to lower Indiana’s income tax.
“I went and spoke with the governor’s office, and we agreed it would probably be best to withdraw it and revisit the issue sometime in the future,” Delph said.
The bill would have required the losing side in all civil litigation to pay the winner’s attorney fees and other costs — an idea championed by the U.S. Chamber of Commerce, but that Indiana-based business groups have not sought.
The issue proved tricky for Pence. His staff asked Delph to carry the measure on the governor’s behalf — but since then, Pence has steadfastly refused to address it.
Sen. Mike Delph, who had filed the measure at the request of Gov. Mike Pence’s administration, said he withdrew Senate Bill 88 after hearing concerns from several legislators, including from Sen. Brent Steele, chairman of the Senate Judiciary Committee.ILB: The ILB just tried to link to SB 88, but only gets "Bill Withdrawn" -- the text is no longer available.
The problem with the bill is simple, Steele said: “It doesn’t work.”
Steele, R-Bedford, said he had filed “exactly the same bill” in 1995 and got an earful from just about every interest group.
They convinced him, he said, that it is unworkable because determining just who is the loser in a lawsuit is difficult — and impossible in “no fault” divorce cases.
Steele said that in a lawsuit where someone is seeking $40,000 damages and the defendant wants to settle for $20,000, both sides can come out winners if the jury awards $30,000. The plaintiff, he said, gets more than they were offered and the defendant pays less than was initially sought.
“At first blush you’d think it’s a good idea” to try to discourage lawsuits by making the loser bear the financial burden, Steele said, “but it’s just not workable.”
Ind. Courts - Who will fill Lake County Judge Bonaventura's juvenile court vacancy?
Bill Dolan has this story in today's NWI Times. Some quotes:
CROWN POINT | One of about a dozen Lake Superior Court judges will be first in line to take over a juvenile court system any politician would consider one of the sweetest plums in Lake County's patronage empire.
There will be no campaign or popular election to replace Juvenile Court Judge Mary Beth Bonaventura, who has been named to lead the Indiana Department of Child Services.
Bonaventura leave behind a court with a $6 million budget and payroll of 169 detention officers, lawyers, probation officers, clerical personnel and judicial assistants.
State law and internal court rules dictate a select group of Lake County judges have what amounts to a right of first refusal for the job.
"When there is a judicial vacancy, nearly any Superior Court judge can move to that vacant position in order of their seniority," Chief Superior Court Judge John Pera said. * * *
Bonaventura, whose resignation becomes effective next month, said she has no favorites among those who could replace her.
"I haven't talked to any of the other judges about it, but they all know it's a lot of work," she said. "You run the detention center, so basically you have to be the sheriff for kids."
Along with that, she's on several statewide boards and manages a large staff with 30,000 pending cases.
"It's a huge, huge job, and we all get paid the same. Why go from managing three people and come over here for the same amount of money?" Bonaventura said.
If no standing judge accepts the juvenile court position, the Lake County Judicial Nominating Commission -- a body of lawyers and residents -- would accept applications from any attorney living the county and narrow the field down to three finalists.
Gov. Mike Pence would name the new judge from those finalists.
Bonaventura, who went through the judicial nominating process in 1993, said politics plays a role, but not necessarily a dominant one.
"You have got to get (political) support behind you," she said.
She went to Lake County Democratic Chairman Bob Pastrick to gain his support when she sought the job.
Despite the fact she was a Republican, she had 11 years of experience and stressed she was the best for the work. She also spoke with then-Indiana Democratic Party Chairman Mike Pannos.
Eventually, Gov. Evan Bayh -- a Democrat -- selected her from among three finalists. "He liked my resume," she said.