The same health care provider who in a drunken stupor operating a vehicle renders you a quadriplegic has no limit with respect to financial responsibility in compensating you for your lost wages, medical expenses and a life care plan to meet your special needs for the rest of your life.

However, that same healthcare provider, whether drunk or cold sober, who renders you a quadriplegic as a result of medical malpractice enjoys a limit with respect to any financial liability of only $1,250,000.00, the limit is without any regard to the amount of your lost wages, medical expenses or the costs of providing a life care plan to meet your special needs as a quadriplegic.

In Indiana no other profession enjoys this special privilege. Our legislature has not afforded this privilege to any other profession. For instance, if a trucking company’s semi driver negligently operates a semi and renders a doctor, making a Million Dollars a year, a quadriplegic and his medical expenses amount to Eight Million Dollars, the trucking company is liable for the full amount of a jury’s verdict.

If a gas company is responsible for a coliseum filling up with gas and exploding, no limit is placed on the gas company’s financial responsibility.

If an aircraft manufacturer, airline or pilot is responsible for the loss of life and injury of a plane load of passengers, no limit is placed on the amount of financial responsibility for the losses they are responsible for.

Only healthcare providers in Indiana enjoy the special privilege of the Legislature limiting their financial responsibility – without any regard to the actual cost of the harm that they may cause.

Why?

The Legislature gave health care providers this special privilege because insurance companies falsely told the Legislature that medical malpractice law suits were creating a crisis in the health care profession.

If you believe that medical providers should be treated like everyone else whose negligence causes someone damages, contact your State Representative and Senator and ask them to change the law.

What are the real facts? Read the following:

• ” About one in 50 hospitalized patients is injured due to negligence, and yet only one in 10 of those files a lawsuit and, among those filing suits, only one in 20 receives money.”1

• Statistics from the Physician Insurers Association of America show that two-thirds of patients who do file a claim never get a dime. About 61% of the cases are dismissed or dropped; 32% are settled, with average pay-outs of $300,000. Only 7% go to trial. Patients prevail in only one in five of the cases that are tried – about 1.3% of all claims.2

• Medical malpractice pay-outs are less than one percent of total U.S. health care costs. All losses (verdicts, settlements, legal fees, etc.) have stayed under 1% for the last 18 years.3

• Some states have rapidly rising malpractice premiums, especially in obstetrics, neurology and some surgical fields. But, on average, doctors still spend less on malpractice insurance — 3.2% of their revenue — than on rent.2

• Large jury awards play a limited role in causing premiums to rise, despite allegations that greedy trial lawyers and frivolous claims are to blame. Less than 2% of malpractice claims result in a winning verdict at trial, according to insurance industry estimates.2

• 77% of surveyed physicians say that there is a doctor in their own community who they would avoid because they think that the doctor makes medical mistakes. American College of Physician Executives, “2006 Patient Trust and Safety Survey” (March 2006).

• The annual cost of preventable medical errors is $29 billion. Institute of Medicine (2006).

• 98,000 Americans die from preventable medical errors each year. “To Err is Human: Building a Safer Health System” Institute of Medicine (1999). Mistakes in hospitals alone cause more deaths than motor vehicle wrecks (43,458), breast cancer (42,297) and AIDS (16,516), as measured in 1998. Id.

Two favorite whipping boys for tort reformers are frivolous lawsuits and contingency fees, where trial lawyers take a case for no fee but a guaranteed piece of any action, usually ranging between 20% and 40% of a final judgment. Yet contingency fees not only enable those without means to get legal representation but actually discourage frivolous lawsuits: Why sue frivolously if you only get paid if you win?4

In a New York Times column called “Crushed by My Own Reform,” written on October 7, 1994, Frank Cornelius, former lobbyist with the Insurance Institute of Indiana, wrote, “In 1989, I underwent routine arthroscopic surgery after injuring my left knee in a fall.” As a result of a series of catastrophic incidents of malpractice, Cornelius continued, “I am confined to a wheelchair and need a respirator to keep breathing. I have not been able to work. I have continuous physical pain in my legs and feet.… Twice, I have received last rites from my church. My marriage is ending, and the emotional fallout on our five children has been difficult to witness, to say the least. At the age of 49, I am told that I have less than two years to live.

