Medical Malpractice
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Medical Malpractice

Very few medical malpractice situations actually turn into cases in Indiana.

But, it can be a very frustrating process when the patient or family member does not receive a reason “why” the case was rejected by the attorney.

Attorney Jeff “JJ” Shaw also is very careful in cases he accepts that allege medical malpractice or errors by a physician, staff or hospital that caused or contributed to injuries.

The difference is that Attorney Jeff “JJ” Shaw establishes reasons for his denial of cases. The medical malpractice rejections usually involve three distinct situations:

1. The Injuries or Damages are Substantially Less Than the Estimated Costs to get the Case to Trial Because of Indiana Law

To win a malpractice suit, the plaintiff (the injured party) and his attorney must prove there was unreasonable conduct that fell below the “standard of care.”

Furthermore, this unreasonable conduct (negligence) must be a direct cause of the injuries and losses.

Next, the plaintiff and counsel must show the extent, severity and degree of the losses.

All of these things must be proven by a “preponderance of the evidence” – a fancy legal term that means “probably” or more likely than not. (Unlike a criminal case where the burden of proof is “beyond a reasonable doubt” which means much more than probably or likely).

But, those damages must exceed or be worth more than the estimated costs to get the case before a jury in order to make it worthwhile for everyone involved.

McKibben Shaw Law handles all personal injuries, business injuries and medical malpractice cases on a “contingency” basis – which means that no money is paid upfront and attorneys fees are deducted only after a recovery of money.

This means the costs of getting the case to trial are paid by McKibben Shaw Law and they can be substantial and overwhelming in medical malpractice case.

If the costs expended and the attorneys’ fees would result in no money in the plaintiff’s pocket, then it would not make sense to take the case even if the malpractice was obvious and easy to prove.

This is a difficult concept for most injured people and family members to accept. In short, sometimes the “bad guys” win despite obvious malpractice, because it is impossible to get the case to trial to make it worth it.

This is often the case for medical malpractice injuries that result in a few weeks of further treatment with eventual and total recovery. In other words, temporary injuries caused by medical malpractice in Indiana often goes without retribution of any kind.

Medical malpractice litigation is expensive and there are many types of expenses involved.

Indiana law requires that proof of medical malpractice (negligence) requires an “expert” witness to give an opinion that a failure to follow normal, accepted practices did not occur. In other words, the attorney and injured person can believe negligence occurred, but they cannot be the basis for proof before a jury.

Expert witnesses charge for their time. They can charge up to $25,000 or more for reviewing medical records, giving a deposition and testifying at a trial.

Once again, it is easy to see why “temporary” injury injuries from medical malpractice often avoid detection.

This does not mean the injuries weren’t real or unimportant. It simply means the justice system does not recognize the ability to get those cases to trial.

It is a sad reality.

Additionally, Indiana prevents an injured person or family member suing directly in an Indiana court of law. All persons alleging malpractice by a qualified health care provider must present the claim initially to the Indiana Department of Insurance. This commission then provides a “panel” of three similarly situated doctors to review the facts of the case and vote on whether they believe “malpractice” occurred.

This panel formation costs money. It also takes a long time. It can take a year or more.

After the panel votes, then, and only then, can the case be filed in Indiana state courts.

2. A Bad Result is not the Same Thing as Medical Malpractice

Sometimes, bad things happen. People get sick. People die.

This can happen even after an operation or treatment. Not every medicine works. All medicines have side effects. Not everybody gets better.

Often, this confuses people and family members who believe the “bad result” means medical “negligence” or malpractice occurred.

Medicine, while a science, is still the result of many judgment calls made by medical providers and physicians along the way.

So what exactly is “malpractice?”

Well, we can start with what it is not.

If there are two (or more) acceptable methods of treatment and one is tried with bad results, that is not malpractice. Just because there are two accepted choices and the wrong one was used, this does not mean the physician committed malpractice.

