Indiana Medical Malpractice Lawyer Blog

A recent decision from the Indiana Court of Appeals is causing concern among Indiana medical malpractice lawyers. If the decision stands, it could create significant changes in the way Indiana's medical malpractice attorneys pursue and present their cases.

Before reviewing the decision, a brief overview of how Indiana's Medical Malpractice Act works is necessary. Under the Act, claims of malpractice must first be submitted to a medical review panel consisting of three Indiana physicians selected by the parties. The purpose of the panel process is to obtain an expert opinion on the merits of the claim. In an early challenge to the contitutionality of the malpractice act, the Indiana Supreme Court made clear that the panel process was an informal one. "The statute contemplates that the panel will function in an informal and reasonable manner. It is guided by a trained lawyer who presumptively will not deny to each party a reasonable opportunity to present its evidence and authorities. The scope of the panel's function is limited. It does not conduct a hearing or trial and does not render a decision or judgment. There is, therefore, no reason to mandate that the statute relegate burdens of proof or production and to otherwise specify procedures applicable in hearings and trials. The panel is conducting a rational inquiry into the extent and source of the patient's injuries for the purpose of forming its expert opinion." Johnson v. St. Vincent Hosp., 273 Ind. 374, 390-391 (Ind. 1980)

Once the medical review panel issues an opinion, the plaintiff can file his complaint in state court. The medical review panel's opinion is admissible in the state court action, but it is in no way binding on the trier of fact. As envisioned by the drafters of the malpractice act and most previous judicial opinions, the medical review panel process is simply a procedural hoop a patient must jump through before bringing his claim to court.

The court of appeals' decision in Campbell v. Chambers looks to change the panel process from an informal administrative proceeding into something resembling a full-blown trial. In the Campbell case, the defendant nurse and hospital argued that the patient could not raise a claim of negligence at trial because she had not raised the claim in her submission to the medical review panel. The court of appeals agreed with the defendants' argument, finding that a malpractice plaintiff "cannot present one breach of the standard of care to the panel and, after receiving an opinion, proceed to trial and raise claims of additional, separate breaches of the standard of care that were not presented to the panel and addressed in its opinion."

The court of appeals' opinion creates a number of problems for Indiana medical malpractice lawyers. As discussed, the purpose of the panel is to obtain an expert opinion from the panel members. The Campbell decision now places the burden on lay attorneys and their clients to tell the panel what breaches of the standard of care arise from the facts of the case, rather than rely on the panel to tell them where the breaches are. If a patient fails to articulate a potential breach in his submission to the panel, that breach cannot be raised in the trial court. In order to avoid the risk of waiving a claim of negligence, lawyers for the patients will now be forced to conduct full discovery at the panel process stage. This will cause the cost of pursuing malpractice claims to skyrocket.

The court of appeals' opinion also evinces a misunderstanding of what exactly is contained in an opinion from the medical review panel. The court's decision presumes that the medical review panel actually articulates in its opinion the reasons for the panel's finding. This is simply not the case. By statute, a medical review panel opinion simply states whether the panel finds a breach of the standard of care, and whether the breach was a factor in the patient's damages. The opinion does not address the specifics of the panel's opinion. There is no way to looking at a medical review panel opinion and know whether the panel found a breach based upon all or any or none of the arguments made by the patient in his submission to the panel.

The plaintiff's attorneys in the Campbell case intend to seek review of the decision by the Indiana Supreme Court. Jerry Garau of the Indiana medical malpractice firm Garau Germano Hanley & Pennington, P.C., will be submitting a brief in favor of the plaintiff's position on behalf of the Indiana Trial Lawyers Association.

The Indiana medcial malpractice lawyers at Garau Germano Hanley and Pennington, P.C. frequently handle cases involving brain injury sustained at birth as a result of the malpractice of a doctor or other health care provider. The injuries sustained in these cases are often devastating, and the cases present significant challenges that require the expertise of an experienced malpractice attorney.

