A husband brought a lawsuit against a hospital alleging medical malpractice that resulted in the death of the man’s wife.  According to the Indiana Court of Appeal’s opinion, doctors failed to
diagnose a small bowel obstruction resulting in the wife contracting sepsis, which eventually led to her death.  The husband received an $8.5 million jury verdict.  The trial court, at the hospital’s request, reduced the jury verdict award to the $1.25 million statutory cap.  The husband’s attorney objected to the reduction because he claimed the statutory cap violated the Indiana Constitution. The husband’s attorney also requested an evidentiary hearing to pursue the constitutional challenge.

The trial court denied the husband’s request for an evidentiary hearing.  The Indiana Court of Appeals reversed the trial court because the Indiana Supreme Court, in other unrelated cases, has
declared that whether a statute is constitutional can be revisited from time to time.  The party challenging the constitutionality of a statute has the burden to prove that changes in circumstances require the reversal of existing case law.  The Court of Appeals determined that without a hearing the husband would have no means to show a change in circumstances that required a reversal of the existing case law.

It must be emphasized that the Indiana Court of Appeals did not decide on whether the medical malpractice statutory cap was unconstitutional.  It merely determined that the husband should
be able to present his case to the trial court.  As a result of this ruling, the husband’s case now goes back to the trial court judge for the evidentiary hearing.  It seems very likely that this case will work its way back through the appellate courts once the trial court issues a ruling.  Only next time, the Court of Appeals, and possibly the Indiana Supreme Court, will likely address the actual constitutional issue.

For now, the statutory cap for medical malpractice awards in Indiana remains valid.  However, the future of the statutory cap is uncertain at this time due to this recent decision.  Unfortunately, there will not likely be an answer until the constitutional challenge works its way through the trial court, Court of Appeals and the Indiana Supreme Court.  The attorneys at Bamberger will be keeping a
close eye out for developments on this issue.  Please contact us if you have any questions.

Author: Chad M. Smith (bio)
Phone: 812.452.3597
email: csmith@bamberger.com

In the health care arena, apologies and expressions of remorse for medical errors or bad outcomes seem to be a trendy practice.  Generally speaking, the theory is to disclose an adverse medical event with an expression of empathy, followed by an investigation into whether the event was caused by a breach of the standard of care and then a sharing of the investigation results with the patient or patient’s family.  If there was a breach of the standard of care then compensation will be offered.  If there was no breach then no compensation is offered and any legal action is defended.  The hope is that the patient or patient’s family will appreciate the health care provider’s empathy and truthfulness in what is an emotional period of time for the patient or patient’s family, which will lead to a better understanding of what occurred.

This trend of encouraging apologies is reflected in state statutes limiting the admissibility of such statements that have been passed in some form in most states.  Indiana Code 34-43.5-1-1 et seq., passed in 2006, renders “communications of sympathy” inadmissible in court.  However, statements of fault may be admitted into evidence.  This leads us back to the question of whether there is a difference between an apology and an admission.  Clearly there is a distinction. 

But it is not always easy to apologize to a patient without it seeming like an admission of fault.  Physicians often complain of telling the patient “A, B, and C” and the patient hearing “X, Y, and Z.”  In emotionally charged circumstances or in cases involving litigious individuals, expressions of sympathy may be twisted into statements of fault.  For example, in the case of a patient’s death, a health care provider does not admit fault if he or she says to the patient’s family, “I am sorry for your loss.”  However, the patient’s family after receiving devastating news may hear or interpret, “I am sorry I caused your loss.” 

In certain, if not all, cases, expressions of empathy certainly have value for all involved.  There are procedures that can be implemented to minimize and/or alleviate the fears associated with offering empathy to the patient or patient’s family.  But health care providers must be cautious and must be educated on what to say, how to say it and under what circumstances to voice such expressions.  In other words, this is not something to start doing tomorrow after reading this article.  Health care providers will need to give it some thought and seek counseling on how to implement this theory.

Author: Chad M. Smith (bio)
Phone: 812.452.3597
email: csmith@bamberger.com

Recently, the patient’s attorneys have started to ask treating physicians to give a deposition concerning the care of the patient in hopes that the testifying physician will be critical of the health care provider that has been named in the complaint, thus giving the patient an advantage in the claim.  The logic behind this tactic is that it can be part of human nature for a person to profess his or her innocence in a situation by looking negatively at another individual’s involvement in the same situation. 

In some situations, if not most, the patient’s attorney is going as far as telling the testifying physician that the patient is not looking to sue the testifying physician.  This can provide a false sense of security for the testifying physician that he or she will not be dragged into a medical malpractice claim leaving the testifying physician unprepared for the actual deposition.  Healthcare providers need to be cautious because there is nothing to stop the patient’s attorney from adding the testifying physician as a party to the medical malpractice claim after the deposition has been taken.  If that were to happen, the patient’s attorney has the testifying physician’s deposition to use against the targeted health care provider and the patient’s attorney can look to build a case against the testifying physician. 

So what can health care providers do to protect themselves?  There are two quick and simple options you have to make certain you are protected and well advised on how to proceed.  The first is to call your private attorney to advise him or her of the situation.  Your private attorney can make a call to the patient’s attorney to get more information on the matter and then advise you what you should be doing.  The second option is for you or your private attorney to call your medical malpractice insurer to advise it of the situation.  The medical malpractice insurer may opt to provide you with an attorney at the insurer’s expense, especially if the patient’s attorney wants to move forward with the deposition. 

In this type of situation, it is not a bad idea to call both your private attorney and your medical malpractice insurer to ensure you receive as much guidance as possible.  If you have a risk manager associated with your practice group or hospital, you most certainly should contact the risk manager as soon as you are approached by a patient’s attorney.  Your risk manager will be able to help you navigate this situation as well.  If you are ever placed in this situation, the most important thing to remember is that accommodating the request of a patient’s attorney does not mean that you will not be sued even if the patient’s attorney states that you are not being targeted for a lawsuit.

Author: Chad M. Smith (bio)
Phone: 812.452.3597
email: csmith@bamberger.com