"Medical Malpractice: Seeking resolution," is the title of a major story today in the Evansville Courier&Press, billed as "First in a Series." It begins:
Juries in this state have never been known for granting the so-called "jackpot" multimillion-dollar verdicts, especially not against doctors sued for malpractice.The report continues that supreme courts in at least seven states have ruled caps like Indiana's are unconstitutional.About 75 percent of the time juries rule for the doctors. So when a Daviess County jury in February awarded a combined verdict of $7 million to a Washington, Ind., couple and their child, who suffered severe brain injury from a doctor's alleged malpractice, it set a local record.
At least, on paper, it set a record. In reality, it doesn't matter what the jury said. The case is far from resolved.
The law in Indiana says the maximum that can be awarded to victims of medical malpractice is $1.25 million — no matter how severe the injury or the economic damages. It's one of the lowest and most strict malpractice caps in the nation. Most states with limits on malpractice awards only restrict judgments on noneconomic damages — which include pain and suffering and punitive damages — but they don't limit recovery for medical costs or lost wages. Only two other states, Louisiana and Virginia, have an overall cap like Indiana.
Indiana's law has withstood a constitutional test. But court rulings have amended various aspects of the law, and a ruling April 7 by the Indiana Court of Appeals could affect the outcome of the Decker case. Before the appeals court ruling, the $1.25 million cap was applied to every case, regardless of how many people were injured by a single act of malpractice. Now, the court has said that if more than one person is injured, each is entitled to seek damages up to the $1.25 million.Here is the decision: Commissioner Sally McCarty v. Vicki L. Sanders, et al. (4/7/04 IndCtApp) [Medical Malpractice; Statutory Construction] More from today's story:
The law already has been amended once by the Indiana Supreme Court. In 1999, it said the two-year statute of limitations on filing a malpractice lawsuit was unconstitutional when applied to people who couldn't be expected to know that their doctors made mistakes, such as cancer patients who were told they didn't have the disease. Lawyers who defend Indiana doctors and hospitals in malpractice cases acknowledge the $1.25 million cap on damage awards is inadequate in cases of catastrophic injury — the brain-damaged babies, the quadriplegics, others who will require years of care.Two related stories were also published in the Evansville Courier&Press today, headlined "Filing suit can be hard on families," and "Malpractice cases often complex".
[Update Monday 4/10/04] Here is Part 2 of the series, titled "Case against damage cap." This story focuses on whether or not a proposed cap on medical damages in Kentucky is a good idea. Three other related stories also appear today: titled "Malpractice cases often complex," which discusses in detail the complexities of the Indiana Medical Malpractice Act; "Lawyers say jury awards show damage cap not the answer;" and "Insurance crisis sends doctors packing," about doctors moving across the river from Kentucky to Indiana:
Howell said the decision to move was "a no-brainer." Kentucky was, and still is, in the throes of a malpractice insurance crisis. Indiana is considered a doctor-friendly state because of its 1975 Medical Malpractice Act that caps the damage awards to injured patients and limits the liability of health-care providers. Hoosier physicians' insurance premiums haven't soared.Posted by Marcia Oddi at April 18, 2004 04:22 PMCave and Howell said they would not have made the move if it meant having to abandon their patients or relocate their families. But they had to do neither. Their new office is just a 15-minute drive from Henderson and most of their patients are still Kentuckians. Also, The Women's Hospital "is extremely popular" with Henderson patients whose insurance plan includes that hospital, Howell said. "So we essentially followed a lot of patients over here," he added. "They led the way."
But the doctors said the primary reason for their move was the malpractice issue. "We both have 20 more years to practice. For us, the choice was that we couldn't stay," said Cave. "There was too much uncertainty. We just felt we have to go to a known commodity, a stable situation."
Ironically, almost as soon as she and Howell moved their offices to Indiana they received an abrupt notice - along with every doctor practicing in Indiana - that the situation isn't so stable after all.
The notice was from the Indiana Department of Insurance, informing them of an immediate 72.6 percent increase in the fees that all healthcare providers must pay into the Indiana Patients Compensation Fund, to help pay for damage awards to malpractice victims.
The fund has been paying out more than it's taking in. But Howell and Cave said even with the increase, they still come out ahead - saving about 20 percent over what they would have been paying for insurance in Kentucky.