Indiana Medical Malpractice Attorney Blog: Medical Malpractice Archives

Recently in Medical Malpractice Category

June 25, 2010

Tort Reform and Indiana Medical Malpractice Law

MM first aid.jpg Since the recent Gulf oil spill there has been some discussion among the public and members of the US government about the $75,000,000 liability cap placed on oil companies for damages they cause due to deepwater spills. Congress is now re-examining the cap on such damages and trying to retroactively remove them or raise the limit to a mere $10 billion. This arbitrary cap previously enacted into law is an example of one aspect of what is commonly referred to as "tort reform". The term "tort reform" is placed in quotation marks to indicate that while it is the common term for such measures, the term itself is intentionally misleading. It was invented as a strategy to engender public support for legal measures which by their very nature reduce the rights of the members of the public for the benefit of various business interests.

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.

Continue reading "Tort Reform and Indiana Medical Malpractice Law" »

Posted by Wilson Kehoe & Winingham | Permalink | Email This Post

Posted In: Medical Malpractice

October 26, 2009

Recent report says $800 billion a year wasted in US health care system

A recent report released by Thomson-Reuters indicates that a staggering $800 billion is wasted every year in the U.S. health care system due to inefficiency, fraud, medical mistakes and lack of preventative care.

The report claims that doctors routinely overprescribe antibiotics and order unneccesary tests to protect from malpractice liability, a behavior which accounts for $200 to $300 billion of the wasted funds. Fraud also makes up a substantial portion and accounts for almost $200 billion a year. Administrative inefficiency and redundant paperwork account for up to 18 percent of the total.

The report also states that medical mistakes account for $50 to $100 billion of the total. Medical mistakes may not necessarily be classified as medical malpractice but can cost patients and insurance companies substantial amounts of money in treatment that would have been otherwise unnecessary.

The overall conclusions of the report found that U.S. hospitals spend nearly twice as much as comparable Canadian hospitals on administrative costs and demand more time from doctors who spend an average of eight hours each week on paperwork instead of attending to patients.

As medical malpractice attorneys in Indiana, we have also seen several recent articles which have identified "fee for service reimbursement" as a primary motivator underlying this waste. In other words, heath care providers' bottom lines are dependent primarily on how much "medicine" they deliver as opposed to how well the patient does. Thus, much of the identified waste is overutilization which may be rationalized as defensive medicine so as not to question the physician's motivations. True fraud requires dishonest intent. Waste rationalized as "defensive medicine" effectively diminishes or removes any dishonest intent and replaces it with a rational fear of a litigation system run amok.

Continue reading "Recent report says $800 billion a year wasted in US health care system" »

Posted by Wilson Kehoe & Winingham | Permalink | Email This Post

Posted In: Medical Malpractice

September 21, 2009

On Indiana's Medical Malpractice Caps

A recent court decision and $8.5 million jury award may put the question of Indiana's stringent medical malpractice award limits to the test.

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.

According to Injuryboard.com, thirty-two states have some kind of damage cap in medical malpractice cases. Alaska, Florida, Ohio and Massachusetts have caps that can be waived or increased in severe cases. Two states cap only wrongful death cases. Four states have a $250,000 general award cap, four states have a total damages cap, eighteen states have non-economic damages caps between $250,000 and $500,000, and four states have damages caps that exceed $500,000.

Continue reading "On Indiana's Medical Malpractice Caps" »

Posted by Wilson Kehoe & Winingham | Permalink | Email This Post

Posted In: Medical Malpractice

August 27, 2009

Medical Malpractice Deaths

Are you safer on the highway or lying in a hospital bed?

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.

Since health care is now such a huge story, this may be the time to revitalize this discussion.

Posted by Wilson Kehoe & Winingham | Permalink | Email This Post

Posted In: Medical Malpractice

July 6, 2009

Indiana Medical Malpractice Law: an Overview (part 5)

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

● 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 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) " »

Posted by Wilson Kehoe & Winingham | Permalink | Email This Post

Posted In: Medical Malpractice

July 5, 2009

Indiana Medical Malpractice Law: an Overview (part 4)

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.

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.

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)" »

Posted by Wilson Kehoe & Winingham | Permalink | Email This Post

Posted In: Medical Malpractice

July 3, 2009

Indiana Medical Malpractice Law: an Overview (part 3)

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)" »

Posted by Wilson Kehoe & Winingham | Permalink | Email This Post

Posted In: Medical Malpractice

July 1, 2009

Indiana Medical Malpractice Law: an Overview (part 2)

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.

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.

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)" »

Posted by Wilson Kehoe & Winingham | Permalink | Email This Post

Posted In: Medical Malpractice

June 29, 2009

Indiana Medical Malpractice Law: an Overview (part 1)

Medical malpractice claims (medical negligence) are in large part controlled by statute in Indiana. In 1975, the Indiana General Assembly passed the Indiana Medical Malpractice Act with the intended purpose of limiting both the number of lawsuits brought by patients against doctors and to reduce the amount of damages paid out to successful claimants. Under this Act, malpractice is defined as "a tort or breach of contract based on health care or professional services that were provided, or should have been provided, by a health care provider to a patient."

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.