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MEDICAL MALPRACTICE UPDATE
We are pleased to announce that our law firm has just recently learned that we were successful in representing clients in a hotly contested legal battle over their right to pursue a medical malpractice claim against a medical provider who failed to provide them with the results of medical testing and therefore denied them the right to make informed decisions regarding their care.
Jack Morris, a founding partner of the law firm, represented Connie and Ronald Johnson in a claim they filed against a doctor and her genetic counseling service. In 1979 the Johnsons' first child had been born with a severe form of hydrocephalus with severe mental and motor retardation and no hope for long term survival. The child lived only four months. In 1982 as a result of another pregnancy the Johnson's sought genetic counseling which they received from Dr. Patricia Bader and Northeast Indiana Genetic Counseling. Tests showed the pregnancy was normal, and the baby was delivered without complication. Connie again became pregnant in 1991. The Johnsons again consulted Dr. Bader and Northeast Indiana Genetic Counseling. Dr. Bader performed an amniocentesis and an ultrasound. The amniocentesis results were normal and the Johnsons were told that the test results were normal. However, the ultrasound had been seriously abnormal. The doctor claims she told her staff to schedule Connie for follow-up, a fact contested by the staff member, however the bottom line was that the Johnsons were not told of the abnormal results. The pregnancy therefore proceeded and resulted in a virtual repeat of the circumstances that the Johnsons had gone through in 1979.
The Johnsons through our office filed a proposed complaint against the doctor and the counseling service and obtained a unanimous opinion from the medical review panel that the evidence supported the conclusion that the defendants failed to comply with the appropriate standard of care. Suite was filed against the defendants in state court on behalf of the Johnsons. The defendants moved for summary judgment claiming Indiana doesn't recognize a cause of action under these facts and in the alternative that Indiana should deny a cause of action under these facts on public policy grounds. Jack Morris briefed this issue for the trial court and presented oral argument. The trial court ruled in favor of the Johnsons and denied the defendant's motion for summary judgment. However, the defendants proceeded with an appeal. The matter was again briefed for the Indiana Court of Appeals and again oral argument occurred. The Court of Appeals rendered an opinion upholding the trial court's ruling however the Appellate Court was divided on whether or not the Johnsons would be able to recover damages for emotional distress. The defendants then sought transfer for this matter to the Indiana Supreme Court and the Supreme Court agreed to accept transfer. Briefs were again submitted by Mr. Morris on behalf of the Johnsons and oral arguments were presented the Indiana Supreme Court in September of 1997. After lengthy, and obviously thoughtful, consideration, the Supreme Court issued an opinion that the Johnsons were entitled to proceed with their claim and authorizing award of all damages that can be established under the facts of this case.
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The right to sue a medical provider for negligence (malpractice) in Indiana is, under most circumstances, governed by the Indiana Medical Malpractice Act, I.C. 34-18-1-1, et seq. (Hereafter the Malpractice Act)
MALPRACTICE
Under the statute malpractice is defined as a tort or breach of contract based on health care or professional services that were provided or should have been provided by a health care provider. To win a lawsuit against a health care provider, a patient must prove the doctor did something that should not have been done or failed to do something that should have been done and that as a result of the doctor's action or inaction the patient suffered damages. A health care provider is judged by the standard of care expected of a medical provider exercising the same area of practice under the same or similar circumstances. If we were talking about a car accident we would call this negligence on behalf of a driver however against medical providers it is called "malpractice".
PROCEDURES FOR INVESTIGATING AND PURSUING A MEDICAL MALPRACTICE CLAIM
Potential claims are reviewed to assure that there is a claim worth pursuing. This review considers: 1) whether there is good evidence the medical provider was negligent; and 2) whether there are sufficient damages flowing from that negligence to make it worth while for the patient/client and the attorney to pursue the claim.
The Malpractice Act requires claims against qualified health care providers be filed with the Indiana Insurance Commissioner. Upon filing of a proposed complaint with the Commissioner, a medical review panel is formed to review the complaint. The panel consists of a chairperson who is an attorney and three health care providers. The chairperson oversees the procedure and advises the panel on the law applicable to the case. The chairperson has no say in the ultimate decision. The panel is selected by the patient nominating one doctor, the defendant nominating one doctor and then those two nominees selecting a third doctor. However, the general practice has now developed where the panel chairperson nominates a striking panel of three physicians for each of plaintiff and defendant's nominees with the remaining health care provider from each striking panel to serve as the respective nominees and then those two select the third.
