Articles Posted in Indiana Medical Malpractice

When someone is injured in an Indiana accident, typically the first question asked is, “who’s fault was it?”Although sometimes there is clearly a responsible party, other accidents may be the result of the negligence of multiple people, including the individual who was injured. While, under Indiana law, an injured party is allowed to bring a negligence lawsuit against the person or persons who harmed them, plaintiffs should be aware that the defendants may try to pin some or most of the blame on them under Indiana’s Comparative Fault laws.

Under Indiana Comparative Fault law, if the defendant can convince the court that the plaintiff was partially responsible for some of their own injuries, the plaintiff’s award will be reduced by the amount he or she was at fault. However, if the defendant can convince the court that the plaintiff was 51% responsible or more, the plaintiff’s claim will actually be barred, and they might end up owing the defendant money.

For an example of the role of comparative fault in Indiana personal injury cases, take a recent 7th circuit medical malpractice case. According to the court’s written opinion, the plaintiff went to see the defendant, a nurse practitioner, after he failed a pre-employment physical exam due to high blood pressure. The defendant diagnosed the plaintiff with obesity and hypertension. She also gave him medication, but she did not explain to him his condition or the importance of taking the medicine and keeping regular appointments. Over the next five years, the plaintiff visited the defendant several times for care but would routinely go long periods without returning or taking his medicine.

An insurance company providing Indiana medical malpractice coverage to a doctor, nurse, hospital or other health care provider in Indiana owes its clients a duty of care to carefully consider any injury or wrongful death claim and act in good faith to reach a fair resolution. If the insurer has exclusive control in settlement negotiations, then rejects a claimant’s reasonable offer to settle the case within policy limits prior to or even during trial, the insurer can be responsible for a verdict in excess of policy limits.

As experienced Highland medical malpractice attorneys can explain, Indiana law has been written and interpreted this way to compel insurers to treat medical malpractice claimants fairly. Think about it: If the worst that could happen at trial for a medical malpractice insurer is that they’d have to pay the policy limits, what incentive would there be for them to settle for that amount – even if a person’s losses were obviously far in excess of that, before the case goes to trial? It would cost them the same either way.

Per the 1972 Indiana Court of Appeals decision in Bennett v. Slater, an insurer is liable to its insured for a judgment exceeding policy limits when the insurer had exclusive control of defending/settlement and doesn’t settle within the policy limits because of bad faith or negligence.

Jurors in an Indiana medical malpractice lawsuit ruled against a now-deceased physician accused of performing an allegedly unnecessary surgery on a 16-year-old athlete. 

The South Bend Tribune reports the lawsuit was filed in June 2015. The defendant physician died about a year later, but the case continued against his estate. The plaintiffs alleged their athlete son underwent a shoulder surgery he did not need, resulting in pain that will follow him the rest of his life. A two-day trial resulted in jurors deciding an award for $744,000 to be paid to the family. The boy reportedly suffered a wrestling injury and sought treatment.

Although he did not initially seek medical attention, the pain later became unbearable. The physician reportedly recommended surgery for the low-grade injury, involving an operation to remove part of his clavicle. The plaintiffs’ attorney now says the choice the doctor gave them – have surgery or live with the pain – was a “false one” because there were numerous other conservative treatment options that could have been employed first. It was not a decision that needed to be either-or.

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Preservation of the integrity of the judicial process means that jurors should only weigh that evidence which is considered relevant to the case. Extraneous information could be unfairly prejudicial. It’s the judge’s job to act as referee to make sure this doesn’t happen.

Usually, the question of what can and cannot be heard by jurors is decided long before the personal injury claim goes to court. Numerous pretrial hearings will be held to hammer out any disputes with regard to what evidence is pertinent.

In some cases, evidence that is deemed inappropriate for the jury still makes its way into the courtroom, either due to rogue questioning by an attorney or misunderstanding of a witness or some other oversight. In these situations, the court might determine there are grounds for a mistrial or a retrial.
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It is not enough in medical malpractice lawsuits for the plaintiff to simply provide evidence of wrong-doing or negligence. Before you even get to court, your law firm must clear a number of critical hurdles.

There are statutes of limitations on the lawsuit, but there are also numerous deadlines for various filings that must be met before a claim can move forward.

Patients first have to file a complaint with the Indiana Department of Insurance, which will appoint a medical review panel of three physicians to evaluate the case. If there is one defendant, two of the three doctors must be from the defendant’s specialty. If there are multiple defendants, the department must try to make sure the panel displays the most appropriate representation possible.
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