- Investigation and review of medical malpractice claims
- The Indiana Medical Malpractice Act.
- Settlement of medical malpractice claims.
- Trial of a medical malpractice lawsuit.
- Attorney fees.
- Litigation expenses.
Investigation and review of medical malpractice claims.
It is very important that potential medical malpractice claims be investigated and reviewed by experts familiar with the area of medicine involved. It is the policy of our firm to have all cases reviewed prior to bringing any lawsuits. We generally begin our contact with the client in a phone conversation. In that phone conversation, a paralegal takes detailed information about the claim. That claim is then discussed at a case review meeting attended by our attorneys where they determine whether the case should be investigated further.
If the case should be investigated, the client comes to the office for a conference with the attorney. In that conference, the attorney gets additional information about the claim, explains the procedure behind bringing a claim and answers any questions. In addition, authorizations for release of medical records and a representation agreement may be signed. Our firm then collects all of the medical records. The records are organized by a paralegal and a physician is hired to review the records and express an opinion. Once the reviewing physician has expressed an opinion as to whether there is a legitimate claim, we meet again with the clients to explain the recommendation, and to help the client make a decision to go forward with the claim or not.
The Indiana Medical Malpractice Act.
Medical malpractice lawsuits in Indiana are controlled by the Indiana Medical Malpractice Act. Under the Act, all medical malpractice claims must be reviewed by a medical review panel before the claim can be filed in court. This process is begun when the plaintiff files a “proposed medical malpractice complaint” with the Indiana Department of Insurance. The Department notifies the defendant-doctor or other healthcare provider and the defendant’s insurance carrier of the proposed claim. A defense attorney is hired by the insurance company to defend the claim.
The parties then form the medical review panel. The patient selects one doctor to serve on the medical review panel. The defendant selects a second doctor to serve on the panel. Those two doctors then pick a third member of the panel. An attorney serves as a non-voting chairman of the panel. The parties then have the right to take depositions or ask questions of the other side. The parties prepare medical malpractice submissions. These are booklets in which the parties describe their cases. The submissions may contain medical records, statements from the parties, depositions, expert reports, medical text, medical journal articles, etc.
The members of the panel review the submissions and the parties have the right to question the doctors about their view on the case. The medical review panel then expresses an opinion as to whether the evidence supports the plaintiff’s complaint. The opinion of the panel does not decide the case. The plaintiff has the right to go to court, and the defendant has the right to defend the case, regardless of the panel opinion. However, juries find the panel opinion very persuasive. As a practical matter, most cases are resolved on the basis of the medical review panel opinion. However, in some cases, we might feel that medical review panel members seem to be protecting a doctor against a legitimate malpractice claim. Under those circumstances, we recommend that plaintiffs proceed to trial in spite of a negative panel opinion.
Settlement of medical malpractice claims.
For health care providers covered by the Medical Malpractice Act, the State of Indiana has mandated the maximum recovery in any medical malpractice case to be $1,650,000. The health care provider or his insurance company is responsible for the first $400,000 (the first part). If the entire $400,000 is obtained from the health care provider or his insurance company, then the plaintiff is able to make a claim against the Indiana Department of Insurance, Patient’s Compensation Fund, for the remaining $1,250,000 (the second part). Of course, many plaintiffs are not able to present a claim sufficient to reach the limits of recovery.
By statute, the initial $400,000 can be paid in a structured settlement consisting of cash and payments over time generally made through the purchase of an annuity. However, the cash and the cost of that annuity must total at least $300,001. Due to the savings involved, most insurance companies will require a $300,001 structured settlement which pays out $400,000 rather than simply a cash payment of $400,000.
Trial of a medical malpractice lawsuit.
Many medical malpractice cases are resolved without a trial. They are either dismissed or settled. In an increasing number of cases, however, the claim must go to trial. It is tried just like any other lawsuit, in court in the county where the events occurred. The jury would consist of six members. Medical malpractice cases are extremely expensive to try because of the need for expert witnesses who must be paid fees. If a plaintiff receives a verdict against a health care provider, the first $400,000 is paid by the insurance carrier for that health care provider. The rest of the damages are paid from the patient’s compensation fund, up to $1,250,000, the maximum allowed by law.
Almost all medical malpractice cases are litigated on a contingent fee basis. A contingent fee is one that is paid out of any recovery. The amount is a percentage of the recovery. If there is no recovery, there are no attorney fees due. The Indiana Medical Malpractice Act caps the attorney fees at 32% of any recovery.
In addition to the attorney fees, there will be litigation expenses involved in bringing a lawsuit. Litigation expenses are monies that need to be paid in order to bring the lawsuit. For example, there is a charge for getting medical records. There are also the court reporter costs if depositions are taken. The medical experts who review the case must be paid fees. If the case goes to trial, there will be additional expenses for expert witnesses, blow-ups, models or other evidence to show the jury. Our law firm often advances the litigation expenses. They are paid back out of any recovery.