Indiana Medical Malpractice Lawyer Blog

Indiana doctors are increasingly prescribing the Duragesic patch for pain relief. Unfortunately, these physicians often prescribe the patch without paying heed to the warnings that accompany this potent medication. Those mistakes can lead to death for the patient.

The Duragesic patch adheres to the patient's skin and delivers a drug called fentanyl through the skin to relieve a patient's pain. Fentanyl is a synthetic opiate which is far more powerful than morphine. The patch remains on the patient for up to 3 days, with fentanyl being transmitted through the skin to the patient for the entire time that the patch is worn.

Because fentanyl is such a powerful drug, doctors must be very careful in prescribing the Duragesic patch. The patch should only be used in patients whose pain cannot be controlled by less potent drugs; who are already receiving and tolerant to opiates such as morphine or oxycodone; and who can be carefully monitored while the patch is initially applied. Additionally, when patients are first started on the Duragesic patch, they should be prescribed the lowest strength patch available.

Failure to properly prescribe the Duragesic patch can lead to fatal outcomes. One of the primary complications of the Duragesic patch is respiratory depression. Respiratory depression can lead to death, and a number of deaths have been reported for patients using the Duragesic patch. Some of these deaths have been linked to defects in the manufacture of the Duragesic patch.

The death or serious injury of a patient who has been prescribed the Duragesic patch is obviously a tragedy. Unfortunately, it is frequently a tragedy that could have been avoided. An experienced malpractice attorney can help determine whether medical negligence played a role in such deaths.

Shoulder dystocia is one of the most feared complications of pregnancy. A shoulder dystocia occurs when, after delivery of the baby's head, the baby's shoulder gets lodged behind the mother's pubic bone. Medical errors in managing shoulder dystocia can lead to permanent injury or death for the baby.

When a shoulder dystocia occurs, the doctor must act quickly to complete the baby's delivery. If the baby is not delivered within a matter of minutes, the baby will suffer irreversible brain damage or death due to lack of oxygen. However, the doctor also must take care not to pull too hard on the baby's head in an effort to achieve delivery. Excessive traction applied by the physician can lead to damage to the nerves that run from the spine to the shoulder, arm and hand -- a brachial plexus injury. Many times, these injuries are temporary and resolve completely within days or weeks. However, when the disruption to the nerves is more severe, the injury can be permanent. Brachial plexus injuries can result in complete loss of use of the affected arm.

Mothers who have experienced a shoulder dystocia with a previous pregnancy, who have gestational diabetes, who have experienced excessive weight gain during their pregnancy, or who are known to be carrying very large babies are all at increased risk for shoulder dystocia. Physicians should be aware of these risk factors, and should always estimate the weight of the baby before delivery.

There are a number of maneuvers available to physicians to allow them to safely deliver a baby after a shoulder dystocia has occurred. Unfortunately, many doctors have had limited experience performing these maneuvers and are unprepared to efficiently perform them when needed. Additionally, some doctors fail to promptly recognize when a shoulder dystocia has occurred and persist in applying traction to the baby's head instead of resorting to the appropriate maneuvers.

Not all brachial plexus injuries suffered at birth are due to medical malpractice. An experienced medical malpractice attorney can review the case and help ascertain whether medical negligence played a role in the injury.

 

Medical errors during pregnancy can lead to death of the infant before delivery. The loss suffered by the parents in such a situation is devastating. Unfortunately, lawyers representing negligent doctors in Indiana are trying to add insult to the parents' injury by arguing that the parents have no legal remedy against the doctor whose negligence caused the tragic loss.

The problem arises from a decision of the Indiana Supreme Court and the language of Indiana's Medical Malpractice Act. In the case of Bolin v. Wingert, the Indiana Supreme Court ruled that the only remedy for the death of a child before delivery is a claim for emotional distress suffered by the parents of the unborn child. The court found that a legal claim for the death of the child -- a wrongful death claim -- can only be made when the child is born alive.

While the Bolin decision limited the legal remedies available to parents for the death of their unborn child, doctors and their attorneys are now fighting to eliminate all legal remedies for stillbirths caused by medical malpractice. They argue that the Indiana Medical Malpractice Act only provides relief for "bodily injury or death." The doctors' attorneys claim that under the supreme court's decision in Bolin v. Wingert, a stillbirth is not a death or bodily injury.  Because a stillbirth is not a death or bodily injury, there is no remedy under the Indiana Medical Malpractice Act.

The law firm of Garau Germano Hanley & Pennington, P.C. is fighting to make sure that parents can secure justice for the loss of their unborn child. We are currently pursuing a case before the Indiana Court of Appeals which should clarify that claims for emotional distress -- including claims resulting from stillbirth -- are covered by the Indiana Medical Malpractice Act. When a doctor's negligence causes the loss of a pregnancy, the parents deserve a remedy.

The Indiana Medical Malpractice Act was passed by the legislature in 1975. Indiana's governor at the time? Otis Bowen, M.D.

Not surprisingly, the law ushered in under Dr. Bowen's leadership favors physicians over the victims of their malpractice. The Indiana Medical Malpractice Act was -- and remains -- one of the least patient-friendly laws in the nation. For example:

• The law requires all medical malpractice claims to be submitted to a panel comprised of three of the defendant doctor's fellow physicians before the case can be filed in court. This results in significant delay before the case can be heard by unbiased jurors.
• The law places strict caps on the monetary damages that can be recovered for malpractice. The cap now stands at $1.25 million. In many medical malpractice cases, the patients have incurred or will incur millions of dollars more than the cap in medical expenses as a result of the malpractice.
• The law imposes an occurrence-based statute of limitation. This means that the malpractice claim must be filed within two years of the act of malpractice regardless of when the patient actually discovers that he or she has been injured as a result of malpractice. (The courts have created some limited exceptions to this harsh statute of limitations.)

Because of the significant hurdles created by the Indiana Medical Malpractice Act, it is imperative that a patient injured by malpractice seek skilled and experienced legal representation.

When the Indiana Medical Malpractice Act was enacted in 1975, one of its most notable features was the hard cap it placed on an injured patient's right to recovery. No matter how badly injured the patient was by the malpractice; no matter how much income the patient lost as a result of the malpractice; and no matter how many medical bills the patient incurred as a result of the malpractice, the most that the patient could recover as a result of the malpractice was $500,000.

Since the Malpractice Act's passage, the damages cap has been raised twice -- to $750,000 in 1990 and to $1.25 million in 1999. The cap remains at $1.25 million today.

While at first glance the increase from $500,000 to $1.25 million seems substantial, that first glance is deceiving. In reality, malpractice victims today under the $1.25 million cap are far worse off than malpractice victims were in 1975 under the $500,000 cap. The reason, of course, is inflation.

The $500,000 cap in 1975 would be more than $1.95 million today if the cap had merely kept pace with inflation. This discrepancy is even more alarming when you consider that one of the primary components of most medical malpractice claims is the recovery of medical expenses. Health care inflation has routinely exceeded the general inflation rate by significant margins.

The damages cap imposed by the Malpractice Act when it was enacted in 1975 was arbitrary and unjust. The fact that the cap places even less value on patients injured by malpractice today is a tragedy.