Medical Malpractice

 

In Indiana, medical malpractice is a complex area of the law. Medical malpractice occurs when treatment, lack of treatment, or other departure from accepted standards of medical care causes harm to a patient. Examples of medical malpractice include misdiagnosis, improper treatment, failure to treat, delay in treatment, failure to perform appropriate follow up, prescription errors, etc. In many instances, medical malpractice is not obvious to a lay-person and requires review and analysis by medical experts.

FAQ’s

  • Although each medical malpractice case is unique in terms of the specific set of facts involved in the case, the claim for malpractice against a person’s treating physician requires plaintiff’s to show four things: 

    1. A duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise.
    2. A breach of the duty.
    3. A proximate causal connection between the negligent conduct and the injury.
    4. Resulting loss or damage.

    It is important to note that in Indiana, proving that a breach of a duty occurred generally requires a medical expert, from the same specialty as the individual who you have brought your claim against, to testify that there was a violation of the standard of care.   This means you will likely need a doctor to support your case. 

  • Simple Answer: In Indiana an action or failure to act by a healthcare provider that causes harm to a patient. 

    Legal Answer:  A breach of the standard of care by the healthcare provider, which proximately causes injury to a patient. 

    This can take many forms, which would be too voluminous to list here but some examples include:

    • Misdiagnosis
    • Improper treatment
    • Failure to treat
    • Delay in treatment
    • Failure to perform appropriate follow up
    • Failure to refer to specialist
    • Failure to diagnose
    • Medication errors
    • Failure to follow physician orders
    • And more…

    Often a lay person is not aware that malpractice occurred but is aware that something went wrong.  Thus, a medical expert is required to review the file to determine whether malpractice was actually committed.

  • A medical review panel is a required panel of three physicians who will review the case, as submitted by the plaintiff and the defendant, and determine whether they believe a breach of the standard of care occurred and whether that breach led to damages.   The medical review panel is generally made up of three physicians who hold the same board certification as the physician you have brought a claim against.

  • Attorney’s fees are charged on a contingency fee basis.   This means that if we do not make a recovery for you, you do not have to pay us for our time.    The contingency fee allowed to be charged in medical malpractice cases is set by law and for cases of malpractice occurring after June 30, 2017, Indiana medical malpractice attorneys fees are capped at 32% of any recovery when bringing a claim against a Qualified Healthcare Provider (which is a doctor or any other medical facility or provider, which is protected by the Indiana Medical Malpractice Act).

  • No.  A physician or healthcare provider cannot ask you to consent to their negligence.  It is true that the practice of medicine is more of an art than a science and bad things do happen without negligence or malpractice.  However, if you suspect that you have been a victim of malpractice, you should contact a qualified medical malpractice attorney to review your claim.

  • To initiate a medical malpractice claim, a plaintiff must file a Proposed Complaint with the Indiana Department of Insurance.  This is a specific process unique to Indiana medical malpractice.  Prior to filing a proposed complaint, we highly suggest that an individual consult with a qualified attorney to review the matter and conduct a thorough investigation into whether malpractice has in fact occurred.  

  • The Indiana Medical Malpractice Act dictates what must be done in a medical malpractice action.   This law provides special protections for doctors, hospitals, and other medical professionals, which forces plaintiffs to complete several steps not normally required in a typical negligence case, spend years litigating, and expend tens of thousands of dollars to bring their claim and get it to trial.

    Generally it takes about 1-3 years to go through the medical review process, which must be completed prior to filing your claim in state court and proceeding towards a jury trial. 

  • After the medical review panel meets and renders its opinion, we are allowed to speak with the physicians that sat on the panel to determine the basis for their decision.  At that time, we will reassess the case and determine how to best proceed.  You must be aware that you have to have at least one physician or one medical professional supporting your case and willing to testify that a breach of the standard of care occurred and that it led to damaging the plaintiff.  If you do not have an expert supporting your case, you will not be able to bring your case to trial.    The medical review panel is a great place to find an expert who will support your case for a relatively low amount of money.  However, plaintiffs can hire an outside independent export to support their case as well.

  • Generally a victim of medical malpractice has 2 (two) years within which to bring their claim.  There are exceptions to this rule under limited circumstances and you should contact a qualified medical malpractice attorney to determine whether you can bring a medical malpractice claim. You should always seek the counsel of qualified medical malpractice attorney as soon as possible after you believe an act of malpractice occurred so that you are not barred from bringing your claim.

Most People Don't Know They Can Research Their Physician and Medical Malpractice Claims

The Indiana Department of Insurance (IDOI) a branch of IN.GOV has many forms of education to help protect consumers regarding medical insurance and medical malpractice.  https://www.in.gov/idoi/2614.htm

A dedicated Medical Malpractice division has been created to oversee the qualification of health care providers and maintain files of medical malpractice actions as well as received proposed complaints. 

This database may assist you in making informed decision about the providers you choose for healthcare.  This is a public service for informational purposes.   Choose Search For Health Care Provider” at:   https://www.indianapcf.com/Public/index.aspx

Medical Malpractice happens more often than people think. In a 2004 survey conducted by the Kaiser Family Foundation, where individuals were asked how many Americans they believe die each year as a result of preventable medical errors, most (49%) responded less than 5,000, 18% responded 50,000, but only 14% indicated that they thought more than 100,000 people die each year as the result of a potentially preventable medical error. In November of 2010, a study conducted by the Office of Inspector General estimated that every month, 15,000 Medicare beneficiaries experience a potentially preventable medical error that contributes to their death.

If you or a loved one have been the victim of medical malpractice, we can help. Medical malpractice claims are challenging, lengthy, and expensive. We have the knowledge, experience, resources, and dedication to pursue your case.

 Experienced Medical Malpractice Attorneys

Michael J. Anderson

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Peter J. Agostino

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Michael P. Misch

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Loris P. Zappia

Attorney

Stephanie L. Nemeth

Attorney