Indiana Trial Court and Court of Appeals Refuse to Enforce Timelines Under Indiana’s Medical Malpractice Act

Indiana is unique to most other states in that medical malpractice cases in Indiana must first be presented to a medical review panel before they can be prosecuted in state court. The medical review panel process can easily add years to the time it takes to litigate a case to conclusion. Importantly, the very first section of Indiana’s Medical Malpractice Act states that “[t]he general assembly emphasizes, to the parties, the courts, and the medical review panels, that adhering to the timelines set forth in [the Act] is of extreme importance in ensuring the fairness of the [Act].” Ind. Code § 34-18-0.5-1. The Act also provides that “[a] party, attorney, or panelist who fails to act as required by [the Act] without good cause shown is subject to mandate or appropriate sanctions….” Ind. Code § 34-18-10-14. However, what litigants, specifically plaintiffs/patients, can do to enforce timeliness is not only time consuming itself, but unfortunately, not always effective, as shown by the recent opinion of the Indiana Court of Appeals in Allen v. Anonymous Physician. 

In Allen, a medical malpractice claimant filed a medical malpractice case against several providers. During the medical review panel process, the parties selected a medical review panel chairperson, who, after the medical review panel had been formed, set forth a schedule for the submission of evidence. The patient timely tendered his submission. The providers, however, failed to timely tender their submission, and the patient filed a petition in court seeking default judgment as a sanction for the providers’ failure to timely tender their submission. 

The Indiana Medical Malpractice Act provides that “[t]he panel shall give its expert opinion within one hundred eighty (180) days after the selection of the last member of the initial panel.” Ind. Code § 34-18-10-13. Medical providers in Indiana have been effective in using this 180-day timeline to get courts to dismiss patient claims. See, e.g., Quillen v. Anonymous Hosp., 121 N.E.3d 581 (Ind. Ct. App. 2019); Reck v. Knight, 993 N.E.2d 627 (Ind. Ct. App. 2013); Adams v. Chavez, 874 N.E.2d 1038, 1043-44 (Ind. Ct. App. 2007) (citing numerous cases in which patient claims were dismissed). However, there are no reported cases in which default judgment has been entered against medical providers for their failure to timely tender a submission.

Here, after months of delay, the medical providers tendered their submission to the medical review panel four days after the patient filed his petition seeking default judgment. While recognizing the providers’ delay, the trial court found “good cause” for the delay based upon defense counsel being “credible” in vaguely explaining “a misunderstanding” of the case’s status. The trial court also noted that even without good cause, default judgment, which is disfavored under Indiana law, was not an appropriate sanction. With the trial court noting no other sanction had been requested by the patient, the Court entered an order denying the patient’s petition for default judgment. After months of delay by the medical providers, and delay occasioned by the request for sanctions, which stayed the medical review panel process, the patient was left with the trial court’s “strong[] encourage[ment]” to the panel chairperson to expedite the remaining panel process.

On appeal the patient did not fare any better in holding the defense accountable. The Indiana Court of Appeals noted that the trial court’s decision was reviewable only for an abuse of discretion, a standard of review extremely partial to the decisions of trial courts. While sympathetic to the patient, the Court of Appeals ultimately affirmed the trial court’s decision declining to enter default judgment against the providers. Noting trial courts are to consider whether conduct is intentional or contumacious and whether prejudice resulted in deciding what, if any, sanctions are warranted, the Court of Appeals found it “cannot say” the trial court abused its discretion.

Thus, after months of delay occasioned by the defense, months of delay with litigation in the trial court, and around a year of delay appealing the trial court’s decision, the patient’s case will continue under Indiana’s medical review panel process, with no remedy provided to the patient. 

Judge Brown wrote a separate dissent, opining that the defense’s “repeated and ongoing failure to provide a timely submission to the medical review panel” warranted default as a sanction. Judge Brown thought the trial judge, who had some familiarity with the defense, “may have confused credibility as to counsel’s lack of intentionality with a showing of good cause,” and in any event, without regard to the lack of good cause shown, the defense’s “cavalier disregard for the statutory timelines and complete lack of communication” was intentional or contumacious conduct. Judge Brown noted that “[h]ealthcare provider defendants will continue to thumb their noses at the statutory requirements until and unless they are shown they will also be sanctioned appropriately for such behavior,” and  “it is unfair that our courts are quick to strictly hold plaintiffs accountable for their failures to adhere to evidentiary submission schedules but are reluctant or unwilling to hold defendant healthcare providers accountable for those same failures.” 

You can read the full opinion and Judge Brown’s dissent here.