In 1975, I helped persuade the Indiana Legislature to pass what was acclaimed as a pioneering reform of the medical malpractice laws: a $ 500,000 cap on damage awards, and elimination of all damages for pain and suffering. I argued successfully that such limits would reduce health-care costs and encourage physicians to stay in Indiana — the same sort of arguments that now underpin the medical industry’s call for national malpractice reform.

Today, from my wheelchair, I rue that accomplishment.”5

The Medical Malpractice Crisis is Over:

Americans for Insurance Reform (AIR) released a study on February 27, 2006, confirming that there is a wholesale decline of medical malpractice insurance rates nationwide. The study shows that this phenomenon is occurring regardless of whether or not states have enacted restrictions on patients’ legal rights, such as caps on compensation. AIR’s study is based on the most recent Council of Insurance Agents and Brokers survey of market conditions which shows that the “medical malpractice crisis” is over. According to the study, the average rate hike for doctors for the past 6 months has been 0%. At the end of the last quarter in 2004, rates rose only 3%. By comparison, rates jumped 63% during the same quarter in 2002.6

How does Indiana’s Medical Malpractice Law Work?

You may be surprised to learn that you can not simply file suit, even if your doctor cuts off the wrong leg.

Medical malpractice actions in Indiana must be brought under the terms of the Medical Malpractice Act. The act governs actions against healthcare providers in the state-sponsored excess insurance program who are known as “qualified providers.” Not all healthcare providers participate in the program though.

A malpractice action commences upon the filing of a proposed complaint with the Indiana Department of Insurance.

All claims for more than $15,000 against qualified providers must be heard by a medical review panel. Indiana Code § 34-18-8-4 to 34-18-8-6 (West 1999). The panel consists of one attorney and three qualified physicians who review the complaint and determine whether the evidence supports the conclusion that the doctor acted or failed to act within the appropriate standards of care and, if so, whether that was a factor in causing the injury. The attorney serves as the panel’s chairperson but is not allowed to vote.

The opinion of just one of the panel members is sufficient to allow the case to go to trial. The panel is required to render its opinion within 180 days of the selection of the last panel member. Only after a favorable opinion is rendered by the panel can a malpractice action proceed to trial.

The effect of having a medical review panel determine whether or not the doctor exercised reasonable care is that doctors get to “judge” other doctors’ behavior. In no other profession in Indiana are members of a profession allowed to “judge” others in the same profession.

Imagine if lawyers were allowed to determine whether a jury should be allowed to consider whether or not another lawyer acted with reasonable care. Our system is such that a jury is deemed qualified to determine if a person acted with reasonable care, be it that the person is a teacher, a priest, an eight year old boy or a rocket scientist.

Yet, our system has determined that only doctors are qualified to “judge” other doctors.

1 “Top 10 Myths of Medical Malpractice,” Dr. Richard G. Roberts, chairman of the American Academy of Family Physicians and professor of Family Medicine at the University of Wisconsin Medical School.

2 “Hype outraces facts in medical malpractice debate,” Peter Eisler, Julie Appleby and Martin Kasindorf, www.usatoday.com/money/industries/health/2003-03-04-malpractice-cover_x.html (March 5, 2003)

3 “Think Malpractice is Driving Up Health Care Costs? Think Again.” Americans for Insurance Reform, www.insurance-reform.org

4 “The Bogus Tort-Reform Case,” Albert R. Hunt, The Wall Street Journal http://www.saynotocaps.org/op-ed%20page/The%20Bogus%20Tort%20Reform%20Case.htm (March 2003)

5 www.centerjd.org/air/issues/doctorsvoices.html

6 “New Report Confirms: Medical Malpractice ‘Crisis’ is Over.” Americans for Insurance REform, http://www.insurance-reform.org/pr/060227.html (February 27, 2006)

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