Northwest Indiana Medical Malpractice Lawyer
What is Medical Malpractice?
We receive phone calls all the time from people with questions about a medical malpractice claim throughout Northwest Indiana. The person usually calls after they or a family member suffered a bad result or death with a healthcare provider, and they are wanting an answer to what happened.
We will start the discussion of what medical malpractice is by looking at one Indiana Jury Instruction. A jury instruction is a statement of law that is provided to the jury who hears a medical malpractice case. The jury instruction says,
“A medical specialist is one who devotes special attention to an ailment and its treatment, consistent with the state of scientific knowledge at the time. A physician employed as a specialist must exercise the same degree of care and skill that would be exercised by a specialist in the field.”
The key to this statement is that a doctor must use the same degree of care and skill as similar doctors – this is called the “standard of care.”
Medical malpractice occurs when a healthcare provider deviates from the applicable standard of care by something that he/she did or by something that he/she failed to do. You may also hear the terms “breached the standard of care” or “negligence.”
Additionally, Indiana law requires that the injured person prove that the healthcare provider’s breach of the standard of care caused the injury.
Medical Malpractice is not:
- A bad result in and of itself
- An unforeseen result
- A normal risk or complication of a medical procedure
- A bad bedside manner
- A failure to provide information to a patient or the patient’s family
Do You Have an Indiana Medical Malpractice Case In Northwest Indiana?
You or your family member has suffered significant injury following a medical procedure or the doctor failed to diagnose a long-standing condition and now you learned the cancer has spread and you’re dying, do you have a medical malpractice case?
The first two questions that Guy DiMartino will ask you if you’re asking if you have a medical malpractice case is? (1) what do you think the doctor did wrong? (2) how did the malpractice cause injury or death?
Many people can answer the first question easily. They can rattle off a litany of the things the doctor or hospital staff did wrong. However, when the person is asked to link the alleged malpractice to the patient’s injury or death, the person does not have an answer.
It is important for any medical malpractice lawyer to be brutally honest with a potential client about the facts of their case. The medical malpractice attorney may ask difficult questions, and play “devil’s advocate”. At times this can make the prospective client think that the attorney is not on their side, this isn’t true. It is much better to hear about the weaknesses in a potential medical malpractice case up front rather than five years later after you have spent thousands of dollars.
You see, as a patient or the patient’s family in a medical malpractice case, has the burden of proving (1) that the doctor owed the patient a duty of care; (2) that the doctor breached the standard of care (committed malpractice); (3) that the malpractice caused the injury or death; and (4) damages or loses occurred because of the injury. If any of these elements are missing, an injured patient should not bring a medical malpractice claim.
The more experienced the medical malpractice lawyer has; the easier it will be to make preliminarily determination if the elements of an Indiana medical malpractice claim are present.
Jumping Through the Hoops of Making a Medical Malpractice Claim
Northwest Indiana medical malpractice claims are governed by the Medical Malpractice Act (“MMA”). In the 1970s Indiana’s governor was a medical doctor. During this time, the legislature perceived a “medical malpractice crisis” and the forerunner of the current statute was placed into law. The law has the following components: (1) the patient compensation fund; (2) a statutory cap on all damages which is now $1,800,000; and (3) the Medical Review Panel process.
In order for a healthcare provider to gain the protections of the Act, they have to be a “qualified health care provider.” A physician becomes a qualified health care provider by purchasing a medical malpractice insurance policy in the amount of $ 500,000, and paying a surcharge to the patient compensation fund. The surcharge is determined by the commissioner of the Indiana Department of Insurance. If a doctor practices in Indiana and does not pay the surcharge to the patient compensation fund, he is not entitled to the protections of the Act, which include the medical review panel process,$1.8 million dollar cap on damages, and a limitation on attorney’s fees.
How Long Do You Have to Start a Medical Malpractice Claim
The statute of limitations in Indiana for medical malpractice is 2-years from the date of the occurrence. What this means is that if a doctor committed practice during your January 1, 2023 surgery, you have until January 1, 2025 to start your medical malpractice claim.
This may sound straightforward, but it really isn’t. What happens if you don’t realize that the doctor committed malpractice until after the 2-years. Well, in the past, Indiana law was clear that you wouldn’t be able to bring a case. Nowadays, it will depend on the specific facts of the case, and you may be able to get the statute of limitations extended. What does this mean? If you think you or a family member may have a medical malpractice claim, consult a lawyer as soon as possible.
Starting an Indiana Medical Malpractice Claim
Okay, you hired a lawyer. The medical documents were reviewed, and you and your lawyer decide to bring a medical malpractice claim. What’s next?
The Medical Review Panel Process
A malpractice claim begins with the filing of a proposed complaint with the Indiana Department of Insurance. The panel process begins when a party requests the formation of a panel. The panel is composed of one attorney and three doctors. The attorney acts as the chairman of the panel but he does not deliberate.
Prior to the formation of the panel, the parties will try to come to an agreement regarding the medical specialties of the panel members if there is more than one defendant. Once the parties come to an agreement, each party will submit the name of a doctor licensed in Indiana. As a matter of course, the other party strikes the name of the physician submitted by the other side. Each party has two strikes.
Next, the panel chairman will select the names of three prospective members, and each party will strike one. The one doctor left will be appointed to the panel, and the chairman will then select another three names of prospective panel members, and each party will strike a name off of the list. Once two panel members are chosen, they will pick a third panel member. Again, the parties have the right to strike the third panel member picked by the other doctors.
Once the panel is chosen, the chairman will coordinate a briefing schedule. Each party will put together their evidence and prepare a written submission, which is supposed to be reviewed by the panel.
The Indiana Medical Malpractice Act requires the panel to render an opinion within 6 months of time that the last panel member is chosen; however, these dates are routinely extended because of the various scheduling issues.
You can check a doctors’ performance on medical review panels online:
- Click search for providers
- Click the bubble “individual”
- Type in: guy dimartino
- Select my name and select panel
- You will see that one panel is listed and I found for the healthcare provider
- On the other two cases, which are not online, I believe I also found for the healthcare provider
- In the next session, I will provide you an insider’s view of the panel process from a participant’s perspective
The Medical Review Panel is Biased Against the Patient
The Indiana medical malpractice review panel process from a Doctor’s perspective. The doctor will receive a letter from the panel chairman informing her that she has been appointed to the medical review panel. After a year or two the doctor will receive a packet of information from the attorneys. The packet will contain medical records and written submissions from each party. The doctor is supposed to review all the information.
Next, the panel chairman will schedule a meeting of the members. In a majority of the cases, the meeting is held by conference call. The doctors discussed the issues for somewhere between 30 minutes and an hour in the panels in which I participated.
The typical panel conference goes something like this:
- Dr. X, “I feel bad that Dr. Defendant is going through this.”
- Dr. Y, “Yeah, it could be anyone of us.”
- Dr. Z, “This happened to me a few years, and the patient’s attorney was a real jerk.”
- Dr. X, “You bet, I really hate attorneys.”
- Panel Chairman: “Doctors have you reached a decision.”
- Dr. X, “I wouldn’t have done so and so like Dr. Defendant but the patient didn’t conclusively prove to me that Dr. Defendant was negligent.”
- Dr. Y, “I agree, Dr. Defendant could have done a better job, but he wasn’t negligent.”
- Dr. Z, “What about so and so, did you look at this Dr. X and Dr. Y.”
- Dr. X, “I did, and Dr. Defendant could have done a better job, the patient shouldn’t have died, but I’m not convinced that he was negligent.”
- Dr. Y, “I agree.”
- Panel Chairman: “Okay doctors, I thank you very much for your service on the panel; I’ll circulate the opinion for your signature stating that Defendant doctor was not negligent.”
Within a week, the doctor will receive an oath and a copy
of the opinion, which reads: “The evidence does not support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint.”
Under the Act the medical review panel may find one of the following:
- “The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint.” This find equates to malpractice. A very small percentage of medical review panels arrive at this decision. Occasionally, one out of the three will stand firm and find malpractice.
- “The evidence does not support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint.” This opinion means the panel found no malpractice. This opinion occurs most of the time, like the above example.
- “There is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court or jury.” With this opinion, the medical review panel does not rule. This type of opinion is infrequent and will usually occur when there is a significant dispute regarding the facts of the case.
- “The resultant conduct wasn’t a factor of the resultant damages.” This is the type of opinion that plaintiffs see when the doctor’s conduct was so negligent that they must find malpractice. Instead, the panel rules that the doctor committed malpractice, but so what; the injury or death was not related to the malpractice. For instance, I recently received a panel opinion that said the doctor was malpractice in his handling of advanced cardiac life support, but it didn’t matter. In essence, the panel said that even if the doctor would have done everything right, the patient still would have died.
The medical review panel process is the reason that most malpractice cases in Indiana do not settle short of trial. You see, most panels find for the doctor, so the insurance company and doctor have a sense of security.
How does a negative medical review opinion impact a lawsuit?
Once the medical review panel opinion has been rendered, a plaintiff has 90 days in which to file a lawsuit in court. Your attorney will consult with you after the panel opinion and discuss the pros and cons of filing a lawsuit. Some medical malpractice attorneys will sign a client up and then dismiss the client when they get a negative panel opinion.
At this point in time, the victim or his family will decide if they want to continue or drop the case. If they decide to continue, they will have to scramble to find another attorney. Beware! Most Indiana medical malpractice lawyers will not accept a case that has been handled by another attorney for years through the medical review panel process.
You may ask; how can I file a lawsuit once the medical review panel has ruled against me? The answer is as follows: the medical review panel opinion is not conclusive; however, you must have a doctor in your camp who is willing to testify that the doctor committed malpractice and the malpractice caused the injury or death.
The panel opinion will be the defendant doctor’s badge of honor at trial because the panel opinion is admissible evidence in trial. The jury will be instructed that it can give the panel opinion as much weight as it sees fit after hearing all the evidence.
A negative medical malpractice panel opinion is the biggest uphill battle and the reason why pursuing an Indiana Medical Malpractice claim is so difficult. Think about it, at trial the defendant will be starting with at least 4 doctors (3 panel members and himself) that will testify that he did everything right. It has been my experience, that a 3-0 panel opinion is an obstacle that can be overcome with a strong case and an experienced attorney. It has also been my experience that juries will see through the panel process when the facts and the medicine support the injured patient’s claim.
Despite what state legislature said when it wrote the Indiana Medical Malpractice Act, the medical review panel process is protectionist of the medical profession. Whether it is planned this way or just the inherent bias of doctors giving the benefit of the doctors, I can’t say.
Filing an Indiana Medical Malpractice Lawsuit
An injured patient or their family cannot file a lawsuit naming the doctor or hospital until the medical malpractice review panel process is done.
A victim of medical malpractice can suffer serious harm, injury and death. Society has recognized a victim’s right to sue for damages caused by the negligence of another person for over 100 years. In tort law, negligence is defined as a breach of the duty of care. The question that is asked is whether the defendant acted as a reasonable prudent person under same or similar circumstances.
In the medical malpractice area, negligence or malpractice is a deviation from the applicable standard of care. Specifically, the question asked is, did the doctor depart from good and accepted medical practice?
The law allows a victim of medical malpractice to be compensated for the harms and loses that are a result of the negligence. Compensation is the right to be paid for something that is owed.
How does a medical malpractice victim seek compensation for injuries?
- Call an experienced Indiana medical malpractice attorney. The attorney will consult with you and get your story. If the attorney believes there might be a case, he will agree to investigate the claim. At first, the attorney will only be concerned with the liability aspect of the case so he will either ask you to get the pertinent medical records or have you sign a release so he can get the medical records.
- If there are pertinent witnesses the attorney will take their statement(s). The closer to the event the statement can be taken, the better because recollection fades over time.
- Once the attorney receives the pertinent medical records, either he will review them or have them outlined by a legal nurse consultant. If the attorney is familiar with the medicine and issues, he may be able to make a decision as to the potential negligence.
- Expert witness retention. At some point in time, either before the medical review panel process or shortly thereafter, the attorney will retain an expert witness. Usually, this witness will be the same specialty as one or more of the defendants. If it is a medical condition that is treated by a variety of medical specialties, the expert will be somebody who regularly handles the medical condition. When the attorney has retained an expert, he has made a significant monetary commitment to the case because experts are not cheap.
- Once the medical malpractice attorney determines that the case is one that should go forward. She will file a proposed complaint with the Indiana Department of Insurance (IDOI). The IDOI will serve the healthcare provider with the proposed complaint. When the healthcare provider receives the proposed complaint, she will forward it to her medical malpractice insurance carrier. The insurance carrier will hire a defense attorney and this attorney will enter his appearance at the IDOI.
- The filing of the proposed complaint begins the medical review panel process and stays any statute of limitations. The medical review panel process takes years. See Chapter V for a complete description of the medical review panel process.
- Once the medical review panel renders a decision, which is typically a 3-0 decision for the doctor and against the patient, the patient and their lawyer will have to decide whether to file a lawsuit. The lawsuit must be filed within 60-days of medical review panel opinion. If there is a 3-0 panel decision against the patient, the must have an expert retained and ready to go to keep the case from being dismissed by the court.
- If the client and attorney agree to continue with the case, a complaint will be filed in the county where the negligence occurred. For instance, if the malpractice occurred in Michigan City, Indiana, the complaint will be filed in the LaPorte Circuit or Superior Court.
- A copy of the complaint will be sent to the defendant(s) attorney(s) and the case is off to the races
- If the defendant(s) had a panel opinion in his/her favor, as soon as they receive the complaint, they will file a motion for summary judgment (asking the court to dismiss the case). In support of the motion, the defendant will attach the medical review panel opinion stating that the doctor did nothing wrong. At this point in time, the victim has to show their hand and file an affidavit of his expert witness who disagrees with the panel opinion. If the affidavit is in proper form, the court will deny the defendant’s motion and the case will proceed.
- From the time of the filing of the complaint, until the time of mediation (a confidential settlement conference), the case will be in the discovery phase. During discovery, the parties exchange additional information that was not exchanged during the medical review panel process. The most important aspect of discovery from the client’s point of view will be the client’s deposition. The following tools are utilized during the discovery phase:
- Interrogatories: Written questions that are served to parties only and answered under oath.
- Request for Production of Documents or Inspection of Property: The parties will exchange documents and sometimes may have to inspect a premises or evaluate a piece of medical equipment.
- Deposition: Is a statement that is given under oath. Depositions are directed at parties, persons who are not parties that may have information regarding the case, and expert witnesses.
- CME/IME: The defendant may request that the client be examined by a doctor of his choosing. Don’t worry, we will explain the process and most of the time video the proceeding.
- All courts require the parties to go to a confidential mediation conference. The parties agree on an independent mediator to conduct the conference. Anything that is said during mediation cannot be used at trial. Indiana medical malpractice insurance companies do not settle cases when there is a 3-0 panel against the patient so if mediation will be fruitless the parties can motion the court to dispense with the requirement.
- Many courts will not give a trial date until mediation is completed or dispensed of by court order.
- Trial: This is the culmination of the case where a jury of six or seven peers hears the evidence and renders a decision.
- Post-trial Motion(s): A jury verdict is not necessarily the end of the case. If a party believes there was error committed by the judge during the proceeding, he can file a post-trial motion called a Motion to Correct Errors. If the party does not get the relief that he/she is looking for in the trial court, it can be appealed to the Court of Appeals.
- Court of Appeals: The court of appeals will review the trial record, briefs and render a decision affirming the jury verdict or overturning the jury verdict.
Sample Fact Patterns of Medical Malpractice Cases
Below is a list of some of the types of cases that I have been involved in either on behalf of a doctor or hospital (in my defense days) or on behalf of an injured or deceased patient in Northwest Indiana. Whether a healthcare provider is determined to be at fault in a malpractice case is dependent upon the specific facts of the case. Some of these illustrations are known risks and complications of the medical procedure, but the healthcare provider failed to take the risk into account or utilize techniques to minimize the risk or complication.
- An emergency room physician who failed to timely perform a CT of the head, which would have diagnosed a subdural hematoma.
- An emergency room team of healthcare providers that failed to timely draw blood and urine from a pediatric patient who died after he was in the emergency room for six hours.
- An emergency room physician, cardiologist and pulmonologist who failed to timely diagnose a pulmonary embolism.
- An emergency room physician who failed to timely diagnose an abdominal aortic aneurysm.
- An emergency room team of healthcare providers that failed to diagnose an impending heart attack.
- An emergency team of healthcare providers that failed to order a STAT ultrasound in a patient who had a splenic aneurysm.
- An internal medicine physician who diagnosed a patient with a knee problem that ended up being a pulmonary embolism.
- A cardiologist who allegedly misdiagnosed a nuclear perfusion heart scan that showed inferior wall ischemia.
- An internal medicine physician that did not report a positive biopsy finding on a patient’s prostate, which lead to a 9-month delay in treatment.
- A family practice physician that failed to order a breast biopsy when the physical exam findings were consistent with breast cancer, but the mammography and ultrasounds were inconclusive.
- A cardiologist that failed to timely monitor a patient’s INR when on Coumadin (Warfarin), a blood thinner, and the patient died from a hemorrhagic stroke.
- A cardiologist that utilized an axillary approach when performing a catheterization of the lower extremity arteries, which damaged the nerves in the shoulder where the axillary artery is located.
- A cardiologist that injured the iliac artery during an angiogram of the heart, which required the patient undergo a femoral artery-femoral artery bypass.
- An anesthesiologist that injected the spinal cord when performing a cervical facet joint block.
- A bariatric surgeon that failed to properly instruct a patient on proper nutrition following the surgery. The patient developed a brain condition because of a vitamin B deficiency.
- A bariatric surgeon that failed to timely diagnosis a breakdown of the anastomosis leading to peritonitis and death.
- A bariatric surgeon that failed to timely diagnosis a breakdown of the gastric pouch.
- A general surgeon that injured the common bile duct during a laparoscopic cholecystectomy (gall bladder surgery).
- A midwife that allowed a mother’s perineum to rip causing an anal fistula and permanent bowel incontinence.
- A urologist that injured the patient’s duodenum during a laparoscopic nephrectomy(removal of kidney), and failed to timely diagnosis peritonitis that led to death.
- A plastic surgeon that was sued for extensive scarring and infection following breast augmentation and liposuction.
- A pediatrician that allegedly failed to refer an adolescent to a cardiologist for long Q-T syndrome (a cardiac arrhythmia).
- A gastroenterologist that allegedly failed to properly follow-up with a patient who complained of abdominal pain following a colonoscopy that perforated the bowel.
- A chiropractor that was sued for failing to timely diagnosis and refer a patient to a surgeon for an extruded lumbar disc that resulted in cauda equina syndrome, which is a medical emergency.
- A chiropractor that allegedly herniated a cervical disc during manipulation.
- A chiropractor that allegedly caused dissection of the vertebral artery with a cervical adjustment.
- A podiatrist that failed to properly perform a bunionectomy leaving a short metatarsal.
- An obstetrician that failed to properly handle a shoulder dystocia resulting in an avulsed cervical nerve root and Erb’s palsy.
- An obstetrician that failed to timely perform an emergency cesarean section when the baby’s fetal heart rated noted late decelerations.
- An obstetrician that failed to timely perform an emergency cesarean section when the fetus was in distress because of placental abruption.
- A general surgeon who performed a tonsillectomy & adenoidectomy and damaged a major blood vessel in the throat of a child.
- A pediatrician and urologist who failed to timely diagnose nephrotic syndrome.
- A jail doctor that failed to timely diagnosis and refer an inmate who went into acute renal failure from rhabdomyolysis.
- A prison doctor who failed to timely diagnosis and refer an inmate with a head injury and acute renal failure following an altercation.
- A prison doctor that failed to properly treat an acute asthma attack that resulted in the death of an inmate.
- A prison doctor that failed to timely diagnose a patient’s blood clot.
- A spine surgeon that injured the spinal cord while performing neck surgery.
- A spine surgeon that caused cauda equina syndrome when performing low back surgery.
Medical Malpractice Causing Death – Should You Get An Autopsy
Indiana Medical Malpractice Lawyers always tell clients that the sooner you retain an attorney the better it is because evidence gets destroyed or stale. This holds true when somebody dies because of medical malpractice. Most people will not think of consulting a medical malpractice attorney until sometime after the injured person has died and was buried. The issue of whether an autopsy should have been done has come up numerous times so I will provide my thoughts on the subject.
An autopsy is a post-mortem examination of the body. The medical examiner or pathologist will evaluate the gross structure of the body and organs as well as the microscopic structure of the organ systems. Additionally, she may sample and test certain bodily fluids.
Autopsy can be used as a sword and a shield. At times, it can help prove cause of death in a case. Other times, it can be inconclusive and hamper the prosecution of a medical malpractice claim.
Here is an example of the dilemma. Let’s look at a claim for failing to timely diagnose cancer. Generally, the earlier cancer is diagnosed the greater the chance of survival. The patient ends up dying from the cancer and an autopsy is performed. During the autopsy, the pathologist finds other disease processes, which would limit the decedent’s life expectancy. The doctor or hospital’s lawyer will be able to take the position that even if the cancer was diagnosed timely and treated, the decedent had other disease processes that would have cut short his life.
On the other hand, I have seen autopsies that really solidified the cause of death. In one case, the patient’s lawyer’s theory of liability was unreasonable force by law enforcement officers that caused a medical condition, which was not timely diagnosed. The autopsy findings showed severe muscle breakdown, bruising and organ damage in multiple areas of the decedent’s body that was consistent with blunt force trauma.
In another medical malpractice case, the issue was whether the patient died of an unexpected acute heart attack or a pulmonary embolism (blood clot that travels to the lungs). The autopsy findings noted multiple blood clots in the decedent’s lungs, which supported pulmonary emboli instead of a heart attack as the cause of death.
Generally, if I was consulted by a family member and asked if an autopsy should be performed, and there was no religious objection, I would recommend that it should be performed if there is a question regarding cause of death. Autopsy findings may provide the cause of death that would allow us to work backwards to find out exactly what happened. An autopsy may also answer questions that family members may have regarding the death and provide closure.
Chiropractic Malpractice Cases in Indiana
In 2022, there were over 68,000 chiropractors in the United States, making it the second largest healing profession. Chiropractors are licensed in all states.
The Definition of Chiropractic in Indiana
Generally, chiropractic physicians deal with the structure and function of the body. Under chiropractic principles, pain, dysfunction and/or disease are caused by an interruption of the nervous system because of a subluxation (a vertebrae not in proper alignment) or a fixation (a vertebrae that is not function properly). At the heart of all chiropractic techniques is the adjustment or manipulation. The adjustment attempts to return the vertebrae back to its proper alignment so that the region of the spine will function properly.
Indiana law defines chiropractic as: “Chiropractic” means the diagnosis and analysis of any interference with normal nerve transmission and expression, the procedure preparatory to and complementary to the correction thereof by an adjustment of the articulations of the vertebral column, its immediate articulation, and includes other incidental means of adjustments of the spinal column and the practice of drugless therapeutics. However, chiropractic does not include any of the following:
- Prescription or administration of legend drugs or other controlled substances.
- Performing of incisive surgery or internal or external cauterization.
- Penetration of the skin with a needle or other instrument for any purpose except for the purpose of blood analysis.
- Use of colonic irrigations, plasmatics, ionizing radiation therapy, or radionics.
- Conducting invasive diagnostic tests or analysis of body fluids except for urinalysis.
- The taking of x-rays of any organ other than the vertebral column and extremities.
- The treatment or attempt to treat infectious diseases, endocrine disorders, or atypical or abnormal histology. IC-25-10-1.
Types of Chiropractic Malpractice Cases
Stroke: One of the most devastating injuries reported following a chiropractic adjustment is stroke. There are different types of strokes, which include (1) occlusive (a blood vessel closes off and the area supplied by the blood vessel does not receive blood; and (2) hemorrhagic (a blood vessels breaks and bleeds in an area of the brain.
If a patient is going to suffer a cerebral vascular accident following spinal manipulation (adjustment) in the neck, it is usually going to be because of a problem with a vertebral or carotid arteries. Vertebral or carotid artery dissection are difficult to diagnose until it is too late.
The vertebral arteries travel up the sides of the cervical vertebrae and bring blood to the back of the brain from the carotid artery. If a patient has blood clots or plaques in the vertebral artery the manipulation can loosen them up and they can travel to the brain and cause a stroke.
Just because a patient suffers a stroke following manipulation doesn’t mean there was malpractice. Your medical malpractice attorney will need to determine the following:
- Did the chiropractor determine if the patient had risk factors?
- Informed consent? What did the chiropractor explain about the treatment before the patient consented to undergo treatment?
- What type of adjustment did the chiropractor perform? There are numerous manipulative therapy techniques.
- How did the chiropractor respond to the situation when it occurred?
- Was the stroke transient or did the patient suffer permanent injury?
Herniated Disc: Discs are located between all vertebrae of the spine except the first and second vertebrae in the neck (cervical). The discs are rings of cartilage with a fluid filled center called the nucleus pulposis. The discs act as shock absorbers to the spine; however, if the cartilage cracks the nucleus can seep through the crack and bulge, herniate (protrude), and extrude (sequester). Generally, discs are resilient to axial (up and down) pressure on the spine. However, discs are susceptible to injury from rotation and lateral (side) bending of the spine at the same type.
The following malpractice issues exist regarding chiropractic manipulation and herniated discs:
- Did the chiropractic physician cause the disc herniation?
- Did the chiropractor perform a type of manipulation that was contraindicated because the patient had a prior disc herniation?
- Did the chiropractor fail to timely diagnose cauda equina syndrome, which is a medical emergency?
Below is a list of other types of cases that can be due to chiropractic malpractice:
- Failing to recognize that the patient has a condition in which spinal manipulation is contraindicated.
- Failing to timely diagnose a medical condition that is present on an x-ray that is taken and interpreted by the chiropractor. For example, lung cancer or bone cancer.
- Performing an adjustment or manipulation in a careless manner causing injury.
- Failing to timely refer the patient to another medical specialty.
- Practicing outside the chiropractic scope of practice within the specific state.
Failing to Timely Diagnosis a Heart Attack in an Emergency Room
How does a healthcare provider (years ago I would have written doctor, but now, it is likely that the patient will be taken care of in the emergency room will be a nurse or a physician’s assistant) fail to diagnose a heart attack?
Usually, in one of the following two ways:
- Failing to diagnose an impending or ongoing heart attack.
In this typical fact scenario, a patient will go to an emergency room complaining of pain in the chest or a stomach ache. The patient may have any of the following symptoms:
- Chest pain that may radiate into the shoulder, arm or jaw.
- Chest pain that may radiate from the chest to back.
- Sweaty and clammy.
- Shortness of breath.
- Indigestion and bloating.
- Stomach pain.
A heart attack (myocardial infarction) occurs when heart cells die because of disrupted blood supply. The heart’s job is to pump deoxygenated blood to the lungs so the blood can get oxygen, and to pump oxygenated blood to the rest of the body. The heart being an organ also has its own blood supply. The coronary arteries bring oxygenated blood to the heart muscle. When an artery that comes off a coronary artery becomes blocked, the heart muscle supplied by that blood vessel dies (infarction).
Sometimes when a patient goes to the hospital with atypical chest pain, an upset stomach or back pain, the healthcare provider will fail to work the patient up for a heart attack and misdiagnose the patient with gastritis. The problem occurs when the patient is released from the hospital and dies within a short time.
2. Failing to properly interpret diagnostic testing.
The standard of care requires a healthcare provider to rule out a heart attack when a patient presents to the emergency room with chest pain and cardiac risk factors. An EKG (electrocardiogram) is a test that measures the electrical activity of the heart. An EKG can show specific patterns if a patient is having a heart attack or has damaged heart muscle from a past heart attack.
Stress tests may also be used to determine if a patient is experiencing decreased blood supply to certain areas of the heart. Finally, the healthcare provider will order serial (repeated) enzyme testing. This test looks for enzymes within the blood that are supposed to be in the heart cells. When heart cells die, the enzymes will travel into the blood and will be detected by the test.
If the healthcare provider improperly interprets EKG or stress test or fails to order serial enzyme testing, the heart attack can be easily missed.
When investigating a potential failure to diagnose a heart attack claim, an Indiana Malpractice Lawyer has to determine the following:
- If the patient would have been timely diagnosed with a heart attack, what treatment would have been performed? Would the healthcare provider have placed the patient on blood thinners and nitroglycerin? Would the healthcare provider send the patient for an angiogram/angioplasty (test that visualizes the arteries/clears blockage and places stent)?
- Would the patient have had elective or emergency coronary artery bypass surgery? In this surgery, the doctor uses a vein from either the leg or the chest and bypasses the blood vessel that is clogged. This allows blood to get to the area of the heart that was supplied by the blocked artery.
- If elective bypass surgery was done and it took care of the problem, would the patient have ultimately had the heart attack? If the answer to this question is no, the patient’s medical malpractice case becomes stronger because timely diagnose and referral to surgery would have avoided the heart damage.
A heart attack may be preventable. It is important that the client let the lawyer know the exact complaints the patient had when she consulted the healthcare provider and the type of treatment the patient received.
Medical Malpractice At Birth – Shoulder Dystocia
Shoulder dystocia occurs during the birthing process when the baby’s shoulder gets stuck behind the pubis bone. Healthcare providers are schooled on the proper procedures to utilize when they encounter a shoulder dystocia. However, instead of staying calm and dealing with the dystocia in an orderly fashion, some healthcare providers will panic and traction the baby’s head while another healthcare provider will put pressure on the mom’s abdomen (fundal pressure). When traction to the head is applied, it can easily tear (avulse) nerve roots in the neck. The nerve roots in the neck supply the muscles of the arm and hand, and if they’re damaged, the baby will lose function in the upper extremity.
Risk factors for shoulder dystocia include: (1) gestational diabetes;(2)high birth weight (macrosomia); or the(3)use of a vacuum extractor or forceps during birth.
When confronted with a shoulder dystocia, there are several maneuvers the healthcare provider should utilize in successive fashion to free the baby’s shoulder. The following procedures are at the healthcare provider’s disposal:
Suprapubic Pressure: This is applied at the pubic bone, not the top of uterus. The pressure may free the shoulder from behind the pubic bone and allow the baby to be delivered without injury.
McRobert’s: The mother’s legs are flexed toward her shoulders as she lies on her back. This expands the pelvic outlet and can free up the baby’s shoulder. One study showed that this alleviated 42% of all cases of shoulder dystocia and allowed for birth of the infant..
Wood’s Corkscrew: The healthcare provider places his/her finger behind the shoulder and pushes 180 degrees.
Gaskin: If the mother has not had an epidural, she can be asked to go on all fours. This changes the diameter of the mother’s pelvis and will sometimes free the baby’s shoulder.
Rubin: This is similar to Woods Corkscrew maneuver. The healthcare provider puts two fingers behind the baby’s shoulder and will push towards the baby’s eyes. This procedure attempts to line up the baby’s shoulders, to allow for delivery.
Clavicle Fracture: The healthcare provider will break the baby’s collar bone, which will cause the bone to collapse and shrink the size of the shoulders.
Zavenelli: The healthcare provider will push the baby’s head back inside the vagina and convert to a caesarean section. This procedure is rarely done and is riskier than the others.
Years ago, it was in vogue for hospitals and birthing centers to allow parents to videotape the birth of their child. However, most hospitals will no longer allow this because a number of plaintiffs were able to prove that the healthcare providers tractioned the babies heads while the nurses pushed on the fundus (pushing on the upper part of the abdomen)to deliver a baby with shoulder dystocia.
The following injuries can happen to a mother and child if the healthcare providers are careless during delivery of a baby with shoulder dystocia:
- Avulsion of the cervical nerve roots
- Brachial plexus injury (Erb’s palsy)
- Maternal hemorrhage.
- Uterine rupture.
Medical Malpractice At Birth – Cerebral Palsy
The term “cerebral” refers to cerebrum, which is the part
of the brain that is damaged. The term “palsy” refers to a movement disorder. Approximately 80% of cerebral palsy cases occur from a lack of blood supply to the baby’s brain during pregnancy and/or birth. The lack of blood supply can come from the following conditions:
- The umbilical cord being wrapped around the baby’s neck
- Shoulder Dystocia
- Placenta Previa
- Placental Abruption
- Medications used during labor induction
During labor and delivery, the nurses and obstetrician have the responsibility to monitor the well-being of the fetus by listening to and observing the fetal heart rate patterns. Specific heart rate patterns allow the healthcare providers to determine if the baby is in distress and whether to child should be delivered by cesarean section.
The diagnosis of Cerebral Palsy is usually made within the first three years of life. Many times, parents will notice that their child is not developing as fast as other children. The medical literature describes three main types of CP: (1) spastic; (2) athetoid; and (3) mixed.
Spastic Cerebral Palsy is the most common reported form. The child presents with spasticity, which is excess muscle tone or tightness. Spasticity of muscles is one of the hallmark signs of a central nervous system or upper motor neuron lesion. These children have a spastic or scissors gait because the large muscles on the inside of the legs (adductors) are spastic.
Athetoid (Dyskinetic) Cerebral Palsy can affect the whole body. The child presents with uncontrolled, (snake-like) slow body movements. Athetoid movements usually develop because higher cortical areas of the brain (aka basal ganglia) have been damaged. These children have trouble sitting up straight and walking because of decreased muscle strength.
Mixed Cerebral Palsy is a combination of Spastic and Athetoid CP. The child will present with a combination of spasticity and decreased muscle strength.
Surgical Mistake Malpractice Cases
The hallmark to a surgical malpractice case has to do with the surgeon’s technique, the ability to observe the operative field and protecting surrounding structures. In years past, most surgeries required the surgeon to open the surgical field and put his/her hands inside the body. Over the last 20-years the trend has been minimally invasive surgeries including robotics and laparoscopic surgery. The benefit of these minimally invasive surgeries is a shorter recovery period. However, the problem with minimally invasive surgeries is that the surgeon is outside the body, so it is more difficult for the surgeon to utilize all their senses, but most importantly touch. These minimally invasive surgeries can be more like a videogame.
A Few Types of Surgical Malpractice Cases
Gall Bladder Common Bile Duct Injury: The gallbladder is a sack that holds a product produced by the liver called bile. When you eat a fatty meal, bile is released into the small intestine to help digest the fat.
There are two ducts or tubes related to the gallbladder. The first is the common bile duct, which is the tube that allows bile to flow down into the pancreatic duct and then the first part of the small intestine. The second duct is the cystic duct. This is the tube that transports bile that is stored in the gall bladder to the common bile duct, so the bile is available when you eat those slices of pizza.
To remove the gallbladder, the surgeon must cut the cystic duct. The problem laparoscopic surgery is the limited surgical field and the surgeon mistakes the common bile duct for the cystic duct causing permanent damage to the common bile duct, requiring a second surgery to reroute the flow of bile and potentially causing a lifetime of problems for the patient.
Neck Surgery – Surgical Mistakes
Injury to the spinal cord happens in these cases because the surgeon is careless when removing the disc by either causing direct injury to the spinal cord, direct injury to the nerves that come out of the spinal cord or causing direct injury to the blood vessels that feed the spinal cord or nerve roots.
Again, under the underlying problem is that the surgeon is working in a limited surgical field, the structures are very close, and the surgeon fails to protect the surrounding structures, while removing the disc or placing hardware in the area.
The Northwest Indiana Region
Northwest Indiana is located right outside Chicago, IL. Also known as “The Region,” it encompasses a large area of Western and North Central Indiana. Notable cities include Gary, Hammond, Highland, Schererville, Merrillville, Dyer, Valparaiso, Hobart, Chesterton, Portage, Michigan City and South Bend.
A Brief History Of Northwest Indiana
The NWI region was originally settled by the Potawatomi Native Americans before European settlement began in earnest during the 1800’s. It has been home to many different ethnic groups over the years including Germans, Irish, Poles and Italians. The city that eventually became Gary (named after one of its founders) was founded on a massive coal mining operation which still exists today. This made it an attractive location for immigrants looking to work in manufacturing jobs or those who simply wanted more room than they could afford back East.
NWI Hospitals and Care Centers
Northwest Indiana hosts a wide variety of hospitals and medical facilities due to the sheer number of people living here. Some notable examples include St. Josephs Hospital & Medical Center in South Bend, Franciscan Health System’s Heart Institute in Mishawaka and Methodist Hospitals Northlake campus just north of Gary.
There are also several smaller clinics scattered throughout the region such as Community Family Practice and Northwest Urgent Care.
Here is a general list of hospitals in the region, there are specialist clinics and smaller networks but we wanted to ensure you had an idea of a few different facilities.
- Porter Memorial Hospital Pmhs
- Pinnacle Hospital
- Northwest Health – Porter
- Franciscan St. Anthony Health
- Franciscan Health Rensselaer
- Community Hospital
- Saint Joseph’s Regional Medical Center
- Memorial Hospital of South Bend
- Saint Margaret Mercy Hospitals
- Saint Anthony Medical Center
A medical malpractice case can happen to anyone living in Northwest Indiana. If you have suffered from negligence at a hospital or other healthcare facility contact us now! We will fight for your rights under Indiana state law. You may be entitled to compensation. Learn more about Northwest Indiana Here
Guy DiMartino Is A Skilled NWI Malpractice Attorney
As you can see, Indiana Medical Malpractice is complex because we are dealing with medical issues and the law requires the patient to jump through a bunch of hoops. If you have any questions regarding a potential Indiana medical malpractice claim, call Guy DiMartino Law. The one thing that you will receive, is a brutally honest discussion about the claim.