By. Steven L. Langer, J.D. 6.28.10
Since July 1, 1975 Medical Malpractice cases against qualified health care providers are governed by Indiana's Medical Malpractice Act. The Act applies to all qualified health care providers (IC Sections 34-18-1-1 et seq; 34-18-2-24.5). The Act provides qualified health care providers with huge benefits: an occurrence based statute of limitations, a medical review panel (MRP) process, a cap on the amount of damages that can be included in a verdict, the doctrine of contributory negligence, and limitations on attorney fees. An Indiana health care provider that is not a governmental entity who is not qualified under the Act is not subject to its provisions and may be sued in an Indiana court directly without any damage cap.
MEDICAL REVIEW PANELS
In Indiana, a medical malpractice case begins with the filing of a proposed complaint against the health care provider with the Department of Insurance. IC Section 34-18-7 et seq. The filing of the proposed complaint tolls the statute of limitations for 90 days following receipt of the MRP opinion. IC Section 34-18-7-3.
After the proposed complaint is filed, the Insurance Commissioner notifies the health care providers of the filing of the proposed complaint. Thereafter, any party may request the formation of a MRP. IC Section 34-18-10-1 et seq. The MRP consists of one attorney and 3 health care providers. The attorney is selected by either agreement of the parties or through a striking process established by the Clerk of the Indiana Supreme Court. The attorney acts in an advisory capacity, may not vote, is charged with expediting the selection of panel members and the panel's review of the written materials submitted by the parties, advising as to legal questions, convening the panel, and preparing the opinion of the MRP.
All Indiana health care providers, except health facility administrators must be available for selection as members of the MRP. Each side selects one health care provider and the two health care providers select the third panelist. You cannot interview the panel member before selection. No party or party's agent is permitted to have unauthorized communication with any MRP member before it renders its expert opinion. Each side can challenge the other side's selection or the third panel member which results in the formation of striking panels created by the MRP chairman. Generally, the MRP must render its expert opinion 180 days after selection of the third MRP member. Discovery is permitted during the MRP process. The MRP meetings are informal, and occur at a time and place agreeable to the MRP members.
The parties are free to submit virtually any piece of written material to the MRP except for legal arguments. No live testimony is heard. The rules of evidence do not apply. The purpose of the MRP process is to provide the MRP with written materials so that it can render its expert opinion as to whether the evidence supports the conclusion that the health care provider acted or failed to act within the appropriate standard of care, whether there is a material issue of fact, not requiring an expert opinion, bearing an liability for consideration by the court or jury, and whether the conduct complained of was or was not a factor of the damages. The MRP opinion is admissible as evidence at trial but is not conclusive. Any party, at their cost, can call any member of the MRP as a witness at trial. If called the MRP member must appear and testify. This process can take a year or longer to complete.
After the MRP opinion is received, a patient is free to file a complaint in court with a jury trial demand. IC Section 34-18-8-1. The state court action then proceeds through the legal system just like any other complaint. The parties are free to undertake discovery, and hire their own expert witnesses. Any jury verdict is subject to appeal to the Indiana Court of Appeals and transfer to the Indiana Supreme Court. The total process from filing of the proposed complaint through the MRP process through appeal can take as much as 5 years or longer.
PATIENT COMPENSATION FUND
In Indiana a qualified health care provider "QHCP" is only liable for up to $250,000 for an act of malpractice that occurs after June 30, 1999. The Patient Compensation Fund (PCF) is responsible for the payment of the additional damages up to $1,000,000. IC 34-18-15-1 et seq. Thus, the total amount recoverable by a patient for an act of malpractice is $1,250,000 regardless of medical expenses, lost wages, or other economic losses.
Under current law, a jury verdict in excess of the cap for an act of malpractice is reduced by the judge after trial to $1,250,000. The health care provider's insurance company pays $250,000. The PCF upon receiving a certified copy of the judgment pays $1,000,000. The PCF pays out only 2 times per year, January 15 and July 15.
If a case settles before trial and if the patient seeks damages beyond $250,000, the patient must file a petition with the PCF for excess damages. After discovery is completed, a hearing is held before a judge at which the parties may introduce evidence concerning the amount of damages. The judge enters judgment up to $1,000,000 for an act of malpractice. This judgment may be appealed.
STATUTE OF LIMITATIONS
In Indiana a malpractice claim against a QHCP may not be brought unless a proposed complaint is filed within 2 years after the date of the alleged act, omission, or neglect except that a minor less than age 6 has until the 8th birthday. IC Section 34-18-1 et seq. Beware, Indiana's statute is an occurrence based statute not discovery based.
The general information contained herein does not constitute legal advice nor does it create an attorney/client relationship. Anyone reading this guide should consult an attorney familiar with medical malpractice law, and should realize that the law is subject to change.
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