Malpractice means a deviation from the standard of care. The question is whether the treatment that was rendered was accepted in the medical community. Using judgment is not malpractice – not following accepted methods is malpractice.

For example, say there are two accepted medicines to treat a condition. All medicines have side effects. The failure of one of the medicines to cure the condition is not malpractice because both are equally accepted in the medical community. This might be true even if the first medicine would have cured the condition.

Malpractice would be prescribing a medicine, in that circumstance, that is not acceptable in the medical community. Like prescribing a sleeping medicine for a skin condition that results in a dangerous side effect.

The same goes for operations and operative procedures in Indiana. Sometimes, operations save lives; sometimes, they go awry and bad things occur.

The choice to get the operation initially, as long as informed consent was given, is not necessarily malpractice. After all, bad things can go wrong in an operation. So, a decision to get an operation to fix spinal problems or back pain is not necessarily medical “malpractice” if it doesn’t work and the pain continues.

But, if the investigation reveals the surgeon operated on the wrong area of the spine, that could be considered “malpractice.”

The bottom line is that physicians use judgment everyday, just like most people, and sometimes those judgments don’t work.

Another example is the patient who presents to a hospital with problems and then develops chest pain while he is there.

The hospital might prescribe medicines that prevent blood clots (which cause heart pain and heart attacks).

Say the medicine does not work a cardiac catheterization is tried, but the patient dies because an artery was nicked during the procedure and she bleeds to death. While a horrible result, it probably is not malpractice.

The medical personnel were treating the initial condition presented – by prescribing the anti-coagulant medicines. In fact, it would have been malpractice to withhold the anti-coagulants, even though they played a role in the death.

Nor was it malpractice to try the catheterization if a heart surgery was unavailable in that setting.

The point is this – bad results are not the same thing as medical malpractice.

To show malpractice (negligence or substandard care), McKibben Shaw Law is required to prove the decision and case was unreasonable at the time it was given – not later looking backwards.

Many cases are turned down because the medical decisions were not unreasonable when made.

3. The Bad Outcome Wasn’t Directly Linked to the Malpractice or Bad Decision

Sometimes, even when a bad outcome happens and bad care can be proven, the case fails because there was no link between the bad care and the eventual injuries. This can be a very, very difficult concept to understand.

Indiana malpractice law requires a direct causal link between the bad care and the eventual injury complained of. The best way to understand this difficult concept is to give an example.

Imagine a female patient who complained to a hospital or doctor of stomach pain, bloated feeling and a bump in her belly that seems to be getting bigger over time.

Let’s imagine her doctor ignores these subjective (personal) complaints and tells her not to worry. Then many months later, unsatisfied, the female patient goes to another doctor who performs a different series of tests and discovers the bump is a tumor and cancer. Imagine she is given only a few months to live. A horrible, horrible situation.

But is it medical malpractice and capable of being proven in an Indiana court of law?

Maybe not.

Imagine that the panel doctors or other experts testify that with this particular type of cancer that she would have died anyway, even if it had been discovered by the first doctor on the first day she made a complaint.

While awful, this situation clearly demonstrates that the resulting injury (death) could not have been prevented by good care. Causation cannot be proven in that case because the bad care by the first doctor did not change her eventual injury and death.

Call McKibben Shaw Law or text at (260) 777-7777 for questions about your medical malpractice questions. We Get You Back on Your Feet.

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Sometimes, unfortunately, lack of causation cannot be fully discovered until the case is significantly undertaken. This can lead to bad feelings by the plaintiff towards the attorney, but it does happen.

In conclusion, there are many, many other reasons why medical malpractice inquiries are not accepted by McKibben Shaw Law.

The important thing is to get a second opinion if your medical malpractice inquiry is rejected by McKibben Shaw Law.

We will always try to provide referrals for a second opinion, especially when you don’t agree or understand our rejection.

If we do take your case, there is a lot to learn about medical malpractice procedures in Indiana.

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- Tristen K


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