Injuries at birth often result from the brain not receiving adequate oxygen during the delivery process. This oxygen deprivation can result in a condition known as hypoxic ischemic encephalopathy. Hypoxic ischemic encephalopathy at birth is characterized by profound metabolic acidosis, seizures, low Apgar scores persisting for more than five minutes after birth, and the involvement of other organs such as the kidneys, lungs or heart.

Hypoxic ischemic encephalopathy can range from mild to severe. In the most severe cases, the brain damage will ultimately result in the child's death while still an infant. Hypoxic ischemic encephalopathy is also one of the most common causes of cerebral palsy in children. Cerebral palsy is a neurological disorder that permanently affects muscle coordination and body movement.

Brain injuries at birth can occur when the doctor or other healthcare providers fail to heed warning signs on the fetal heart monitor. The fetal heart monitor records the heart rate of both the mother and the baby, and allows the healthcare provider to see how the baby responds to the mother's contractions and other stresses of labor. The monitor can let the doctor know if the baby is experiencing oxygen deprivation, allowing the doctor to take steps to hasten the delivery and prevent permanent damage.

Hypoxic ischemic encephaloipathy may also occur with a delivery that is complicated by shoulder dystocia. Shoulder dystocia occurs when the baby's head delivers, but the shoulders become stuck in the birth canal. At this point, the supply of oxygen to the baby's brain is impeded or cut off. Unless the shoulder dystocia is promptly and correctly resolved, brain damage may result.

Not all brain injuries at birth are the result of malpractice. However, there are many instances where these injuries can and should be prevented if healthcare providers use appropriate medical care.

The Indiana medical malpractice lawyers at Garau Germano Hanley & Pennington, P.C. frequently handle cases arising from a failure to report abnormal laboratory results. Breakdowns in communications between the lab, the treating physician and the patient lead to untreated conditions and, ultimately, serious injury.

The problem of lack of follow-up on abnormal laboratory results is well recognized in the medical literature. Often, abnormal test results are missed when a patient is discharged from a hospital while laboratory results are still pending. Because the patient has left the hospital when the abnormal test results are returned, the results are not forwarded from the hospital to the patient or the patient's treating physician.

These failures of communication can and should be addressed by hospitals and healthcare providers. Where healthcare providers have taken action, these types of errors have been virtually eliminated. For instance, in 1992 Congress passed the Mammography Quality Standards Act. Among other requirements, the Act required mammography facilities to send written reports detailing the results of mammograms to both the referring physician and the patient within 30 days of a mammogram examination. Studies undertaken since passage of the Act have shown that the requirements have resulted in more timely notification of results and greater patient satisfaction.

Hosptial and healthcare providers should have procedures in place that assure that their patients (and their patients' treating physicians) receive the test results they need to assure patient safety. A patient should not suffer injury simply because she or her treating physician have not been advised of lab abnormalities.

The Indiana medical malpractice lawyers at Garau Germano Hanley& Pennington, P.C., frequently handle cases involving the misdiagnosis of patients with abdominal pain. Abdominal pain can be caused by a myraid of conditions; some relatively benign, others life-threatening. When doctors or other health care providers fail to take adequate steps to ascertain the cause of a patient's abdominal pain, the results can be tragic.

Among the more serious conditions which may be signaled by abdominal pain are ischemic bowel, abdominal aortic aneurysm, appendicitis, acute diverticulitis, and bowel obstruction or perforation. All of these conditions can cause serious harm or death if not promptly treated. It is imperative that doctors and other health care providers take the necessary steps to rule out these serious conditions.

A thorough history and physical examination are typically the first steps in evaluating the patient with abdominal pain. The history should reveal the time of onset of the pain, duration, location, intensity, and any associated symptoms such as vomiting or diarrhea. The physical exam should include an assessment of the patient's appearance, position and degree of discomfort; assessment of the patient's vital signs; inspection of the abdomen, including listening for bowel sounds; and palpation of the abdomen to assess for tenderness.

Patients with abdominal pain are frequently x-rayed, particularly in the emergency department. However, studies have shown x-rays to be of limited use in the diagnosis of the cause of abdominal pain. CT scans are the diagnostic test of choice for most serious conditions which present with abdominal pain as a chief complaint.

