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2016 Update on Indiana’s Medical Malpractice Reform Legislation | Indiana Medical Malpractice Attorneys and Wrongful Death Lawyers

2016 Update on Indiana’s Medical Malpractice Reform Legislation | Indiana Medical Malpractice Attorneys and Wrongful Death Lawyers

Indiana 2016 updated Medical Malpractice ActAs lay people, we put our faith in physicians, nurses,  hospital facilities and other medical providers whom we trust to exercise sound professional decisions, provide quality care and abide by “best practice” standards in their field(s) of medicine. Most healthcare professionals meet or exceed the benchmark of quality health care we have come to expect. But when medical experts fail to meet a reasonable standard of care that results in your bodily injury or the death of a family member, you need an experienced Indiana medical malpractice attorney to represent you and your family’s interests in a legal action against a negligent medical practitioner(s ).

History of Indiana’s Medical Malpractice Act

In 1975, to avert an exodus of medical professionals from the state of Indiana, lawmakers enacted the Medical Malpractice Act which would bring stringent reform to civil actions for medical negligence and place caps on liability payouts. Caps for acts of medical negligence had been raised only twice since the initial legislation was enacted 41 years ago. Periodically, lawmakers should revisit the caps imposed by the Malpractice Act and make fair, economic adjustments that reflect inflation and soaring healthcare costs.

The Medical Malpractice Act as Amended in 2016


Call Charlie Ward at 317-639-9501Currently, Indiana has one of the lowest caps in the nation. In 2016, Senator Brent Steele from Bedford, Indiana authored and introduced Senate Bill 28 (SB 28) which would not only increase the caps imposed upon injured persons and the families of persons deceased by an act of medical negligence, but would hasten payments made by the Patient’s Compensation Fund for a court approved settlement or final non-appealable judgment. The Indiana Trial Lawyers Association (ITLA),  one of the most respected lobbies serving the interests of Hoosiers, backed Steele’s bill and worked diligently with lawmakers and healthcare providers alike, to amend and improve on certain aspects of Indiana’s Medical Malpractice Act. Although ITLA does not favor caps on tort claims, the political climate was ripe for all interested parties, including the Indiana Medical Association which represents physicians, to strike a compromise with lawmakers that would benefit individual citizens and continue to attract accomplished physicians and talented healthcare professionals to the state of Indiana.

After SB 28 was heavily amended by both the house and the senate, lawmakers voted unanimously on March 8, 2016, to send the bill to Governor Mike Pence for his signature. Several of the bill’s key changes to Indiana’s Medical Malpractice Act are shown on the right hand column in the chart below. Read SB 28.

Medical Malpractice Act

Prior to

July 1, 2017

 Medical Malpractice Act

Effective July 1, 2017

Liability Caps

Patients can only receive up to $1.25 million in damages from an act of malpractice.

Liability Caps

Effective, July 1, 2017, patients injured or killed by a negligent act of malpractice on or after July 1, 2017, may receive an amount no greater than $1.65 million in damages.

Effective July 1, 2019,  lawmakers have approved an additional raise of $150,000 for patients injured or killed by a negligent act of malpractice on or after July 1, 2019. Patients may receive an amount no greater than $1.8 million in damages.

(PCF) Patient’s Compensation Fund

Physicians and Providers are responsible for the first $250,000 in damages owed to one patient for one act of malpractice, and no more than $750,000 combined annually. The PCF covers the rest of a patient’s damages, which allows patients a guarantee of full compensation by excluding physicians’ insurance plans as a factor in the ability to cover damages awards.

 (PCF) Patient’s Compensation Fund

Effective, July 1, 2017,
Physicians and Providers are responsible for the first $400,000 in damages owed to one patient for one act of malpractice. The PCF is responsible for $1.25 million.

Effective, July 1, 2019,
Physicians and Providers are responsible for the first $500,000 in damages owed to one patient for one act of malpractice. The PCF is responsible for $1.3 million.

Time Limits

The statute of limitations for filing a complaint is two years from the act of malpractice. Children less than six years-old have until their eighth birthday to file a complaint.

Time Limits

No change.

Filing Complaints

Before taking a case to court, patients must file a complaint with the Indiana Department of Insurance, where a three-physician medical review panel reviews the claim. If there is one defendant, two of the three panel members must be from the accused physician’s specialty. The panel gives a non-conclusive, non-binding report, but they can be called as experts if the defendant chooses to take the case to court.

Filing Complaints

No change.

Payment from PCF

Claims for payment from the Patient’s Compensation Fund are paid quarterly

Payment from PCF

Effective July 1, 2017
Claims from the patient’s compensation fund must be paid not later than 60 days after the issuance of a court approved settlement or final non-appealable judgment.