Once the panel is formed deadlines are set for submissions. A submission is a respective party's written documentation of the claim. The panel reviews these materials and renders one of the following decisions:
- The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint.
- The evidence does not supports the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint.
- There is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court or jury.
And, as to damages, where the panel has determined that there was evidence to support failure to comply or where there is a material issue of fact, the panel should also render an opinion as to whether the conduct complained of was, or was not, a factor of the resultant damages and if so, whether the plaintiff suffered any disability together with the extent and duration of that disability and any permanent impairment and the percentage of that impairment.
Neither party is bound to accept the conclusion of the panel. However, a Panel opinion is admissible into evidence in any trial. Either party may insist on a full lawsuit with a jury trial. Once a lawsuit in state court is filed following the panel opinion, the case proceeds as any other lawsuit.
STATUTE OF LIMITATIONS
Indiana has a strict statute of limitations dealing with claims against medical providers. A claim must be filed within two (2) years from the date of the alleged act, or omission, or neglect. Failure to file within this time period would result in a claim being totally barred. This limitation has been strictly enforced and anyone who is considering a claim for malpractice against a medical provider should contact a lawyer as soon as possible.
Although strictly enforced, Indiana Courts have accepted certain exceptions to the two year time limit. Therefore, if you are beyond the two years it is possible that an exception may apply but you will need to speak with a lawyer to see if you are protected by an exception.
STATUTE OF LIMITATIONS EXCEPTIONS
The exceptions have generally existed under circumstances where the same doctor has continued to treat the patient and therefore the patient has been unable to discover that the doctor was negligent or where the doctor has taken intentional action to prevent discovery of the negligence. However, under both of these circumstances a strict showing that the patient did not know and, could not have known exercising reasonable diligence about the cause of action, is necessary and, the patient is not always given an additional two years from the date at which they could have known but rather are still required to act within a reasonable time after discovering the negligence. Unfortunately, it is not clear what a reasonable time would be and therefore, once again, if an individual believes they have a claim for medical negligence they should contact an attorney as soon as possible to assure that any time limitation is noted and a claim filed prior to the expiration of that limitation period.
Recently, the Indiana Supreme Court has ruled that under certain factual patterns the statute of limitations applicable to medical negligence claims may be unconstitutional. On July 8, 1999, the Indiana Supreme Court handed down a decision in the case of Melody Martin v. Robert W. Richie, Jr., M.D., in that case the Supreme Court stated:
"We find that the statute of limitations has applied to the plaintiff in this case is unconstitutional under section 23 because it is not 'uniformly applicable' to all medical malpractice victims within the meaning of Collins v. Day, 644 N.E.2d 72 (Ind. 1994). Simply put the statute precludes Melody Martin from pursuing a claim against her doctor because she has a disease which has a long latency, and which may not manifest significant pain or symptoms until several years after the asserted malpractice. The statute of limitations is also unconstitutional under section 12 because it requires plaintiff to file a claim before she is able to discover the alleged malpractice and her resulting injury and, therefore, it imposes an impossible condition on her access to the courts and pursuit of her tort remedy." (Please note that the section 23 and section 12 to which the Supreme Court is referring is Article 1, Sections 23 and 12 of the Indiana Constitution.)
In other words the Indiana Supreme Court held that Martin could not be foreclosed from bringing her malpractice action when she could not reasonably be expected to discovery the malpractice and resulting injury within the two year period. The Supreme Court went on to state:
"..., the medical malpractice statute of limitations is unconstitutional as applied when plaintiff did not know, or in the exercise of reasonable diligence, could not have discovered that she had sustained an injury as a result of malpractice, because in such a case the statute of limitations would impose an impossible condition on plaintiff's access to courts and an ability to pursue an otherwise valid tort claim."
It is important to note that when a patient has sufficient knowledge under the test of "knows of the malpractice and resulting injury, or discovers facts, which in the exercise of reasonable diligence, should lead to the discovery" is a very fact sensitive question and it is anticipated that courts may be torn under the same fact pattern and reach conflicting results. Further, if discovered within the original two years from the act of negligence you should file within that time period or your claim may be barred. Once again, the lesson to be learned is where a patient believes that a medical provider has been negligent the patient should contact a lawyer immediately to assure that any applicable time limitation is investigated and that an appropriate claim is filed within that time limitation.
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