Frequently Asked QuestionsThis page contains a list of frequently asked questions about medical malpractice. Use the hyperlinks below to go directly to that question, or scroll down the page to view all questions. If you have a question that is not answered here, please email us and we will add it to the list. If you think you have a medical malpractice claim, please use the claim questionnaire link at the left.
Medical Malpractice is substandard medical care. It is healthcare which violates medical standards. In order to commit malpractice, a doctor must do something that no competent physician would have done. Or, the doctor must fail to do something that any competent physician would have done.
It is important to note that a bad outcome is not necessarily medical malpractice. Every medical procedure has a certain risk, even if done properly. A bad outcome from a medical procedure may be just one of those unfortunate results.
The direct answer is that you don't know unless you have the case evaluated by a doctor. In order to succeed in a malpractice claim, you must prove liability, damages and causation. Liability means that the health care provider who treated you must have violated medical standards. Damages means that you must have suffered serious economic damage or substantial physical injury. Causation means that the damages must have been caused by the substandard medical treatment. All three of these elements must be proven by expert testimony.
Medical standards define the correct medical response to a given situation as generally recognized by competent physicians. There is no one book or list that describes medical standards. Medical standards can be found in medical text, medical journals and are taught in medical and nursing schools. Competent physicians may have different views on what the medical standards are. Furthermore, medical standards change over time as medical procedures change.
In general, you have two years from the date of the malpractice to bring a lawsuit. However, the time for bringing a claim may be extended if the malpractice continues over a period of time. It may also be extended if the healthcare provider conceals the malpractice. This can be a complicated issue and requires a review by an attorney. Young children have either two years or until their eighth birthday to bring a malpractice claim, whichever is later. It is good advice to bring your medical malpractice lawsuit as soon as possible.
There are a number of information sources about doctors. The American Medical Association has a site on the internet entitled "Physician Select." www.ama-assn.org/aps/amahg.htm. It will tell you about a doctor's education, training and background, his specialty, and the type of practice that he has. It does not contain any information about any sanctions or disciplinary actions against the doctor.
Another web site on the internet entitled Medinet www.askmedi.com will give you information concerning any disciplinary action or sanctions by any State Medical Licensing Board, Health and Human Services with respect to Medicare or Medicaid fraud, or the DEA on prescription abuses. It is a commercial service and charges a fee.
The Indiana Department of Insurance has information on all medical malpractice claims against registered doctors since 1976. You can check on your doctor by calling 317-232-5430.
A word of caution: don't jump to any conclusions just because your doctor has had a medical malpractice claim. Most doctors have had some sort of claim brought against them. The number of claims depends on how long the doctor has been in practice and what his or her specialty is. Some specialties are more subject to claims than others. If, however, you see a pattern of a number of claims, it may raise questions about your doctor.
Maybe, but not just because he or she did something wrong. You must also show damages caused by the wrongful act. If you did not have any adverse consequences, you may not have any damages. If someone ran a red light and almost hit your car, you couldn't sue that person for the damages that they almost caused. Similarly, you can't sue a doctor for damages that he almost caused.
It depends. You do not have a lawsuit simply because the doctor missed the diagnosis. You have a claim only if your condition was such that any competent physician would have made the diagnosis. You need to have a doctor review the case and agree to testify as an expert to establish that.
Second, you have to prove that you suffered some harm because of the delay in the diagnosis. In order to establish harm from a delay in the diagnosis, you must show you lost some effective treatment option because of the delay. The length of the delay in the diagnosis will obviously affect this.
Most doctors don't like medical malpractice claims and some doctors won't help patients bring those claims. But there are a number of good doctors who respect patients' rights and will support legitimate claims. Also, there are commercial services that locate doctors who are willing to review medical malpractice cases for a fee. In the past, it was difficult to find a doctor willing to review a case and testify for a plaintiff. That is not necessarily true anymore. Over the past twenty years, we have worked with a number of physicians, and we can find experts whose opinions we trust, who will review a case.
If you received poor medical care, but fortunately didn't suffer any damages, or you felt that the treatment was rude and insensitive but not malpractice, there are a number of ways to bring your complaint. If the care took place at a hospital, you can call or write to the risk manager and credentials committee of that hospital and explain your complaint. If the treatment was at a doctor's office, you may want to write the other doctors who practice with that doctor and tell them what happened. Doctors in a medical practice really have very little information about how their partners are treating their patients. If you write to the other physicians in that group, they are likely to address your concerns. The Indiana Attorney General’s office will investigate wrongdoing by a doctor even if it does not constitute malpractice.