 

Experienced Indiana Medical Malpractice Lawyers and Nursing Home Negligence Attorneys

Our experienced Indiana medical malpractice lawyers are here to navigate the complexities of the medical malpractice claims process for you and your loved ones. Call Ward & Ward Law Firm today at 317-639-9501 and ask for “Charlie” for a free, no obligation, consultation.

By Charlie Ward
[email protected]

Ward & Ward Law Firm
728 S Meridian St
Indianapolis, IN 46225
317-639-9501

 

Read more about medical malpractice lawyers in Indiana:

Medical Malpractice and Related Injuries

Understanding Indiana’s Medical Malpractice Law

 

 

Medication Mistakes with Children | Personal Injury Lawyers in Indianapolis

A recent study showed that medication errors involving children are growing, with some errors causing serious injuries and even death.Call Charlie Ward at 317-639-9501

Most of the data was obtained through the National Poison Database System.  It records information to the 55 U.S. poison control hotlines.  Approximately 25% of all errors occurred by giving a child the same medicine twice.

Medical Malpractice Reform | Personal Injury lawyers in Indianapolis

A Recent Study shows Lack of Health Care Savings on Medical Malpractice Reform

Since this was posted, Indiana lawmakers have enacted changes in Indiana’s Medical Malpractice Law. To learn more about changes that benefit Indiana’s residents, visit our blog, 2016 Update on Indiana’s Medical Malpractice Act.

Personal Injury Indianapolis IN - Lawyer Many argue that one of the reasons medical costs are so high is due to fact that doctors are concerned with a potential medical malpractice lawsuit so the doctors order many medical tests, which turn out to be expensive and unnecessary, to protect themselves from liability.Call Charlie Ward at 317-639-9501

A recent study by the Rand Corporation investigated three states (Texas, South Carolina and Georgia) which have all enacted medical malpractice reform laws over the past decade. The study focused on emergency room care. The analysis showed that there has been very little impact from the stricter laws on the volume or cost of emergency room care.

The argument for defensive medicine comes into play with costs and many want to find a way to deal with the subject. The study seems to find that doctors are not as concerned with a potential medical malpractice lawsuit as thought. Thus casting doubt on savings from the medical malpractice reform laws which have been enacted in the three states. Each of the states enacted the medical malpractice reform laws as a way to prevent escalating health care costs. The study was published in The New England Journal of Medicine. The debate continues……

Medical Negligence Tort Reform Leaves Catastrophically Injured Patients in the Cold

Tort reform legislation favors insurance companies

Call personal injury and accident lawyer Charlie Ward today for a free consultation

In 1975, Indiana representatives steered our state toward personal injury tort reform legislation in a rush to cap monetary awards ordered by juries in claims of medical negligence. The majority of these first generation “tort reforms” focused on the legal system. The stated objectives of the legislation were two-fold: to keep medical costs down; and to prevent physicians bolting from the state. This knee-jerk reaction to legislate in favor of the insurance industry and physicians has left catastrophically injured patients in the cold. The caps for personal injury victims of medical negligence, apply a “one size fits all” approach to every case. As of July 2011, 39 states have enacted legislation that limits economic and non-economic damage recovery for those who are injured by members of the medical profession. A few states have enacted legislation in favor of tort reform only to be struck down by higher courts as unconstitutional. [See how Indiana’s laws compare with reforms of other states here.]

On their website, The Indiana State Medical Association states:

“Physicians are only responsible for the first $250,000 in damages to any patient for one act of malpractice and no more than $750,000 in the annual aggregate. Indiana’s Patient’s Compensation Fund (PCF) pays any excess, not to exceed $1 million — for a total of $1.25 million.” [Key Features of Indiana’s Medical Malpractice Act published online by the Indiana State Medical Association.]

Tort reform insurance lobbyist crushed by his own reform

Frank Cornelius, a lobbyist for the Indiana Institute of Insurance, worked to secure passage of Indiana’s first medical tort reform laws and by his own account, “fought to enact the law that limits my compensation.” Sadly, Mr. Cornelius was harmed in a series of negligent medical incidents 14 years later that confined him to a wheel chair in excruciating pain requiring a morphine drip, and a respirator to facilitate breathing. What began as a routine arthroscopic surgery left him disabled until an early death at the age of 50. As often occurs when a family member has been catastrophically injured, his marriage fell apart and the consequences his family suffered were painful for him to witness. In a letter penned to the New York Times, shortly before his death, and entitled “Crushed by My Own Reform,” he details his horrendous experiences with the providers medically responsible for his injuries—the same providers he sought to protect with legislation. It states in part:

“Make no mistake, damage caps are arbitrary, wholly disregarding the nature of the injury and the pain experienced by the plaintiff. They make it harder to seek and recover compensation for medical injuries; extend unwarranted special protection to the medical industry; and remove the only effective deterrent to negligent medical care, since the medical profession has never done an effective job of disciplining negligent doctors.” [Read the full text of Mr. Cornelius’ letter here.]

