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Fred Schultz
Fred Schultz
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Medical Malpractice Verdict a Lesson in Real Aspects of “Tort Reform”

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An Indianapolis jury recently awarded $5 million to a woman who was misdiagnosed in the emergency room. This case is illustrative of several things. First, any verdict over $1 million is very rare, which is why it makes the news in the first place. Believe it or not, juries do not just hand money out like that.

Second, Indiana’s Medical Malpractice Act limits the amount of money an injured person can receive in a malpractice case to $1.25 million per act of malpractice. Therefore, even though this jury believed that the harm suffered by the injured person was worth $5 million, the award is automatically reduced by the judge after the fact. It’s really unfortunate. Our system of justice allows juries to decide whether a criminal charged with murder should receive the death penalty, but we don’t trust juries to award the appropriate amount of money in a civil case.

The third reason this case caught my attention is because the act of malpractice occurred in 2000, nearly nine years ago.

Roxxanna Smith, then 18, arrived at the emergency room in July 2000 with a ruptured diaphragm after playing softball. But through a series of miscommunications about what was shown by X-rays, her lawyers said, doctors instead diagnosed a urinary tract infection and muscle strain — and sent Smith home.

Her condition deteriorating, she saw doctors several times over more than two weeks. Emergency surgery confirmed the correct diagnosis, court documents say, and resulted in the removal of a third of her stomach.

The reason malpractice cases like this can take so long is because Indiana’s Medical Malpractice Act forces cases to undergo an enormously time consuming Medical Review Panel process. My experience has been that the panel review process adds at least two or three years to the normal lenghth of time it takes to resolve cases. Often times, it takes even longer than that to get a case through the panel process.

Essentially, what happens is that the lawyers in the case must submit medical records and depositions to a panel of three doctors with the same or similar specialties to those who are being sued for malpractice before ever formally sueing the defendant medical provider in court. As easy and reasonable as that might sound, it takes a very long time, and is extremely biased in favor of the defendant health care provider.

The panel process is biased for a very simple reason. We are all human, and we all have biases and opinions. We all have a tendency to want to help a friend or colleague. Health care professionals are no different. My experience has been that if a panel can find even a lame excuse to find in favor of the medical professional, they will. Don’t get me wrong. I have good friends and family members who are physicians. I’m just saying that there is a basic human tendency to look the other way when being asked to judge a colleague’s conduct.

Essentially, the real winners in the way the current system is set up are the insurance companies who write medical malpractice policies in Indiana. They are limited in the amount of coverage they have to provide, they can virtually ignore people who have been horribly injured or suffered the loss of a loved one because of malpractice, and the medical providers they insure face a medical review panel of their peers who often find ways to look the other way.

The real losers are not only plaintiffs in malpractice suits, but patients as well. Over 90,000 people every year die from preventable acts of malpractice. Instead of capping damages and making litigation egregiously difficult for those who are wrongly injured, we should focus efforts on reducing the number of acts of malpractice in America.

I would love to see changes made to indiana’s Medical Malpractice Act. However, the only people who can make changes are the Indiana General Assembly. To learn more about Indiana’s Medical Malpractice Act, and to contact your State Representative, go to www.in.gov.

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  1. Mike Bryant says:
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    Sad example of just gone unserved. Keep pointed this out.