Suing for Medical Malpractice – Final

Let’s wrap up our current discussion of medical malpractice lawsuits in Indiana.

In addition to the factors that we’ve already discussed, the stress suffered by loved ones can also be an element of "non-economic" damages in a personal injury case. Indiana allows claims for negligent infliction of emotional distress for people that either witness a serious accident or come on the scene immediately afterwards and are a close family member. These are persons expected to have significant emotional problems as a result of the occurrence. Assuming this applies to the facts of a particular medical malpractice action, there are specific rules that need to be met for a valid bystander claim; however, if family member meets those requirements, the jury can award damages for emotional distress.

Note that in all civil cases (including medical malpractice), the burden of proving the case is on the plaintiff (i.e., the injured person) because the plaintiff gets the ball rolling by filing the lawsuit. In a civil case, the burden of proof is a "preponderance of the evidence" which means that the jury must be convinced that the claim is more probably true than not true. Most legal observers describe this as merely tipping the scales held by "Lady Justice" ever so slightly (even as little as 51 percent to 49 percent) for a finding of liability. In contrast, a criminal conviction requires guilt beyond a reasonable doubt, a much higher legal standard.

Another interesting fact is that Indiana has enacted a "collateral source statute" which essentially rewards individuals for protecting themselves through insurance coverage. This law says that a jury should not be advised nor take into consideration payments made by collateral sources such as health or disability insurance if the injured person or the person’s family paid for those collateral sources. The statute also considers Medicaid, Medicare, Social Security or Social Security Disability, or other government payments, as collateral sources that the jury can’t use as a reason to cut down an injured party’s damages.

As we have outlined in this series of blog postings, medical malpractice cases in Indiana require compliance with technical legal rules. Competent and careful personal injury attorneys know the rules about how and when to bring a claim against a healthcare provider or providers who made a mistake involving medical treatment. If you would like to discuss your concerns about a serious injury case involving medical care, please contact Young and Young in Indianapolis. With 55 years of experience, we have the qualifications to help you evaluate and pursue your claim.

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