What prompted Legislative Reforms of the Seventies?

During the seventies, physicians were experiencing higher than normal insurance premiums due to a sagging stock market and a decline in insurance company investment revenues. In the publication entitled “Trends Alert”, the Council for State Governments asserts that insurance rates are cyclical and coincide with the ups and downs of the stock market. The Council further claims that a rise in doctor’s insurance premiums occurs every ten years or so. The slump in the economy during the seventies created a crisis which forced insurance companies to raise their premiums at a time when modern medicine was employing more sophisticated forms of treatments and pharmaceutical therapies.

Tort Reform Legislation Overrides the Authority of the Jury System

The Seventh Amendment to the Constitution grants every citizen a right to a trial by a jury. Members of the jury are employed to hear the evidence of a case and to judge the facts. Juries set the awards which can be reduced by the judge if deemed unreasonable against the facts. Our juries act as an essential safeguard against government oppression, unchecked power and undue influence by special interests. Legislated caps on recovery of monetary awards granted by impartial juries have been a source of contention for constitutionalists and continue to be challenged across many fronts. On October 25, 2011, the Indiana Court of Appeals issued a preliminary opinion in the case of Plank v. Community Hospitals of Indiana, Inc. and State of Indiana stating that Mr. Plank, husband of the deceased, was entitled to an evidentiary hearing on the subject of the constitutionality of the State’s malpractice cap. While the Indiana Court of Appeals has routinely upheld the authority of legislators to enact tort reform laws, we’ll watch this case and keep you informed of their decision.

During the healthcare deliberations of twenty-ten, the meme on Capitol Hill was “tort reform” as the key to controlling costs. Insiders and lobbyists unsuccessfully pursued federal legislation that would unite the states. Today the American Tort Reform Association and several well-funded lobbying organizations representing the interests of insurance companies, medical, pharmaceutical and energy industries, and many other major corporations, chip away—state by state—at our jury system of justice by grabbing headlines with catch phrases like “legal abuse” and “runaway attorneys”. We are very fortunate to live in a country where opinions can be expressed. But good decisions by government representatives require a 360°examination of all sides of an issue by a curious public.

You can view Indiana’s legislation at http://www.in.gov/legislative/ic/code/title34/ar18/.

Trial lawyers representing hurt and injured

The law firm of Ward & Ward has more than eighty-five years of legal experience with personal injury and wrongful death claims and continues to seek justice for clients that have been harmed by the negligence of others. Our firm receives no legal fees or expenses unless we collect damages on your behalf. Call Charlie Ward today for a free evaluation of your claim.

By Charlie Ward

Ward & Ward Law Firm
728 S Meridian St
Indianapolis, IN 46225
317-639-9501

 

Tort Reform for Acts of Medical Negligence – Is it the Best We Can Do for Injured Parties?

Indiana’s tort reform endeavorsCall Charlie Ward at 317-639-9501

Unless you’ve been harmed by the negligence of a health care provider, you probably aren’t aware that in 1975 Indiana led the nation in tort reform legislation, placing caps on medical negligence claims. The stated aims of Indiana’s tort reform endeavors were two-fold: to keep physicians from fleeing Indiana during the malpractice crisis of the seventies; and to keep healthcare costs to a manageable level.

During the national healthcare debate of 2010, we heard a lot from Washington about “tort reform” as a necessary precursor to reducing health care costs across the nation. However, most states have already enacted their own brands of tort reform. Washington insiders unsuccessfully sought unifying legislation that would wrench the authority from the states and seat it in the lap of federal legislation. Presently, the objective of the American Tort Reform Association is to fight this battle on a state by state basis. Today, most states have some form of tort reform on the books. Indiana Code Annotated § 34-18-14-3 addresses “Recovery Limitations” also known as “caps” for medical negligence claims.

The earliest Indiana legislation stipulated that prior to 1990, the total amount recoverable for an act of medical negligence or the wrongful death of a patient by a medical caregiver may not exceed $500,000. Since 1975, legislators have twice increased the awards. Currently, for claims accruing on or after July 1st, 1999, the total maximum amount awarded to the plaintiff is capped at $1,250,000. On their website, the Indiana State Medical Association clearly states:

“Physicians are only responsible for the first $250,000 in damages to any patient for one act of malpractice and no more than $750,000 in the annual aggregate. Indiana’s Patient’s Compensation Fund (PCF) pays any excess, not to exceed $1 million — for a total of $1.25 million.” [Key Features of Indiana’s Medical Malpractice Act published online by the Indiana State Medical Association.]

