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Friday, April 07, 2017

Ind. Decisions - Supreme Court today affirms McKeen and disapproves K.D. v. Chambers, in med-mal case

In Charles McKeen, M.D. v. Billy Turner, a 2-page, 5-0, per curiam opinion, the Supreme Court concludes:

We agree with the Court of Appeals, finding its opinion consistent with Miller v. Memorial Hospital of South Bend, Inc., 679 N.E.2d 1329 (Ind. 1997). We thus grant transfer and adopt and incorporate by reference the Court of Appeals opinion. See Ind. Appellate Rule 58(A)(1). We further find K.D. v. Chambers, 951 N.E.2d 855 (Ind. Ct. App. 2011), is at odds with Miller on the issue we address today and expressly disapprove K.D.
See the ILB's April 3rd post for much more, including this quote from Norm Tabler:
The decision at issue is McKeen v. Turner, which came down in favor of the plaintiff, ruling that the 2011 Court of Appeals case, K.D. v. Chambers, “was wrongly decided and/or has been misread.” That 2011 opinion has generally been read to prevent a medical malpractice plaintiff from raising a theory of liability in court that was not raised before the Medical Review Panel proceeding, which in Indiana precedes the court case.
Here is the Oct. 4, 2016 Court of Appeals opinion in McKeen, now "adopt[ed] and incorporate[d] by reference" into today's Supreme Court opinion.

Posted by Marcia Oddi on Friday, April 07, 2017
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "New Albany violated public access law three times on Mount Tabor Road requests"

Elizabeth Beilman reports in the New Albany News and Tribune (here reprinted in Indiana Economic Digest) in a long story that begins:

The city of New Albany has violated the Indiana Access to Public Records Act on at least three occasions in the past year by missing deadlines on records requests made by residents of Mount Tabor Road.
Property owners along the road that is undergoing the city's restoration project said they weren't able to get information in enough time to present educated counter-offers to buyers through the process of eminent domain.

Now, the city has filed condemnation against their properties. When the purchase price is negotiated in court, these residents worry they won't have the facts needed to back their cases, and are unsure what the city's final plans for the project entail.

"We can't do a true business agreement without knowing what we're getting into," said resident Kelly Feiock, who lives on the corner of Mount Tabor Road and Klerner Lane.

Feiock is one of three property owners along the corridor who have filed complaints with the Indiana Public Access Counselor's office. In some cases, though not all, the office ruled the city violated the law. One other property owner has not submitted formal complaints but has indicated the city didn't follow public access law in response to his request.

Later in the long story:
Indiana's public access law doesn't offer much recourse for violations. Oftentimes an official violation declared by the public access counselor is enough to motivate governments to comply. But if that doesn't happen, the next course of action is to sue.

"It's like everybody out here is trying to get an answer, and the city won't talk to you," said Dennis Feiock, Kelly's father who lives down the street. "You go to the state and the state says, "City, give them the information' — and we still won't get the information."

ILB: BTW, HB 1523, the bill that, per the digest:
Allows a state or local government agency (agency), with certain exceptions, to charge a maximum hourly fee for any records search that exceeds two hours. Prohibits, with certain exceptions, an agency from charging a fee for providing a public record by electronic mail.
passed the Senate with amendments yesterday, April 6th,and has been returned to the House. As of this writing, it is awaiting further action.

Posted by Marcia Oddi on Friday, April 07, 2017
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 5 NFP memorandum decision(s))

For publication opinions today (1):

In In the Matter of: Ce.B. and Co.B. (Minor Children) and C.K. (Custodian) v. The Indiana Department of Child Services, a 7-page opinion, Chief Judge Vaidik writes:

A custodian of two siblings appeals, claiming that the juvenile court erred in determining that the siblings were children in need of services (CHINS) without first holding a factfinding hearing. We find, however, that the juvenile court did hold a factfinding hearing in this case. At that hearing, the custodian, represented by counsel, chose to stipulate that the facts contained in the CHINS petitions and reports of preliminary inquiry were true. The juvenile court then reviewed those materials and, based on the stipulated facts contained in them, made a legal determination that the children were CHINS. Furthermore, the custodian does not make any argument that his stipulation should be withdrawn for cause. We therefore affirm the juvenile court.
NFP civil decisions today (1):

In the Matter of the Involuntary Termination of the Parent-Child Relationship of D.A. Jr. (Minor Child) S.G. (Mother), and D.J.A. (Father) v. The Indiana Department of Child Services (mem. dec.)

