Steps to File a Lawsuit in Indiana
If you have been injured or your loved one has died unexpectedly while under medical care, you may have a medical malpractice claim. Your next step will be to find out how to file such a lawsuit.
Medical malpractice is generally defined as improper, unskilled or negligent treatment of a patient by a health care professional.
Filing an Indiana Medical Malpractice Lawsuit with Attorneys Baker & Gilchrist
The Indiana Medical Malpractice Act defines medical malpractice law in our state. This law requires a Medical Review Panel to review your case and report its opinion before your medical malpractice lawsuit can proceed to court. The Medical Review Panel’s opinion is admissible in court, and its members may be called to testify. The panel’s opinion is not the final word. But a negative review, of course, is not helpful to a plaintiff’s case.
Pursuing a medical malpractice lawsuit is a lengthy process. Because Indiana law generally requires a suit based on medical negligence to be filed within two years of the date of injury, it is crucial to get started on your legal claim as quickly as possible.
1. Consult with an Indiana medical malpractice lawyer.
An attorney experienced in the pursuit of medical negligence lawsuits in Indiana courts can provide a practical assessment of your case in a free and confidential initial consultation.
2. Gather medical records.
Make a formal written request to the hospital and any other medical offices or health care providers involved for all records relating to you and the procedures involved in your case. This information should consist of all consultations and tests, including any by medical professionals who may have referred you to the physician(s) or medical institution(s) that would be the defendants in your legal action.
3. Determine the injury and negligence in your case.
An experienced medical malpractice attorney will have a network of medical professionals with whom the attorney consults. Your attorney will send your medical records to their medical experts for review. The objective of a medical review is for an expert to determine whether the medical professional(s) involved in your case performed negligently and, if had they not been negligent, whether the injury would have occurred. If their opinion is that there was negligence, and it caused your injury, they will need to be prepared to testify to this opinion in court. This may require multiple reviews depending on the complexity of the case.
4. Obtain expert review to further assess your case
After review by the attorney and nurse, we may determine that we need additional review by an expert. Sometimes, we want expert review to help us determine whether another healthcare provider thinks that there was negligent care, as opposed to a judgment call or a different way of doing something. There are also times that we may not have a question about the negligence, but need to know if we can prove that the negligence caused harm or significant injury. Every piece of information we obtain, helps us to make better decisions about a potential case.
5. Make recommendation of whether to pursue a claim
After the attorneys at Baker and Gilchrist evaluate your potential medical malpractice claim, we will then make a recommendation to you whether or not we are interested in pursuing a claim on your behalf. Medical malpractice actions are very difficult to prove and win. Because the plaintiff has an affirmative duty to prove each and every element, our firm has to question in each case whether we could successfully prove a breach of the standard of care and that the breach caused the harm. At Baker & Gilchrist, we make our recommendations based on our experience, the information we have received, and any review with our medical experts. However, our evaluation is not intended to minimize in any way what you have experienced. It is simply our legal analysis regarding the assessment of our ability to successfully bring a claim and another attorney may have a different opinion.
6. File a copy of the proposed complaint with the Indiana Department of Insurance.
The Insurance Department’s Medical Malpractice Division maintains files of medical malpractice actions in the state. These files include proposed medical malpractice lawsuits. The division will forward a copy of the proposed complaint to each health care provider named as a defendant and to each defendant’s insurer(s), if known.
7. Request formation of a Medical Review Panel.
At least 20 days after a proposed complaint is submitted, either party may request that a Medical Review Panel be selected to review the complaint. The panel will consist of one lawyer and three health care providers.
8. Submit evidence to the Medical Review Panel.
Once the panel is chosen, your attorney will submit written evidence of your medical malpractice claim to the panel and ask it to convene. When the Medical Review Panel convenes, either party may question panel members.
9. The Medical Review Panel reports.
The panel will render an opinion as to whether the evidence supports the conclusion that the defendant(s) acted or failed to act within the appropriate standard of care. The panel should render its expert opinion in writing within 180 days of selection of the last panel member.
10. Decide whether to move forward.
After the Medical Review Panel has issued its report, you and your attorneys will determine whether to proceed to court. The panel’s report is admissible in court but not conclusive. Panel members can be called to testify in court as experts.
11. File your medical malpractice lawsuit.
If you and your attorneys believe your case has merit, your attorney will file the lawsuit with the court.
12. Negotiate with defendant(s) and their insurer(s).
With a medical malpractice lawsuit moving forward, the defendant’s insurer(s) will make contact and inquire about settling. Many times, a case can be settled out of court to the plaintiff’s satisfaction. This saves time and expenses, and it can bring a sad and stressful situation to a close. Your medical malpractice attorneys will negotiate with the defendant’s attorneys and report their settlement offers to you. Whether to settle is your decision as the plaintiff.
13. Have your day in court.
If a settlement cannot be achieved, your lawsuit will go to court. A medical malpractice trial involves a complete airing of the evidence, with testimony on behalf of the plaintiff and the defendant. The testimony will include expert witnesses who will testify on the medical aspects of the case. At the conclusion of each side’s presentation of evidence and arguments, the jury will render a decision.
14. Hear the verdict and award.
The jury’s decision will be announced in court and, if the plaintiff prevails, a judgment for a monetary award will be entered. Unless one of the sides appeals to a higher court, this ends the case. The defendant’s insurer will transmit payment of the award through your attorneys.
15. Report to the Insurance Commissioner.
Finally, all settled or adjudicated medical malpractice claims in Indiana are to be reported to the Insurance Commissioner. The report includes:
- Nature of the claim
- Damages asserted and the alleged injury
- Attorney fees and expenses
- The amount of any settlement or judgment.
16. Distribution of the judgment or settlement.
The final stage is to deduct the contingency (if your case was handled on that basis), settle and healthcare-related or other liens that may have been imposed while your case was pending and to distribute the remainder to you.
Contact an Indiana Medical Malpractice Lawyer Today
As you can see, there are many steps involved in filing a lawsuit for medical malpractice in Indiana and it can take a very long time. Not only do you need to act in a timely manner, but there can be real benefits for an attorney to get involved early after the malpractice occurs. That’s why it’s important to contact an Indiana medical malpractice attorney right away to begin a thorough review of your case.
With over 60 years of combined litigation experience, Rex Baker and Caroline A. Gilchrist have the skill and knowledge to investigate medical malpractice claims and hold negligent healthcare providers accountable for the physical, emotional and financial harm they have caused a patient.
To schedule a free and confidential review of your case, call Baker & Gilchrist in Indianapolis today at our toll-free number or fill out our online contact form. We’ll respond within 24 hours.