Indiana Medical Malpractice Attorney Blog

Surgical Mesh: FDA Alerts and What They Mean For You

Tue, 31 Jan 2012 09:52:50 -0600

Last month, the Food and Drug Administration (FDA) ordered manufacturers of surgical mesh to conduct new studies of the mesh products used to treat two conditions affecting millions of women in the United States.

What is Surgical Mesh?

Surgical mesh is a woven fabric used in a variety of medical procedures. The new studies recently ordered by the FDA focus on the use of surgical mesh when used to treat two conditions: stress urinary incontinence and pelvic organ prolapse.

Stress urinary incontinence, the most common type of urinary incontinence in women, is the unintentional loss of urine during physical activity, such as coughing, sneezing, laughing, or exercise. When stress incontinence can be the result of weakened pelvic muscles that support the bladder and urethra. When surgery is deemed an appropriate treatment, mesh slings can be surgically implanted to provide lift and support.

Pelvic organ prolapse occurs when the muscles and ligaments supporting a woman's pelvic organs weaken to the point that pelvic organs can prolapse, or slip out of place. Pelvic organs include the vagina, cervix, uterus and bladder, with the bladder being the most common organ involved in pelvic organ prolapse. Symptoms of the condition may include pelvic discomfort or pain, pressure, leakage of urine, and sexual problems. If surgery is recommended for treatment, surgical mesh can be used to provide support to the affected organ(s).

FDA Alerts

The FDA has received reports of complications that can have serious consequences as a result of mesh placement. The most frequent complications reported include erosion through the vagina, infection, pain, urinary problems, and recurrence of the prolapse and/or the incontinence. Some patients required additional surgery to address the complications.

In July of 2011, based on an updated analysis of adverse events, the FDA issued a Safety Communication to inform the medical community and patients that:

Serious complications associated with surgical mesh for transvaginal repair of pelvic organ prolapse are not rare, and

It is not clear transvaginal repair pelvic organ prolapse repair with mesh is more effective than traditional non-mesh repair.

In early January, the FDA ordered 33 manufacturers of urogynecolgoic surgical mesh for pelvic organ prolapse and 7 manufacturers of single-incision mini-slings for stress urinary incontinence to conduct new studies of their mesh products. The FDA is requiring the manufacturers to submit plans for studies that will follow women for at least three years to determine side effects and to address specific safety and effectiveness concerns related to the mesh products. The current regulatory status for mesh products for stress urinary incontinence does not require pre-market approval testing.

What Does This Mean For You?

If your surgeon recommends surgery for stress urinary incontinence or pelvic organ prolapse, the FDA recommends you ask your surgeon the following questions:

What are the pros and cons of using surgical mesh in my particular case? Can my repair be performed without using mesh?

If a mesh is to be used, what has been your experience with implanting this particular product? What experience have your other patients had with this product?

What's been your experience in dealing with the complications that might occur?

What can I expect to feel after surgery and for how long?

Are there any specific side effects I should let you know about after the surgery?

What if the mesh doesn't correct my problem?

If I have a complication related to the mesh, can the mesh be removed and what could the consequences be?

If a mesh is to be used, is there patient information that comes with the product, and can I have a copy?

If you believe you have been harmed as a result of mesh implantation, contact the law firm of Wilson Kehoe Winingham. We have over 30 years of trial and litigation experience and we have achieved positive results for many clients. In addition to highly-qualified attorneys, our team includes two on-staff registered nurses and experienced paralegals and consultants. Put our resources to work for you.

What The Mesothelioma Attorney Brings To Your Asbestos Case

Mon, 21 Nov 2011 15:10:28 -0600

The National Institute of Health has estimated that 11 million people were exposed to asbestos between the years 1940 and 1978. With the latency period for mesothelioma (the time between exposure to asbestos and onset of the disease) typically between 25 to 50 years, it is projected that asbestos related cases will peak around the year 2020. This suggests that many individuals, for whom mesothelioma currently has little meaning, will yet have to seek medical care and legal assistance to cover health-related and other expenses. In considering this, it is important that the individual fully understand why contracting with a law firm can be critical.

