Medical Malpractice

Frequently Asked Medical Malpractice Questions

What is medical malpractice?

Medical Malpractice is substandard medical care that harms the patient.

In order to commit malpractice, a healthcare provider must have done something a reasonably careful physician wouldn’t have done or must fail to do something that a reasonably careful physician would have done. It is important to note that just because there has been a bad outcome that doesn’t necessarily mean its medical malpractice.

Do I have a medical malpractice case?

The direct answer is that you don’t know unless you have the case evaluated by a doctor. In order to succeed in a malpractice claim, you must prove that you received substandard care, that you suffered an injury, and that the substandard care caused the injury.

All three of these elements must be proven by an expert witness.

What does Standard of Care mean?

The standard of care is the correct medical response as defined by physicians who practice in the field.

Medical standards are derived from medical texts, medical journals and medical and nursing school teachings. Different physicians may have different views of the standard of care, and the standard may change over time.

Do I have a deadline for filing a medical malpractice lawsuit?

In general, you have two years from the date of the malpractice to bring a lawsuit.

However, the time for bringing a claim may be extended if the malpractice continues over a period of time.

Young children have either two years or until their eighth birthday to bring a malpractice claim, whichever is later.

This can be a complicated issue and requires a review by an attorney.

It is a good idea to get advice about a potential medical malpractice lawsuit as soon as possible, so records can be obtained and a complete review conducted.

Where can I get information about my doctor?

There are a number of information sources about doctors. The American Medical Association has an internet site entitled “Physician Select”. It will tell you about a doctor’s education, training and background, his specialty, and the type of practice that he has. It does not contain any information about sanctions or disciplinary actions.

How can I find out if my doctor has had any medical malpractice claims?

The Indiana Department of Insurance has information on all medical malpractice claims against registered doctors since 1976. You can check on your doctor by calling 317-232-5430.

However, don’t jump to any conclusions just because your doctor has had a medical malpractice claim. Most doctors have had some sort of claim brought against them. The number of claims depends on how long the doctor has been in practice and what his or her specialty is. Some specialties are more subject to claims than others. If, however, you see a pattern of a number of claims, it may raise questions about your doctor.

My doctor did something wrong and I could have died. Do I have a claim?

Maybe, but not just because he or she did something wrong. You must also show harm caused by the wrong. If you did not have any significant consequence, you may not have a claim.

My doctor didn't diagnose my condition. Do I have a lawsuit?

Like most things in the law, it depends. First, you do not have a lawsuit simply because the doctor missed the diagnosis. You have a claim only if your condition was such that a reasonably careful physician would have made the diagnosis. Second, you have to prove that you suffered some harm because of the missed diagnosis.

Don't doctors stick together and protect each other in a medical malpractice case?

Most doctors don’t like medical malpractice claims and some doctors won’t help patients bring those claims. But there are a number of good doctors who respect patients’ rights and will support legitimate claims. We know good experts whose opinions we trust, who will review the facts of a case.

What can I do if I was treated badly but I don't have a medical malpractice claim?

If you received poor medical care at a hospital, but fortunately did not suffer any damages, you can call or write to the hospital’s risk manager and credentials committee to explain your complaint. If the treatment was at a doctor’s office, you may want to write the other doctors who practice with that doctor and tell them what happened. The Indiana Attorney General’s office investigates wrongdoing by a doctor even if it does not constitute malpractice.

If the doctor knows I am thinking of a malpractice suit, can the doctor alter the medical records?

Conceivably, but it happens very infrequently.

Most doctors and healthcare providers are honest, reputable professionals who simply wouldn’t alter medical records.

Furthermore, it is often difficult because the information may be in several different places and can be cross-checked.

During an investigation, our system would identify inconsistencies that indicate an alteration.

What is a medical review panel?

Under the Indiana Medical Malpractice Act, medical malpractice claims against healthcare providers who elect coverage under the Act are reviewed by a medical review panel where the patient selects a doctor; the defendant selects a doctor, and those two doctors select a third doctor to serve on the panel. An attorney who is agreeable to all the parties is chairman of the panel, organizes the information and sets up the meetings.

