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Indiana Medical Malpractice Law: an Overview (part 3)

July 3, 2009 Medical Malpractice

If a health care provider is qualified, then all of the requirements of the Medical Malpractice Act come into play. All claims for more than $15,000 in damages against qualified providers under the Indiana Medical Malpractice Act must be heard by a medical review panel (unless each party executes a written waiver). A medical review panel consists of one lawyer and three health care providers. Choosing a medical review panel is supposed to be a rather speedy process, in reality however it can take many months. It is the duty of the health care providers on the panel to express an expert opinion as to whether the evidence supports the conclusion that the defendant(s) acted or failed to act within the appropriate standard(s) of care and, if so, whether any failure to act within the standard of care was a factor in the injury. The panelist may also choose to opine that there is a material issue of fact.

This essentially means that if you believe what the plaintiff said happened then there was a breach of the standard of care but if you believe the defendant then there is no breach. The panel is not supposed to guess at who is actually telling the truth since that is a jury’s job. In reality however, the must decide who to believe in most cases and base their decision on what they believe happened based on the medical records and the defendant’s testimony. The medical review panel finds in favor of the defendant in the overwhelming majority of the opinions issued. The opinion issued by the panel is admissible as evidence in any subsequent action, but it is not conclusive. The lawyer on the panel advises the voting members of the law. The Panel has 180 days to render its opinion(s) after the last member is selected. Again, this process is often delayed well beyond the 180 day time period set out in the Act. Once the panel has expressed it opinion(s), you have at least 90 days in which you may file your claim in a court of law.

If the medical review panel has unanimously found that the defendant either did not breach the standard of care, or that any breach was not a factor of the harms complained of, then the patient will require an affidavit from an expert witness familiar with the applicable standard of care to express a contrary opinion in order to allow the case to be presented to a jury.

The Medical Malpractice Act specifies a rather strict 2 year “occurrence” based statute of limitations for adult patients. A minor under the age of six years has until his eighth birthday for his parents or guardian to file a claim. In other words, when a health care provider through their acts or omissions commits an occurrence of malpractice, the patient has only 2 years from the date of that act or omission to file a proposed complaint with the Indiana Department of Insurance. The Indiana Supreme Court has carved out an exception to the two-year statute. It held that the statute is constitutional on its face, but that it cannot be constitutionally applied in cases where the long latency period of a medical condition prevents the injured party from discovering the malpractice within two years. Martin v. Richey, 711 N.E.2d 1273, 1279 (Ind. 1999) (failure to diagnose breast cancer). When this exception applies, plaintiff may file within two years from the discovery of the malpractice or from learning facts that, with the application of reasonable diligence, should have led to such discovery if the two year statute has already passed.

This is the third entry in a five-part series of blog articles giving a general overview of Indiana Medical Malpractice Law.

Wilson Kehoe & Winingham has over 30 years of experience dealing in personal injury cases and medical malpractice law and retains a physician-attorney and registered nurse on staff. If you believe you or a loved one has been the victim of medical malpractice and would like a free consultation concerning your case please contact us at 1-800-525-8028 or e-mail us at help@wkw.com.

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