An incorrect or delayed diagnosis of a patient with abdominal pain can result in a tragic outcome. An experienced medical malpractice lawyer can assist you in evaluating whether an erroneous diagnosis was the result of medical malpractice.

The Indiana medical malpractice attorneys at Garau Germano Hanley & Pennington, P.C. received a $750,000.50 verdict in Fort Wayne, Indiana on March 10, 2011. It was the third verdict won by the firm in the past seven weeks.

The case, Brad & Tiffany Kelly v. Ashok Kadambi, M.D., involved a patient who was treated by an endocrinologist for hyperthyroidism. The patient was told by the endocrinologist that surgery was the only option for treating the disease. In reality, the condition could have been treated with radioactive iodine. Radioactive iodine is a safe and effective treatment for hyperthyroidism and is the treatment of choice in the United States because it avoids the risks and expense of surgery.

In reliance on the endocrinologist's statement that surgery was his only option, the patient underwent the surgery and suffered severe complications. His vocal cords were paralyzed, leaving him with permanent voice and breathing impairments. He brought suit alleging that the endocrinolgist had failed to obtain his informed consent by not providing accurate information regarding the alternatives to surgery.

The case was tried by Barbara Germano and Jerry Garau. The Indiana medical malpractice lawyers at Garau Germano Hanley & Pennington, P.C. are available to assist you with any potential malpractice claims.

The Indiana medical malpractice attorneys at Garau Germano Hanley & Pennington, P.C. recently received a $2.5 million verdict in a trial in Terre Haute, Indiana.

The medical malpractice verdict was reached by the jury on February 25, 2011 in the case of Jeffrey Wayne Davis v. John Morse, M.D. The case involved a failure to diagnose colon cancer in a 35-year old patient who reported complaints of rectal bleeding to his gastroenterologist. Rectal bleeding is one of the major warning signs of colon cancer. Because the gastroenterologist chose not to perform a colonoscopy or sigmoidoscopy, the patient's colon cancer went undiagnosed for more than two years. By the time the disease was finally diagnosed, it had spread to the patient's liver and was incurable.

The case was tried by Jerry Garau and Deborah Pennington of Garau Germano Hanley & Pennington, P.C. The verdict will be reduced to $1.25 million pursuant to damage limits imposed by Indiana's Medical Malpractice Act.

The Indiana medical malpractice lawyers at Garau Germano Hanley & Pennington, P.C. recently obtained a $1.2 million verdict in a jury trial in the DuBois County Superior Court in Jasper, Indiana.

The medical malpractice verdict was reached by the jury on January 21, 2011 in the case of Meserve v. P. Bryan Lilly, D.O. In July of 2004, Dr. Lilly chose to prescribe a 75 microgram Duragesic patch to a patient he saw in the emergency room, Chad Aders. The Duragesic patch distributes a potent narcotic called fentanyl through the skin and into the patient's bloodstream. The dosage prescribed by Dr. Lilly was far in excess of the manufacturer's recommendations for administration of the drug. Mr. Aders had the prescription filled, applied the patch as he had been instructed, and was found dead in his bed the following day. He was 37 years old and left behind three children, ages 7, 8 and 17.

Jerry Garau represented Mr. Aders' children in the case, which was tried from January 18 to January 21, 2011. After four days of trial, the jury needed only 58 minutes to return a verdict for the full amount requested, $1,206,394.72.

The Indiana medical malpractice lawyers at Garau Germano Hanley & Pennington, P.C.recently won a $585,000 verdict for a client in the United States District Court for the Southern District of Indiana.
The case involved a patient who suffered a brachial plexus injury at birth which caused permanent impairment in the use of the patient's right arm. The injury occurred when the baby's shoulder became stuck on the mother's pubic bone after delivery of the head, a complication known as shoulder dystocia.

