Medical malpractice is a form of negligence for which an injured party can sue for damages. Malpractice can result from an active action by an attending physician, such as misdiagnosing a disease, operating on the wrong body part, prescribing the wrong medication or leaving an instrument in the patient’s body. Malpractice can also result from the failure to act, such as failing to diagnose a disease, neglecting to order the necessary lab work or failing to follow up with a patient. However, for a plaintiff to prevail in a medical malpractice case in Indiana, he or she must be able to prove the existence of five essential elements.
Monthly Prescribing Reference details the five elements of a medical malpractice claim, the first of which is duty. To have a malpractice case, the patient must show that the practitioner owed him or her a professional duty of care. If the plaintiff can establish duty, he or she must then prove a breach of duty. Breach of duty typically comes in the form of an action or failure to act.
The third element the plaintiff must prove is an injury. The injury can be a physical or emotional one, or both. However, the injury must have stemmed from the breach of duty.
Just because a person sustains an injury at the hands of a medical provider does not mean he or she has a malpractice claim. To prevail in a malpractice suit, the plaintiff must show that the provider deviated from the accepted standard of care in some way. Proving this requires the testimony of one or more medical professionals who work in the same or similar field.
Finally, the plaintiff must prove damages. Damages may include medical expenses, emotional trauma, physical injury and pain, lost wages and diminished earning capacity.
According to FindLaw, plaintiffs can name one or several individuals or entities in a medical malpractice suit. The first and most obvious is the negligent provider. However, to help a patient maximize recovery, lawyers often recommend that the suit also name the hospital for which the provider works. A patient has the right to sue the hospital thanks to the doctrine of “respondent superior,” which says that an employer is responsible for the negligent acts of employees who acted within the scope of employment. If the hospital alone is at fault for, say, failing to maintain sanitary conditions, the injured party can sue under the “corporate negligence” doctrine.
If a victim of malpractice hopes to recover, he or she must file the suit within two years from the date of injury. This statute of limitations prevents individuals from surprising hospitals with old claims for which much of the evidence has disappeared.