February 22, 2024

If you’ve recently undergone medical treatment that injured you or worsened an existing condition, you may wonder whether you should pursue legal action. This could be anything from prescription medication errors to a botched surgery; the key is that you trusted your health with a professional, and were injured because of it. 

Researching your options may seem daunting, but we’ll break down the basics of medical negligence so you can understand the basics to file a lawsuit.

Medical Negligence vs Malpractice in Indiana

Unlike other states, in Indiana there is no legal distinction between medical negligence and medical malpractice. 

In Speaks v. Rao, the Court of Appeals of Indiana noted that, “To the extent that the trial court separates Speaks’ claim of ‘medical malpractice’ from her claim of ‘medical negligence,’ we emphasize that Indiana law does not recognize such a distinction. These terms are one in the same and our courts use these terms interchangeably for claims more properly referred to as medical malpractice—namely, those claims falling under the provisions of the Indiana Medical Malpractice Act.”

That said, it’s important to understand what malpractice is when determining whether your injury qualifies. Indiana Code 34 defines malpractice as “a tort or breach of contract based on health care or professional services that were provided, or that should have been provided, by a healthcare provider, to a patient.” 

Essentially, this means you have the right to be treated by a medical professional that upholds the standards of modern medicine. If they breach that duty and provide substandard care, you may be a victim of medical malpractice.

What Qualifies for Medical Malpractice in Indiana?

Keep in mind that Indiana healthcare providers don’t promise perfect results. But they are legally bound to offer the level of care that patients can expect from qualified professionals facing similar situations. If they fail to do so, you can pursue legal action to compensate you for your injuries.

It’s important to note that simply being injured does not presume negligence on behalf of a healthcare professional. As the patient, you must prove:

• the healthcare provider owed the patient a duty
• the healthcare provider breached that duty
• the breach caused injury to the patient

In other words, if a medical professional acts in a way that isn’t in line with established procedures or treatment options, and you suffer because of it, you may have grounds to file a medical malpractice claim. 

When to File a Medical Malpractice Lawsuit

If you feel your healthcare provider has been negligent, there are steps you have to take. The state of Indiana has specific steps you must follow that differ from other legal procedures.

Indiana Medical Malpractice Statute of Limitations

In Indiana, you must file malpractice a claim within:

• two (2) years from the date of the alleged act of malpractice, OR
• If claiming for a minor, minors under the age of six (6) have until their eighth birthday

Courts may allow you to file a claim after these time limits have expired if you could not have reasonably discovered the malpractice within that time. However, there are very few exceptions that fall under this caveat.

Filing a Medical Malpractice Claim

If it has been less than two years, and you decide to move forward with your claim, the next step is to file a proposed complaint with the Commissioner of the Indiana Department of Insurance. They will serve notice to the healthcare provider you are claiming against. 

At least 20 days after you file your claim, you can request for your case to be evaluated by a medical review panel of three physicians. If your claim is against only one healthcare provider, or defendant, two of the three panel members must practice in the same specialty as the defendant. If your claim is against multiple defendants, appropriate representatives will be chosen as panel members. 

Once the panel reviews your complaint, you can choose whether to proceed to court. The panel’s report is not a legal judgment, but it is admissible in court and the panel members can be called as expert witnesses during a trial. 

Indiana Medical Malpractice Settlements and Caps

If your lawsuit results in a settlement, the state of Indiana has a damage cap of $1.25 million. The defendant is responsible for the first $250,000 of the settlement; the state’s Patient’s Compensation Fund (PCF) pays anything above that (up to the cap).

While Indiana is one of the few states with a damage cap, it keeps insurance rates lower than in other states. This makes it more affordable for physicians to practice in Indiana and creates a better level of care for all patients throughout Indiana. 

If you receive a settlement, state law dictates your attorneys cannot receive more than 15 percent of any recovery from the PCF.  

Medical Malpractice Attorneys in Lafayette

Like any legal proceeding, the details and timelines of a medical malpractice lawsuit can seem daunting, especially when you’re recovering from an injury. Having a knowledgeable medical malpractice attorney can help.

If you have questions and need answers, the team at Bennett, Boehning, and Clary has the experience and compassion to support you through this time. We believe that every case is unique and can be decided on the smallest details. Reach out to us at 765-742-9066 and see how we can help.

Disclaimer: The content of this blog is intended to be general and informational in nature. It is advertising material and is not intended to be, nor is it, legal advice to or for any particular person, case, or circumstance. Each situation is different, and you should consult an attorney if you have any questions about your situation.