Frequently Asked Questions About Medical Malpractice in Indiana
What is medical malpractice and what do I have to prove in my medical malpractice case?
Indiana’s Medical Malpractice Act (MMA) defines “malpractice” as “a tort or breach of contract based on health care or professional services that were provided, or that should have been provided, by a health care provider, to a patient.” Ind. Code § 34-18-2-18. The MMA applies to healthcare providers who have qualified thereunder by filing proof of financial responsibility with the Indiana Department of Insurance and by paying the applicable surcharge. Ind. Code § 34-18-3-2. Information on qualified healthcare providers can be found at https://www.indianapcf.com.
Plaintiffs in medical malpractice tort actions must prove (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty by failing to conform his or her conduct to the applicable standard of care, and (3) injuries proximately caused by the breach of duty. Scholl v. Majd, 162 N.E.3d 475, 479 (Ind. Ct. App. 2020). Physicians and nurses must exercise the degree of care and skill that a reasonably careful, skillful, and prudent physician or nurse would use under the same or similar circumstances. Id. Expert testimony is usually required to establish the applicable standard of care, breach of that standard, and that the alleged injuries were proximately caused by the breach. Syfu v. Quinn, 826 N.E.2d 699, 703 (Ind. Ct. App. 2005).
Not every claim against a healthcare provider constitutes malpractice. G.F. v. St. Catherine Hosp., Inc., 124 N.E.3d 76, 85 (Ind. Ct. App. 2019). A slip and fall on snow or ice in a hospital parking lot would, for instance, constitute ordinary negligence, not medical malpractice.
How do I file a medical malpractice lawsuit in Indiana?
As to qualified healthcare providers under the MMA, before a claimant can prosecute a medical malpractice case in court, and with the exception of claims not greater than $15,000.00, the claimant must file a proposed complaint before the Indiana Department of Insurance and present the proposed complaint to a medical review panel and receive an opinion from the medical review panel. Ind. Code §§ 34-18-7-3(b), 8-4, 8-6. A filing fee of five dollars ($5) and a processing fee of two dollars ($2) for each additional defendant after the first defendant must be included with each proposed complaint filed. Ind. Code § 34-18-8-2. A proposed complaint is considered filed when it is delivered or mailed by registered or certified mail to the Commissioner of the Indiana Department of Insurance. Ind. Code § 34-18-7-3(b). Additional information on filing a medical malpractice complaint can be found here: https://www.in.gov/idoi/2979.htm.
While a claimant cannot pursue a medical malpractice case in court before receiving the opinion of a medical review panel, with the exception of claims not greater than $15,000.00, a claimant can file an anonymous complaint in court while the matter is pending with the medical review panel. Ind. Code § 34-18-8-7. In such cases, the court cannot take any action except setting a date for trial, ruling on a motion to dismiss, preliminarily determining an affirmative defense or issue of law or fact, or compelling discovery. Ind. Code §§ 34-18-8-6, 8-7, 8-8, 11-1.
What is a medical review panel in Indiana medical malpractice cases?
Medical review panels consist of one (1) attorney chairperson (who does not vote) and three (3) healthcare providers chosen by the parties. Ind. Code §§ 34-18-10-3 to 10-10. Medical review panels review evidence submitted by the parties and issue an opinion on whether the defendant failed to comply with the applicable standard of care and whether the conduct complained of was a factor of the resultant damages. Ind. Code § 34-18-10-22. The medical review panel opinion is not conclusive, but it is admissible as evidence in an action filed in court, and absent expert evidence to the contrary, can be determinative in a case. Ind. Code § 34-18-10-23; St. Mary’s Ohio Valley Heart Care, LLC v. Smith, 112 N.E.3d 1144, 1149 (Ind. Ct. App. 2018).
Are there time limitations for filing a medical malpractice lawsuit in Indiana?
Yes. As to qualified healthcare providers under the MMA, “[a] claim, whether in contract or tort, may not be brought against a healthcare provider based upon professional services or health care that was provided or that should have been provided unless the claim is filed within two (2) years after the date of the alleged act, omission, or neglect, except that a minor less than six (6) years of age has until the minor’s eight birthday to file.” Ind. Code § 34-18-7-1.
Filing a proposed complaint tolls the statute of limitations to and including a period of ninety (90) days following receipt of the medical review panel opinion. Ind. Code § 34-18-7-3.
There are some very limited exceptions to this 2-year occurrence-based statute of limitations. For instance, the 2-year statute of limitations would not apply if a plaintiff did not know, and could not have known, in the exercise of reasonable diligence, of the malpractice and resulting injury within the 2-year period. Biedron v. Anonymous Physician 1, 106 N.E.3d 1079, 1099 (Ind. Ct. App. 2018). Under the doctrine of fraudulent concealment, a defendant cannot assert the 2-year statute of limitations as a defense if the defendant, by deception or violation of a duty, concealed material facts from the plaintiff thereby preventing discovery of the wrong. Id. at 1090-91. Lastly, the doctrine of continuing wrong applies where an entire course of conduct combines to produce an injury whereby the statute of limitations begins to run at the end of the continuing wrongful act. Garneau v. Bush, 838 N.E.2d 1134, 1143 (Ind. Ct. App. 2005).
Other time limitations may be applicable as well.
Do I have a good medical malpractice case and how can I get help?
Barsumian Armiger’s lawyers have handled hundreds of medical malpractice cases. Medical malpractice cases can be difficult to win, and they can take a very long time and be very expensive to prosecute. We are not physicians but regularly work with physicians to determine whether malpractice was committed and if so what injuries and damages were caused by the malpractice. If you believe you or a loved one were the victim of malpractice, you can call the medical malpractice lawyers at Barsumian Armiger at (844) 268-7775 for a free consultation with our attorneys, or you can submit information about your case online at www.barsumianlaw.com. We charge no fee unless you obtain a recovery.