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Thank you visiting our website and for your interest in Foley & Small. We’re here to help the injured and their families. 


Trial Court Decisions Reached In State Court Litigation Against Local Clinics Which Purchased and Injected Contaminated Epidural Products Obtained from NECC

            Foley & Small is pleased to report that we have obtained decisions from the St. Joseph Superior Court and from the Elkhart Superior Court in the litigation that has been brought against the South Bend Clinic and OSMC arising from contaminated epidural injections purchased from the New England Compounding Center.  An initial issue for resolution is whether the claims brought in the cases are covered under the Indiana Medical Malpractice Act (“MMA”) or are general litigation claims.  It is necessary that this issue be first decided as different legal rules and procedures would apply, depending on whether the claims are medical malpractice or general negligence, and different insurance carriers would be responsible for payment of the claims depending upon how they are classified.

            Plaintiffs in both state court proceedings, and Foley & Small represents the majority of them, took the position that the claims were covered under the MMA.  The Clinic defendants took the same position.  The State of Indiana, specifically the Department of Insurance, took the position the claims involved general negligence and were not controlled by the MMA.

            Judge David Chapleau in South Bend and Judge Evan Roberts in Elkhart each made a determination that plaintiffs’ claims were subject to the provisions of the MMA.  Under the MMA, a healthcare provider is subject to a maximum per claim limit of $250,000.00 and a maximum multi-claim limit of $750,000.00 in a single year.  Further, under the MMA, the total recovery available to a plaintiff is capped at $1,250,000.00.  Any payment of this amount above the $250,000.00 that would otherwise be covered by the insurer for the healthcare provider, must be paid from the Patients’ Compensation Fund (“PCF”), which is administered by the Indiana Department of Insurance.

            A copy of Judge Chapleau’s Order can be obtained by clicking here.  A copy of Judge Robert’s Order can be reviewed by clicking here.


            The Patients’ Compensation Fund has taken steps to initiate an appeal of Judge Chapleau’s order to the Indiana Court of Appeals.  The PCF will also be taking steps to appeal the decision of Judge Roberts.  We will be providing you with updates as those appeals progress.


 Status Report On NECC Bankruptcy Fund Distribution Process

            Foley & Small has completed submission of claims forms for its more than 80 clients who were injured as result of receiving contaminated epidural injections manufactured and distributed by the New England Compounding Center. In a status conference held before the federal district court in Boston the week of November 9, it was reported that the claims administrator anticipated sending out initial point determination letters to claimants before year-end. It is also anticipated that initial payments will be forthcoming during the early months of 2016. Foley & Small is working with the Plaintiffs’ Steering Committee to move forward on lien resolutions with Medicare and with private insurance carriers. This effort includes reaching out to those in Congress in the U.S. Senate seeking assistance in resolving the Medicare liens through its CMS administrative offices.


Foley & Small is a personal injury/trial law firm serving clients throughout the State of Indiana. We have nearly 60 years of experience handling and trying cases where individuals have been injured, where a family member has lost their life and helping those suffering other losses.
Foley & Small has received the highest ratings from our peers and received professional recognition and awards. Our philosophy is expressed in five words: selflessness, skill, trustworthiness, discipline and compassion.
We hope you’ll explore our website. It is full of information that you’ll find very helpful if you and your family are confronting the effects of an injury, death or other loss. 
We hope you’ll contact Foley & Small. We’ll work for and with you and your family.


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