Indiana has capped all damages caused by medical malpractice since 1975. Initially it was $100,00 per occurrence for the doctor and $400,000 from the Indiana Patient's Compensation Fund. That was subsequently raised to $100,000 and $650,000 and finally increased to $250,000 for the doctor and $1,000,000 from the PCF. A simple consumer price index for inflation over that period shows that in order to obtain the same value as the $500,000 total set in 1975 at today's value in dollars would require and increase up to over 2 million of today's dollars instead of 1.25 million. Further, to the extent the damages are intended to pay for future medical care, the amount should be increased even more since medical inflation is generally well over twice the rate of general consumer price inflation.

While healthcare costs continue to climb in an ever-increasing upward spiral and many injured patients' lifelong medical care requirements will exceed the recoverable "fair" amount as determined by legislators, limiting patients' ability to recover damages has become a popular political subject in Washington for fixing the health care system under the guise of "tort reform". When medical malpractice insurers are reporting profitability in excess of 99% of Fortune 500 companies, perhaps reform efforts should be concentrated on reducing the number of preventable medical errors in the healthcare system which injure and kill thousands of patients every year. In addition, analyzing business practices of malpractice insurers who enjoy record profitability year over year despite claiming that there is a crisis in medical malpractice litigation requiring "tort reform" is an area ripe for further congressional scrutiny.

The family of Debbie Plank was awarded that amount against Community Hospital North after the hospital mismanaged an X-Ray taken and read in 2001. She died from a bowel obstruction injury that could have been detected and surgically repaired had the hospital managed the radiograph appropriately.

Of course, that award was reduced to $1.25 million by Indiana state law. The Plank's lawyer has said he will appeal the reduction as unconstitutional under Article 1 Sections 20 and 23 of the Indiana Constitution.

Indiana's current malpractice cap has been in place since 1999, when it was raised from $750,000. Besides the claim of unconstitutionality, that amount doesn't even keep up with inflation - $1.25 million in 1999 equates to a little over $1.65 million in 2008 dollars, adjusted for inflation.

The results are somewhat mixed in these challenges. Caps were upheld in Virginia by a federal appeals court in 1986, but declared unconstitutional by a Florida court in 1973. The Sixth Circuit upheld the constitutionality of Michigan's $359,000 cap on non-economic damages in medical malpractice cases.

You might be surprised - nearly 200,000 people a year die as a result of medical mistake, while only about 20% of that figure die in automobile accidents.
A comparison of statistics from several sources indicate that medical malpractice - an issue that has hardly made a splash in the health care debate - is a major problem. For firms that specialize in medical malpractice cases in Indiana, this news comes as no surprise.

Earlier this month, HealthGrades, a health care quality company that studies the medical industry, looked at 37 million American patient records from the years 2000-2002, and found that an average of 195,000 patients died due to potentially preventable in-hospital medical errors.

Half of those errors arose from hospital-acquired infections, and the other half from preventable mistakes, including safety issues within the hospitals, failure to diagnose post-operative infections, failure to recognize the degree of injury, failed or missed diagnoses, etc.

Even though this number is far too high in and of itself, the National Highway Transportation Safety Administration's 2008 study, published in June, reports that 37,261 people died from car crashes last year (a statistic that is down almost 10% from 2007). This represents an almost 5 to 1 ratio concerning the number of people who die as a result of medical mistakes vs. automobile accidents.

The HealthGrades numbers are double the number from a 1999 Institute of Medicine study, which, even at that number, called medical malpractice an "epidemic", and pegged the cost to the country then at $6 billion.

That study was supposed to spark a revolution in medical field accountability. Based on the most recent stats (which are a few years old, but are the best we can find at this point), there seems to be little - if any - reason to think that things have gotten better since 2003.

The IOM report made a number of suggestions for increasing patient safety that were only spottily and partially instituted. Among those suggestions that were only partially instituted were mandatory (or at least centralized) reporting of hospital deaths by mistake, creation of a national patient safety center, and the proposing that hospitals themselves could take further responsibility for patient safety. Several states do now require reporting certain preventable deaths and other non-lethal complications.

● One cannot recover money damages as compensation for something that did not happen. In other words, if a health care provider either does or fails to do something that you believe could have led to your death, you cannot recover money for "I could have been killed". One can only recover compensation for actual harms, not near misses.