Much of the reason for this has to do with the aforementioned latency period. The length of time between exposure and symptom onset/diagnosis often makes identification of where the exposure occurred (and thus who is responsible) difficult. Asbestos attorneys have resources for helping plaintiffs recall such occurrences including product identification books, employee records, contact information on former co-workers, etc. Such attorneys should also have a thorough understanding of case valuation as based upon several critical factors including the type of mesothelioma and its stage at diagnosis; the plaintiff's age, gender, and work history; the plaintiff's level of pain, suffering, loss of income and ability to keep working; and the exposure/diagnosis time lapse.

Perhaps more obvious, but equally important, the attorney experienced with injury cases brings an understanding of which jurisdictions tend to be more plaintiff-friendly, the ability to compare individual's case with others he/she has handled, and a knowledge as to the reputation of the defendant(s) for going to trial versus settling.

Some might think that the possibility of success in mesothelioma cases is not very good, with bankruptcies of some major asbestos manufacturers. That is absolutely not true. Funds are available from some of these bankruptcy proceedings to help compensate persons with mesothelioma. Many defendants other than asbestos manufacturers, such as property owners, product manufacturers who included asbestos in their products, and businesses that operated on a site known to have asbestos, all may have legal responsibility for the contraction of mesothelioma due to asbestos exposure. Identification of these numerous defendants is a key element toward successful resolution of a mesothelioma case.

While no one can determine the outcome of an asbestos-related case or the amount of compensation the plaintiff may be awarded, attorney experience in this very specific area of personal injury law should prove advantageous.

WKW Supports Breast Cancer Awareness - Facts You Should Know

Fri, 28 Oct 2011 12:26:44 -0600

BREAST CANCER FACTS:
2,149 New cases of breast cancer in men will be reported this year. That's a rate of 1.3 new cases per 100,000 men, compared with 123.4 new cases per 100,000 women.
39% How much higher the breast cancer mortality rate is among African-American women than among Caucasian women. Factors include barriers to health-care access and a later stage of breast cancer at diagnosis.
39,970 women will die from breast cancer this year in the United States, according to an estimate from the American Cancer Society.
90%-95% of women diagnosed with breast cancer don't have a family history of the disease or cancer in general.
(Sources: Susan G. Komen For the Cure, Central Indiana; www.indystar.com )
4,350 Indiana women were newly diagnosed with breast cancer in 2010, according to an estimate by the American Cancer Society. Source: American Cancer Society, Surveillance and Health Policy Research
*** One out of every 8 women will get breast cancer. A woman dies of breast cancer every 13 minutes. And breast cancer is the leading cause of death for women ages 15 to 54.
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SOME COMMON CLAIMS ABOUT BREAST CANCER
(Addressed by Dr. Otis Brawley, the American Cancer Society's chief medical officer)

Claim: All lumps in the breast are cancerous.

Answer: "No, most lumps are not cancerous, especially in younger women, but every lump should be evaluated," Brawley said.

Claim: Breast cancer is an automatic death sentence.

Answer: Breast cancer death rates have steadily declined in women since 1990, according to the society's "Cancer Facts & Figures 2011."

"We have about 220,000 to 240,000 women who are diagnosed with breast cancer in the average year, and there are about 40,000 who die in the average year," Brawley said. "A woman's risk of dying from breast cancer today is 70 percent of what that woman's risk would have been at the same age 20 years ago."

Claim: Leading a healthy lifestyle can prevent breast cancer.

Answer: "Healthy lifestyle can reduce the risk of breast cancer," Brawley said. But it's not a 100 percent guarantee that you won't get it.

Take the 55-year-old woman who gets breast cancer and says, "I did everything they told me to do. I got a mammogram every year to try to detect it early, but now I'm diagnosed with Stage 4 disease. I exercised. I ate right. I didn't smoke. Why did this happen to me?' " Brawley said. "The answer is all of those things reduce risk of getting cancer but do not reduce risk to zero."

On a similar note, "obesity increases risk of breast cancer," but "every obese woman is not going to get breast cancer," he said.

Claim: Thermography is better than mammography for breast-cancer screening.

Answer: "No, it is not," Brawley said. "We do need a better test (than mammography). I wish thermography were that better test, but I don't have clinical studies to tell me that thermography is that better test right now."

