Posted in: Jan 06,2022|
Do I have a case for medical malpractice? A lot goes into a medical malpractice case, and each state has its own nuances. In this post, we’ll address “everything you need to know” about medical malpractice in Indiana. More specifically, we’ll define medical malpractice (what it is and what it isn’t), when and how you can file a complaint, how you check on doctors, the statute of limitations, and what a medical malpractice settlement looks like. Let’s get started.
Medical Malpractice Defined
What is malpractice? Some complaints may look like medical malpractice, but are actually medical negligence. And some similar complaints may be neither malpractice nor medical negligence. How do you make the distinction? You could think of medical malpractice as medical negligence with an extra level of responsibility. Medical malpractice is defined as negligence committed by a healthcare professional that results in harm to a patient or patients and meets the following conditions: 1) the standard of care was violated, (2) an injury resulted from the medical malpractice, and (3) significant damages occurred as a result of the injury, and (4) the defendant must have been a professional.
The defining point to medical malpractice is that the standard of care was violated, and that the violation caused harm. The standard of care is most often defined as what a reasonable, careful, and prudent healthcare provider would do under similar circumstances. Dissatisfaction with a treatment’s outcome does not, by itself, imply a violation of the standard of care.
So what are some examples of medical malpractice? It may be helpful to review some examples of medical malpractice in detail or scan this list of some common situations that can result in medical malpractice:
- Medical misdiagnosis
- Childbirth injury
- Dental malpractice
- Hospital or nurse negligence
- Improper emergency room treatment
- Cerebral palsy (birth incident)
- Unneeded surgery
- Anesthesia errors
- Medication errors
- Misdiagnosed cancer
- Misread X-rays
- Stroke or brain injury
- Surgical errors
- Early discharge
- Ignorance of patient’s medical history
When to file a medical malpractice claim
Medical malpractice cases can be complex and time-consuming for the victim. Any claim should be considered carefully. The first and most important detail is discovering the facts of the case. Without the facts of the case and a knowledge of medical malpractice law, you cannot determine if medical malpractice has occurred. If you’ve determined that you are a victim of medical malpractice, the follow up questions pertain to the utility of filing a claim—to put it bluntly, whether filing a claim is worth your time and effort.
If the facts of the case are on your side and a potential settlement merits your time and effort, you have a window of time (aka the statute of limitation) in which to file your claim. In short, the statute of limitations for filing a medical malpractice claim in Indiana is two years. There are exclusions which include:
- A minor under the age of six has until their eighth birthday to file.
- A complaint tolls the applicable statute of limitations to and including a period of 90 days following the receipt of the opinion of the medical review panel. Tolling means that filing a complaint pauses that 2-year statute timeline until 90 days after a review opinion is offered.
How to file a medical malpractice claim
The Indiana Medical Malpractice Act guides the adjudication of medical malpractice cases. The act requires that a Medical Review Panel must review all medical malpractice claims before an attorney files them in court. A healthcare provider and their insurance carrier must be notified of the claim within the two-year period, with some exclusions.
Is there an average settlement for medical malpractice?
The short answer is no. Each medical malpractice case, just like each client, is completely unique. This is true even if the facts of the case seem similar. A review of recent medical malpractice cases from our firm is a testament to the wide diversity of cases, settlements and verdicts. However, there are a few constants that factor into the value of a medical malpractice valuation. A few of the factors include:
- Past and future medical bills caused by the malpractice
- Past and future lost wages
- Physical impairment
- Pain and suffering
- Emotional injury
- Loss of affection, companionship or parental/familial guidance
Regardless of the circumstances, all medical malpractice claims have a statutory maximum recovery of $1,650,000. If a jury awards an amount greater than that, the judge will automatically reduce the award to $1,650,000.