Medical Malpractice in Indiana
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MEDICAL MALPRACTICE IN INDIANA:
WHAT YOU NEED TO KNOW
WHAT YOU NEED TO KNOW
Under Indiana law, a person who seeks to bring a malpractice claim against a doctor or hospital generally cannot directly file a lawsuit as he would with other types of claims. A proposed complaint must first be filed with the Commissioner of the Indiana Department of Insurance. The proposed complaint needs to only set out very basic facts regarding the identity of the injured person (plaintiff), the identity of the doctor(s) and/or hospital (defendants), the county in which the events in question occurred, the dates the plaintiff received medical care from the defendant(s), and an allegation that the medical care provided by the defendant(s) to the plaintiff was negligent. View a sample complaint form. This is the procedure to be followed provided the doctor or hospital is a qualified healthcare provider in the state’s Patient’s Compensation Fund. A qualified provider pays a yearly surcharge into the Patient’s Compensation Fund and, in return, the provider and the provider’s insurance company have liability limited to the first $250,000 of a successful malpractice claim. The Indiana Department of Insurance, as administrator of the Patient’s Compensation Fund, is then potentially liable for up to an additional $1,000,000. The total cap on a claimant’s damages is, thus, $1,250,000.
Once a proposed complaint is filed, the Commissioner of the Department of Insurance then forwards a copy of the proposed complaint to each doctor or hospital named as a defendant and each defendant’s insurance carrier.
Medical Review Panel
Not earlier than 20 days after the filing of a proposed complaint, either party may request the formation of a Medical Review Panel by serving a request by registered or certified mail upon all parties and the Commissioner. The Medical Review Panel consists of one attorney and three healthcare providers. The attorney acts as Chair of the panel and in an advisory capacity but has no vote. Typically the parties select a Panel Chair by agreement. However, if no agreement can be reached, either party may request that the Clerk of the Supreme Court draw at random a list of five names of attorneys.
Within 15 days after the Chair is selected, both parties select a healthcare provider and notify the other party and the Chair of their selection. Oftentimes, the parties will ask the Chair to propose striking panels of doctors from whom the parties will each strike names. Once two healthcare providers have been selected for the panel, they then propose a third member and notify the Chair and the parties. If they fail to make a selection, the Chair makes the selection and notifies the parties.
Within ten days after any selection, a party may, without cause, challenge the selection of a panel member. Upon challenge or excuse, the party whose appointee was challenged or dismissed selects another panelist. If the challenged or dismissed panel member was selected by the other two panel members, they make a new selection. Once all members of the panel have been selected and the parties have completed discovery (investigation into the case, including taking depositions and gathering documents), each party may submit evidence to the panel in written form only. The evidence typically consists of a legal brief, medical records, depositions of witnesses including parties, and excerpts of medical treatises.
After all evidence has been submitted to the panel, either party has the right to ask the panel to convene at a time and place agreeable to the panel. If the panel meets, either party may question the members regarding matters relevant to the issues to be decided by the panel.
The panel will render an opinion as to whether the evidence supports the conclusion that the defendant(s) acted or failed to act within the appropriate standard of care (in other words was negligent) and whether any such act or failure to act was a factor in harm resulting to the plaintiff. Normally, the panel renders its expert opinion within 180 days of selection of the last member. The opinion is in writing and signed by the members.
Compensation and Fees of Panel Members
Each healthcare provider member of the Panel is paid up to $350.00, plus reasonable travel expenses. The Chair is paid $250.00 per diem, not to exceed $2,000.00, plus reasonable travel expenses. The fees and expenses are paid by the side in whose favor the Panel’s majority opinion is written. If there is no majority opinion, each side pays 50% of the fees and expenses.
Effect of Panel Opinion
The opinion of the Medical Review Panel is not binding on either party. If the panel rules in favor of the plaintiff, the defendant and his insurance company are not obligated to enter into a settlement with the plaintiff. Similarly, a panel opinion in favor of the defendant doctor or hospital, does not mean that a plaintiff cannot proceed with his claim. In order to go forward with his claim, after receiving an unfavorable panel opinion, however, a plaintiff must provide an affidavit from an expert healthcare provider that the defendant’s care of the plaintiff was negligent and that this negligence caused the plaintiff harm.
Once the opinion of the Medical Review Panel has been received, the plaintiff is then permitted to file a lawsuit against the doctor or hospital in state court (in the county where the events occurred). Should the case go to trial, the opinion of the Medical Review Panel may be presented as evidence to the jury, but is not binding on the jury.
If a plaintiff reaches a settlement with a defendant provider and the provider’s insurance company, he may then seek further damages from the Patient’s Compensation Fund. If the plaintiff is unable to reach a settlement with the PCF, a trial may be had on plaintiff’s damages only--liability of the healthcare provider is not at issue. Any such trial is before a judge and not a jury and the judge determines the amount of money to which the plaintiff is entitled.
Statute of Limitations
No claim may be brought unless filed within two years from the date of the alleged malpractice except that a minor under the age of 6 has until his 8th birthday to file. Some exceptions to this rule exist. The filing of a proposed complaint with the Department of Insurance tolls the applicable statute of limitations to and including a period of 90 days following the receipt of the opinion of the Medical Review Panel by the claimant.
