Indiana Medical Malpractice Attorney Blog

Finally, here are a few caveats based on interviewing many people over the years who believe they have been injured by medical malpractice.

● The failure on the part of a health care provider to keep your family members informed of your condition or planned procedures is also not a basis for a cause of action. A frequent complaint is that "the doctors and nurses didn't tell me what was going on the whole time." A failure to adequately inform a patient, or if necessary another decision make such as a minor patient's parent or person exercising a medical power of attorney for a patient, can be the basis of a claim for lack of informed consent. However, the physicians have no duty to keep everyone informed of what is being done to the patient. In fact, they have a duty to not disclose information unless they have express permission from the patient to do so.

Continue reading "Indiana Medical Malpractice Law: an Overview (part 5) " »

The Indiana Medical Malpractice Act limits the amount of compensation available to injured patients irrespective of the nature or degree of the harms which are caused by a health care provider's negligence. For claims accruing prior to January 1, 1990, the amount recoverable against a single qualified provider may not exceed $100,000, and the total amount recoverable against all qualified providers and the Patient Compensation Fund may not exceed $500,000. As of January 1, 1990, the maximum recoverable from all qualified providers and the Fund was increased to $750,000. For claims accruing on or after July 1, 1999, the limit for each qualified provider is $250,000, and the total cap on damages against all qualified providers and the Fund combined is $1,250,000.

Contributory negligence is a complete bar to recovery in Indiana medical malpractice claims under the Act. In other words, a patient has a duty to exercise reasonable care in providing accurate and complete information to a health care provider. In addition, a patient has a duty to exercise reasonable care in following a health care provider's instructions. If the defendant can show that the patient failed in either of these duties and that such a failure caused or contributed to the injuries to the patient then the jury will be instructed to find for the defendant.

Continue reading "Indiana Medical Malpractice Law: an Overview (part 4)" »

If a health care provider is qualified, then all of the requirements of the Medical Malpractice Act come into play. All claims for more than $15,000 in damages against qualified providers under the Indiana Medical Malpractice Act must be heard by a medical review panel (unless each party executes a written waiver). A medical review panel consists of one lawyer and three health care providers. Choosing a medical review panel is supposed to be a rather speedy process, in reality however it can take many months. It is the duty of the health care providers on the panel to express an expert opinion as to whether the evidence supports the conclusion that the defendant(s) acted or failed to act within the appropriate standard(s) of care and, if so, whether any failure to act within the standard of care was a factor in the injury. The panelist may also choose to opine that there is a material issue of fact.

This essentially means that if you believe what the plaintiff said happened then there was a breach of the standard of care but if you believe the defendant then there is no breach. The panel is not supposed to guess at who is actually telling the truth since that is a jury's job. In reality however, the must decide who to believe in most cases and base their decision on what they believe happened based on the medical records and the defendant's testimony. The medical review panel finds in favor of the defendant in the overwhelming majority of the opinions issued. The opinion issued by the panel is admissible as evidence in any subsequent action, but it is not conclusive. The lawyer on the panel advises the voting members of the law. The Panel has 180 days to render its opinion(s) after the last member is selected. Again, this process is often delayed well beyond the 180 day time period set out in the Act. Once the panel has expressed it opinion(s), you have at least 90 days in which you may file your claim in a court of law.

Continue reading "Indiana Medical Malpractice Law: an Overview (part 3)" »

There are a couple of rare exceptions to the rule requiring the plaintiff to show that a defendant has breached the standard of care. One is where the failure to meet the standard of care is so obvious that expert testimony is not required. An example would be if a patient had the wrong leg amputated. The doctrine of res ipsa loquitur raises another such exception. Here, the patient must show that they and their own actions or reactions were under the health care provider's care and exclusive control; that the injury was of a nature that would not have occurred but for an act of malpractice; and the agency or instrumentality that caused the injury was within the health care provider's exclusive control. One such example would be where a surgeon leaves surgical instruments inside a patient at the conclusion of a surgery. If all of these conditions are met, the jury is allowed to infer than an act of malpractice took place and the burden of proof then shifts to the defendant to show that he was not negligent in his care.

Lastly, the injured patient must prove that the harms they are complaining of were caused by the health care provider's failure to meet the applicable standard of care. As simple as this last requirement seems, it is often a hotly disputed issue in medical malpractice claims. A doctor's failure to meet the standard of care may or may not be the cause of a poor result from treatment.

Continue reading "Indiana Medical Malpractice Law: an Overview (part 2)" »