NFP juvenile and criminal decisions today (4):

Phillip D. Ealy v. State of Indiana (mem. dec.)

Leroy Butler v. State of Indiana (mem. dec.)

Robert E. Eastwood v. State of Indiana (mem. dec.)

Damon Nelson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, April 07, 2017
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Some ironies here: "Senate won't vote on student journalism bill"

Niki Kelly reports today in the Fort Wayne Journal Gazette:

A bill protecting student journalists died in the Indiana Senate on Thursday.

Sen. Brandt Hershman, R-Buck Creek, did not call down House Bill 1130 to meet a key legislative deadline.

The legislation was pushed by high school and college-age students looking for state help to shield their investigations or reports.

It would have prevented public K-12 schools from disciplining students for expressing their First Amendment rights in a school-funded publication. It also would have stopped school officials from censoring publications unless the content is libelous or slanderous.

The bill would have required local school boards to have written policies governing oversight of student publications, including physical and online newspapers and magazines.

It passed the House this session by a vote of 88-4.

But Senate President Pro Tem David Long, R-Fort Wayne, said school superintendents and principals pushed back against the bill at the last minute.

“They all weighed in late in the day and said they were concerned about the fact they weren't going to allow local control … so in the end we just let it go,” he said.

A few quotes from a good $$ StatehouseFile story:
School administrations said they were concerned about language in the bill that would not allow them local control over what they define as the proper amount of freedom for students, said Senate President Pro Tem David Long.

Diana Hadley, executive director of the Indiana High School Press Association, said everyone who supports the bill was surprised by DOE’s last minute opposition to it.

“They had never mentioned that to us before today,” Hadley said. “We found out quite by accident. We’ve been working on this since September and they’ve never said a word.”

Those in opposition of the bill argue that school administrators should have the final say about what content is printed in a school-sponsored publication. * * *

[Rep. Ed Clere, R-New Albany] said he was deeply disappointed with Superintendent McCormick’s decision to try and stop the legislation.

“I’m heartbroken, but I’m more heartbroken for all of the students, journalism teachers, advisors, professors and everyone else who got us to this point,” Clere said.

Clere said that while his team anticipated pushback from school administrators, they were unprepared to be blindsided by the Department of Education.

State Superintendent of Public Instruction Jennifer McCormick was not available for comment.

“The worst part for me is having to go back tell these students that the system let them down,” Clere said. “Because essentially the DOE and administrative interest groups killed it in secret, behind closed doors.”

ILB: See the earlier ILB story here, from January 11th, which includes useful historical background.

The ironies? First, of course, is the General Assembly bowing here to "local control," contrary to its denial of local control in cases such as municipal restrictions on plastic bags and Airbnb rentals.

Second, this widely-circulated April 5th story (the day before the deed) from Samantha Schmidt of the Washington Post, headed "These high school journalists investigated a new principal’s credentials. Days later, she resigned." A few quotes:

The resignation thrust the student newspaper staff into local, state and national news, with professional journalists nationwide applauding the students for asking tough questions and prompting change in their administration.

“Everybody kept telling them, ‘stop poking your nose where it doesn’t belong,'” newspaper adviser Emily Smith told The Post. But with the encouragement of the superintendent, the students persisted.

“They were at a loss that something that was so easy for them to see was waiting to be noticed by adults,” Smith said. * * *

In an emergency faculty meeting Tuesday, the superintendent said Robertson was unable to produce a transcript confirming her undergraduate degree from the University of Tulsa, Smith said.

During the course of their reporting, the students spent weeks reaching out to educational institutions and accreditation agencies to corroborate Robertson’s background, some even working through spring break. Their adviser, Smith, had to recuse herself from the story because she was on the committee that hired Robertson. So the students sought the help of Eric Thomas, executive director of the Kansas Scholastic Press Association, and other local and national journalists and experts.

Under Kansas law, high school journalists are protected from administrative censorship. “The kids are treated as professionals,” Smith said. But with that freedom came a major responsibility to get the story right, Smith said. It also meant overcoming a natural hesitancy many students have to question authority.

Similar bills are pending in other states, including Vermont.

Posted by Marcia Oddi on Friday, April 07, 2017
Posted to Indiana Government