What information does the medical review panel have about the case?

The patient and the defendant health care provider each give the panel members the evidence and argument supporting their case. The evidence is provided in a booklet written by the parties or their attorneys. It may contain medical records, statements from the patient, copies of medical textbooks, depositions, and the like. The panel members may request other information that they need to form an opinion about the merits of the case.

Does the medical review panel decide the case?

No. The panel forms an opinion as to whether or not the evidence supports the medical malpractice claim, but the panel does not decide the case. The patient still has the right to go to court, and the defendant doctor still has the right to defend the case, regardless of the panel opinion. As a practical matter, many malpractice claims are resolved on the basis of the panel’s report.

Can you tell me what compensation I can get for my case?

Every medical malpractice claim is different, and it is difficult to determine the exact value. One issue is whether the claim is for injury or death. The ultimate answer is that your claim is worth whatever a jury will award you.

Some factors that go into determining the value of a claim include:

  • Past and future medical bills caused by the malpractice
  • Past and future lost wages
  • Permanent impairment
  • Pain and suffering
  • Emotional injury
  • If death, loss of love and affection and companionship of a deceased loved one.

If there is a minor child, loss of parental guidance.

Is there a limit on how much a person can recover for a malpractice claim?

Yes, under Indiana law, the defendant and the insurance carrier are responsible for the first $400,000 of damages. The Indiana Department of Insurance is responsible to pay for any additional damages up to a maximum of $1,250,000.

If a jury were to award a higher amount, the judge will automatically reduce the award to the statutory maximum recovery of $1,650,000.

How are attorney fees paid?

We represent injured patients on a contingent fee basis. A contingent fee is one that is paid out of a recovery on the case. If there is no recovery, there are no attorney fees. If there is a recovery, the attorney fee is a percentage of the amount recovered and is paid out of money from the settlement or verdict.

Do I have to pay to have my claim investigated?

We advance the costs of investigating your claim. If we decline to take your case, there is no expense to you. If we reach a settlement or are successful in trial, the expenses are taken out of the recovery proceeds. You never have legal out of pocket costs.

How do I get started if I think I have a medical malpractice claim?

Call our office and speak to a nurse or paralegal. They will take the information from you about your case and talk to a lawyer. They will then get back to you, and if the attorney thinks that you have a claim, we will set up a meeting to discuss the case in more detail. At that time we will get authorizations to get your medical records. We will collect all of your medical records, get them organized and send them to a doctor for review. Once the doctor has looked at the case, we will meet with you and tell you whether or not we recommend that you pursue a medical malpractice case.

Does your firm take very small Medical cases in the hope that the healthcare providers settle quickly?

No. There is no such thing as a “nuisance settlement” in medical malpractice litigation. There is either a substantial claim with legitimate liability and damages, or there is no claim. Doctors are not quick to settle claims because all settlements have to be reported to the National Practitioners Data Bank. This is a computer record of all medical malpractice claims which is not available to the public but is available to healthcare administrators.

What is the patient's compensation fund?

The Patients Compensation Fund compensates victims of medical malpractice. Under the Indiana Medical Malpractice Act, the defendant-heath care provider’s insurance company is only responsible for the first $400,000 of damages. Damages over $400,000, if they exist, are paid by the Fund. The money comes from a surcharge on Healthcare Provider’s malpractice insurance premiums per Indiana law.

Are all medical malpractice claims presented to a medical review panel?

In most cases they are. In rare cases, they are not, for example, if the health care provider elects to waive the process or is not a qualified healthcare provider under the Indiana Medical Malpractice Act.

How Long does it Take to Conclude a Medical Malpractice Case?

It varies. The case must be reviewed by an MRP and may also go to a jury trial. Most cases take over a year, and some take several years. Contact our office for an evaluation of your case.

Will I have to testify?

