How Indianapolis, IN Attorneys Litigate Medical Malpractice Claims
Indiana Medical Malpractice litigation is very difficult and extremely time-consuming. The Medical Malpractice Act was passed in Indiana in 1975 while Dr. Otis Bowen was governor. It was designed to “weed out” cases against doctors and hospitals that lacked merit. As a result, the Malpractice Act greatly favors health care providers. Even cases of clear malpractice often result in decisions in favor of the doctors or hospitals such that there are absolutely no guarantees as to how these cases will turn out.
The Malpractice Act prevents the case from being filed in court until after:
- It has first been filed with the Indiana Department of Insurance, Patient’s Compensation Authority as a “Proposed Complaint.”
- The case then has to be submitted to a Medical Review Panel consisting of three physicians who will determine if the doctor/hospital committed malpractice and whether the malpractice caused injury to the patient. Even though the physicians sign an oath to be fair and objective when they review these cases against their fellow doctors, the Panel Members often give every benefit of the doubt to the defendant health care provider. Indeed, recent statistics have shown that about 80% of all Medical Review Panel decisions are rendered in favor of the physicians with a finding of no malpractice, or a finding that the malpractice did not cause injury to the patient.
The Medical Review Panel process has been described by some as the proverbial fox watching the chicken house.
In addition to doctors, at times consciously or unconsciously, protecting other doctors, the doctors on the Panel often know that their malpractice premiums and surcharges payable to the Patient’s Compensation Fund will increase if they rule in favor of a patient. Thus, they have a significant financial incentive not to rule in favor of patients. In addition, there is always the possibility that the roles of defendant and panelist could be reversed in the future, with the prior defendant charged with judging the conduct of a doctor who had judged him in the past. The unfairness of this system should be readily apparent. In talking to a panelist in one of our cases in the past, after he admitted that the defendant doctor fell below the standard of care in about ten respects, and after being asked why he ruled “no malpractice,” the panelist responded: “Well, he wasn’t drunk when he treated the patient.”
After the case goes through the Medical Review Panel, it can then be filed in court. If the Panel unanimously rules in favor of the defendant doctor, the patient must present an expert who disagrees with the Panel, or the case will be dismissed. Even if the patient wins the Panel (where the doctor committed malpractice), these cases often have to go to trial.
It is not uncommon for these cases to take five or more years to get to trial due to delays in the Medical Review Panel process and congestion in the courts. Even if the case is settled, another lawsuit has to be filed against the Patient’s Compensation Fund to recover up to the full limits of the Act. More delays occur because the Patient’s Compensation Fund only pays judgments quarterly. Plaintiffs/patients in these cases must be very patient and must be willing to go through the stress of this lengthy ordeal.
The Medical Malpractice Act also imposes limits on the amount that can be recovered by a patient injured by malpractice. The limits are grossly low and have not been increased since 1999 despite the fact that health care costs have increased dramatically. If, for example, when babies are born severely disabled (as a result of medical malpractice) and require millions of dollars in care over their lifetimes, once the low limits of Indiana’s Malpractice Act are exhausted, these children often have to seek state aid, shifting the costs of malpractice to the taxpayers.
Your Indiana Medical Malpractice Rights
Pursuing an Indiana medical malpractice claim is a long, tough process so you need to be sure to hire an attorney who has experience in litigating medical malpractice claims and will take the time to explain to you your legal rights and options. Our Indianapolis medical malpractice attorneys have been pursuing cases for over 30 years and have the expertise to help give you Power to Your Voice in court proceedings and settlement negotiations. Contact us to discuss your Indiana medical malpractice claim. There is no fee for the initial consultation and we do not receive payment until your claim has been paid.
