The public relies on doctors and medical practitioners to keep them safe and healthy. When a healthcare professional’s mistake causes serious injury, it may be a case of medical malpractice. If you have been injured — in Fishers, Indiana or elsewhere in Hamilton County — as the result of a medical error, this is what you need to know.
What is Medical Malpractice?
Medical malpractice is a subset of negligence law, occurring when a doctor, hospital, or other healthcare professional fails to care for a patient to a reasonable standard and causes injury to that patient. To be successful in a medical malpractice lawsuit, the plaintiff patient needs to show that:
The defendant violated or did not meet the standard of care expected of a reasonably prudent medical professional in the same or similar circumstances. Patients should be able to expect that their doctor, hospital, or healthcare professional follow acceptable medical standards when they diagnose conditions and provide treatment.
If those standards are not met — either through an act or omission — it is negligence.
This negligence caused injury to the patient. The fact that there was a negligent act or omission is not enough to establish medical malpractice. The plaintiff patient must show that but for the negligence, they would not have sustained the injury or injuries at the heart of the lawsuit.
If the negligence did not cause the injury complained of or there was no injury sustained, there is no medical malpractice case.
The injury caused by the medical negligence led to significant damages, such as unusual pain, hardship or suffering, substantial loss of income, disability, and extensive medical expenses (past and future). Medical malpractice lawsuits are expensive.
Medical evidence tends to be highly technical, and in many cases, it’s a battle of opposing experts. It is simply not viable to take a medical malpractice claim to court unless the potential reward can cover trial/court costs in addition to the compensation sought by the plaintiff.
Medical Malpractice Case Statistics
According to a John Hopkins Medicine study, there is an average of 85,000 medical malpractice cases filed every year. Medical error is the third most common cause of death in the United States, behind cancer and cardiovascular disease. In fact:
- Around 250,000 Americans die every year as a result of medical errors.
- Around 12,000 deaths came from unnecessary surgery.
- Around 106,000 deaths were due to the negative effects of medications prescribed to patients, but approximately 1.5 million people are injured through medication errors each year.
In the last decade, more than $40 billion was paid out to victims of medical error. The average payout consistently falls around $242,000 or more. In Indiana, the average malpractice payout in the last five years was almost $260,000.
While the number of large medical malpractice claims (payments of $500,000 or more) has been constant, the number of claims resulting in payouts less than $500,000 appear to have dropped by more than half. Notably, the number of paid claims has gone down, but the mean payment appears to have risen. The amount of the payout tends to rise the further along the case is in the legal process.
Around 2% of medical malpractice victims file compensation claims. Of these cases, only 7% proceeded to trial. In about 80% of cases, verdicts are in favor of the defendants/medical care providers. Many malpractice cases are dropped or dismissed, and a large number (95%) settle. Of the patients injured through medical error, only about a third receive compensation.
Examples of Medical Malpractice Cases
Medical malpractice can occur in a number of ways, including:
- misdiagnosing a medical condition
- ignoring or not properly reading lab results
- surgical errors, surgery on the wrong site, or unnecessary surgery
- premature discharge of patient
- disregarding or not properly taking medical history
- wrong medication or dosage
- failing to follow up or provide aftercare
- failing to order the appropriate medical tests
- failing to recognize symptoms of a medical condition
Some specific examples of malpractice cases are:
Surgery on the wrong site of a diabetic patient. The patient was supposed to have his right leg amputated, but all the schedules — of the individual surgeon, the operating room, and the hospital — indicated that it was the left leg that needed amputation.
A nurse realized that the doctor was amputating the wrong limb during the actual surgery. Ultimately, both legs were removed since the discovery was made too far into the amputation of the left leg.
Injury inflicted during a surgical procedure. During liver transplant surgery, the patient’s heart stopped, so he was sent for emergency surgery. While the patient was under anesthesia and being prepared for this operation, alcohol was applied to disinfect his neck and shoulder, but it caught fire, resulting in severe burns to the patient.
Error with anesthetics. The patient had been in an automobile accident and received nonfatal injuries. Prior to his leg surgery, he was placed on an anesthetic machine, the exhalation valve of which is supposed to release anesthesia gases from the body after anesthesia is administered.
He died of pneumothorax (abnormal amounts of gas in the chest) because the exhalation valve malfunctioned.
Medication error after back surgery. The patient had been prescribed a blood thinner, Coumadin, and her blood levels were being monitored. The doctors, however, failed to lower/stop the medication when testing showed that the dosage was too high.
She developed a spinal cord bleed where she had undergone surgery, as the result of abnormally thin blood, and ultimately became a paraplegic.
Improper diagnosis. After diagnostic testing for a chest infection, a firefighter was told he had a malignant tumor in his lung. Doctors surgically removed the entire lung. As a result of this operation, the firefighter could not continue in this career. After the surgery, however, it was discovered that he had never contracted lung cancer.
Delayed diagnosis of a pelvic mass. The patient sought treatment for vaginal bleeding, and an abdominal CT scan showed that she had a pelvic mass. She was not informed of this, and she was not directed for additional testing.
When the vaginal bleeding started again a couple of years later, tests showed that the patient had cervical cancer, which was now untreatable because of the delayed diagnosis.
Do I Need a Malpractice Lawyer?
