Medical Malpractice

Attorney Gladish is experienced at representing clients that have been wronged by medical professionals. Medical professionals owe a duty to ensure that their conduct meets standards set within their professional communities. A breach of this duty which results in the person receiving injury will entitle that person to proceed with a cause of action to recover for these injuries. Thus, in order to prevail in a medical malpractice action, the plaintiff must prove three elements: (1) a duty on the part of the defendant in relation to the plaintiff; (2) a failure to conform his conduct to the requisite standard of care required by the relationship; and (3) an injury to the plaintiff resulting from that failure.  Examples of medical malpractice cases currently being handled by Attorney Gladish range from failure to diagnose cancer as well as other medical conditions; birth injuries; negligent dose titration of medication; leaving sponges behind after surgery inside of the patient; sexual abuse claims; failure to perform a surgery in compliance with the standard of care; and other negligent acts when providing medical care and treatment.  Further, the State of Indiana has long recognized a physician’s duty to disclose to their patients material facts relevant to the patient’s decision about treatment.  Although a discussion of this duty has generally arisen in cases involving informed consent and the doctrine of fraudulent concealment, the underlying premise is still the same. In order for a patient to make an informed decision about their health, they must have the relevant facts at their disposal. If the physician has possession of those facts, then the physician has a duty to disclose them. This duty arises from the relationship between the doctor and patient, and is imposed as a matter of law as are most legal duties.

Next, it is a well-established principle that damages are awarded to fairly and adequately compensate an injured party for their loss, and the proper measure of damages must be flexible enough to fit the circumstances.  In these tort actions, all damages directly related to the wrong and arising without an intervening agency are recoverable.  In negligence actions specifically, the injured party is entitled to damages proximately caused by the tortfeasor’s breach of duty.  In order for a negligent act to be a proximate cause of injury, the injury need only be a natural and probable result thereof; and the consequence be one which in light of the circumstances should reasonably have been foreseen or anticipated.  However, the State of Indiana has the Indiana Medical Malpractice Act (“Act”) restricts the amount that can be recovered for a medical malpractice claim. No patient, regardless of the severity of the malpractice or the resultant injuries,  can recover unlimited damages.  The law holds that the total amount recoverable for an injury or death of a patient may not exceed the following: one million two hundred fifty thousand dollars ($1,250,000) for an act of malpractice that occurs after June 30, 1999 and before July 1, 2017.  The cap is one million six hundred fifty thousand dollars ($1,650,000) for an act of malpractice that occur after June 30, 2017 and before July 1, 2019.  The cap then rises to one million eight hundred thousand dollars ($1,800,000) for an act of malpractice that occurs after June 30, 2019.  As for a health care provider qualified under Indiana law is not liable for an amount in excess of the following: two hundred fifty thousand dollars ($250,000) for an act of malpractice that occurs after June 30, 1999 and before July 1, 2017.  This amount rises to four hundred thousand dollars ($400,000) for an act of malpractice that occurs after June 30, 2017 and before July 1, 2019.  Finally, the amount a provider can be liable for is five hundred thousand dollars ($500,000) for an act of malpractice that occurs after June 30, 2019.  Any amount due from a judgment or settlement that is in excess of the total liability of all liable health care providers, shall be paid from the patient’s compensation fund under IC 34-18-15.

Finally, the Act further requires that a claim be presented to a medical review panel before it is filed in a court of law. The Medical Review Panel consists of three (3) doctors with the same background as the defendant doctor. After the Panel gives its opinion, the plaintiff can then file their complaint in state court. The plaintiff will also have to have an expert to support the claim against the defendant doctor. This expert opinion can come from either the Panel or a hired expert who has reviewed all the evidence and has an expert opinion that supports the plaintiff’s claim.  When a plaintiff is represented by an attorney in the prosecution of the plaintiff’s medical malpractice action, the plaintiff’s attorney’s fees may not exceed thirty-two percent (32%) of any recovery under IC 34-18-14-3 after June of 2017.