Maybe, but it happens very infrequently. Most doctors and healthcare providers are honest, reputable professionals who simply wouldn't alter medical records. Furthermore, it is often difficult to alter medical records because the information may be in several different places and can be cross-checked. For example, in a hospital, there will not only be doctors' notes, but nurses' notes as well. There will also be billing information. The same is often true of a doctor's office records.
While alteration of records is rare, we are always aware of its possibility, and we carefully review records to look for inconsistencies that indicate an alteration.
Under the Indiana Medical Malpractice Act, all medical malpractice claims against providers who elect coverage under the Act must be reviewed by a medical review panel before the claim can be filed in court. The procedure is for the patient to select a doctor on the panel; the defendant-doctor selects a doctor on the panel; and those two doctors select a third doctor to serve on the panel. There is also an attorney who is chairman of the panel, who does not vote, but organizes the information and sets up the meetings. The attorney/chairman also instructs the doctors in applicable law.
The patient and the defendant health care provider each give the panel members a submission supporting their case. A submission is a booklet written by parties or their attorneys. It may contain medical records, statements from the patient, copies of medical textbooks, depositions, etc. The panel members are also entitled to get any other information that they need to form an opinion about the merits of the case.
No. The panel forms an opinion as to whether or not the evidence supports the medical malpractice claim, but the panel does not decide the case. The patient still has the right to go to court, and the defendant doctor still has the right to defend the case, regardless of the panel opinion. However, the panel's opinion is admissible in a trial. Juries find the panel opinion very persuasive. As a practical matter, most malpractice claims are resolved on the basis of the panel’s report.
Every medical malpractice claim is different, and it is difficult to determine the exact value. The ultimate answer is that your claim is worth whatever a jury will award you.
Factors that go into determining the value of a claim include:
There are summaries of claims paid by the Indiana Department of Insurance that briefly describe the damages. These summaries are used much like "comps" in real estate transactions. They don't give you an exact number, but in finding cases that are similar, you can determine the range of a claim.
Yes. Under the Indiana Medical Malpractice Act, I.C. 34-18-14-3, you are limited to recover the following amounts:
For claims before January 1, 1990 $500,000
For claims after December 31, 1989
and before July 1, 1999 $750,000
For claims on or after July 1, 1999 $1,250,000
Most patients retain malpractice attorneys on contingent fees. A contingent fee is one that is paid out of a recovery on the case. If there is no recovery, there are no attorney fees due. If there is a recovery, the attorney fee is a percentage of the amount recovered. There is no statutory limit on the attorney fees on the first $100,000 of recovery. There is a limit of 15% of any amount over $100,000. On the first $100,000, most attorneys use a sliding scale to establish that the total attorney fee is not more than 33.33% of the gross recovery.
Call our office and speak to a nurse or paralegal. They will take the information from you about your case and talk to a lawyer. They will then get back to you, and if the attorney thinks that you have a claim, we will set up a meeting to discuss the case in more detail. At that time we will get authorizations to get your medical records. We will collect all of your medical records, get them organized and send them to a doctor or other medical expert for review. Once the doctor or medical expert has looked at the case, we will meet with you and tell you whether or not we recommend that you pursue a medical malpractice case.
No. There is no such thing as a "nuisance settlement" in medical malpractice litigation. There is either a substantial claim with legitimate liability, or there is no claim. Doctors don't settle claims that they believe do not have merit, because all medical malpractice cases have to be reported to the National Practitioners Data Bank in Washington, D.C. This is a computer record of all doctors' malpractice claims. It affects the doctors' insurance premiums, and may affect their right to practice in hospitals. It follows them through their entire careers. The doctors are, therefore, reluctant to settle any claims, and don't settle claims that they believe are not meritorious.
The patient's compensation fund is administered by the Indiana Department of Insurance. The purpose of the fund is to compensate victims of medical malpractice. Under the Indiana Medical Malpractice Act, the defendant-doctor and his insurance company are responsible for the first $100,000 (or $250,000 if the malpractice occurred after 7/1/99) of damages. Damages over $100,000 (or $250,000 if the malpractice occurred after 7/1/99) up to the maximum are paid by the patients compensation fund, which is administered by the Indiana Department of Insurance. The patient's compensation fund is funded by a surcharge that health care providers pay on insurance premiums.
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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