Medical malpractice

Successful medical malpractice cases require experience

Medical malpractice insurance claims are difficult claims to prove. The percentage of plaintiff verdicts in medical malpractice cases is relatively small. In order to successfully handle medical malpractice claims the attorney must have knowledge and experience in medical claims. Hovde Dassow & Deets attorneys have been representing victims of medical malpractice for more than 30 years. This experience is a valuable asset to our clients. Our experience results in careful analysis of potential claims and meticulous case preparation.

Standard of care

A health care provider is required to practice within the appropriate standard of care. A bad result from a medical treatment or procedure does not always result from a failure to follow the standard of care. Bad results can occur without negligence on the part of the doctor. However if the doctor did something a reasonable physician would not have done or failed to do something a reasonable physician would have done then he was negligent and responsible for the bad result. If the standard of care was not met then you must determine what injuries and damages were caused by the negligence. Both defining the standard of care and determining the resulting injuries and damages caused by medical malpractice require expert testimony from doctors qualified in and knowledgeable about the particular medical specialty.

Types of malpractice

Medical malpractice means negligence by a physician, nursing staff or any other health care provider. Examples of the type of issues that become the basis for a medical negligence case include:

• improper diagnosis or delay in diagnosis
• failure to diagnose
• medication errors
• failure to properly treat a fracture
• surgical errors such as damaging a nerve or blood vessel during an operation
• medical instruments, sponges, needles or other foreign objects left inside a patient during surgery
• prenatal treatment errors
• delivery errors
• failing to inform the patient of alternative treatments
• failure to treat an injury or disease in a timely manner
• failure to refer a patient to a specialist
• failure to properly treat an infection

How medical malpractice claims work in Indiana

Medical malpractice claims in Indiana are governed by a state statute referred to as, the Indiana Medical Malpractice Act. This statute was passed by our State Legislature in 1975 in response to a campaign by doctors and their insurance companies to attempt to reduce the amount of money paid for medical malpractice claims and to reduce the number of claims brought against doctors and hospitals. The insurance companies and doctors claimed that medical malpractice insurance premiums were too high as a direct result of the number of claims filed against doctors and hospitals and the amount of money paid to settle claims and court judgments. While the "real" statistics did not support this argument it was nevertheless accepted by the legislature. The result is a statute which contains several procedural steps that must be followed and a limitation on the amount of money one can collect for a claim brought against a doctor or hospital.

The Medical Review Panel

The Act requires you to submit your claim to a Medical Review Panel. This process is initiated by filing a Complaint with the Indiana Department of Insurance. Once the doctor or hospital's attorney enters his appearance, there is typically a period of time before the formation of this Medical Review Panel where information such as medical records and the testimony of the doctors and/or the injured party is exchanged. At the appropriate time, either party can request the formation of the Medical Review Panel. First, a panel chairman is agreed upon by the parties. The panel chairman is a lawyer who coordinates the selection of the Medical Review Panel and the submission of the evidence to the Panel. The Medical Review Panel consists of three (3) doctors. Typically chosen by alternate striking from a panel of doctors put together by the panel chair.

The case of the plaintiff and the defendant doctor or hospital is presented to the Panel in written form. The written evidence consists of argument, medical records, depositions and where appropriate, affidavits. The plaintiff generally prepares his written submission first, followed by the defendant's submission and in most cases, a rebuttal submission by the plaintiff. If a party requests that the Medical Review Panel be convened the attorneys have an opportunity to ask questions of the Medical Review Panel members. The questioning is typically limited to general subject matter as the parties are not allowed to ask the panel their case specific opinions until after the panel deliberates and issues its written opinion.

After the questioning of the Medical Review Panel, the Chairman and the Panel meet in private and determine whether or not the medical care provided met reasonable medical standards and if it did not, whether the plaintiff was injured or damaged as a result. Specifically, the Medical Review Panel issues a written opinion containing one or more of the following findings:

1. The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the Complaint.
2. The evidence does not support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the Complaint.
3. That there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court or jury.
4. The conduct complained of was or was not a factor of the resultant damages. If so whether the plaintiff suffered: (a) any disability and the extent and duration of the disability, and (b) any permanent impairment and the percentage of the impairment.

The opinion of the Medical Review Panel is not binding on either party. A favorable Panel Opinion may however result in the opportunity to settle the claim. Either way, the plaintiff has ninety (90) days from receipt of the written opinion in which to file a lawsuit in court. The opinion of the Medical Review Panel is admissible at trial and the members of the Medical Review Panel must provide testimony if asked by either party. Once a case is filed in Court following this procedure, the case is placed on the Court's calendar along with all of the other cases filed in that Court.

The requirement that a case be submitted to the Medical Review Panel has resulted in additional time necessary to pursue a medical malpractice claim from beginning to end. This procedure can but does not always result in a settlement in the cases that are decided in favor of the plaintiff by a Medical Review Panel. Those cases where the Medical Review Panel finds against the plaintiff result in either reevaluation of the case and the decision not to pursue it further or the filing of the case in Court. In the case of a negative panel opinion, the plaintiff must have a qualified expert witness who will disagree with the Opinion of the Medical Review Panel. Consequently, there are two opportunities to review the claim and to decide how and if to proceed, the first occurring during the investigation of the facts and circumstances of your claim and the second occurring after receipt of the Medical Review Panel Opinion.

Maximum recovery amount

The Medical Malpractice Act currently provides for a maximum recovery of $1,250,000 regardless of the extent of the injuries and damages. It also provides that the doctor or hospital is responsible for payment of the first $250,000 of this limit and the balance, if any, is paid from a Patients' Compensation Fund. The Patient's Compensation Fund is a pool of money managed by the State of Indiana and funded by a part of the insurance premium paid by the doctor or hospital. The claim against the doctor or hospital must first be resolved with the payment of $250,000. Once a plaintiff has received this money from the doctor, or hospital, he then has a right to file a claim against the Patients' Compensation Fund for the balance of the value of his case. This claim is filed in the Marion County Superior or Circuit Court. The issue to be determined in this claim is the amount of damages due to the plaintiff. The issue of the fault or negligence of the doctor or hospital is deemed to be resolved at this point as a result of the settlement with the doctor or hospital and the payment of the $250,000. The claim is defended by attorneys who are employed by the Indiana Department of Insurance. The claim is negotiated with these attorneys and if a settlement amount can be agreed upon the case may be settled. If an agreement cannot be reached, evidence is presented to a trial court judge who determines the amount of money, if any, that the plaintiff is entitled to at this point.

If a medical malpractice claim is not settled with the doctor or hospital and it goes to trial, a jury will decide if there has been malpractice (negligence) and the total amount of damages to be awarded to the plaintiff. Hovde Dassow + Deets is experienced at trial and, according to Best Lawyers 2010, it is ranked #1 in Indianapolis for Medical Malpractice litigation.

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