Jerry Garau and Barbara Germano of Garau Germano Hanley & Pennington, P.C. tried the case for the patient. They argued that the defendant doctor should have delivered the baby before the shoulder dystocia occurred based upon signs from electronic fetal monitoring that the baby was in trouble. They also argued that the doctor erred by pulling too hard on the baby's head after the shoulder became stuck.
The Indiana medical malpractice lawyers at Garau Germano Hanley & Pennington, P.C. can help you with your medical malpractice or personal injury claim. Contact them today.

Indiana medical malpractice lawyers frequently hear the argument that the fear of malpractice claims causes doctors to practice "defensive medicine" -- ordering tests and procedures to avoid being sued rather than because they are medically indicated. Health care providers and their insurers argue that defensive medicine drives up the cost of health care. However, the argument has little basis in fact.

Recent studies in the respected journal Health Affairs found that the costs of "defensive medicine" have been dramatically overstated by critics of the malpractice system. According to the studies, the practice of defensive medicine has little impact on the total cost of health care.

The findings of the authors of the Health Affairs studies are consistent with previous findings by other studies. In 2008, the non-partisan Congressional Budget Office found that much of what is characterized as "defensive medicine" may be "motivated less by liability concerns than the income it generates for physicians. . . ." The report concluded that "on the basis of existing studies and its own research, CBO believes that savings from reducing defensive medince would be very small."

The ultimate goal of those who argue that "defensive medicine" drives up health care costs is to place limits on the ability of victims of malpractice to recover for their injuries. The Indiana medical malpractice lawyers at Garau Germano Hanley & Pennington, P.C. believe that such arguments should be based on fact, rather than myth.

Hospital falls are a significant problem in Indiana and across the nation. Indiana medical malpractice lawyers can help patients and their families injured as a result of a hospital fall.

Studies have found falls to be the single most significant adverse event encountered in hospitals. Hospital falls lead to longer stays, increased bills, decreased function, and diminished quality of life. Elderly patients are particularly at risk. The Institute for Healthcare Improvement reports that 10% of fatal falls for the elderly occur in hospitals.

Because of the severe consequences of patient falls at hospitals, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) included fall prevention in hospitals in its 2005 National Patient Safety Goals. Those goals called for hospitals to "assess and periodically reassess each patient's risk for falling, including the potential risk associated with the patient's medication regiment, and take action to address any identified risks."

A hospital's failure to make a proper assessment of a patient's risk for falling, or its failure to take steps to prevent the fall of an at-risk patient, may be malpractice. If you or a loved one has suffered an injury as a result of a fall at a hospital, contact the experienced Indiana medical malpractice attorneys at Garau Germano Hanley & Pennington, P.C.

Indiana medical malpractice lawyers often deal with cases where surgeons have failed to remove from the patient sponges or instruments used during the course of surgery. The frequency with which this problem occurs is uncertain. However, an article in the journal Abdominal Surgery suggests that retained sponges may occur once in every 1,000 to 1,500 intra-abdominal surgeries.

A retained surgical sponge can lead to a host of problems for the patient, including infection, pain, additional surgery, and even death. The American College of Surgeons has recognized the seriousness of the problem by publishing guidelines to help surgeons avoid the mistake. Those guidelines include documentation of the results of surgical item counts and documentation of the action taken if there is a discrepancy in the count. Some hospitals have gone further. For instance, the Mayo Clinic uses bar coded surgical sponges to make sure the sponges are not left in the patient.

A retained sponge or surgical instrument is almost always the result of medical malpractice. If you or a loved one has been injured as a result of medical malpractice, the Indiana medical malpractice lawyers at Garau Germano Hanley & Pennington, P.C. may be able to help. Contact us for a free consultation.

Birth injury can be devastating, leaving its victims with serious permanent impairments. Indiana medical malpractice lawyers frequently handle cases where birth injuries could have been prevented if doctors had heeded the warnings provided by fetal monitor strips.

In most deliveries, electronic fetal heart monitoring is used to track how the baby is responding to labor. External fetal heart monitoring is performed by attaching transducers to the mother's abdomen. The transducers use Doppler ultrasound to detect fetal heart motion, and the information is sent to a fetal heart monitor which calculates and records the fetal heart rate on a continuous strip of paper.

