Blog Entries
Newer posts →What is medical negligence or malpractice and what do I have to prove?
Sometimes we refer to medical negligence or medical malpractice as “running a medical red light”. In other words, medical negligence is when a doctor or other healthcare provider does something or does not do something that other doctors agree is outside of what they consider reasonable given the circumstances.
It is a two-step process.
1. To prove a doctor was negligent, you first have to prove that the doctor’s care or treatment was not acceptable. However, that does not mean that a bad result equals negligence. If another doctor may have done it differently or doctors agree that bad things can happen even when a doctor is doing the right thing (risk of the procedure), that is not enough to prove the doctor committed malpractice. The other healthcare providers have to believe that the doctor did not act within the standard of care.
2. Next, if you prove the doctor was negligent, then you have to prove that the negligence made a significant difference or caused a significant harm. If a
Medical Mistakes Are A Leading Cause Of Accidental Death
According to an exhaustive investigative report on medical errors by the Houston Chronicle, the most current research finds that preventable deaths from medical errors approaches 200,000 per year in the United States. http://www.chron.com/disp/story.mpl/deadbymistake/6555095.html
This means that in the last ten years over two million people in the United State have died neeadlessly due to preventable medical errors. Ten years ago a federal report entitled “To Err is Human” by the national Institute of Health, called the death toll shocking and challenged the medical community to cut the number in half within five years. http://www.nap.edu/openbook.php?record_id=9728 Instead it appears that number has only increased. The reasons for the medical communities failure to address the continuing crisis of medical negligence are many. For example, many errors could be prevented by simple changes in procedures like color coding medical tubes or requiring surgeons to use a presurgery checklist much like a pilot uses before take off. One of the most significant reasons the medical community has failed to do more to prevent medical errors is because there is a “code of silence” that permeates the system where secrecy and “looking the other way” are preferred to exposing the minority of physicians who are responsible for the majority of the malpractice.
My partner, Caroline, and I have represented patients in which we discovered their injuries were caused by local doctors who were incompetent, including in one case where the doctor continued to perform unnecessary surgeries which maimed his patients even though his colleagues knew he was incompetent. One local doctor testified that he had never testified against another doctor but in this case he would make an exception because he was “tired of cleaning up his mess.” Of course, this same doctor was only persuaded to testify during a malpractice claim, he had never come forward to challenge the incompetent doctors ability to practice medicine, despite hisknowledge that his collogue was leaving his patients injured and disabled. It ultimately was discovered that the physician was a long term alcoholic who lost his license only after a DUI arrest.
Caroline and I have represented patients and their families who have suffered from the negligence of health care providers in Indiana for many years. We know that to prevent it from happening to someone else people who have suffered from malpractice must come forward. We understand your concerns, but we are here to answer your question. Call us for a free confidential consultation about your
How does the Medical Review Panel work?
The panel is made up of three healthcare providers who are of the same or similar specialties as the doctor or other healthcare provider(s) who have had the claim made against them. For instance, if the claim is against a surgeon, then there will be at least two panelists who are also surgeons on the panel. The panel selection is a somewhat random process, which is the result of nominations and striking by each side. The attorneys for the patient and the healthcare provider then submit written material to the panelists, which they receive all at one time. This can include medical records, articles, X-rays, and written arguments. The panel then reviews these materials and meets in person or by phone- typically just one time. They then decide whether they think that the healthcare provider was negligent or “breached the standard of care”. If they decide there was malpractice, then they will make a second decision as to whether there was any harm suffered as a result of the malpractice. The decision is then shared with both sides.
This process typically takes between one to three years, which is an unfortunately long time.
At Baker & Gilchrist, we understand that this is an uphill battle. We make every effort to move the process forward as quickly as possible and provide submissions to the panelists that make points that are clear and concise. We are local
What happens if I win or lose the Medical Review Panel?
If you lose the medical review panel, you and your attorney will decide whether you have a legitimate chance of success if you move forward and file your action in court. However, you will not be able to go forward unless you have an expert who will testify under oath that malpractice occurred and resulted in harm and damage to the patient.
Winning the medical review panel does not mean that your case will settle or resolve without the necessity of a trial. The decision by the medical review panel is admissible in court and the panelists can testify as experts, however, your case still may have to be decided by a jury. Every medical malpractice case that we take at Baker & Gilchrist is a case that we have anticipated from the outset may have to go to trial.
We have found that the best way to increase the chance of success of any case is to conduct a through evaluation early in the case, including expert review by nurses and physicians. Contact our
What is the Indiana Medical Malpractice Act?
The Indiana Medical Malpractice Act is a statute which was first passed in Indiana in 1975 that essentially set up a peer review of potential medical malpractice claims before they could be filed in court. The general idea of the panel is to have practitioners in the same or similar area of practice who review the care given and make a determination as to whether it is or is not negligent and, if so, whether that negligence resulted in harm to the patient. The Act limits or caps the amount of recovery that a patient can obtain. The maximum amount of recovery is $1,250,000, regardless of the amount of medical bills, lost wages, or other damages suffered. The doctor or healthcare provider’s contribution is limited to $250,000 of the total amount that can be recovered. If the patient’s damages exceed that amount, then the patient can seek additional money from the state by filing an action with the Indiana Patient’s Compensation Fund. As
This is the first of a series of four blogs. In later blogs, I will discuss generally who is covered by the Act, how does the medical review panel work, how long does it take and what happens when you win the medical review panel.
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Over the coming weeks we will be adding more information both here in the Blog and throughout the Site.
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