Frequently Asked Questions about Medical Malpractice Cases in Indiana
Below are the answers to common initial questions many clients have when they first contact Keller and Keller. We hope that the information below address many initial concerns you may have, but if you don't find the answers here, please contact us with questions specific to your case. The consultation is free and confidential.
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Your phramacy gave you the wrong type of medicine. Do you have a claim?
Mistakes happen, but when a pharmacist misfills a medication the consequences can range from life-altering to fatal. Pharmacies and the pharmacists who fill your medication have a professional and legal obligation to ensure you receive the proper medicines prescribed to you by your doctor.
If you or a loved one were given the wrong medication, contact us so we can help determine if you have a valid claim.
What is malpractice?
Malpractice arises from a professional's misconduct or failure to use adequate levels of care, skill or diligence in the performance of their duties that then causes harm to another party.
In order for malpractice to be actionable, injury, loss or damage must be suffered by the person who retained the professional's services, or those otherwise entitled to benefit from or rely upon the professionals services.
What are some specifics with respect to malpractice?
Some states have laws which significantly limit the amount of damages that an injured person may recover as a result of medical malpractice. Many states also have shortened the applicable statute of limitations. Further, some states have established mandatory arbitration of medical malpractice disputes as a pre-requisite to a lawsuit for medical malpractice.
To prevail in a medical malpractice lawsuit, you must prove that your injury, loss or damage resulted from the doctor's deviation or failure to conform with the applicable standard of care for your condition in your community. Malpractice typically occurs if a professional fails to exercise his or her professional skills in an assignment he or she has accepted at the standard of care, skill and learning applied circumstances by the average prudent reputable member of the profession in the give in the "community". Comparison of performance is based upon the standard of care for the professional in the "community" - what other professionals in the same field do for their clients who are located in the same geographic area.
Is misdiagnosis malpractice?
Not necessarily. Medicine is not an exact science; doctors are not required to be right every time they make a diagnosis. It is a fact that a misdiagnosis can be arrived at through standard tests, even when the tests are performed accurately or evaluated by a skilled doctor with the utmost care.
A misdiagnosis may be malpractice if the doctor fails to get a medical history, order the appropriate test for the illness, or recognize the symptoms of the illness. And yet, there is no basis for a malpractice claim if there is no injury, loss or damage as a result of the misdiagnosis and consequent treatment, on the theory that you are no worse off than you were before.
Who can commit malpractice?
In theory, any professional who renders services upon which you and others rely upon can commit malpractice. Often, the professional is licensed or regulated by the state.
Accountants, attorneys, actuaries, chiropractors, dentists, physicians, psychologists and therapists are typically the persons named in a "malpractice action". When others engage in malpractice, the action usually not specifically called malpractice, but negligence. In actual practice, only those who hold themselves out as having special skills or abilities are held accountable in malpractice litigation.
Will I need an expert to prove malpractice has occurred?
Almost always. In order to establish malpractice, it will be necessary to prove what the standard of care in the community for that professional for handling a similar matter is. Lay people do not have the necessary education, experience or skills to act as a professional -- or to gauge what a professional is supposed to do or refrain from doing in a particular situation.
In order to determine what should or should not have been done in your particular circumstances, someone with the requisite education, experience and skill would be needed to establish what the standard of the community is. Many malpractice lawsuits are won/lost based upon the effectiveness of the expert.
Keller and Keller believes that experts should always be incorporated when possible to help solidify your case.
How do I recover damages sustained due to malpractice?
The first inquiries help determine whether malpractice has been committed. Malpractice does not depend on "how nice" the professional was. What matters is what the professional did or failed to do? Would a similar professional in the community have done the same act or omission? Is there an injury, loss or damage as a result of the act or omission? Depending on your response to these (and similar) basic inquiries, there may have been actionable malpractice.
You yourself are rarely in a position to know whether or not there was malpractice, and the professional who performed the service may be unwilling to tell you she or he is at fault. (He may not even know s/he's at fault.) In fact often an attorney has to hire an expert or consultant to help assess whether or not there was malpractice. Unless the facts are very clear, you generally would be asked to pay for the cost of that initial assessment.
If a procedure was not successful, is that malpractice?
Medical malpractice does not occur every time medical treatment is not successful. Doctors are not guarantors of the services which they render. A doctor is, however, required to have the necessary knowledge and experience to perform the services in question. Further, doctors must exercise the skill and care that others in the community use when dealing with similar treatments.
What should I do if a think I have a medical malpractice claim?
You should contact the law offices of Keller and Keller as soon as possible for a free case evaluation. Tell us exactly what happened, from your first visit to the doctor or other health care provider, through your last contact with him or her. If possible, obtain your medical records and bring them to your first meeting with the attorney. There are time limits governing how long someone may bring a medical malpractice claim, so time is of the essence.
What is "informed consent?"
Although the specific definition of informed consent may vary from state to state, it means essentially that a physician (or other medical provider) must tell a patient all of the potential benefits, risks, and alternatives involved in any surgical procedure, medical procedure, or other course of treatment, and must obtain the patient's written consent to proceed.
Do I have a case against a doctor who prescribed me a drug for treatment, but failed to tell me it was part of an experimental program?
Your physician had a duty to tell you that the drug was part of an experimental program, and you had the right to refuse to participate in it. You may have grounds for an action against your doctor based on his/her failure to obtain your "informed consent" relative to this treatment.
If the consent form I signed prior to a procedure is considered valid, can I recover any damages in a malpractice action against my doctor?
Yes, you still may be able to recover damages. A consent form does not release a physician who performed a procedure negligently from liability. If you can establish that your doctor deviated from the applicable standard of care in performing the procedure, and you were injured as a result, you may still recover against him/her. You may also have a claim that the procedure the physician performed went beyond the consent you gave, in which case the doctor might even be liable for battery.
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