Free Indiana Medical Malpractice FAQs | Free Indiana Medical Malpractice Legal Documents

What Happens If I Am Injured In The Course Of Medical Treatment?

Tue, 29 May 2007 21:19:00 GMT

If a medical professional makes an error that results in injury to the patient, the patient may be able to sue the negligent party or parties for monetary damages to compensate him or her for the medical injury. Medical malpractice claims arise when a health care professional or organization provides unskilled or negligent treatment that results in injury to the patient. Indiana law defines a malpractice action as a tort or breach of contract based on health care or professional services that were provided, or that should have been provided, by a health care provider, to a patient.

The underlying basis for a medical malpractice claim is that you sustain an injury as a result of treatment that falls below the accepted standard of medical care for that particular field of professional expertise. Some examples of medical malpractice include incorrect diagnosis or failure to diagnose, failure to treat, improper treatment, delay in treatment, prescription errors, surgical errors, foreign object left in the body, failure to properly monitor a patient, failure to order necessary tests, birth injuries, rendition of services without informed consent, etc.

How Do I Know If My Injury Constitutes Medical Malpractice?

Tue, 29 May 2007 21:19:00 GMT

Medical professionals are not expected to be infallible and there may be poor results from treatment that do not amount to malpractice. Medical professionals are expected to exercise the basic knowledge, skills, and care ordinarily possessed and exercised by other members of the profession acting under similar conditions and circumstances. This basic knowledge and skill is called a standard of practice, or standard of care. When a medical professional treats a patient and fails to use this basic knowledge, skill, and care whether the failure consists of doing something incorrectly, or failing to do something that should be done, that failure is a deviation from the standard of practice or care.

The injured party has the burden of proving that the health care provider negligently failed to meet the applicable professional standard of care for that health care provider. That means the health care provider failed to act as a reasonably prudent health care provider in Indiana would under similar circumstances. Health care providers are judged in comparison with similarly trained and qualified providers of the same class in the same community and in the same field of medical specialization. Likewise, a hospital owes their patients a duty of ordinary care to provide equipment and facilities reasonably suited to the intended uses and such as are in general use in similar hospitals under similar circumstances. The injured patient must then prove that the health care provider`s breach of the standard of care was a proximate cause of the injuries to the patient. In other words, there must be a close connection between the action of the health care provider and the harm to the patient. Finally, you have to show what damages resulted form the alleged mistake. This may include medical bills, lost wages, pain and suffering, etc.

Expert testimony is necessary to establish what the standard of care is and whether the defendant has conformed to it, unless the issue of care is one commonly understood by laypersons. Under the Medical Malpractice Act, a medical review panel must review all claims before the claim can be filed in court. The panel expresses an opinion as to whether the evidence supports the plaintiff`s proposed complaint. The plaintiff may file a lawsuit regardless of what the panel finds. The panel`s report is admissible as evidence in any subsequent action, but is not conclusive. Any member of the panel can be required to testify as an expert at trial.

Most medical malpractice actions in excess of $15,000 in Indiana are brought under the terms of the Medical Malpractice Act. This act governs actions against qualified providers, which refers to participants in the statesponsored excess insurance program. Not all health care providers participate, however. It is therefore important to distinguish between laws that apply to cases brought under the Medical Malpractice Act and those that apply in other cases. In cases brought under the Medical Malpractice Act, contributory negligence is held to be a complete defense that bars any recovery by plaintiff. In other cases, the Comparative Fault Act provides for a modified form of comparative negligence. Recovery is barred if the claimant`s fault exceeds 50 percent of the total fault. However, the Comparative Fault Act does not apply to tort claims against governmental entities or public employees. Medical malpractice claims are very difficult to prevail in and are also extremely expensive partly due to the need for qualified expert review and testimony. Whether or not you have a good case depends on the professional judgment of attorneys and medical experts. If you are told that you do not have a case with merit, you should seek another opinion from one or more other attorneys.

