Thursday, August 17, 2006


Very recently, a jury in Louisville rendered a $9 million verdict against University Hospital, finding that hospital personnel were negligent during an elective surgery. The patient, a 40-year-old woman, died after there was apparently a delay in getting needed blood to her. The hospital is appealing the verdict but, unless the case is overturned on appeal, the hospital and / or its liability insurer will have to satisfy the judgment.

This situation highlights some of the major differences that exist between Indiana and Kentucky in the area of medical malpractice law. Through many conversations with individuals, I have found that few private citizens are aware of those differences.

In the University Hospital case described above, the plaintiffs were able to simply go to the courthouse and file their complaint. There was no limit to the amount of damages which they might obtain and, procedurally, the case went along basically as any other litigation would.

Had the incident happened in Indiana, an entirely different set of rules would have applied. In Indiana, before a plaintiff may file a medical malpractice complaint against a qualified health care provider, he or she must first present the claim to a medical review panel. The panel, comprised of three health care professionals and an attorney chairperson, reviews all of the evidence submitted to determine whether, in the panel's expert opinion, the evidence submitted supports the allegation of malpractice. Although it sounds like a simple and straightforward process, I have found the panel process to typically last one to two years.

Once the medical review panel renders its decision, the plaintiff may then proceed to file a complaint in a circuit or superior court. The panel's opinion, however, is admissible in evidence, and the members of the panel may be called upon to testify as to their opinions. If the panel has ruled unanimously in favor of the defendant, the plaintiff must come forward with expert testimony indicating that malpractice occurred. If no such testimony is presented, then the case will be dismissed via summary judgment.

Most significantly, unlike Kentucky, where the sky is the limit, Indiana has a statutory cap on damages for medical malpractice actions. Pursuant to I.C. 34-18-14-3, no qualified health care provider is currently liable for an amount in excess of $250,000 for a single act of malpractice. Further, the total amount recoverable for an injury or death of a patient may not currently exceed $1,250,000.

There has been a great deal of national debate lately about tort reform, and many other states are looking at Indiana as a model. Our system has basically been a good and stable one for a number of years. While some may feel that the system is unfair, I think that it is generally a good statutory scheme which promotes uniformity and reasonable expectations to our citizens. I believe that it also serves to weed out many unmeritorious claims. After all, our health care professionals have more to worry about than when the next lawsuit is going to appear.