In 1975, Frank Cornelius, a successful and influential lobbyist for the Indiana Institute of Insurance, helped secure passage of Indiana’s original medical tort reform law. Fourteen years later, in an ironic twist of fate, Mr. Cornelius suffered a succession of serious and permanently disabling medical acts of negligence brought about by the same medical providers he sought to protect with legislation. His injuries required permanent confinement to a wheelchair and his breathing was only made possible with the aid of a respirator. Just prior to his death, in a letter written to the New York Times on October 7, 1994 he wrote an article entitled “Crushed By My Own Reform.” It states in part:

“Make no mistake, damage caps are arbitrary, wholly disregarding the nature of the injury and the pain experienced by the plaintiff. They make it harder to seek and recover compensation for medical injuries; extend unwarranted special protection to the medical industry; and remove the only effective deterrent to negligent medical care, since the medical profession has never done an effective job of disciplining negligent doctors.” [Read the full text of Mr. Cornelius’ letter here.]

While the constitutionality of capping medical negligence awards and awards for negligent acts resulting  in wrongful death has been challenged based on the Seventh Amendment to the Constitution, the State of Indiana has routinely upheld the authority of Indiana to legislate tort reform.  However, most recently, on October 25, 2011, the Indiana Court of Appeals issued a preliminary opinion in the case of Plank v. Community Hospitals of Indiana, Inc. and State of Indiana stating that Mr. Plank, husband of the deceased, was entitled to an evidentiary hearing on the subject of the constitutionality of the State’s malpractice cap. We’ll keep you informed of this issue if new developments occur.

We are very fortunate to live in a country where opinions can be stated. The national organizations in favor of tort reform are well-funded and voice their opinions with catch phrases that appeal to the headlines. But good decisions by government representatives can only be made when the public is educated on all sides of an issue.

The law firm of Ward & Ward has over eighty five years of legal experience with personal injury and wrongful death claims and continues to seek justice for clients that have been harmed by the negligence of others. Our firm receives no legal fees or expenses unless we collect damages on your behalf. Call Charlie Ward today for a free evaluation of your claim.

Charlie Ward

(317) 639-9501

www.wardlawfirm.com

Parents May Receive Compensation for Child’s Death, Attorney Fees & Litigation Costs Under Indiana’s Adult Wrongful Death Statute

Lawyer for personal Injury in Indianapolis INIndiana’s Adult Wrongful Death Statute and Patient’s Compensation Fund – Scope of Damages

After the executor of a young woman’s estate settled a medical malpractice claim for the statutory limit, the executor  petitioned the Patient’s Compensation Fund for additional compensation in excess of the settlement amount for attorney fees, probate administration, loss of services (love and companionship) to the decedent’s parents and litigation costs under Indiana’s Adult Wrongful Death Statute (AWDS). The Superior Court Judge of Marion County rejected the Fund’s contention regarding the scope of damages permitted under the Adult Wrongful Death Statute and awarded the full amount requested by the executor.

Damages Must be Compensatory

The Fund appealed the trial court’s final judgment in the amount of $278,377.55 on grounds that the judgment included sums for expenses of administration, attorney fees and loss of services that are not recoverable under Indiana’s Adult Wrongful Death Statute, Ind. Code § 34-23-1-2. The Court of Appeals rejected the Fund’s arguments and affirmed the trial court ruling. Ind. Patient’s Comp. Fund v. Brown, 934 N.E.2d 168 (Ind.Ct.App.2010). Indiana Supreme Court Justice Dickson, in the majority opinion, affirmed the trial court’s ruling. He writes: “[t]he Court of Appeals correctly noted that damages in actions under Indiana’s wrongful death statutes must be compensatory in nature”. Brown, 934 N.E.2d at 176-77.

The Fund’s argument treated all damages together—as a class—and did not make the distinction between the recoverability of any one item. In Brown, the Court declared, “[A]ttorney fees, probate administration costs, and litigation costs are compensatory damages that remedy actual pecuniary losses [emphasis added]. Therefore, we find no compelling reason why these damages should not be allowed.”

The Fund did not contest that the decedent’s parents suffered a pecuniary loss from the loss of her love and companionship but instead argued that “[s]uch damages are categorically unavailable under the Adult Wrongful Death statute.” The majority disagreed and stated: “[L]oss of services, when proved, would constitute a pecuniary loss of the type contemplated by the AWDS.”

Experienced Wrongful Death Lawyers

The sudden loss of a loved one due to the negligence of another requires a firm grasp of the law and legal skill. Charlie Ward of Ward & Ward Law Firm is experienced in Wrongful Death Claims. If you have suffered a loss of a loved one from an accident or a medical providers negligence, and would like to discuss a wrongful death claim, call Charlie Ward for a free consultation today.

By Charlie Ward

[email protected]

Ward & Ward Law Firm
728 S Meridian St
Indianapolis, IN 46225
317-639-9501