Medical malpractice claims (medical negligence) are in large part controlled by statute in Indiana. In 1975, the Indiana General Assembly passed the Indiana Medical Malpractice Act with the intended purpose of limiting both the number of lawsuits brought by patients against doctors and to reduce the amount of damages paid out to successful claimants. Under this Act, malpractice is defined as “a tort or breach of contract based on health care or professional services that were provided, or should have been provided, by a health care provider to a patient.”
This Act, as well as the common law which is developed through the opinions of the courts of Indiana, have tended to make virtually any lawsuit by a patient against a qualified healthcare provider conform to the requirements of the Act if the injury arose as a result of the delivery of healthcare services. In practice, most claims made by patients against health care providers are torts. A tort is defined by the Act as a “legal wrong, breach of duty, or negligent or unlawful act or omission proximately causing injury or damages to another.” In order to prove a tort one typically must show the four essential elements of a tort. These are, duty, breach, injury and causation. If you have been treated by a health care provider a duty is created. That duty has been described in many ways but simply put, the health care provider owes the patient a duty to act as a reasonably competent physician would act under the same or similar circumstances. Doctors have the duty to meet the applicable “standard of care”. In Indiana the standard of care is defined for the jury by an instruction from the court. The most common definition used in Indiana is: “A health care provider commits an act of malpractice when the health care provider fails to exercise the degree of reasonable care and skill in providing health care to a patient as would a reasonably careful, skillful and prudent health care provider acting under the same or similar circumstances. The malpractice may consist of doing something that the health care provider should not have done under the circumstances, or the failure to do something that the health care provider should have done under the circumstances.”
The standard of care does not require perfection, or even a satisfactory outcome from the medical care. It is not established by looking into a medical book or journal. It is not necessarily based on the best way to do a particular thing when there are other accepted methods. It is not based on what the injured patient believes should have been done and in fact the injured party is not likely going to be asked whether the doctor met the standard of care. This standard of care is established through the opinions of other doctors. If you were to ask several doctors whether another met the standard of care in a given situation, you will often get differing opinions. The general rule is as follows: in order for a patient to establish that a health care provider has breached the duty to the patient by failing to meet the applicable standard of care requires that the patient establish this fact through expert testimony. The standard of care is a very elusive concept, and ultimately it is decided in any given case by a jury hearing the differing expert opinions and deciding which one(s) they believe to be correct.
This is the first in a five-part series of blog articles giving a general overview of Indiana Medical Malpractice Law.
Wilson Kehoe & Winingham has over 30 years of experience dealing in medical malpractice law and retains a physician-attorney and registered nurse on staff. If you believe you or a loved one has been the victim of medical malpractice and would like a free consultation concerning your case please contact us at 1-800-525-8028 or e-mail us at firstname.lastname@example.org.