Learn what steps you need to take and the damages you can recover after an act of medical negligence
Medical malpractice claims are usually more complex than other personal injury claims.
In addition to gathering a wealth of medical records and retaining medical experts to testify on your behalf, medical malpractice lawyers in Indiana must follow special procedural rules and strict damage caps.
Medical errors are the 3rd leading cause of death in the United States, causing at least 250,000 deaths every year.
What is medical malpractice?
Medical malpractice occurs when a licensed healthcare professional's negligent act or omission causes an injury to a patient.
Examples of acts or omissions that commonly result in medical malpractice claims include:
- Failure to diagnose an illness
- Misdiagnosis of an illness
- Prescribing improper medication or dosage
- Failure to warn a patient of known risks
- Failure to follow proper medical procedure
- Unnecessary surgery or surgery performed on the wrong site
In 2003, Teresa Blackford sought treatment at the Welborn Clinic in Evansville, Indiana for an inflammatory skin condition. Teresa was tested for hepatitis and told the result was negative. When her condition significantly worsened a decade later, a second test revealed she had hepatitis C, and a review of the records from 2003 found that she had actually tested positive at the time. Teresa sued doctors at the Welborn Clinic for medical malpractice.
Filing a medical malpractice claim and the medical review panel
In 1975, Indiana passed the Indiana Medical Malpractice Act, which requires injured patients to file a complaint with the Indiana Department of Insurance and have their case evaluated by a medical review panel before they can file a civil lawsuit.
Here's how the process works:
- The injured patient files a complaint with the Indiana Department of Insurance and submits a $5 filing fee.
- The Indiana Department of Insurance forwards a copy of the complaint to each named defendant and their insurers.
- The injured patient or any of the named defendants must request the formation of a medical review panel.
- The medical review panel (made up of 3 physicians) reviews the following information: medical charts, x-rays, lab tests, excerpts of treatises, and testimony from witnesses and the parties.
- Within 180 days of receiving the complaint, the medical review panel drafts a report concluding whether, in the panel's opinion, any of the defendants committed malpractice.
- The injured patient decides whether to file a medical malpractice lawsuit in civil court. If the patient decides to file a medical malpractice lawsuit, the panel's report is admissible in court but is NOT considered conclusive.
Learn more about the process of filing a complaint with the Indiana Department of Insurance, and view a sample complaint.
Proving medical malpractice in Indiana
To establish a medical malpractice claim in Indiana, an injured patient must prove the following 2 elements:
- The healthcare professional failed to exercise the degree of care and skill expected of a reasonable healthcare professional in the same position, and
- Such failure was the proximate cause of the plaintiff's injury.
Due to the technical nature of medical treatments, expert testimony is usually required to determine whether the healthcare professional's actions fell below the applicable standard of care.
Dr. Gregory Schweikher performed minor foot surgery on Rita Simms at the St. Elizabeth Hospital in Lafayette, Indiana. During the course of the surgery, a surgical technician placed a hot surgical instrument on Simm's leg, causing a third-degree burn.
Simms filed a medical malpractice lawsuit against Dr. Schweikher for his failure to properly supervise the surgical technician.
At trial, Dr. Schweikher presented evidence, in the form of expert testimony, that his conduct during the surgery fell within the applicable standard of care. He also presented the surgical technician's affidavit in which she admitted that Dr. Schweikher didn't control her placement of instruments during the procedure.
Rita Simms offered no expert testimony to rebut Dr. Schweikher's evidence. As a result, the trial court ruled in favor of Dr. Schweikher.
Medical malpractice statute of limitations
Every state has a statute of limitations that determines how long you have to file a lawsuit. In Indiana, the statute of limitations for most medical malpractice lawsuits is 2 years from the date of the malpractice.
However, filing a complaint with the Indiana Department of Insurance will "toll" the statute of limitations for 90 days. In other words, once you file the complaint, the statute of limitations clock pauses for 90 days before resuming.
There are a few narrow exceptions to the 2-year statute of limitations, so it's a good idea to meet with a medical malpractice attorney even if you think the statute of limitations has run.
What damages can be recovered in an Indiana medical malpractice lawsuit?
In Indiana, victims of medical malpractice can recover the economic and non-economic damages that stem from the malpractice. These include:
- Loss of consortium
- Pain and suffering
- Medical treatment (including surgery, hospital visits, medications, and other costs associated with treating the injury caused by the malpractice)
- Lost wages
- Emotional distress
Learn more about the types of damages available in Indiana.
Medical malpractice damage caps
The Indiana Medical Malpractice Act limits (or "caps") the amount of damages an injured patient can recover in a medical malpractice lawsuit.
The healthcare provider will only be required to pay, at most, $500,000. The Indiana Patient Compensation Fund (PCF) will pay the rest. The PCF is maintained by the state and helps ensure that injured patients have a guaranteed source of compensation.
Additionally, Indiana prohibits attorneys in medical malpractice cases from receiving more than 15% in fees from any amount awarded by the PCF.
Indiana good Samaritan laws
Like many states, Indiana has a good Samaritan law that prevents good Samaritans from being sued.
Under the law, a person who comes upon the scene of an emergency (such as a bystander) or a person who is called to the scene of an emergency (such as an ambulance technician) and renders emergency care at the scene is immune from civil liability for any injury that results (so long as the person didn't intentionally harm the person and wasn't grossly negligent).
- How to File a Medical Malpractice Claim in Indiana
Need a lawyer?
A personal injury lawyer helps individuals who have sustained injuries in accidents to recover financial compensation. These funds are often needed to pay for medical treatment, make up for lost wages and provide compensation for injuries suffered. Sometimes a case that seems simple at first may become more complicated. In these cases, consider hiring an experienced personal injury lawyer. Read more