Monday, April 6, 2020

Medical mistakes are increasing in Indiana.  The errors are prompting Indiana courts to review caps on malpractice damages and rule on the constitutionality. 

Recently, according to The Indiana Lawyer, plaintiff and defense counsel and Indiana state officials have negotiated toward compromise legislation that could increase the state’s $1.25 million cap on medical malpractice damages.

In October 2015, the negotiations were close to an agreement on legislation to reform Indiana’s Medical Malpractice Act.  The Indiana State Medical Association summarizes the Indiana Medical Malpractice Act as follows:  In 1975, Indiana passed medical malpractice reform legislation.  The law has withstood constitutionality challenges.  Similar laws in other states have been overturned.  Indiana caps total awards available to a patient for malpractice. The cap has been raised twice since 1975. The cap has the purpose to keep medical malpractice insurance rates low.  Compared to some states, insurance rates are lower in Indiana.   As a result of low insurance rates, more doctors can afford to practice in Indiana.  This gives patients access to medical care.  In a medical malpractice lawsuit, doctors are responsible for the first $250,000 in damages to a patient for one act of malpractice, and no more than $750,000 in the annual aggregate.

In Indiana, there is a state Patient’s Compensation Fund (PCF), which pays damages in excess of the damages doctors are responsible to pay, not to exceed $1 million. The PCF assists to make sure there is a guaranteed compensation source for medical malpractice victims.  This differs from states where patients may not recover verdicts because the medical provider does not have enough insurance coverage or assets.  In Indiana, plaintiffs’ lawyers are not entitled to get more than 15 percent of a recovery from PCF.

Part of the conversation in medical malpractice reform is Sen. Brent Steele, R-Bedford.  On October 20, 2015, Steele read a letter from the Indiana Trial Lawyers Association during legislation talks.  The letter asked for a delay so that representatives of the governor’s office could get up to speed.  The letter indicated parties involved in the reform legislation were close to an agreement on key terms to be included in legislation when the General Assembly meets in January 2016.

Those working on reform legislation have taken testimony on proposals to increase the statutory $1.25 million cap on malpractice damages and revise the medical review panel procedure prior to a medical malpractice claim greater than $15,000 may be filed in court.

Data from the Indiana State Department of Health showed a record high number of medical errors in recent statistics. In 2014, there were 114 preventable adverse medical incidents in hospitals and health care facilities. In 2013, there were 111 errors, the Associated Press reported.

Steele, who chairs the Senate Judiciary Committee, expects a bill to include an increase in the cap, a way to adjust the cap for inflation, and an increase of the $15,000 review panel threshold to $75,000. He wants legislation to cap attorney fees, and plans to introduce measures with these terms if an agreed bill does not include them.

Read the Article Here