Thermography is a way to measure and map the heat on the surface of the breast to detect changes that could possibly indicate a tumor, according to the cancer society. The society doesn't endorse its use for screening.

Also, the U.S. Food and Drug Administration issued a warning in June that thermography is not a substitute for mammography. The statement noted "the FDA is unaware of any valid scientific evidence showing that thermography, when used alone, is effective in screening for breast cancer."

Claim: There's no need to get a mammogram at age 40.

Answer: There is some debate here. But the American Cancer Society recommends an annual mammogram, starting at age 40.

"The number of lives that mammography saves among women in their 40s is a small number, but it saves lives," Brawley said.

In late 2009, another group -- the U.S. Preventive Services Task Force -- sparked controversy by recommending that women start screening at age 50. The expert panel, which suggests that mammograms be done every two years, said the benefit of screening in the 40 to 49 age group is small and cited other drawbacks, such as common false alarms. But the task force also stated that the decision to start screening before age 50 should be an individual one.

Brawley acknowledged there are problems with the test, including the fact that it "will miss a lot of breast cancer, but it still saves lives," he said, "therefore, we recommend it."

Claim: You must do formal breast self-exams.

Answer: Actually, the American Cancer Society's official screening guidelines refer to breast self-exams as just "an option" for women who've reached their 20s, and the U.S. Preventive Services Task Force recommended against teaching the exams.
Brawley suggests this approach: "What a woman should do is be aware of her breasts and think of it as a brief physical exam every day when one is in the shower as opposed to that monthly breast self-exam that took a half hour to do. If one finds an abnormality, one should seek medical attention for that abnormality."
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KOMEN TISSUE BANK - INDIANAPOLIS:
The goals of the Bank are to acquire biomolecule and tissue specimens from the entire continuum of breast development: puberty to menopause and to make these specimens or the digital data derived from them available and accessible to researchers across the globe.

By collecting samples from women with and without breast cancer, researchers will be able to determine the differences between these populations, which could lead to a better understanding of the disease. Samples taken from women without the disease are especially helpful because there are few collections of so-called "normal" specimens. The Susan G. Komen for the Cure Tissue Bank at the IU Simon Cancer Center will ultimately give researchers valuable and unprecedented research data.

What to Expect During the Donation Process
During the donation process, a tissue sample is taken from one breast with a needle and local anesthesia. The amount of tissue taken is about one gram (or the size of two peas).

To participate, women must:
• be age 18 or older
• have the ability to understand and the willingness to sign an informed consent
• be willing to give one hour of their time to complete a questionnaire and a breast biopsy
• not be allergic to local anesthetics (numbing medicine)
• not be receiving a therapeutic blood thinner (this does not include aspirin)
• not have breast implants or have had a breast reduction

Register online or contact Kathi Ridley at (317) 274-2366 or keridley@iupui.edu. Donors must have a confirmed appointment time.

If you'd like more specific information you can go to the National Cancer Institute website or the American Cancer Society website.

The DePuy ASR XL Hip Implant Recall What It Means to You

Wed, 06 Apr 2011 13:54:54 -0600

On August 26, 2010, DePuy Orthopaedics announced the recall of both its ASR XL Acetabular Hip System as well as its ASR Hip Resurfacing System. This recall is in response to alleged product defects that have adversely affected a significant percentage of the 93,000 people who have received a DePuy hip replacement since 2003.

Many individuals who received these DePuy hip implants have experienced symptoms such as pain, swelling, inflammation, weakness, sinew (tissue that connects muscle to the bone) damage and even tumors. It is believed that the cause of these symptoms is a flaw in the DePuy hip implant. The prosthetic components can come loose thereby releasing microscopic metal shavings into the surrounding blood and tissue. There are estimates that perhaps 1 in 8 individuals have required revision surgery to correct the damage from these implants.

What You Can Do
If you have had a hip replacement since 2003, believe the implant to have been manufactured by DePuy, and are experiencing any of the symptoms cited above, you should be reimbursed for out-of-pocket costs related to your injuries and any lost wages you may have incurred, as well as compensated for your pain and suffering.

You have several options:

You can choose to do nothing

You can seek to settle on your own with DePuy, in which case you will be dealing with DePuy attorneys and/or representatives, most likely offered a small settlement, and forfeit your right to a larger settlement in the future.