Is There A Time Limit In Which I Need To File A Lawsuit For Medical Malpractice?

Tue, 29 May 2007 21:19:00 GMT

The law requires that you file a lawsuit within a specified period of time depending on the nature of the claim and the entity that caused your injury. This is referred to as the statute of limitations. Failure to file suit within this time frame prevents you from filing suit at all. In some instances, there are various exceptions to the statutes of limitation that may extend or limit the limitation periods. There may be special claims presentation requirements for claims against state and local government. For example, claims are barred unless notice is filed with the state within 270 days of the loss or with a political subdivision within 180 days of the loss. For these reasons, it is important to consult an attorney as early as possible to be sure you don`t miss a crucial deadline.

According to statute, a medical malpractice action for personal injury or death must be filed within two years from the date of the alleged act, omission, or neglect. A minor under the age of six has until his eighth birthday to file a lawsuit. Legal disability does not toll the medical malpractice statute of limitations.

Unlike most medical malpractice statutes of limitations, the Indiana law measured the limitations period from the time of treatment and not from the moment of reasonable discovery. The Indiana Supreme Court found the twoyear statute of limitations unconstitutional as it applied to a victim of undiagnosed breast cancer and held that it cannot be constitutionally applied in cases where the long latency period of a medical condition prevents the injured party from discovering the malpractice within two years. When this exception applies, the claimant may file within two years of the discovery of the malpractice and resulting injury; or when it reasonably should have been discovered.

Who Can Be Held Accountable For The Medical Malpractice?

Tue, 29 May 2007 21:19:00 GMT

Generally, a medical malpractice claim can be brought against a licensed health care provider. This can include a person, corporation, facility or institution licensed by the state to provide health care or professional services, or an officer, employee, or agent thereof acting in the course and scope of his employment. A claim can be brought against physicians, dentists, nurses, therapists, technicians, hospitals, and pharmacists, among others. A physician commits medical malpractice if he fails to act in the same manner a reasonably prudent physician in the same field of medicine would act under the same circumstances. Nurses, therapists and other health care providers, and the hospitals or clinics they work for, can be held responsible for their failure to meet accepted standards of care in their particular field.

In Indiana, a hospital may be held liable for the acts of its independently contracted physicians under certain circumstances. It depends upon the reasonableness of the patient`s belief that care was being provided by hospital employees. In general, a hospital will be deemed the provider of care unless it gives notice that the physician is an independent contractor or the patient had knowledge of the physician`s independence. Indiana provides sovereign immunity in many cases to governmental entities and their employees acting within the scope of their employees. This applies to city or county hospitals, state colleges and universities.

Does Signing A Consent Form Waive My Rights To File A Lawsuit For Medical Malpractice?

Tue, 29 May 2007 21:19:00 GMT

Signing a consent form in and of itself does not waive your rights. It is possible that the consent form does not contain all of the relevant information that it should or it may have been signed without adequate explanation. Even if you signed a consent form, you did not consent to substandard medical care. A doctor`s failure to meet the acceptable standard of care is not the same as consenting to the normal risks of a procedure.

According to Indiana law, informed consent is created if a patient`s written consent is signed by the patient or the patient`s authorized representative; witnessed; and explained, orally or in the written consent, to the patient or representative before the procedure is undertaken. The explanation must include the general nature of the patient`s condition; the proposed procedure, etc; the expected outcome; the material risks; and the reasonable alternatives. A patient is not prevented from withdrawing the consent and the consent does not have to be in writing in all cases.

How Much Can I Expect An Attorney To Charge To Handle A Medical Malpractice Case?