Generally not while the claim is before the medical review panel, but more frequently when the case is in state court. While people are often anxious about testifying, in the end, most are happy that they had the opportunity to describe what happened. As your attorneys, we will help you to be prepared.

If I bring a claim, will the doctors or hospitals pry into my medical and personal background?

There are some limitations; however, most all medical information, as well as other information that can be shown to be relevant to your claim, can be sought and discovered during the investigation.

How do you prove a medical malpractice claim?

Our firm has over 30 years of experience in Indiana Medical Malpractice law. Our staff includes a physician attorney and many experienced paralegals who work with our attorneys to help you. Our people, knowledge, systems and network of professionals help to maximize the strengths of your case.

I know that something bad happened, but don't know who is responsible. Can I still pursue a medical malpractice claim?

Yes. As your attorneys, we will investigate what happened to determine who is responsible. If it is known that medical standards were violated but it cannot be determined who violated the standards, the law has ways to address those circumstances.

Can medical malpractice claims be brought against any kind of health care provider?

For the most part, Yes. Dentists, nurses, podiatrists, chiropractors, as well as health care facilities such as hospitals, nursing homes, dialysis centers and the like are all responsible for health care that they provide.

Can a case still be pursued if the patient or health care provider dies after the malpractice?

In most circumstances, yes. The patient’s or healthcare provider’s estate would pursue the claim. If the patient dies as a result of the medical malpractice, spouses, parents and children may pursue the claim.

Does it matter if the malpractice occurred in another state?

In our country, medical malpractice law is different in each state. We have handled claims involving medical malpractice outside of Indiana.

If I received negligent care in Indiana but live somewhere else, where is my malpractice claim filed?

The case will need to be filed in Indiana. If the claim creates issues related to your residence in another state, we will work with you to address those problems.

If the patient dies from malpractice, who is allowed to bring a claim on the patient's behalf?

If the patient dies from malpractice, who is allowed to bring a claim on the patient’s behalf?

A claim may often be brought on behalf of spouses, parents, children, dependents, or the estate of the patient who died. We would need to review the specific circumstances to be able to say whether or not the law would allow the claim.

How are malpractice claims involving children handled?

The child’s parents or legal guardians generally may pursue a case. Our investigation will determine if more specifics are necessary.

Do I have a claim if I lose my pregnancy because of malpractice?

Yes. Medical errors resulting in the loss of pregnancy are compensable. We have physicians and nurses experienced in pregnancy-related medical malpractice issues who can help us to investigate and review your care.

If a healthcare provider offers to pay my expenses, or offers money because of a bad outcome, what do I do?

This is a difficult question. Settlement of a potential claim in this manner can create complex legal issues which may result in unexpected negative legal consequences for the patient. We recommend consulting an attorney before agreeing to any offer from a healthcare provider related to a bad outcome.

Do I have a claim if my healthcare provider made a mistake but it's too early to tell the extent of my injury?

This is a common issue because one episode of negligent medical care may result in a lifetime of problems. If the injury is already substantial, it may be reasonable to file a claim or If the statute of limitation is approaching and it is not yet clear that there has been a significant injury, you may file to preserve the claim. After we discuss the facts of your case, we’ll be able to make a recommendation.

Are health insurers, including Medicare or Medicaid, involved in medical malpractice claims?

Yes. Health insurers, including Medicare and Medicaid, take the position that because they paid money as a result of a healthcare provider’s negligence, they should be reimbursed out of your recovery. The law supports their position. This is the reason that juries are instructed by the judge to include medical expenses when they calculate a patient’s damages.

Can medical malpractice claims be brought against nursing homes?

Yes. Health care providers within a nursing home setting are all responsible for the medical care that they provide.

Can claims for negligence be brought against pharmacies?

Absolutely, but showing the evidence is crucial. Do not let time pass to allow the evidence to be lost. Contact our office immediately for help.

Have other questions about Medical Malpractice? Contact an expert lawyer for Medical Malpractice at Montross Miller.