Medical Malpractice Law
How Do I Know If My Injury Constitutes Medical Malpractice?
Medical professionals are not expected to be infallible and there may be poor results from treatment that do not amount to malpractice. Medical professionals are expected to exercise the basic knowledge, skills, and care ordinarily possessed and exercised by other members of the profession acting under similar conditions and circumstances. This basic knowledge and skill is called a standard of practice, or standard of care. When a medical professional treats a patient and fails to use this basic knowledge, skill, and care whether the failure consists of doing something incorrectly, or failing to do something that should be done, that failure is a deviation from the standard of practice or care.
The injured party has the burden of proving that the health care provider negligently failed to meet the applicable professional standard of care for that health care provider. That means the health care provider failed to act as a reasonably prudent health care provider in Indiana would under similar circumstances. Health care providers are judged in comparison with similarly trained and qualified providers of the same class in the same community and in the same field of medical specialization. Likewise, a hospital owes their patients a duty of ordinary care to provide equipment and facilities reasonably suited to the intended uses and such as are in general use in similar hospitals under similar circumstances. The injured patient must then prove that the health care provider`s breach of the standard of care was a proximate cause of the injuries to the patient. In other words, there must be a close connection between the action of the health care provider and the harm to the patient. Finally, you have to show what damages resulted form the alleged mistake. This may include medical bills, lost wages, pain and suffering, etc.
Expert testimony is necessary to establish what the standard of care is and whether the defendant has conformed to it, unless the issue of care is one commonly understood by laypersons. Under the Medical Malpractice Act, a medical review panel must review all claims before the claim can be filed in court. The panel expresses an opinion as to whether the evidence supports the plaintiff`s proposed complaint. The plaintiff may file a lawsuit regardless of what the panel finds. The panel`s report is admissible as evidence in any subsequent action, but is not conclusive. Any member of the panel can be required to testify as an expert at trial.
Most medical malpractice actions in excess of $15,000 in Indiana are brought under the terms of the Medical Malpractice Act. This act governs actions against qualified providers, which refers to participants in the statesponsored excess insurance program. Not all health care providers participate, however. It is therefore important to distinguish between laws that apply to cases brought under the Medical Malpractice Act and those that apply in other cases. In cases brought under the Medical Malpractice Act, contributory negligence is held to be a complete defense that bars any recovery by plaintiff. In other cases, the Comparative Fault Act provides for a modified form of comparative negligence. Recovery is barred if the claimant`s fault exceeds 50 percent of the total fault. However, the Comparative Fault Act does not apply to tort claims against governmental entities or public employees. Medical malpractice claims are very difficult to prevail in and are also extremely expensive partly due to the need for qualified expert review and testimony. Whether or not you have a good case depends on the professional judgment of attorneys and medical experts. If you are told that you do not have a case with merit, you should seek another opinion from one or more other attorneys.