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Indiana Medical Malpractice Law: an Overview (part 4)

July 5, 2009 Medical Malpractice

The Indiana Medical Malpractice Act limits the amount of compensation available to injured patients irrespective of the nature or degree of the harms which are caused by a health care provider’s negligence. For claims accruing prior to January 1, 1990, the amount recoverable against a single qualified provider may not exceed $100,000, and the total amount recoverable against all qualified providers and the Patient Compensation Fund may not exceed $500,000. As of January 1, 1990, the maximum recoverable from all qualified providers and the Fund was increased to $750,000. For claims accruing on or after July 1, 1999, the limit for each qualified provider is $250,000, and the total cap on damages against all qualified providers and the Fund combined is $1,250,000.

The Medical Malpractice Act also places limits on attorney’s fees in these claims. A claimant’s attorney may not receive more than fifteen percent fee on any award from the Patient Compensation Fund.

Contributory negligence is a complete bar to recovery in Indiana medical malpractice claims under the Act. In other words, a patient has a duty to exercise reasonable care in providing accurate and complete information to a health care provider. In addition, a patient has a duty to exercise reasonable care in following a health care provider’s instructions. If the defendant can show that the patient failed in either of these duties and that such a failure caused or contributed to the injuries to the patient then the jury will be instructed to find for the defendant.

In Indiana, a health care provider, except in a life or health threatening emergency, must obtain either oral or written consent to provide health care to a patient. The health care provider has a duty to reasonably disclose material facts to a patient such as the nature of the proposed treatment and the material risks involved to the patient. What constitutes reasonable disclosure in Indiana is again based on expert opinion. In other words, it is not what a reasonable person would need to have disclosed in order to inform his or her decision whether to undergo a given medical treatment. Rather, it is what a reasonable physician would disclose to a patient. In addition, the plaintiff must show that a reasonable person, if they had been given the material facts required for an informed consent, would not have consented to the treatment.

This is the fourth entry 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 personal injury cases and medical malpractice law and has 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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