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Indiana Medical Malpractice Law: an Overview (part 2)

July 1, 2009 Medical Malpractice

There are a couple of rare exceptions to the rule requiring the plaintiff to show that a defendant has breached the standard of care. One is where the failure to meet the standard of care is so obvious that expert testimony is not required. An example would be if a patient had the wrong leg amputated. The doctrine of res ipsa loquitur raises another such exception. Here, the patient must show that they and their own actions or reactions were under the health care provider’s care and exclusive control; that the injury was of a nature that would not have occurred but for an act of malpractice; and the agency or instrumentality that caused the injury was within the health care provider’s exclusive control. One such example would be where a surgeon leaves surgical instruments inside a patient at the conclusion of a surgery. If all of these conditions are met, the jury is allowed to infer than an act of malpractice took place and the burden of proof then shifts to the defendant to show that he was not negligent in his care.

Injury requires the patient to show that he was harmed in any of many possible ways. Some examples of these potential harms include such physical harms as death, disfigurement, deformity, physical loss of function or impairment to bodily or mental function. In some cases, where the claim is one of failure to make a correct diagnosis, an argument can be made that the delay in diagnosis caused a reduced chance of recovery. Other harms can include a loss of earning capacity and any medical or other expenses made necessary by the malpractice.

Lastly, the injured patient must prove that the harms they are complaining of were caused by the health care provider’s failure to meet the applicable standard of care. As simple as this last requirement seems, it is often a hotly disputed issue in medical malpractice claims. A doctor’s failure to meet the standard of care may or may not be the cause of a poor result from treatment.

In Indiana, there are two types of health care providers; qualified and not qualified. These terms have nothing to do with their skills as health care providers but rather whether they will enjoy the benefits of the Medical Malpractice Act. The Indiana Medical Malpractice Act establishes a Patient Compensation Fund that functions as a system of excess insurance for health care providers. To become a “qualified provider,” entitled to the benefits of the Act, a health care provider must file proof of financial responsibility and pay the surcharge assessed by the Commissioner of Insurance to support the Fund. A qualified provider establishes financial responsibility by purchasing malpractice liability insurance. Effective July 1, 1999, required limits for physicians are $250,000 per occurrence and $750,000 in the annual aggregate, while required limits for hospitals are $250,000 per occurrence and $5,000,000 in the annual aggregate, if the hospital has one hundred beds or less, or $7,500,000 in the annual aggregate, if the hospital has more than one hundred beds. As a practical matter, most health care providers are “qualified” under these terms.

This is the second 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

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