Patient’s Compensation Fund Database
The Patient’s Compensation Fund Database is a listing of doctors and hospitals participating in the PCF and recorded information regarding medical malpractice claims. The database contains the name and location of the doctor, the type of practice, the number of medical malpractice claims filed against the doctor and the doctor’s prior participation on Medical Review Panels. Access the database and look up physicians.
Qualification Status of Healthcare Providers
You may determine the qualification status of a healthcare provider by accessing the Patient’s Compensation Fund database and viewing the healthcare provider’s insurance policy information. Any questions regarding the qualification status of the healthcare provider should be directed to the Department of Insurance Medical Malpractice Division at (317) 232-2401.
Once a proposed complaint is filed, the Commissioner of the Department of Insurance then forwards a copy of the proposed complaint to each doctor or hospital named as a defendant and each defendant’s insurance carrier.
Medical Review Panel
Not earlier than 20 days after the filing of a proposed complaint, either party may request the formation of a Medical Review Panel by serving a request by registered or certified mail upon all parties and the Commissioner. The Medical Review Panel consists of one attorney and three healthcare providers. The attorney acts as Chair of the panel and in an advisory capacity but has no vote. Typically the parties select a Panel Chair by agreement. However, if no agreement can be reached, either party may request that the Clerk of the Supreme Court draw at random a list of five names of attorneys.
Within 15 days after the Chair is selected, both parties select a healthcare provider and notify the other party and the Chair of their selection. Oftentimes, the parties will ask the Chair to propose striking panels of doctors from whom the parties will each strike names. Once two healthcare providers have been selected for the panel, they then propose a third member and notify the Chair and the parties. If they fail to make a selection, the Chair makes the selection and notifies the parties.
Within ten days after any selection, a party may, without cause, challenge the selection of a panel member. Upon challenge or excuse, the party whose appointee was challenged or dismissed selects another panelist. If the challenged or dismissed panel member was selected by the other two panel members, they make a new selection. Once all members of the panel have been selected and the parties have completed discovery (investigation into the case, including taking depositions and gathering documents), each party may submit evidence to the panel in written form only. The evidence typically consists of a legal brief, medical records, depositions of witnesses including parties, and excerpts of medical treatises.
After all evidence has been submitted to the panel, either party has the right to ask the panel to convene at a time and place agreeable to the panel. If the panel meets, either party may question the members regarding matters relevant to the issues to be decided by the panel.
The panel will render an opinion as to whether the evidence supports the conclusion that the defendant(s) acted or failed to act within the appropriate standard of care (in other words was negligent) and whether any such act or failure to act was a factor in harm resulting to the plaintiff. Normally, the panel renders its expert opinion within 180 days of selection of the last member. The opinion is in writing and signed by the members.
Compensation and Fees of Panel Members
Each healthcare provider member of the Panel is paid up to $350.00, plus reasonable travel expenses. The Chair is paid $250.00 per diem, not to exceed $2,000.00, plus reasonable travel expenses. The fees and expenses are paid by the side in whose favor the Panel’s majority opinion is written. If there is no majority opinion, each side pays 50% of the fees and expenses.
Effect of Panel Opinion
The opinion of the Medical Review Panel is not binding on either party. If the panel rules in favor of the plaintiff, the defendant and his insurance company are not obligated to enter into a settlement with the plaintiff. Similarly, a panel opinion in favor of the defendant doctor or hospital, does not mean that a plaintiff cannot proceed with his claim. In order to go forward with his claim, after receiving an unfavorable panel opinion, however, a plaintiff must provide an affidavit from an expert healthcare provider that the defendant’s care of the plaintiff was negligent and that this negligence caused the plaintiff harm.
Once the opinion of the Medical Review Panel has been received, the plaintiff is then permitted to file a lawsuit against the doctor or hospital in state court (in the county where the events occurred). Should the case go to trial, the opinion of the Medical Review Panel may be presented as evidence to the jury, but is not binding on the jury.
If a plaintiff reaches a settlement with a defendant provider and the provider’s insurance company, he may then seek further damages from the Patient’s Compensation Fund. If the plaintiff is unable to reach a settlement with the PCF, a trial may be had on plaintiff’s damages only--liability of the healthcare provider is not at issue. Any such trial is before a judge and not a jury and the judge determines the amount of money to which the plaintiff is entitled.
Statute of Limitations
No claim may be brought unless filed within two years from the date of the alleged malpractice except that a minor under the age of 6 has until his 8th birthday to file. Some exceptions to this rule exist. The filing of a proposed complaint with the Department of Insurance tolls the applicable statute of limitations to and including a period of 90 days following the receipt of the opinion of the Medical Review Panel by the claimant.
Patient’s Compensation Fund Database
The Patient’s Compensation Fund Database is a listing of doctors and hospitals participating in the PCF and recorded information regarding medical malpractice claims. The database contains the name and location of the doctor, the type of practice, the number of medical malpractice claims filed against the doctor and the doctor’s prior participation on Medical Review Panels. Access the database and look up physicians.
Qualification Status of Healthcare Providers
You may determine the qualification status of a healthcare provider by accessing the Patient’s Compensation Fund database and viewing the healthcare provider’s insurance policy information. Any questions regarding the qualification status of the healthcare provider should be directed to the Department of Insurance Medical Malpractice Division at (317) 232-2401.
Tags: Medical Malpractice Indiana, Medical Malpractice IN