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Dying Indiana Doctor Complains About Unfairness of Malpractice Act

Posted by Rex in Medical Malpractice Law

Indianapolis television station, WRTV channel 6, is reporting the case of an Indiana doctor, a  victim of medical malpractice, who is publically complaining about the unfairness of the Indiana Medical Malpractice Act.  http://www.theindychannel.com/health/27948488/detail.html.  Dr. Hubbard has terminal cancer which was apparently misdaiagnosed at an earlier stage when it was treatable.  Dr. Hubbard went through the medical review panel proccess required by the Act and received a unanimouis opinion that the defendant doctor committed malpractice.  Yet, despite that decision, the defendant’s malpractice insurance company has refused to settle his claim.  Futrthermore, Dr. Hubbard is upset because he has 4 million in lost future income and 1.8 million in medical expenses, yet despite these losses, the Act caps his recovery at 1.2 million.

Dr. Hubbard is finding out personally what other victims of malpractice have known for decades, that  the Indiana Medical Malpractice Act is unfair the most to those who have suffered the most.  Since the Act caps all damages, there is no remedy for those whose injuries exceed the 1.2 million cap.  Consequently, for those who are paraiplegic, brain injured , quadriplegic, or families who have lost the lifetime income from the wrongful death of a loved one, the Indiana Medical Malpractice Act is patently unjust.  My partner, Caroline Gilchrist, just settled a case involving a profoundly brain injured child as a result of malpractice during his mother’s labor and delivery.  His mother must feed him, bathe him, dress him and otherwise provide around the clock care.  He can not talk or walk and may never do so.  The cost of a lifetime of care for this child will vastly exceed  any recovery, even though a settlement in the case will most likely include the entire 1.2 million cap under the Act.

Additionally,  Dr. Hubbard is finding out for the first time  that just because a medical review panel composed of the defendant’s peers finds the defendant committed malpractice it does not mean there will be a settlement.  In fact, it is unlikely there will be a settlement, even in cases of obvious malpractice.  This is also due to the affect of Indiana’s cap on damages.  The malpractice insurance carriers in Indiana have figured out that if a vicitim of malpractice is asking for the maximum of $250,000 the doctor is responsible for, they are better off proceeding to trial regardless of the medical review panel’s decision.  This is because they know juries in Indiana are very conservative and consequently, they will win a certain percentage of those cases.  Consequently, if they are going to pay $250,oo if they settle and $250,00 if they lose at trial , they might as well try the case.  If they win even 2 out of every 10 they have saved the company money.  It is not about what is right or just, or even whether the defendant actually committed malpractice,  only about how the insurance comapny can increase its profits.  Until there is some penallty for proceeding to trial and losing, they will continue to “game the system.”  And vicitms, like Dr. Hubbard, will be victimized twice, once by an act of malpractice and a second time by the Indiana Medical Malpractice Act.