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ISMA's action in medical malpractice cases pays off for physicians
Amicus briefs in multiple cap cases
Indiana courts have issued opinions favorable to physicians in recent medical malpractice decisions, as noted in the page 1 story. In two seminal cases arguing whether patients are entitled to multiple cap-level recoveries for one act of medical malpractice, the Indiana Court of Appeals concluded they were not, overturning decisions by the trial courts.
The ISMA filed amicus briefs in both cases on behalf of Indiana physicians. The ISMA reminded the courts that the 1975 Medical Malpractice Act was intended to strike a careful balance between ensuring affordable insurance for physicians to preserve our health care system and fairly compensating patients who are harmed. The ISMA argued that third parties, such as spouses, are not patients. The act never intended to allow recovery of separate caps.
The Butcher case concluded at the Court of Appeals level. The ISMA followed the Winkle case to the Indiana Supreme Court, which ultimately denied transfer. Those two cases – and a third case which relied on them as precedent – returned approximately $5 million to the Patient’s Compensation Fund. Get more details of the two cases>>
Amicus brief in surgery case
The ISMA filed another amicus brief in the case of Ho vs. Frye that involved inadvertently leaving a surgical sponge in a patient’s abdominal cavity.
In this case, the physician had properly asked the hospital-employed nurse for the pre- and post-operation sponge count. The nurse indicated the counts matched, but they did not.
The patient sued the hospital and surgeon. The jury found in favor of Dr. Ho, but the court overturned the decision and ordered a new trial. The court of appeals affirmed. Relying on case law from 1932, it stated that surgeons cannot “delegate the absolute authority and responsibility to a nurse or nurses to account for sponges and to thus escape responsibility himself.”
The ISMA and AMA filed a joint amicus brief in May explaining to the court the captain of the ship doctrine, which holds surgeons ultimately responsible for essentially everything that occurs during a surgery, is outdated. The doctrine was adopted in the 1930s because charitable immunity laws prevented patients from suing hospitals, and courts wanted to provide injured patients with a means of recovery – the surgeon.
Recognizing the charitable immunity doctrine was ill-conceived and had outlived any usefulness, the Indiana Supreme Court joined the majority of other states in abolishing it in 1968.
The ISMA argued the captain of the ship doctrine no longer serves the purpose it once did, and the court should follow the majority of other states to repudiate or curtail it. Oral arguments were held in September; a decision is pending. The ISMA will provide updates as available.
Please call Julie Reed, ISMA’s legal counsel, if you have questions about these cases.
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