The short answer is “yes” if you are the victim of medical negligence. Negligence is a highly technical area of law — medical malpractice even more so. Depending on the circumstances of your particular case, your claim may require:
- understanding of medical sciences, such as anatomy, pharmacology, psychology
- familiarity with hospital administration, such as business practices, operations, logistics
- expert witnesses, such as medical experts, accident reconstructionists, emergency personnel
Of course, with any lawsuit, you will deal with:
- deadlines — statute(s) of limitations, filing, claim appeals
- the law — statutes, regulations, case law
- procedural rules — documents and notices, evidentiary, civil court
It is always recommended to seek and hire a medical malpractice attorney when you are dealing with the aftermath of a medical error.
What Can a Medical Malpractice Attorney do For Me?
There are many stages in dealing with a medical negligence claim, and a medical malpractice attorney can provide crucial assistance at every step. A medical lawyer can help you by:
Assessing the strengths, weaknesses, and likely compensation for your injury. A medical attorney will know how different injuries and circumstances affect the likelihood and amount of legal damages in your case — and how you can make your claim even stronger.
Communicating/negotiating with insurance companies on your behalf. Insurance companies are only interested in paying out as little as they can. Insurance is, after all, first and foremost a business. They often try to get people to adopt statements that look innocuous but may be worded to the company’s advantage (and your disadvantage). A malpractice lawyer will be familiar with some of the tactics and will protect your legal interests.
Further investigating/gathering evidence to support your claim(s). The legal case you present must be as strong as possible. Often, this means getting more tests done, seeking second opinions, and collecting all sorts of documentation — medical records/bills, statements, insurance policy information, physician notes/reports, medical and prescription histories, and more. A medical negligence lawyer will know what you need to obtain.
Negotiating settlement with other parties involved in the lawsuit. Given the nature of medical malpractice and the parties usually involved in these lawsuits, the other parties will likely have legal representation. A medical malpractice attorney can stand up to other parties’ Indiana accident lawyers and fight for the best outcome for you.
Protecting and advocating for your legal rights and entitlements in court. Good trial advocacy is a combination of art and science. It requires sound strategy, extensive legal research, and the ability to pick apart — and build — legal arguments.
How Much Is the Average Medical Malpractice Case Settlement?
Every case is different, so there is no set formula to calculate what malpractice is worth. The compensation awarded by trial or by settlement will take economic and noneconomic damages. Economic damages are quantifiable amounts, such as medical expenses, past and future earning capacity, and lost financial opportunities.
Noneconomic damages may be more subjective, such as pain and suffering. Punitive damages are a special type of damage intended to punish and deter particularly heinous conduct.
The average medical malpractice award is around $242,000. The average award for cases that go to trial and succeed is around $1,000,000. Small settlements may only cover out-of-pocket expenses. Below are examples of malpractice settlement amounts:
- Minor cases, such as resolved allergic reactions and misplaced IVs/shots — up to $10,000
- Short-term disabilities, such as from missed diagnoses and minor surgical errors — $10,000 to $30,000
- More serious injuries, such as those requiring rehabilitation or minor surgery — $30,000 to $100,000
- Extensive injury/infection, such as miscarriage, chronic pain, and amputation — $100,000 to $500,000
- Severe malpractice, such as permanent disability and wrongful death — $1,000,000 or more and often loss of the practitioner’s medical license
These figures are estimates only. Some people have simpler medical expenses, for example, while others require significant medical assistance, such as at-home care, extensive rehabilitation, and numerous surgical or nonsurgical procedures.
Patients have different levels of income, investments, and expenses. Your malpractice attorney will be able to advise where your negligence claim falls on the spectrum.
How Long Will It Take to Settle My Malpractice Case?
Again, all cases have unique circumstances; but on average, medical negligence claims take two, maybe three, years to settle. If settlement isn’t achieved and the matter goes to trial, you may be looking at up to four years. In extraordinary cases, usually when the compensation is $2 million or more, resolution may take up to 15 years.
Remember that it may be hard to tell how long it will take to:
- fully assess the injuries
- examine the action or inaction of the medical professional(s)
- collect hospital and other medical documentation about current and past injuries
- obtain or take witness statements
- find and retain experts
- negotiate with the insurance company and other parties
- exchange disclosure and finish the discovery process
- schedule court appearances
- conduct legal research and draft legal arguments
- examine and cross-examine witnesses on the stand
- prepare court motions and other procedural items
When you hire a medical malpractice attorney, they may give you a ballpark estimate, but circumstances can change. A good medical malpractice lawyer will keep you informed of the next steps that need to be undertaken and how long those may take. Sometimes, there are delays.
Your lawyer may intend to settle but may need to instill a sense that you want to go to trial. This may mean going through preliminary court procedures, such as discovery, to obtain or confirm evidence that is significant to your position.
Sometimes you could be in the middle of a trial and the parties will decide to sit down and talk settlement once again.
Indiana Medical Malpractice Law Firm
Some of the locations around Fishers which our medical malpractice law firm serves include: Hamilton County, Indianapolis, Carmel, Noblesville, Lawrence, Westfield, Zionsville, Beech Grove, Speedway, Greenfield, Anderson, Brownsburg, Elwood, Greenwood, Lebanon, Plainfield, Fall Creek and Delaware Townships, and more.