● One also cannot successfully sue a health care provider for having bad "bedside manners" unless of course those bad manners are a breach of the standard of care and can be shown to have caused a harm.

● Due to the complexities, costs and delays that have been layered onto medical malpractice claims, those claims involving small damages are unlikely ever to be pursued in a court of law.

The actual numbers of total claims filed, the amounts paid by the defendants and the number and types of medical review panel opinions since the inception of the Indiana Medical Malpractice Act in 1975 are all available online.

This is the final entry in a five-part series of blog articles giving a general overview of Indiana Medical Malpractice Law.

The Medical Malpractice Act also places limits on attorney's fees in these claims. A claimant's attorney may not receive more than fifteen percent fee on any award from the Patient Compensation Fund.

This is the fourth entry in a five-part series of blog articles giving a general overview of Indiana Medical Malpractice Law.

The Medical Malpractice Act specifies a rather strict 2 year "occurrence" based statute of limitations for adult patients. A minor under the age of six years has until his eighth birthday for his parents or guardian to file a claim. In other words, when a health care provider through their acts or omissions commits an occurrence of malpractice, the patient has only 2 years from the date of that act or omission to file a proposed complaint with the Indiana Department of Insurance. The Indiana Supreme Court has carved out an exception to the two-year statute. It held that the statute is constitutional on its face, but that it cannot be constitutionally applied in cases where the long latency period of a medical condition prevents the injured party from discovering the malpractice within two years. Martin v. Richey, 711 N.E.2d 1273, 1279 (Ind. 1999) (failure to diagnose breast cancer). When this exception applies, plaintiff may file within two years from the discovery of the malpractice or from learning facts that, with the application of reasonable diligence, should have led to such discovery if the two year statute has already passed.

This is the third entry in a five-part series of blog articles giving a general overview of Indiana Medical Malpractice Law.

Injury requires the patient to show that he was harmed in any of many possible ways. Some examples of these potential harms include such physical harms as death, disfigurement, deformity, physical loss of function or impairment to bodily or mental function. In some cases, where the claim is one of failure to make a correct diagnosis, an argument can be made that the delay in diagnosis caused a reduced chance of recovery. Other harms can include a loss of earning capacity and any medical or other expenses made necessary by the malpractice.

This is the second in a five-part series of blog articles giving a general overview of Indiana Medical Malpractice Law.

This Act, as well as the common law which is developed through the opinions of the courts of Indiana, have tended to make virtually any lawsuit by a patient against a qualified healthcare provider conform to the requirements of the Act if the injury arose as a result of the delivery of healthcare services. In practice, most claims made by patients against health care providers are torts. A tort is defined by the Act as a "legal wrong, breach of duty, or negligent or unlawful act or omission proximately causing injury or damages to another." In order to prove a tort one typically must show the four essential elements of a tort. These are, duty, breach, injury and causation. If you have been treated by a health care provider a duty is created. That duty has been described in many ways but simply put, the health care provider owes the patient a duty to act as a reasonably competent physician would act under the same or similar circumstances. Doctors have the duty to meet the applicable "standard of care". In Indiana the standard of care is defined for the jury by an instruction from the court. The most common definition used in Indiana is: "A health care provider commits an act of malpractice when the health care provider fails to exercise the degree of reasonable care and skill in providing health care to a patient as would a reasonably careful, skillful and prudent health care provider acting under the same or similar circumstances. The malpractice may consist of doing something that the health care provider should not have done under the circumstances, or the failure to do something that the health care provider should have done under the circumstances."

The standard of care does not require perfection, or even a satisfactory
outcome from the medical care. It is not established by looking into a medical book or journal. It is not necessarily based on the best way to do a particular thing when there are other accepted methods. It is not based on what the injured patient believes should have been done and in fact the injured party is not likely going to be asked whether the doctor met the standard of care. This standard of care is established through the opinions of other doctors. If you were to ask several doctors whether another met the standard of care in a given situation, you will often get differing opinions. The general rule is as follows: in order for a patient to establish that a health care provider has breached the duty to the patient by failing to meet the applicable standard of care requires that the patient establish this fact through expert testimony. The standard of care is a very elusive concept, and ultimately it is decided in any given case by a jury hearing the differing expert opinions and deciding which one(s) they believe to be correct.