Southern Indiana Personal Injury Lawyer Blog

Articles Posted in Medical Malpractice

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Legislators in Indiana and Kentucky have enacted laws mandating medical review panels in cases where individuals allege they have been harmed by a healthcare provider’s negligence, commonly known as medical malpractice.  Under legal challenge, Indiana found the legislation constitutional, whereas Kentucky did not.

Long ago, prior to enacting this legislation, Indiana’s and Kentucky’s founders provided as part of their Constitutions that their courts should be “open” and justice administered freely and “without delay.”

Article I, Section 12 of the Indiana Constitution provides:

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The Indiana Court of Appeals recently issued an opinion in Biedron v. Anonymous Physician 1 addressing the applicable statute of limitations in medical malpractice lawsuits in Indiana.

Biedron involved three related medical malpractice claims, which were consolidated for the purposes of the appeal. Proposed complaints for medical malpractice were filed by the plaintiffs with the Indiana Department of Insurance more than two (2) years after the alleged malpractice occurred in each of the cases. The plaintiffs in each of the cases argued that the 2-year occurrence-based statute of limitations, as set forth in the Indiana Medical Malpractice Act, should be tolled under the doctrine of fraudulent concealment. With differing trial court orders on the defendant healthcare providers’ motions for summary judgment on the statute of limitations issue, the Indiana Court of Appeals affirmed in part and reversed in part, finding in favor of the Indiana healthcare providers.

Under the Indiana Medical Malpractice Act, a medical malpractice claim, whether in contract or tort, may not be brought against a healthcare provider based upon professional services or healthcare that was provided, or that should have been provided, unless the claim is filed within two (2) yeas after the date of the alleged act, omission, or neglect, except that a minor less than six (6) years of age has until the minor’s eighth birthday to file. Ind. Code § 34-18-7-1.

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Our lawyers are currently investigating the FDA’s recall of Valsartan in an effort to determine whether a sufficient medico-legal basis will exist to file Valsartan lawsuits for those impacted.  At this point, it is difficult to ascertain whether those who have taken Valsartan products contaminated with NDMA may have been adversely affected by taking the contaminated drug.  The viability of such claims will depend in large part on how long the medication was taken, from whom the medication was sourced, who manufactured the medication, what dose of the medication was taken, and the amount of contaminant contained in the medication.  A Valsartan lawsuit attorney can investigate the facts necessary to form a basis for possible Valsartan litigation.  First and foremost, though, is the need for those taking a contaminated Valsartan medication to consult their physician to determine if they have been taking a contaminated Valsartan product to determine whether a different medication may be indicated.  According to the FDA, Valsartan users should not stop taking the medication until completing a physician consultation.

The biggest concern for Valsartan users appears to be an elevated risk of cancer, although other concerns are possible organ damage or tumors.  Nonetheless, and importantly, at this time, the FDA is warning those taking Valsartan do not stop taking the medication unless and until you have consulted with your prescribing physician.  It is also important to note that not all Valsartan medication was contaminated with NDMA. The FDA has published a list of the recalled and non-recalled medications, which can be found here.  Valsartan lawsuit lawyers will continue to monitor the information being developed by the FDA and companies participating in Valsartan recalls.

According to the FDA, taking the highest Valsartan does (320 mg) from the recalled batches daily for the full four years may increase the risk of cancer to the point one additional case of cancer occurs in the lifetimes of a hypothetical group of 8000 such Valsartan takers.  This may seem like a relatively insignificant risk compared to the risks of developing cancer published by the American Cancer Society.  However, this is additional risk and one additional case of this terrible disease is one too many and may very well warrant a Valsartan law firm to file a product liability or failure to warn lawsuit supported by admissible scientific and epidemiological evidence.

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It’s a fear that many people have – that they or their parents will end up in a nursing home unable to care for themselves and becoming overmedicated. The fact is that many nursing home residents are suffering from Alzheimer’s or some form of dementia which can make them aggressive or anxious. That makes them difficult to care for. And for nursing home workers who are overworked in a facility that is understaffed, the solution, unfortunately, is to medicate such individuals. This often leads to overmedication. An estimated 179,000 people living in nursing homes receive antipsychotic drugs each week although they have no mental illness for which such drugs are intended.

Signs of Overmedication

It is difficult enough to make the decision to send your loved one to a nursing facility. But, sometimes that is the only option and is required to ensure the safety of your loved one. A nursing home should be a place where residents receive adequate care while being kept safe. However, some residents go downhill fast once they’ve entered a nursing home. This is sometimes due to the fact that they are being overmedicated. If you have a loved one who resides in a nursing home, then you should look out for the following signs:

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According to a recent Evansville Courier and Press story, medical negligence is on the rise in Indiana as reflected by data collected by the Department of Health.  According to the Courier story, the most common preventable medical errors were pressure ulcers aka bedsores, followed by incidents of foreign objects left in patients after surgery.  And, in spite of growing precautions, a local surgery center even reported three cases of surgery being performed on the wrong body part.

Although some might think a “preventable medical error” automatically equates with a successful medical negligence claim in court, this is not necessarily so.  To prevail at trial in a legal case alleging medical negligence in Indiana, the injured patient must first prove through admissible evidence that there was a breach of the standard of care.  And, second, the injured patient must prove through admissible evidence that the breach was a substantial contributing factor to the ensuing harm suffered, i.e. the breach is what caused the injuries alleged.  Even if a healthcare provider were to admit causing an error, they might vehemently disagree with the nature and extent of damages alleged.

Unlike some States–such as Kentucky–where an individual may immediately file a medical negligence lawsuit in court, an individual pursuing a medical negligence claim in Indiana must generally first proceed by filing a proposed complaint in the Indiana Department of Insurance.  Only after a medical review panel (chaired by a non-voting lawyer and three voting physicians) reviews the evidence and issues an opinion on breach and causation may a lawsuit proceed in court.  Even once the lawsuit is allowed to proceed, the damages that may be recovered at trial are subjected to Indiana’s statutory cap.

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