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Committee plans medical malpractice checkup

July 29, 2015

Whether Indiana should allow Hoosiers to recover more than $1.25 million in medical malpractice lawsuits is one of the key questions lawmakers will be exploring next month. Some lawyers who represent plaintiffs and defendants in such cases say it’s probably time the cap on damages was raised.

Where agreement appears to end, though, is in regard to the screening of complaints through medical review panels required for any malpractice claim in excess of $15,000.

Med-mal issues will be among those before the Interim Study Committee on Courts and the Judiciary next month. Committee hearing dates had not been set at IL deadline.

This year, lawmakers introduced two bills that would have raised caps that haven’t moved in years, but neither passed its house of origin.

steele-brent2012-mug Steele

“You just can’t stick with (cap) numbers that were set 20 or however many years ago,” said Sen. Brent Steele, R-Bedford, who chairs the study committee. Steele introduced a bill this year that would have allowed more suits to go directly to court, rather than through medical review panels composed of three medical professionals and chaired by a non-voting attorney member. The bill was voted down in the Senate.

The cap on medical malpractice damages was raised to the current level of $1.25 million in 1999. Had the caps kept up with the rate of medical inflation, they would exceed $2 million today. But some attorneys say even that’s not necessarily high enough.

kehoe Kehoe

Indianapolis plaintiff attorney Bruce Kehoe of Wilson Kehoe Winingham LLC is representing Randall Kraud of Burnettsville in a proposed medical malpractice case filed with the Department of Insurance. He said the case will challenge caps as unconstitutional, claiming that Kraud was left totally disabled and has more than $5 million in medical bills after a botched procedure that destroyed his heart muscle and led to renal failure.

“This is one of the few cases we have where people are simply not going to get compensated even if the cap were at $2.5 million,” Kehoe said.

“I would hope they would have some creative ideas,” he said of the committee. “One way would be to simply raise the cap; another might be only to have the cap apply to non-economic damages.” He said the state also might consider a fund for catastrophic cases that exceed the caps.

State supreme courts most recently in Georgia, Illinois and Missouri have struck down caps on medical malpractice claims as unconstitutional. In the most recent cap challenge to reach the Indiana Supreme Court, justices in 2013 ruled that Timothy Plank forfeited his opportunity to conduct an evidentiary hearing challenging the caps’ constitutionality.

Kehoe said he senses some momentum in favor of raising the caps.

Engelking Engelking

Carmel attorney Lara Engelking is also a registered nurse whose firm, Engelking Law Group LLC, represents Indiana health care providers. She said it’s probably time the Legislature took a look at total caps on medical malpractice damages allowed by statute.

However, she opposes any move to raise the threshold claim cap of $15,000 under which cases may proceed to court without first going through a medical review panel. She said the panels work well for all parties involved in a medical malpractice suit.

“I think there is a means to get to a compromise” on the total damages cap, Engelking said. “However, we have to be mindful that we cannot lose the process that gets down to the truth of the medicine.”

laura-binford-mug Binford

“I think it’s probably time to take a look at (total caps) and see if some changes need to be made,” said Laura Binford, a partner at Riley Bennett & Egloff in Indianapolis who defends medical malpractice complaints. “I would love to see the Legislature enlist advice from attorneys on both sides.”

But like Engelking, Binford is wary of any changes to medical review panels. “I think it’s an excellent process,” she said. “It kind of lightens the burden on our already overworked court system. … So often we find the opinion (of the panel) is kind of the end of the case.”

Indiana Trial Lawyers Association President James McDonald of Terre Haute disagreed, calling the review panels “a very slow, cumbersome process.” He said lawmakers should look at cases, for example, where medical instruments are left inside a patient as the kind that shouldn’t be forced to go through the expense and burden of review panels.

“Right now, on average, it takes 24 months from the day of filing to when you get a medical review panel finding, and that’s just too long,” Kehoe said.

Steele’s introduced bill this past session would have allowed claims to go directly to court without first going through review panels if the claim was less than $187,500 rather than the current limit of $15,000. The bill was defeated by the full Senate even after the threshold limit was reduced to $50,000. At one point, the bill contained language that would have allowed claims to skip review panels if a foreign object was left in a patient’s body or the wrong body part removed.

The review panel process, he said, has become lopsided in favor of medical professionals. “To be fair and equitable means it has to work for both sides,” said Steele, who is an attorney. “Why should you have to go through a medical review panel when someone’s cut off the wrong limb?”

But Binford said lawmakers should be careful about trying to define a list of the kinds of cases that can bypass the review panels. Each case is different, and some cases may not be as clear as they appear at first blush.

Besides, she said, in her experience most malpractice cases involving clear medical error settle quickly. “Some cases, you take a look at it, and you just have to make that tough call to the client and say there is no way to defend this care.”

Engelking also said she’s dubious of legislative attempts to define certain types of malpractice cases as eligible to bypass review panels.

“The problem with doing that for those types of cases is, what happens currently is a number of healthcare providers are named in litigation. You may have 10 defendants named,” she said. “Someone has to sift through who really is the responsible party for that injury,” and that role falls to the review panels. “You need experts in the medical profession to get down to who the culpable parties are.”

She said any reforms should consider the state’s comparably favorable history of containing malpractice insurance costs. “In Indiana, we have a very good experience when other states have been in crisis scenarios.

“We want to make sure that the panel process we have in place is preserved,” Engelking added. “I really think Indiana would be doing a disservice to the citizens, the health care providers and the parties injured if Indiana were to impact the threshold for the medical review panel process.”•

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