You can elect to work with an experienced attorney whose sole obligation is to advocate on your behalf and seek the full compensation to which you're entitled.

Why Wilson Kehoe Winingham?
Wilson Kehoe Winingham is widely known for the success it has had in obtaining favorable verdicts and settlements on behalf of individuals who have been harmed or have suffered as a result of product defects and/or medical malpractice.

The positive results we have achieved stems from over 30 years of trial and litigation experience as well as a multidisciplinary approach that, in addition to highly qualified attorneys, also incorporates the talents of an on staff registered nurse, investigators, paralegals, videographers and consultants.

We are well-versed in all matters pertaining to the DePuy Hip Implant recall and handle numerous cases involving these products.

If you believe you have been harmed as a result of having a DePuy hip replacement, contact the Indiana law firm of Wilson Kehoe Winingham. Put our resources to work for you.

WKW. Injury Lawyers ... Restoring Lives.

Bill Winingham elected to the Indiana Judicial Nominating Commission

Fri, 12 Nov 2010 08:21:17 -0600

Wilson Kehoe Winingham partner Bill Winingham was recently elected to the Indiana Judicial Nominating and Judicial Qualifications commission. The seven-member commission appoints judges to the state's appellate courts and handles cases of judicial misconduct among other duties.

Only three members of the commission are attorneys, who are elected by their colleagues in Indiana's 2nd judicial district. Also sitting on the commission are Indiana Chief Justice Randall Shepard and three non-attorneys. Bill won the election for the District II attorney seat on the Judicial Nominating Commission with a total of 672 votes. Jan M. Carroll was second with 543 votes, Kathy L. Osborn third with 399 votes, Joel M. Schumm was fourth with 310 votes and David R. Hennessy fifth with 272 votes.

Congratulations Bill!

What Constitutes Medical Malpractice in Indiana?

Thu, 23 Sep 2010 09:09:00 -0600

Indiana Code 34-18-2-18 defines "Malpractice" as a tort or breach of contract based on health care or professional services that were provided, or that should have been provided, by a health care provider, to a patient. In simple terms, Malpractice is when a health care provider not doing what he/she is supposed to do or did what he/she was not supposed to do. The term is used to indicate medical negligence by a health care provider that causes an injury.

In order to prove Malpractice, a Medical Malpractice attorney in Indiana must show the four essential elements of a tort: Duty, Breach, Injury and Causation.

• Duty: If you have been treated by a health care provider, a duty is created, meaning the health care provider owes the patient a duty to act as a reasonably competent physician would act under the same or similar circumstances. Doctors have the duty to meet the applicable "standard of care".
• Breach: In order for a patient to establish that a health care provider has breached the duty to the patient by failing to meet the applicable standard of care requires that the patient establish this fact through expert testimony.
• Injury: The patient must show that he/she was harmed in such ways as, death, disfigurement, deformity, physical loss of function, impairment to bodily or mental function, loss of earning capacity and reduced chance of recovery.
• Causation:The injured patient must prove that the harms they are complaining of were directly caused by the health care provider's failure to meet the applicable standard of care.

Despite the fairly simple language used above to define what malpractice is, there has been a great deal of case law determining who is a patient, when does a doctor patient relationship and thus a duty arise and when does it cease, what is an act or occurrence, what is the cause of an injury and which injuries received in a health care setting are from malpractice versus which are not from malpractice. Future articles will attempt to explain the various distinctions of these terms and situations.

Malpractice cases present a unique set of challenges that require a thorough understanding of both medical and legal issues. WKW has an experienced Malpractice team, including a Physician-Attorney and Legal Nurse Consultant on staff, to assist in analyzing and evaluating your claim.

Injuries suffered as a result of malpractice can be serious and life altering. If you or a loved one has been injured by Malpractice, contact us. Let your recovery begin.