Tue, 29 May 2007 21:19:00 GMT

Most attorneys who believe a case has merit will take the case without payment up front. They will take the case on a contingency basis, which means they will receive a percentage of your award if and when you recover for your injuries. Contingency fees average between 25 and 40 percent. For medical malpractice cases against qualified providers, there is a limit of 15% of any recovery from the Patient Compensation Fund. This means 15% of any recovery over $250,000 for malpractice that occurs after July 1,1999 or 15% of any recovery over $100,000 for acts that occurred prior to July 1,1999. If you and your attorney agree to a contingency fee, the attorney must put the agreement in writing and provide you with a signed copy.

Out of pocket expenses include such things as filing fees, deposition fees, expert witness fees, exhibit costs, copying charges, and other similar expenses. The attorney`s out of pocket costs are, in many cases, not included in the attorney`s fees. You should be sure to pay attention to how an attorney will bill you for costs. In a medical malpractice case, these expenses can be quite high. Many attorneys will decline a case unless there is potential for a substantial verdict or settlement.

What Is The Patient Compensation Fund?

Tue, 29 May 2007 21:19:00 GMT

The Indiana Medical Malpractice Act establishes a Patient Compensation Fund that functions as a system of excess insurance for health care providers. A qualified provider establishes financial responsibility by purchasing malpractice liability insurance. Effective July 1, 1999, required limits for physicians and hospitals are $250,000 per occurrence. The maximum liability of a qualified provider for an occurrence is limited to the amount of required insurance. The Patient Compensation Fund is liable for the excess over what is owed by all the qualified providers, up to an overall damage cap.

What Damages Can Be Recovered For Medical Malpractice?

Tue, 29 May 2007 21:19:00 GMT

As a victim of medical malpractice, you can sue for your injuries and all of the direct consequences of those injuries. You can recover your actual economic losses such as the costs of reasonable and necessary medical care, rehabilitative services, costs of domestic services, and loss of earnings. The law allows compensation for future medical and care expenses that the claimant can prove will be reasonably necessary to treat the injury caused by the malpractice. The claim may include income the claimant can prove will probably be lost in the future because of the injuries. Loss of earning capacity is also allowed when the patient proves he or she is less able to earn a living as a result of the injuries caused by the malpractice.

You are also entitled to noneconomic damages for physical pain and suffering, mental and emotional suffering, physical impairment, inconvenience, disfigurement, loss of enjoyment of life, loss of consortium (disruption of your personal relationship with your spouse), etc. There is no definite standard of calculating reasonable compensation for these types of damages other than being just and reasonable in light of the evidence.

In certain instances, damages may be awarded to families of injured claimants for loss of care, companionship, love and affection. Family members can be compensated for the wrongful death of a loved one. These damages may include medical and burial expenses, loss of income that would have supported the family members, emotional suffering, and loss of the pleasures of the family relationship.

Before a person may recover punitive damages in any civil action, that person must establish, by clear and convincing evidence, all of the facts that are relied upon by that person to support the recovery of punitive damages. A punitive damage award may not be more than the greater of three times the amount of compensatory damages awarded or $50,000. In most cases, the claimant only receives 25% of the punitive damage award. The remainder is deposited into the violent crime victims compensation fund.

For claims brought pursuant to the Medical Malpractice Act, there is a limit on the amount of damages that may be awarded. 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 Patient Compensation Fund is $1,250,000. The recoverable award for malpractice that occurred before July 1, 1999 would be $100,000 for each qualified provider and $750,000 against all qualified providers and the Fund. If a qualified provider is found liable solely due to the negligence of an agent or employee who is also a qualified provider, its liability for itself and the agent or employee is limited to one damage cap amount.

The maximum combined liability of all governmental entities and all public employees acting within the scope of their employment for an injury or death arising out of a single occurrence is $300,000 per person and $5 million for all persons.

Any settlement will be reduced if there appears to be a good chance that the claim will not be successful. If you were partially at fault for your injuries, the amount of the damages will be reduced proportionately. Benefits received from collateral sources may be used to reduce your recoverable economic damages. Other factors that may reduce the damages include past medical history, preexisting injuries, and prior claims history.