LAWYER
INDIANA
.
COM
Frequently
Asked Questions
Regarding Medical Malpractice Claims
Category: How the Process Works
The
Medical Review Panel
All claims of medical malpractice must first be filed before the Indiana
Department of Insurance and submitted to a panel of three medical providers
for their consideration and for their decision on the merits of your claim.
These three medical providers are called The Medical Review Panel. You
will probably want your Medical Review Panel to consist of medical providers
that 1) have not been a defendant in a malpractice case; and 2) have not
performed their internship or residency or otherwise practiced out of
any of the defendant hospitals. Sometimes, the defendant medical provider
is very well known. In those cases, you may want your Medical Review Panel
to consist of providers selected from a different region of the State.
Your goal is to select a Medical Review Panel that will review the facts
of your case in an objective and neutral manner. Whatever the decision
of the Medical Review Panel, you can expect that decision to carry a great
deal of weight, both in settlement negotiations and before a jury.
Proving
Your Claim
Proving that a health care provider has injured a patient requires medical
evidence. First, the standard of care under which the physician is held
and the proper diagnosis and treatment of the condition must be established.
Once that is done, a close comparison of the treatment that was provided
to that standard of care is performed to determine whether there were
deviations from that standard of care. When the deviations from the standard
of care result in injury or death to a patient, medical malpractice is
proved. Expert medical testimony as to the standard of care and the medical
provider's deviations from that standard of care is usually required to
prove a medical negligence claim.
How
Long Does It Take?
Unfortunately, the time it takes from start to finish to complete the
claim or litigation process is lengthy. Medical negligence claims are
often complicated, and there is much to be done in the development of
such a case. On the one hand, if you receive a successful determination
from the Medical Review Panel, the possibility or probability of an early
settlement of your claim is increased. On the other hand, if your claim
cannot be settled, the requirement of placing your claim before a Medical
Review Panel adds an average of two years to the entire process. Your
focus should be upon winning your case, not upon a speedy process, because
the Medical Review Panel process is not speedy.
Category: Types of Malpractice
Physicians:
An Accurate Diagnosis
The task of providing an accurate diagnosis of a patient's medical condition
falls upon the shoulders of the physician. In performing this task, the
most basic and time-tested method of diagnosis is the differential diagnoses
list. This method requires the physician to list the several potential
diagnoses suggested from the signs and symptoms, in order of their likelihood
and importance, and then to rule out each, while positively providing
a diagnosis for the correct condition. In an age of significant medical
advances in the treatment of many serious conditions, the failure to properly
identify the correct diagnosis or medical condition often results in the
unnecessary loss of life.
Physicians:
Misdiagnosis
A substantial percentage of medical errors involve misdiagnosis of the
medical condition from which the patient was truly suffering. Medical
schools teach physicians to adhere to a set protocol of documenting patient
symptoms, performing a detailed and appropriate physical examination,
ordering necessary tests, carefully evaluating all results and then drafting
a differential diagnosis list for further work-up. Unfortunately, physicians
sometimes cut corners in the basic evaluation of a medical problem. Often
times the physician is able to accurately diagnose the condition despite
this, but sometimes, the diagnosis is missed as a result of the omission
in this basic process of medical care, often with catastrophic consequences.
Hospitals
Hospitals are chiefly responsible for the nursing care within their walls.
Additionally, teaching hospitals often employ medical residents and medical
interns, and the hospital is responsible for these physician's services
as well. Note should be made that many other services provided at a hospital
are often found not to be the responsibility of the hospital. Many physicians
that practice within the walls of a hospital are not employees of the
hospital. Independently contracted physicians usually staff hospital emergency
rooms. Claims involving negligent medical care in emergency rooms are
usually brought against the emergency medical group staffing the emergency
room, and not the hospital. However, the hospital's obligation to provide
competent nursing care is often a major issue in patient survival. When
nurses fail to protect their patients from falling, fail to properly administer
medications or communicate new medical developments with the physician
staff, catastrophic injury often results. In an age of inadequate supply
of nurses, inadequate nursing care in the hospital setting is a significant
cause of patient injury and death.
Nursing
Hospitals are responsible for the nursing care provided within their walls.
Nurses are often the eyes and ears of the physician staff, and are responsible
for alerting the physician to changes in the patient's medical condition.
Nurses are also chiefly responsible for taking appropriate measures to
prevent falls. Indeed, hospital falls are a major cause of severe injury
and even death in the hospital setting. A detailed review of hospital
nursing notes may reveal omissions in the quality of nursing care that
sometimes result in catastrophic losses.
Surgery
Surgery is the direct physical intervention with instruments in an attempt
to treat disease, injury or other disorders, and is most often a very
serious event. It is therefore incumbent upon the surgeon to act with
all possible care to achieve the best possible outcome. Surgical errors
often result from 1) a surgery that is provided too late; 2) a surgery
that should not have been provided at all; 3) a surgery that did not take
into account the patient's other medical conditions; and 4) a surgery
that is itself not skillfully and carefully undertaken. These are only
a few examples of some of the mistakes that can be made in the preparation
and performance of the surgery.
Wrongful
Death
Indiana Law does not provide a deceased person's estate with the right
to recover for the loss of life of the deceased person. Rather, Indiana
Law allows the survivors of the deceased person to recover for their loss.
In former times, the only individuals that could recover for that relationship
loss was the deceased's spouse and the dependant children of the deceased.
They can recover up to but no more than a total of $1,250,000.00, the
cap under the Indiana Malpractice Act. Recent changes in our state's laws
now allow certain other relatives of the deceased to recover up to $300,000.00
when there is no surviving spouse and no dependant children.
Recoverable
Damages
As within any personal injury case, recoverable damages include compensation
for 1) medical expenses incurred; 2) pain and suffering inflicted; 3)
permanent injury or even death resulting from the negligence; and 4) lost
wages and future inability to earn income. When the injury is the death
of a loved one, the survivor's losses may include the loss of love and
affection that the survivor would have enjoyed with the deceased person
as well as the lost wages and earnings of the deceased, not to mention
the medical bills unnecessarily incurred because of the malpractice. These
are examples of some of the items for which recovery may be made.
The
Malpractice Cap
Medical Malpractice claims in Indiana are governed by the Indiana Medical
Malpractice Act. The act limits recoverable damages to $1,250,000.00 for
all acts of medical malpractice occurring on or after June 30, 1999. This
means that for such claims of medical malpractice, the victims cannot
be awarded more than $1,250,000.00. Though this cap on damages can be
unfair in certain situations, it does represent a vast improvement over
the former cap on damages that was in the amount of $750,000.00.
Settlements
The Medical Review Panel process probably adds to the opportunities for
settlement when the medical negligence victim wins before the Medical
Review Panel. This is particularly because Medical Review Panels are intended
to provide a neutral assessment of fault, and as such, the defendant medical
provider and his insurance company are likely to respect the determination
of that panel. However, unlike most other insurance policies, the insurance
company usually cannot settle the claim without the permission of the
medical provider. In other words, both the insurance company and the defendant
medical provider must agree to the terms of the settlement. Medical malpractice
claims are rarely settled prior to a determination by the Medical Review
Panel.
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