Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.
A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.
Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,
Failure to diagnose a medical condition or disease,
Misdiagnosis of a medical condition or disease,
Failure to provide medically appropriate treatment,
An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;
Mistakes in the prescription or dosing of medication.
Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.
Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.
Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury. In rare cases, the level of misconduct may rise to the level that a victim of malpractice can recover punitive damages against the defendant.
Indiana has imposed a cap on damages in malpractice cases of $1,250,000 for all damages, without regard to the severity of a patient's injuries. Physicians are liable for no more than $250,000 in damages to an injured patient, with any balance to be paid through the Indiana Patient Compensation Fund.
Joint and Several Liability
When more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance.
The Collateral Source Rule
Under the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages. Indiana has abolished the collateral source rule, and permits evidence of both the amount billed to the plaintiff and the amount paid by the plaintiff to be presented to a jury in order to determine the reasonable value of medical services received by the plaintiff.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In Indiana, the limitations period is two years from the date of the allegedly injurious act, omission or neglect. Minors under the age of six may file a malpractice action until their eighth birthday.
Additional rules affecting malpractice litigation in the State of Indiana include:
Limits on Attorney Fees
Attorney fees on any portion of an injured plaintiff's damages that are paid from the state's Patient Compensation Fund are capped at fifteen percent of the amount recovered from that fund.
Medical Review Panels
In Indiana, a medical malpractice action may not be filed until after it has been submitted to a medical review panel, and an opinion has been issued by the panel. The panel must issue a report within thirty days of its examination of its review of the case and evidence, with findings as to whether the evidence does or does not support a finding that the defendants did not comply with the governing standard of care, whether there are any issues of fact not requiring expert opinion for consideration by a judge or jury, and whether the conduct complained of was a factor in the plaintiff's damages. Where a plaintiff is found to be damages by the negligence of the defendants, the report must include findings as to the extent and duration of any disability, and whether permanent impairment resulted from the injury and the percentage of the impairment. The report is admissible as evidence in any subsequent malpractice litigation, but is not conclusive as to either liability or damages.
Medical Expert Witness Restrictions
Indiana does not impose any special restrictions on the admissibility of expert testimony in medical malpractice cases.
An apology law prevents a plaintiff from using an apologetic or concilatory statement made by a defendant as evidence of the defendant's liability. In Indiana, a statement of sympathy, an apology, or evidence of a general sense of benevolence is not admissible as evidence in a malpractice case. However, a statement of fault may be admitted into evidence even if it is part of a communication of sympathy.
If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.