Undergoing surgery or another invasive medical procedure can be a scary prospect. If your surgeon or physician makes a mistake during your procedure that sets your recovery back significantly or requires you to undergo further care, you may wonder how you will ever be made whole again. While malpractice lawsuits are a type of personal injury lawsuit that can compensate you for medical negligence or recklessness leading to injury, Indiana has one of the most restrictive medical malpractice caps in the country -- making it difficult to have all your costs covered if you need extensive rehabilitation or if a medical oversight leads to an injury that requires lifelong accommodations. What are your options if you find yourself dealing with the aftermath of an Indiana doctor's negligence? Read on to learn more about making your malpractice charges stick, as well as some proposed changes to the Indiana laws governing malpractice damage awards.
What must you prove to recover damages from a physician who has committed malpractice?
In order to establish physician liability, you'll need to conclusively demonstrate (with a preponderance of the evidence) several factors to a judge or jury. First, you'll need to show that the physician's action or inaction was a breach of his or her duty of care to you. This can be accomplished by showing what an accepted standard of care would be (for example, thoroughly washing one's hands before gloving up for surgery, or counting tools before stitching up a surgical incision) and then providing evidence that the physician's behavior fell far short of this standard.
You'll then need to demonstrate that this breach of care directly led to your injuries. This can sometimes be more difficult than it might seem, as pre-existing conditions and other comorbidities can sometimes complicate a determination of how much of an injury or illness is due to medical malpractice and how much is due to lifestyle choices or genetics.
Once you've established each of these factors with a preponderance of the evidence, you'll receive a malpractice judgment against the defendant physician or hospital. However, this judgment won't carry with it a dollar amount until the penalty phase. During this process, the judge (or jury) will take testimony and evidence regarding the financial value of your claim. You'll need to provide documentation on the expenses you've incurred to date as a result of a doctor's negligence and the expenses you expect to incur in the future.
What are your options if your financial loss from the physician's negligence exceeds Indiana's malpractice cap?
Some states place no limits on the dollar amount of compensatory and punitive damages that can be awarded to a prevailing plaintiff during the penalty phase. However, Indiana limits the amount of money that can be collected from a single doctor at $250,000 per incident. If the victim's medical costs exceed this amount, he or she can qualify for an additional $1,000,000 in compensation from Indiana's Patient Compensation Fund, but no damages over this amount can be collected from either the defendant physician or the state. For those who are severely injured or whose injuries require lifelong care, this malpractice cap may mean that only a fraction of medical costs are covered even after a successful lawsuit.
Fortunately, efforts to increase this cap are swiftly gaining traction in the Indiana General Assembly. If a proposed bill is successful, the amount that can be awarded to a prevailing plaintiff will increase by $400,000 to $1.65 million, with steady increases over time for the next few decades to ensure this amount keeps pace with inflation. Another piece of good news is that if your malpractice claim is filed (but not decided) before this bill is signed into law, you should be able to collect damages based on the new $1.65 million limit.
For more information, contact a company like Davidson Law Center Inc.