Your Indianapolis Medical Malpractice Case: The Basics

You needed an emergency appendectomy, and the doctor assured you that the procedure was routine. Fast forward a week and the doctor is frowning at the x-rays; turns out the surgeon left a tiny razor inside your abdomen and it is causing an infection. Now a surgeon wants to carve out the infected bits, which requires slicing you up like a Big Hoffa's rack of ribs and going through nearly a month of recovery time. Who is going to pay for this extra surgery? What about missing a ton of work? Can you recover for the pain you've been forced to endure by the surgeon's incompetence? You need local answers, so FindLaw created this guide to typical Indianapolis medical malpractice cases.

Time Limits

You must file your personal injury lawsuit within two years from the date of the injury. This statute of limitations eliminates a plaintiff's right to recover once too much time has passed, to prevent patients from surprising hospitals with ancient injuries after medical records and witnesses have disappeared.

Who to Sue

First, you can sue the individual healthcare professional whose negligent conduct caused your injuries. However, lawyers typically bring in as many defendants as possible to maximize your recovery. The best candidate for this dubious honor is the hospital that employs the negligent doctor.

The hospital can be sued under the doctrine of "respondeat superior," which provides that an employer is responsible for the tortious action of an employee acting within the scope of his or her employment. It can also be sued independently under the "corporate negligence" doctrine, if, for example, the hospital fails to maintain sanitary conditions, fail to screen employees for proper credentials, or improperly discharge a patient.

You may also have a products liability lawsuit against the pharmaceutical company that created a medicine with unreasonably dangerous side effects that you were not made aware of, or against the company that designed or manufactured a defective medical device.

Initiating a Lawsuit

Your personal injury lawsuit begins when you file a complaint at your local courthouse. A complaint briefly describes the injury causing incident, names the parties involved and requests compensation. Alternatively, instead of relying on our own limited lawyering skills you should consider scheduling a free consultation with an experienced personal injury attorney. Medical malpractice attorneys almost always work on a contingency fee basis, which means they are paid a percentile of your settlement. Yes, that means they don't get paid until you win.

If you decide to file your case alone, you can bring your complaint to 200 E. Washington St. and file it with either the Marion County Circuit Court or Superior Court, as they share jurisdiction over all civil lawsuits. However, small claims court offers informal procedure and quick resolution for small cases. Significantly, Marion County is the only county in Indiana where the upper limit on small claims cases is $6,000 instead of $3,000. There are small claims courts located in all nine townships around Indianapolis, just click on the map in the link above to find the closest one.

Medical Negligence

Medical malpractice liability usually comes in the form of medical negligence. Medical negligence comes in a variety of forms, such as a doctor's failure to diagnose the patient correctly, an unreasonable delay in treatment, or improperly treating the patient. All healthcare professionals are required to act in accordance with a generally accepted professional standard of care, which is the care that would be provided by a reasonably competent health care professional, with a similar background and in the same medical community, under the circumstances that led to the alleged malpractice.

To succeed in a medical negligence lawsuit you must demonstrate that the health care professional's conduct fell below the applicable standard of medical care, and this failure caused your injuries. Proving this to a lay jury is problematic, which makes an expert witness who can articulate the applicable standard and point out the doctor's shortcomings is all but essential to victory.

Informed Consent

Normally you can't cut a stranger up with a knife without becoming liable for battery, but surgeons seem to do this every day. What gives? Turns out you can hurt people so long as they give consent first, for example Andrew Luck consenting to being tackled before each football game.

Similarly, a physician must secure his or her patient's consent before beginning a treatment. However, since the medical field is full of specialized knowledge, the doctor must inform the patient of all the potential risks and alternatives involved in any procedure or treatment, and must obtain the patient's "informed consent" to proceed. There are three general components to informed consent:

• a disclosure informing the patient all the risks, benefits and alternatives of the treatment;
• comprehension of the disclosure by the patient, and;
• a voluntary (non-coerced) waiver or "release" executed by the patient.

Damages

Concrete financial costs are called economic damages. These are the sum total of unfair monetary burdens you've borne as a result of the malpractice, and typically include medical bills and loss of income from inability to work.

In contrast, non-economic damages compensate you for the pain and suffering you've been forced to endure as a result of the malpractice. These are inherently subjective and can vary widely from case to case, so the Indiana legislature enacted a law to place an upper limit on the amount of damages a patient can recover in a medical malpractice lawsuit. This law is rare among damage caps because instead of limiting the amount of non-economic damages that may be awarded, the law places a cap on the total amount of damages that may be recovered (economic plus non-economic). Indiana medical malpractice plaintiffs' recovery is limited to $1.25 million total, and only $250,000 against any single healthcare provider.

As you can see, medical malpractice law can be complicated. If you have questions about your own circumstances or case, you may wish to contact a local attorney specializing in medical malpratice.