Certain patterns on the strip are indicative of fetal distress. Doctors and labor and delivery nurses are trained to recognize these patterns and respond appropriately. The responses may include repositioning the mother, administering oxygen, or proceeding to immediate delivery via cesarean section. If a healthcare provider fails to recognize and appropriately respond to monitor patterns showing fetal distress, the baby may suffer serious injury, such as brain damage or even death.

The Indiana medical malpractice lawyers at Garau Germano Hanley & Pennington, P.C. have handled many cases involving the failure to appropriately respond to signs of distress on fetal monitor strips. Contact them for a free consultation.

The concept of differential diagnosis is often at the heart of Indiana medical malpractice trials. A differential diagnosis is the process used by doctors to determine the cause of a patient's symptoms. The doctor creates a list of the conditions that could be causing the patient's problems, and then pares down the list through a process of elimination until a diagnosis is determined.

A differential diagnosis is frequently employed in the setting of patients presenting to the emergency room with acute abdominal pain. Patients with acute abdominal pain account for 5 to 10% of all emergency room visits in the United States. The list of potential causes of acute abdominal pain is huge and ranges from relatively minor conditions (constipation) to potentially life-threatening conditions (aortic aneurysm).

Problems arise when doctors assume the patient's symptoms are being caused by a minor condition without ruling out a potentially deadly condition. For example, patients with acute appendicitis are sometimes discharged from hospital emergency rooms with a diagnosis of gastroenteritis, or stomach flu. Such a patient may go on to have his appendix rupture, leading to prolonged hospitalization or even death.

If you or a loved on has been injured as a result of a doctor's failure to properly employ a differential diagnosis, an experienced Indiana medical malpractice lawyer may be able to help.

The Indiana medical malpractice lawyers of Garau Germano Hanley & Pennington, P.C. recently received a $1.26 million jury verdict in the United States District Court for the Northern District of Indiana in Hammond, Indiana.

The medical malpractice verdict came in the case of Nolan v. Arora, M.D. In July of 2000, Dr. Arora performed a Racz catheter procedure on Patty Nolan. The procedure is a pain management procedure that involves placing a catheter in the epidural space of the spinal canal and injecting a local anesthetic and then hypertonic saline through the catheter to remove scar tissue and, hopefully, ease the patient's pain.

When Dr. Arora injected the local anesthetic, Mrs. Nolan experienced a profound motor and sensory block. At trial, Mrs. Nolan's attorneys argued that that this should have been a warning sign to the doctor that his catheter was in the subdural space rather than the epidural space. Injections of hypertonic saline into the subdural space could cause serious nerve damage. Rather than terminate the procedure or check the placement of his catheter with fluoroscopy, the doctor left his catheter in place, waited for the blocks to wear off, then had Mrs. Nolan return the following day for an additional injection of anesthetic and the hypertonic saline. Mrs. Nolan then developed a cauda equina syndrome resulting in leg weakness and permanent bowel and bladder dysfunction.

The jury entered its verdict on March 19, 2010 at the conclusion of a five-day trial. (Indiana law limits the maximum amount that may be recovered on the jury verdict to $1.25 million.)

The Indiana medical malpractice lawyers at Garau Germano Hanley & Pennington, P.C. are frequently faced with cases involving deep vein thrombosis. Deep vein thrombosis (or DVT) is a condition where a blood clot forms in one or more the body's deep veins, usually in the lower legs.

The major risk from DVT is pulmonary embolism. A pulmonary embolism occurs when a piece of the clot breaks off and travels to the lung. A pulmonary embolism can have serious consequences for the patient, including sudden death.

Hospital patients who have been immobilized for prolonged periods of time or who have undergone major surgery are particularly susceptible to DVT and resulting pulmonary embolism. Doctors can reduce the risk of DVT and pulmonary embolism through the use of medications and other methods.

The failure to take appropriate steps to prevent DVT may be malpractice. An experienced medical malpractice attorney can evaluate such claims and help determine whether legal action is appropriate.