Tort Reform and Indiana Medical Malpractice Law

Fri, 25 Jun 2010 11:03:53 -0600

Since the recent Gulf oil spill there has been some discussion among the public and members of the US government about the $75,000,000 liability cap placed on oil companies for damages they cause due to deepwater spills. Congress is now re-examining the cap on such damages and trying to retroactively remove them or raise the limit to a mere $10 billion. This arbitrary cap previously enacted into law is an example of one aspect of what is commonly referred to as "tort reform". The term "tort reform" is placed in quotation marks to indicate that while it is the common term for such measures, the term itself is intentionally misleading. It was invented as a strategy to engender public support for legal measures which by their very nature reduce the rights of the members of the public for the benefit of various business interests.

Indiana has capped all damages caused by medical malpractice since 1975. Initially it was $100,00 per occurrence for the doctor and $400,000 from the Indiana Patient's Compensation Fund. That was subsequently raised to $100,000 and $650,000 and finally increased to $250,000 for the doctor and $1,000,000 from the PCF. A simple consumer price index for inflation over that period shows that in order to obtain the same value as the $500,000 total set in 1975 at today's value in dollars would require and increase up to over 2 million of today's dollars instead of 1.25 million. Further, to the extent the damages are intended to pay for future medical care, the amount should be increased even more since medical inflation is generally well over twice the rate of general consumer price inflation.

Facts about Medical Malpractice

Fri, 29 Jan 2010 14:42:57 -0600

Health care reform and medical malpractice have become increasingly visible issues in the current political climate. Most health care reform proposals that have been entertained by Congress have included language that seeks to reduce the ability of citizens to seek redress in courts for injuries suffered due to medical malpractice. The popularly accepted reasoning is that malpractice insurers, faced with an onslaught of medical malpractice claims in recent years, must increase the premiums they charge doctors for malpractice insurance to keep up with the ever-increasing claims paid out to policyholders. Indiana medical malpractice law currently caps total damages at $1,250,000 in all cases of malpractice since 1999. The previous cap was $750,000, which was an increase from the original $500,000 cap first established in 1975.

Data provided by the malpractice insurers themselves, however, paints a very different picture. The numbers reported in their Insurance Expense Exhibits by medical malpractice insurance providers to the National Association of Insurance Commissioners revealed that the average profit of the top ten providers was higher than an astonishing 99% of Fortune 500 companies.1

Recent report says $800 billion a year wasted in US health care system

Mon, 26 Oct 2009 13:02:37 -0600

A recent report released by Thomson-Reuters indicates that a staggering $800 billion is wasted every year in the U.S. health care system due to inefficiency, fraud, medical mistakes and lack of preventative care.

The report claims that doctors routinely overprescribe antibiotics and order unneccesary tests to protect from malpractice liability, a behavior which accounts for $200 to $300 billion of the wasted funds. Fraud also makes up a substantial portion and accounts for almost $200 billion a year. Administrative inefficiency and redundant paperwork account for up to 18 percent of the total.

The report also states that medical mistakes account for $50 to $100 billion of the total. Medical mistakes may not necessarily be classified as medical malpractice but can cost patients and insurance companies substantial amounts of money in treatment that would have been otherwise unnecessary.

The overall conclusions of the report found that U.S. hospitals spend nearly twice as much as comparable Canadian hospitals on administrative costs and demand more time from doctors who spend an average of eight hours each week on paperwork instead of attending to patients.

As medical malpractice attorneys in Indiana, we have also seen several recent articles which have identified "fee for service reimbursement" as a primary motivator underlying this waste. In other words, heath care providers' bottom lines are dependent primarily on how much "medicine" they deliver as opposed to how well the patient does. Thus, much of the identified waste is overutilization which may be rationalized as defensive medicine so as not to question the physician's motivations. True fraud requires dishonest intent. Waste rationalized as "defensive medicine" effectively diminishes or removes any dishonest intent and replaces it with a rational fear of a litigation system run amok.

On Indiana's Medical Malpractice Caps

Mon, 21 Sep 2009 13:36:13 -0600

A recent court decision and $8.5 million jury award may put the question of Indiana's stringent medical malpractice award limits to the test.

The family of Debbie Plank was awarded that amount against Community Hospital North after the hospital mismanaged an X-Ray taken and read in 2001. She died from a bowel obstruction injury that could have been detected and surgically repaired had the hospital managed the radiograph appropriately.

Of course, that award was reduced to $1.25 million by Indiana state law. The Plank's lawyer has said he will appeal the reduction as unconstitutional under Article 1 Sections 20 and 23 of the Indiana Constitution.

