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.
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.
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.
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.
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.
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.
-Douglas D. Small
-Edmond W. Foley
If you or a family member has been injured as a result of the negligence of a health care provider,email us from our Contact page or 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.
Represented estate of employee injured as a result of an at-work explosion caused by third party contractor.
Represented woman injured due to defective product resulting in injuries involving significant complications and multiple follow up procedures.
Represented estate of construction worker injured who suffered fatal injuries during the course of assisting and the unloading of construction materials from a trailer.
Represented estate of man electrocuted while working on farm property. Settlement with certain defendants and trial with one defendant.
Represented estate of middle age woman who suffered fatal injuries during the course of a car semi-tractor collision.
Represented estate of man who died from injuries due to collision with a semi-tractor trailer.
Represented family members suffering injury after being struck by a delivery vehicle which failed to stop for a stop sign.
Represented delivery driver of RV units injured in crash with vehicle on interstate highway resulting in severe lower extremity injuries. Settlements with two defendants and verdict against a third defendant.
Represented client rearended by truck resulting in concussive and hand injuries.
Represented client involved in an intersectional accident resulting in chest and upper extremity injuries.
Represented woman struck by a vehicle involved in a high speed auto chase.
Represented high school student injured in highway intersection accident suffering vertebral fractures.
Represented elderly handicapped gentlemen who fell on asphalt debris in apartment complex parking lot.
Represented woman injured at county road intersection collision suffering complex hand injuries.
Lead counsel in Indiana working to secure a settlement of $125,000,000.00 against the New England Compounding Center and its officers, directors and employees arising from fungus contaminated epidural injections distributed throughout the United States, including Indiana and Michigan.
Represented worker injured at work site due to injuries caused by third party contractors (not employer).
Retail store slip and fall claim resulting in brain injury.
Foley & Small handles and tries cases across Indiana and Michigan. This includes working in the following counties, county seats and cities: