UPDATING THE CONTRAST IN PRIVATE RIGHTS OF ACTION IN INDIANA

By: David J. Cutshaw, Attorney

In May of 2016, we contrasted the ability of a private citizen to sue a doctor for a violation of the child abuse reporting statute and the right of a doctor to sue a lawyer for an inadvertent disclosure of a doctor’s name in a medical malpractice complaint.  Since May of 2016, Indiana Courts have continued to refuse to imply a private right of action for violations of other statutes in the following circumstances:

Doe v. Ind. Dept. of Child Services, 81 N.E. 3d 199 (Ind. 2017):  The Indiana Supreme Court refused to infer a private right of action where the identity of a confidential informant who reported child abuse was released by DCS directly to the suspected abuser, resulting in threats to and harassment of the informant and his family.  The statute in that case required DCS to keep the identity of the informant confidential.  The Indiana Supreme Court held the informant had no legal recourse against DCS, adding more meaning to the no-good-deed-goes-unpunished mantra and creating the danger that other informants will hesitate to report child abuse at his or her own physical peril.

Shirey v. Flenar, 89 N.E. 3d 1102 (Ind. Ct. App. 2017):  The Court of Appeals refused to recognize a private right of action when a physician lost or destroyed a patient’s records contrary to the requirements of an Indiana statute that requires the doctor to preserve a patient’s records and produce them to the patient when properly requested.  In this case, the patient was unable to sue her doctor who did not produce her medical records for her inability to fully document her personal injury claim due to the lost/destroyed records.  Again, doctors can sue lawyers for inadvertently disclosing their involvement in a medical malpractice suit, but a patient cannot sue a doctor under the circumstances in Shirey.

First Thing We Do Is Blame the Lawyers

By: David J. Cutshaw, Partner and Gabriel A. Hawkins, Partner

Cohen & Malad, LLP has been involved in several what we call mass tort medical malpractice cases.  In essence, these cases involve situations where a doctor or surgeon has performed unnecessary procedures, not for the patient’s benefit, but for the benefit of the doctor’s pocketbook or ego.

As an example, an ENT in northern Indiana was performing unnecessary sinus surgeries.  He advertised that he could fix sinus problems and snoring.  He would bring the patient into his office, take a sinus CT scan (an xray of the sinuses), tell the patient that he or she had extensive sinus disease (when he or she did not), and then schedule the patient for seven to eleven sinus surgeries that cost tens of thousands of dollars.  He did not do the surgeries he reported and got paid for, and instead just poked a hole in the patient’s maxillary sinuses (which often made the patient worse.)  When we filed several claims against the ENT Surgeon, he cashed out, converted his cash to diamonds and fled the country.  He remained on the run for five and one-half years until he was apprehended in the Italian Alps in a tent.  Those cases were settled for millions.

As another example, we also have claims against a group of cardiologists who were implanting unnecessary pacemakers and defibrillators—and in many cases falsifying medical records to make it appear that those devices (which have wires that are screwed into the patient’s heart muscle) were appropriate—when they were not.  We are currently looking at other cases where an ENT was billing for procedures that he did not do, similar to the case of the ENT in northern Indiana noted above.

When these cases arise, doctors, medical associations, and the public blame the lawyers, claiming the lawyers are only trying to line their own pockets.  But the lawyers did not perform the unnecessary procedures; the doctors did.  Filing these cases often puts a stop to this predatory conduct and puts the doctor out of business, so to speak.  When this occurs, the doctor cannot hurt or endanger patients anymore; and we are very proud that we have been able to stop doctors from this conduct through these mass tort medical malpractice case filings.

In the case of the northern Indiana ENT, doctors in his area knew what he was doing for at least two years before we began filing lawsuits, but did nothing to stop it.  In Indiana, there is a regulation that requires doctors to report other doctors who engage in improper conduct to the Health Professions Bureau, formerly known as the Medical Licensing Board, which will investigate the matter and take action to suspend or revoke the offending doctor’s license to practice medicine.  844 IAC 5-2-8 provides:  “A practitioner who has personal knowledge…that another practitioner…has engaged in illegal, unlawful, incompetent, or fraudulent conduct in the practice of medicine shall promptly report such conduct to a peer review or similar body….This provision does not prohibit a practitioner from promptly reporting said conduct directly to the medical licensing board.” (emphasis added).  The doctors who knew about this unethical and harmful conduct did not report the offending doctor and the conduct continued for at least two more years.

There are also ethical standards that doctors should live by which have been issued by their professional associations.  For example, the American Board of Internal Medicine Foundation (which governs Internal Medicine doctors, Cardiologists and Electrophysiologists) has issued an ethical pronouncement which states:  “As members of a profession, physicians are expected to work collaboratively to maximize patient care, be respectful of one another, and participate in the processes of self-regulation, including remediation and discipline of members who have failed to meet professional standards….Physicians have both individual and collective obligations to participate in these processes.”

If doctors took these legal and ethical considerations to heart, there would be no need for mass tort medical malpractice cases or lawyers who often have to step in an put a stop to such conduct which harms patients, raises the cost of medical care, and deprives patients who actually need care from receiving proper treatment.  So, the next time you are tempted to blame the lawyers, look below the surface and understand that the fault lies elsewhere.

Please – just give me my medical records!

As a medical malpractice attorney, I have the pleasure of speaking with potential clients who believe they are a victim of medical or dental malpractice nearly every day. One of the first questions I always ask them is, “Did you get a copy of your medical records yet?” Amazingly, a very common response that I hear from them is “I asked for my records, but they won’t give them to me.” That is unfortunate because while there are requirements that a patient has to follow to request and receive his or her medical records, a patient is entitled to a copy of their own medical or dental chart.

Patient’s Medical Malpractice Case Allowed to go Forward to Trial

Our Indiana Supreme Court recently reversed summary judgment against a hospital and a doctor allowing a patient’s medical malpractice case to go forward to trial.  In the recently issued decision, Siner v. Kindred Hosp. Ltd. Partnership, et al, No. 49S05-1604-CT-219, 2016 WL 1704317 (Ind. Apr. 28, 2016), the Indiana Supreme Court reversed a trial court’s grants of summary judgment to the hospital and the doctor holding that conflicting evidence in the case must be resolved by a trier of fact — a jury.

A Contrast In Private Rights Of Action In Indiana

By: David J. Cutshaw, Attorney

The Indiana Court of Appeals recently issued a decision in the case of Sprunger v. Egli, 44 N.E. 3d 690 (Ind. App. 2105), a medical malpractice case where the plaintiff alleged that her 13-month old daughter died of child abuse that should have been reported by the child’s pediatrician.  The plaintiff in the case alleged that Dr. Egli had a duty to report suspected abuse as required by an Indiana statute, I.C. 31-33-5-1, but his failure to do so was the cause of the child’s death from abuse.

The Challenges of Filing a Dental Malpractice Suit – Part II

As a malpractice attorney, I receive many calls from potential victims of dental malpractice. As I explained in Part I, unfortunately, dental malpractice cases are tough because they are expensive to bring and can take years to resolve – just as a medical malpractice case. This means that dental injuries that are not permanent and are not substantial may not be enough to have an attorney bring a case on your behalf. If, however, you do not have a permanent injury or if you do not have a significant injury, and you cannot find an attorney to represent you, don’t give up – there are still other things you can personally do.

The Challenges of Filing a Dental Malpractice Suit – Part I

The Dentist.  For most, those words just mean a routine dental appointment for check-ups and cleanings with the occasional follow up appointment to fill a cavity or have a root canal performed.  For some, though, that routine trip to the dentist can turn into a complication that can change a life.  If you find yourself faced with that situation – is there anything you can do?  Is it dental malpractice?

What to do if you think you are a victim of medical malpractice

A medical malpractice can occur when a doctor’s or hospital’s or other medical professional’s treatment provided to you falls below the accepted standard of practice in the medical community and causes harm to you. The treatment can be an action taken by a doctor or can be something the doctor failed to do. In either case, that action or omission must have caused injury or death. If you find yourself or a loved one in this situation, it can be a very scary and stressful time. Whether you plan to file a lawsuit or not, here are some suggested actions you can take to protect yourself or your loved one during this difficult time.

Can a Non-Patient File a Medical Malpractice Claim?

by: David J. Cutshaw, Attorney

Medical Malpractice Claims by non-patients–are they permitted in Indiana? The law in Indiana generally requires there to be a patient/physician relationship before a medical malpractice claim can be filed against a doctor. A recent case decided by the Indiana Supreme Court, however, recognized that in certain situations, a person may sue a doctor even if he or she was not the doctor’s patient.

Indiana Court of Appeals Issues Ruling about Liability for Contractor Negligence in Medical Malpractice Case

by: David J. Cutshaw, Attorney
When a patient goes to a hospital and is attended by doctors like radiologists or anesthesiologists whom they have never met, is the Hospital liable or responsible for such doctors’ negligence? For example, if a patient goes to the hospital for a biopsy, the tissue removed is then sent to a pathologist (a doctor who examines and tests the tissue) who fails to detect that the removed tissue contains cancer. Is the Hospital responsible for the negligent failure of the pathologist to diagnose cancer? If the patient is scheduled for surgery and then is assigned an anesthesiologist whom the patient has never met, is the hospital responsible for his or her negligence? If the patient goes to an emergency room and is assigned an emergency room doctor who the patient has never seen before, is the hospital responsible for his or her negligence?