Medical Malpractice Lawyer Foley & Small
Indiana was the first state to pass medical malpractice reform legislation in 1975. The Medical Malpractice Act places limits on recovery, imposes special requirements to the bringing of a malpractice claim and continues to apply the law of contributory negligence to such cases instead of the law of comparative negligence.
Foley & Small has handled numerous malpractice claims. These claims are often complicated both as to the legal and medical issues involved. Foley & Small retains medical experts to review and offer opinions on our client’s cases.
What are the recovery cap limits?
Indiana’s Malpractice Act caps total damages available to a patient/plaintiff at $1.25 million. The cap has been raised twice since 1975.
Physicians and other individual healthcare providers are only responsible for the first $250,000 in damages to any patient for one act of malpractice and no more than $750,000 in the annual aggregate. The state Patient’s Compensation Fund (PCF) pays any excess, not to exceed $1 million -- for a total possible recovery cap of $1.25 million.
How long do patients have to sue?
Patients must file malpractice claims within two (2) years from the act of malpractice. However, minors under the age of six (6) have until their eighth birthday to file. In limited circumstances, courts may allow patients to file their claim after these time limits have expired if the patient could not have reasonably discovered the malpractice within that time.
Can patients immediately sue in court?
No. Patients first must file a proposed complaint with the Indiana Department of Insurance and have their case evaluated by a medical review panel consisting of three physicians. If there is only one defendant, at least two of the three panelists must be from the defendant’s specialty. After the panel has issued its report, the patient can choose whether to proceed to court, and has 90 days after the issuance of the panel opinion to file suit in court. The panel’s report is admissible at trial, but is not conclusive, and the panel members can be called as experts.
Medical Review Panel
- 3 health care professionals, 1 attorney
- Attorney - chairman & facilitator (no vote)
- Plaintiff and defendant choose a provider
- These two choose the third provider
- Specialist defendant - 2 panelists from that specialty
- 180 days to render panel opinion
Contributory Negligence, Not Comparative Negligence Applies
Proof that the negligence of the injured party contributed to the injury can be sufficient to bar any recovery under the Medical Malpractice Act. For any such contributory negligence to bar the claim, however, the negligence asserted against the plaintiff must have occurred at the same time as the claimed negligence of the health care provider. If any claimed negligence by the plaintiff, patient only occurred after the negligence of the health, such negligence would not bar plaintiff’s recovery but only possibly reduce plaintiff’s recovery. The Comparative Fault Act does not apply to health care providers covered under the Medical Malpractice Act.
Requirement of Expert Testimony
Expert testimony is normally, but not always, required to be presented by the plaintiff to show and prove the negligence of the health care provider. It is not required in cases where the issue is one that a non-medical professional can be expected to understand. If the case falls under the Medical Malpractice Act, then the opinions of the members of the review panel may be submitted as expert testimony, in which case the plaintiff may not need to retain an expert for trial. This article presents a basic understanding of medical malpractice law in Indiana. For anyone contemplating entering into a medical malpractice action, a great deal of further information would be required.
Contact Foley & Small
If you or a family member has been injured as a result of the negligence of a health care provider, click on the link at the top right of this page for a live chat with a member of our staff or email us from our Contact page. You can also call us at 800-276-2525.
Let the attorneys and staff of Foley & Small use their experience and expertise to help you and your family.
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