Indiana's current malpractice cap has been in place since 1999, when it was raised from $750,000. Besides the claim of unconstitutionality, that amount doesn't even keep up with inflation - $1.25 million in 1999 equates to a little over $1.65 million in 2008 dollars, adjusted for inflation.

According to Injuryboard.com, thirty-two states have some kind of damage cap in medical malpractice cases. Alaska, Florida, Ohio and Massachusetts have caps that can be waived or increased in severe cases. Two states cap only wrongful death cases. Four states have a $250,000 general award cap, four states have a total damages cap, eighteen states have non-economic damages caps between $250,000 and $500,000, and four states have damages caps that exceed $500,000.

Medical Malpractice Deaths

Thu, 27 Aug 2009 08:21:45 -0600

Are you safer on the highway or lying in a hospital bed?

You might be surprised - nearly 200,000 people a year die as a result of medical mistake, while only about 20% of that figure die in automobile accidents.
A comparison of statistics from several sources indicate that medical malpractice - an issue that has hardly made a splash in the health care debate - is a major problem. For firms that specialize in medical malpractice cases in Indiana, this news comes as no surprise.

Earlier this month, HealthGrades, a health care quality company that studies the medical industry, looked at 37 million American patient records from the years 2000-2002, and found that an average of 195,000 patients died due to potentially preventable in-hospital medical errors.

Half of those errors arose from hospital-acquired infections, and the other half from preventable mistakes, including safety issues within the hospitals, failure to diagnose post-operative infections, failure to recognize the degree of injury, failed or missed diagnoses, etc.

Even though this number is far too high in and of itself, the National Highway Transportation Safety Administration's 2008 study, published in June, reports that 37,261 people died from car crashes last year (a statistic that is down almost 10% from 2007). This represents an almost 5 to 1 ratio concerning the number of people who die as a result of medical mistakes vs. automobile accidents.

The HealthGrades numbers are double the number from a 1999 Institute of Medicine study, which, even at that number, called medical malpractice an "epidemic", and pegged the cost to the country then at $6 billion.

That study was supposed to spark a revolution in medical field accountability. Based on the most recent stats (which are a few years old, but are the best we can find at this point), there seems to be little - if any - reason to think that things have gotten better since 2003.

The IOM report made a number of suggestions for increasing patient safety that were only spottily and partially instituted. Among those suggestions that were only partially instituted were mandatory (or at least centralized) reporting of hospital deaths by mistake, creation of a national patient safety center, and the proposing that hospitals themselves could take further responsibility for patient safety. Several states do now require reporting certain preventable deaths and other non-lethal complications.

Since health care is now such a huge story, this may be the time to revitalize this discussion.

Indiana Medical Malpractice Law: an Overview (part 5)

Mon, 06 Jul 2009 15:05:38 -0600

Finally, here are a few caveats based on interviewing many people over the years who believe they have been injured by medical malpractice.

● One cannot recover money damages as compensation for something that did not happen. In other words, if a health care provider either does or fails to do something that you believe could have led to your death, you cannot recover money for "I could have been killed". One can only recover compensation for actual harms, not near misses.

● One also cannot successfully sue a health care provider for having bad "bedside manners" unless of course those bad manners are a breach of the standard of care and can be shown to have caused a harm.

● Due to the complexities, costs and delays that have been layered onto medical malpractice claims, those claims involving small damages are unlikely ever to be pursued in a court of law.

● The failure on the part of a health care provider to keep your family members informed of your condition or planned procedures is also not a basis for a cause of action. A frequent complaint is that "the doctors and nurses didn't tell me what was going on the whole time." A failure to adequately inform a patient, or if necessary another decision make such as a minor patient's parent or person exercising a medical power of attorney for a patient, can be the basis of a claim for lack of informed consent. However, the physicians have no duty to keep everyone informed of what is being done to the patient. In fact, they have a duty to not disclose information unless they have express permission from the patient to do so.

