Medical Malpractice

According to the National Academy of Science, medical mistakes kill an estimated 44,000 to 98,000 and injure as many as one million Americans every year.

The most common kinds of medical malpractice include: a retained foreign object left behind in the body during surgery, whether a surgical sponge or a surgical instrument; the failure to diagnose or a failure to treat a life-threatening medical condition, including for example cancer, appendicitis, ectopic pregnancy, heart attack (myocardial infarction) or meningitis (in children); and medication errors (right drug, wrongly prescribed; dispensing errors; wrong drug prescribed; failure to consider drug interactions; etc.).

With limited exceptions, all claims for malpractice (whether against a physician, hospital, chiropractor, etc.) are governed by Indiana’s Medical Malpractice Act (‘Act’). The Act prohibits an injured party (or their family) from filing directly in state court a complaint against the healthcare provider or doctor. What is referred to as a proposed complaint must first be filed before the Indiana Department of Insurance.

Subsequent to the filing of the proposed complaint, a medical review panel, comprised of three Indiana doctors, typically of the same specialty as the target health care provider, are selected and must sit in review of the claim/case. As a part of the medical review panel process, Indiana law allows the parties to the case, the injured person and/or family and the negligent healthcare provider, to present to the panel an evidentiary submission, which typically includes medical records, films (x-rays, MRIs and/or CT scans for example), lab results, affidavits, deposition transcripts, etc.

The medical review panel will then review the submitted evidence and determine, generally, whether the target healthcare provider met the standard of care or breached/violated the standard of care. The panel will also determine whether the alleged negligent act(s) caused, or contributed to cause, the alleged injuries.

Only then, after the panel has reviewed the evidence and issued a finding (of malpractice or not) is the injured party, or his/her family, permitted to sue the doctor or health care provider in state court.

Interestingly, the opinion of the panel is not binding on either party. In other words, if a panel finds that the healthcare provider breached the standard of care and that such a breach caused the alleged injuries, the doctor or healthcare provider is not required to settle the case. Moreover, if the panel finds that there was no breach of the standard of care, the injured party, or his or her family, can still file suit in state court.

The caveat is that the panel opinion is admissible at trial and one or more of the panel members can be subpoenaed to testify as to their opinion, including the panel’s overall opinion.

What is considered malpractice or a breach of the standard of care in Indiana? Indiana’s medical malpractice pattern jury instruction is informative:

“In providing health care to a patient, a [type of health care provider] must use the degree of care and skill that a reasonably careful, skillful, and prudent [type of health care provider] would use under the same or similar circumstances.

A [type of health care provider] who fails to exercise that reasonable care and skill commits medical negligence.

Medical negligence may consist of:

(1) doing something a [type of health care provider] should not have done under the circumstances; or

(2) not doing something a [type of health care provider] should have done under the circumstances.”(1 Indiana Model Civil Jury Instructions 1511)

If you or a member of your family were injured or killed as a result of medical negligence, you may be entitled to monetary compensation. If so, please contact Harper and Harper for a free legal consultation.