Defining Medical Malpractice
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This memorandum will give you a general overview of medical malpractice law in Indiana and describe how malpractice claims are brought. |
Under Indiana law, a patient who is injured by a doctor's or other healthcare provider's substandard care has a right to compensation for injuries. Substandard medical care is care which violates medical standards. The law presumes that there are certain medical standards which direct how a health care provider should react to a given situation. Those medical standards are not contained in any one book or list. They are generally recognized by competent physicians and health care providers, described in medical journals and medical text, and taught in medical schools.
In order to have a medical malpractice claim, you must have: liability, damages and causation.
Liability means that the health care provider must have violated accepted medical practices.
Damages means that you must have suffered physical injury or economic loss.
Causation means that the damages that you have suffered must have been a result of the substandard medical treatment.
It is important to note that a bad outcome from a medical procedure is not necessarily malpractice. There are risks associated with all medical procedures -- even when they are done properly. A doctor is responsible for a bad outcome only if it is the result of substandard medical treatment.
It is very important that potential medical malpractice claims be investigated and reviewed by experts familiar with the area of medicine involved. It is the policy of our firm to have all cases reviewed prior to bringing any lawsuits. We generally begin our contact with the client in a phone conversation. In that phone conversation a nurse or paralegal takes detailed information about the claim. That claim is then discussed with an attorney who makes an evaluation as to whether or not the case should be investigated.
If the case should be investigated, the client comes to the office for a conference with the attorney. In that conference, the attorney gets additional information about the claim, explains the procedure behind bringing a claim and answers any questions. In addition, authorizations for release of medical records and a representation agreement may be signed. Our firm then collects all of the medical records. The records are organized by a paralegal and a physician is hired to review the records and express an opinion. Once the health care provider has expressed an opinion as to whether there is a legitimate claim, we meet again with the clients to explain the recommendation, and to help the client make a decision to go forward with the claim or not.
Medical malpractice lawsuits in Indiana are controlled by the Indiana Medical Malpractice Act . Under the Act, all medical malpractice claims must be reviewed by a medical review panel before the claim can be filed in court. This process is begun when the plaintiff files a "proposed medical malpractice complaint" with the Indiana Department of Insurance. The Department notifies the defendant-doctor and the doctor's insurance carrier of the proposed claim. A defense attorney is hired by the insurance company to defend the claim.
The parties then form the medical review panel. The patient selects one doctor to serve on the medical review panel. The defendant-physician selects a second doctor to serve on the panel. Those two doctors then pick a third member of the panel. An attorney serves as a non-voting chairman of the panel. The parties then have the right to take depositions or ask questions of the other side. The parties prepare medical malpractice submissions. These are booklets in which the parties describe their cases. The submissions may contain medical records, statements from the parties, depositions, expert reports, medical text, medical journal articles, etc.
The members of the panel review the submissions, and the parties have the right to question the doctors about their view on the case. The medical review panel then expresses an opinion as to whether the evidence supports the plaintiff's complaint. The opinion of the panel does not decide the case. The plaintiff has the right to go to court, and the defendant-doctor has the right to defend the case, regardless of the panel opinion. However, juries find the panel opinion very persuasive. As a practical matter, most cases are resolved on the basis of the medical review panel opinion. However, in some cases we might feel that medical review panel members seem to be protecting a doctor against a legitimate malpractice claim. Under those circumstances, we recommend that plaintiffs proceed to trial in spite of a negative panel opinion.
Under the Indiana Medical Malpractice Act, the defendant-physician and the insurance carrier are responsible for the first $100,000 of damages. If the malpractice occurred after 7/1/99, that liability becomes $250,000. If the defendant agrees to a settlement, that amount is usually paid as a structured settlement. The structured settlement would pay out a total of $100,000, but would only have a cost of $75,000. If the malpractice took place after 7/1/99, those numbers grow to $250,000 and 187,000, respectively. If there is a settlement, the liability on the claim is established. The patient then has the right to go to the Indiana Department of Insurance to have his additional damages paid from the patient's compensation fund. The maximum amount the fund may pay is $650,000 (or $1,000,000 if the malpractice took place after 7/1/99). The patient and the Department of insurance try to reach an agreement on the damages. If that is not possible, the patient has the right to have a judge decide how much additional compensation is due.
Most medical malpractice cases are resolved without a trial. They are either dismissed or settled. In some circumstances, however, the case must go to trial. It is tried just like any other lawsuit, in court in the county where the events occurred. The jury would consist of six members. Medical malpractice cases are extremely expensive to try because of the need for expert witnesses who must be paid fees. If a plaintiff receives a verdict against a health care provider, the first $100,000 (or $250,000 if the malpractice occured after 7/1/99) is paid by the insurance carrier for that health care provider. The rest of the damages are paid from the patient's compensation fund, up to the maximum allowed by law.
Almost all medical malpractice cases are litigated on a contingent fee basis. A contingent fee is one that is paid out of any recovery. The amount is a percentage of the recovery. If there is no recovery, there are no attorney fees due. The Indiana Medical Malpractice Act puts a limit of 15% on attorney fees from the patient's compensation fund.
In addition to the attorney fees, there will be litigation expenses involved in bringing a lawsuit. Litigation expenses are monies that need to be paid in order to bring the lawsuit. For example, there is a charge for getting medical records. There are also the court reporter costs if depositions are taken. The medical experts who review the case must be paid fees. If the case goes to trial, there will be additional expenses for expert witnesses, blow-ups, models or other evidence to show the jury. Our law firm often advances the litigation expenses. They are paid back out of any recovery.
Members of the Indianapolis Bar
Association, the Association of Trial Lawyers of America (ATLA),
the Indiana Trial Lawyers' Association (ITLA), and the American Society of Law and
Medicine (ASLM).
Certified by the National Board of Trial Advocacy (NBTA) in civil litigation.
Miller Muller Mendelson & Kennedy
8900 Keystone Crossing, Suite 1250
Indianapolis, Indiana 46240
317-574-4500 1-888-599-2640 317-574-4501(fax)
homepage: www.millermuller.com
email comments or questions about this web site to: mmmk@millermuller.com
If you think you have a medical malpractice claim - use the Claim Questionnaire
link on the left.
Miller Muller Mendelson & Kennedy
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