Indiana Medical Malpractice Law: an Overview (part 4)

Sun, 05 Jul 2009 10:21:30 -0600

The Indiana Medical Malpractice Act limits the amount of compensation available to injured patients irrespective of the nature or degree of the harms which are caused by a health care provider's negligence. For claims accruing prior to January 1, 1990, the amount recoverable against a single qualified provider may not exceed $100,000, and the total amount recoverable against all qualified providers and the Patient Compensation Fund may not exceed $500,000. As of January 1, 1990, the maximum recoverable from all qualified providers and the Fund was increased to $750,000. For claims accruing on or after July 1, 1999, the limit for each qualified provider is $250,000, and the total cap on damages against all qualified providers and the Fund combined is $1,250,000.

The Medical Malpractice Act also places limits on attorney's fees in these claims. A claimant's attorney may not receive more than fifteen percent fee on any award from the Patient Compensation Fund.

Contributory negligence is a complete bar to recovery in Indiana medical malpractice claims under the Act. In other words, a patient has a duty to exercise reasonable care in providing accurate and complete information to a health care provider. In addition, a patient has a duty to exercise reasonable care in following a health care provider's instructions. If the defendant can show that the patient failed in either of these duties and that such a failure caused or contributed to the injuries to the patient then the jury will be instructed to find for the defendant.

Indiana Medical Malpractice Law: an Overview (part 3)

Fri, 03 Jul 2009 12:51:31 -0600

If a health care provider is qualified, then all of the requirements of the Medical Malpractice Act come into play. All claims for more than $15,000 in damages against qualified providers under the Indiana Medical Malpractice Act must be heard by a medical review panel (unless each party executes a written waiver). A medical review panel consists of one lawyer and three health care providers. Choosing a medical review panel is supposed to be a rather speedy process, in reality however it can take many months. It is the duty of the health care providers on the panel to express an expert opinion as to whether the evidence supports the conclusion that the defendant(s) acted or failed to act within the appropriate standard(s) of care and, if so, whether any failure to act within the standard of care was a factor in the injury. The panelist may also choose to opine that there is a material issue of fact.

This essentially means that if you believe what the plaintiff said happened then there was a breach of the standard of care but if you believe the defendant then there is no breach. The panel is not supposed to guess at who is actually telling the truth since that is a jury's job. In reality however, the must decide who to believe in most cases and base their decision on what they believe happened based on the medical records and the defendant's testimony. The medical review panel finds in favor of the defendant in the overwhelming majority of the opinions issued. The opinion issued by the panel is admissible as evidence in any subsequent action, but it is not conclusive. The lawyer on the panel advises the voting members of the law. The Panel has 180 days to render its opinion(s) after the last member is selected. Again, this process is often delayed well beyond the 180 day time period set out in the Act. Once the panel has expressed it opinion(s), you have at least 90 days in which you may file your claim in a court of law.

Indiana Medical Malpractice Law: an Overview (part 2)

Wed, 01 Jul 2009 08:26:46 -0600

There are a couple of rare exceptions to the rule requiring the plaintiff to show that a defendant has breached the standard of care. One is where the failure to meet the standard of care is so obvious that expert testimony is not required. An example would be if a patient had the wrong leg amputated. The doctrine of res ipsa loquitur raises another such exception. Here, the patient must show that they and their own actions or reactions were under the health care provider's care and exclusive control; that the injury was of a nature that would not have occurred but for an act of malpractice; and the agency or instrumentality that caused the injury was within the health care provider's exclusive control. One such example would be where a surgeon leaves surgical instruments inside a patient at the conclusion of a surgery. If all of these conditions are met, the jury is allowed to infer than an act of malpractice took place and the burden of proof then shifts to the defendant to show that he was not negligent in his care.

Injury requires the patient to show that he was harmed in any of many possible ways. Some examples of these potential harms include such physical harms as death, disfigurement, deformity, physical loss of function or impairment to bodily or mental function. In some cases, where the claim is one of failure to make a correct diagnosis, an argument can be made that the delay in diagnosis caused a reduced chance of recovery. Other harms can include a loss of earning capacity and any medical or other expenses made necessary by the malpractice.

Lastly, the injured patient must prove that the harms they are complaining of were caused by the health care provider's failure to meet the applicable standard of care. As simple as this last requirement seems, it is often a hotly disputed issue in medical malpractice claims. A doctor's failure to meet the standard of care may or may not be the cause of a poor result from treatment.