Medical Malpractice & Litigation
If a case needs to be investigated, the client is requested to visit the attorney’s office for a conference. During the conference, the attorney gathers additional information about the claim, explains the claims procedure, and addresses any queries the client may have. The client may also be asked to sign authorizations for the release of their medical records, and a representation agreement. Our firm proceeds to gather all the medical records, which are then organized by a paralegal. A physician is hired to review the records and give their opinion on whether there is a legitimate claim. Once the physician has given their opinion, we meet again with the client to discuss the recommendation and help them decide whether to proceed with the claim or not.
In Indiana, medical malpractice lawsuits are governed by the Indiana Medical Malpractice Act. Before filing a medical malpractice claim in court, it is required to undergo a medical review panel. The process begins by filing a “proposed medical malpractice complaint” with the Indiana Department of Insurance. Once the department receives the complaint, it notifies the healthcare provider and the insurance carrier of the defendant. The insurance company hires a defense attorney to represent the defendant.
After filing a medical malpractice lawsuit, the parties involved create a medical review panel. The patient selects one doctor to serve on the panel, and the defendant selects a second doctor. These two doctors then choose a third member to join the panel. An attorney acts as a non-voting chairman for the panel. Both parties have the right to ask questions of the other side and prepare medical malpractice submissions. These submissions are booklets that contain details about the cases, such as medical records, statements from the parties, depositions, expert reports, medical text, medical journal articles, and more.
After reviewing the submissions, the panel members give their opinion on whether the evidence supports the plaintiff’s complaint. During the review process, the parties are allowed to question the doctors about their views on the case. It is important to note that the panel’s opinion does not decide the case. Even if the panel does not support the plaintiff’s case, they still have the right to go to court. Similarly, the defendant has the right to defend themselves in court, regardless of the panel’s opinion. However, juries find the panel’s opinion to be very persuasive.
In most cases, the medical review panel’s opinion is what resolves the issue. However, if we feel that the panel members might be trying to protect a doctor against a legitimate malpractice claim, we recommend proceeding to trial even if the panel’s opinion is negative.
Under the Indiana Medical Malpractice Act, the defendant and the insurance carrier are responsible for the first $250,000. If the defendant agrees to a settlement, that amount is usually paid as a structured settlement. This structured settlement pays out a total of $250,000 but only costs $187,000. Once there is a settlement, the liability on the claim is established. The patient then has the right to go to the Indiana Department of Insurance to receive additional damages from the patient’s compensation fund. The fund can pay up to a maximum of $1,000,000. The patient and the Department of Insurance can try to agree on the damages. If they cannot settle, the patient can ask a judge to decide how much additional compensation is due.
Medical malpractice cases can be resolved either through dismissal or settlement. However, in some cases, the claim must go to trial and will be tried like any other lawsuit in court within the county where the events took place. The jury will consist of six members. Medical malpractice cases can be quite expensive to try because of the need for expert witnesses who must be paid fees. If a plaintiff receives a verdict against a healthcare provider, the first $250,000 will be paid by the insurance carrier for that healthcare provider. The rest of the damages will be paid by the patient’s compensation fund, up to $1,000,000, which is the maximum allowed by law.
Almost all medical malpractice cases are litigated on a contingent fee basis. This means that the attorney fees will be paid out of any recovery, which is a percentage of the recovery. If there is no recovery, there are no attorney fees due. The Indiana Medical Malpractice Act limits attorney fees from the patient’s compensation fund to 15%.
Apart from attorney fees, litigation expenses will also be involved in bringing a lawsuit. Litigation expenses are the costs that need to be paid to bring the lawsuit, such as charges for obtaining medical records and court reporter costs if depositions are taken. The medical experts who review the case must also be paid fees. If the case goes to trial, there will be additional expenses for expert witnesses, blow-ups, models, or other evidence to be presented to the jury. Our law firm often advances litigation expenses, which are paid back out of any recovery.
Medical mistakes made by healthcare providers are unfortunately common, and they can have serious consequences. Around 195,000 Americans die every year due to such errors in hospitals. These mistakes fall under the category of Medical Malpractice, which is governed by the law of negligence.
Medical Malpractice happens when a person is injured as a result of a healthcare provider’s failure to meet the standard of care. To determine if the provider has met the standard, their actions are compared to those of other professionals in the same field and the same geographical region. In other words, the question to be answered is whether the healthcare provider acted reasonably or not under the circumstances.
If you or someone you know have been the victim of medical negligence, we can help. Medical malpractice claims are challenging, lengthy, and expensive. But we have the knowledge, experience, resources, and staffing to pursue your case. We have successfully represented plaintiffs before medical review panels and courts, and we are ready to assist you.