It is possible that someone who experienced medical malpractice, may not seek compensation immediately. Since they have been recovering from a serious or even life-threatening injury or illness, consulting with a lawyer may not be top of mind. However, suppose you have a credible lawsuit against your provider. In that case, filing your claim within the statute of limitations is essential.
A statute of limitations is the length of time you have to file a medical malpractice lawsuit against a healthcare provider. Once this time has passed, the law does not allow you to pursue any damages. This date may be sooner than you anticipate.
In Indiana, the standard timeline for filing a medical malpractice suit is two years from the date of injury. Two years may seem like a long time to file, but if you spend most of that time healing from your injury or battling a severe illness, finding the opportunity to file may be difficult. Fortunately, there are exceptions to this rule, so read on.
The clock for the two-year statute of limitations in Indiana starts ticking the day the alleged malpractice occurred. Still, not every victim of medical malpractice will be able to sue right away. Let’s explore the exceptions to the medical statute of limitations.
The law may extend the deadline if the injured party was unaware of malpractice or did not show injury symptoms until later. This is called the “Discovery Rule” because it bases the statute of limitations on the date the malpractice was discovered. The individual must provide objective evidence. This evidence should show no circumstances in which they could have discovered negligent or substandard care or shown symptoms of injury before the deadline.
If this is the case, the court will need to know the date you discovered that medical malpractice may have occurred or the date you reasonably could have discovered the malpractice. This new date is what the court will use to calculate the statute of limitations.
For example, imagine that one doctor mistakenly told a patient he did not have cancer. Two years later, he is diagnosed with cancer by a new doctor. Now the cancer is much more advanced, treatment is more intense, and his chances of survival are much lower. He may not have realized right away that the first doctor’s misdiagnosis constituted malpractice. But upon reviewing old lab results with his new doctor, it becomes apparent that the cancer was present at his first doctor’s appointment. In this case, the new statute of limitations starts on the day he reviewed his previous doctor’s lab work.
On the other hand, if the patient learns about this error within the original two years after it occurred, the “Discovery rule” would no longer apply. The patient would be expected to file a claim immediately.
Additionally, if the injured party was under six years of age at the time of malpractice, parents or guardians have until age eight to file a medical malpractice lawsuit. This holds true even for newborns who suffered from birth-related injuries.
Indiana law requires those suing for over $15,000 to submit a proposed complaint to a medical review panel. The medical review panel is overseen by the Indiana Department of Insurance and consists of one attorney and three healthcare providers of the same speciality as the doctor/healthcare provider who is being sued Only once the medical review panel has reviewed the case is it allowed to be filed in the state court. There are a few exceptions to this rule such as agreement by the parties or if the healthcare provider is not qualified. Talk to a medical malpractice attorney to further understand the nuances of this area of the law.
To pursue damages exceeding $15,000, it’s necessary to file a proposed complaint with the Indiana Department of Insurance.
Your lawyer and the defendant’s lawyer will agree upon the members of your medical review panel, including three licensed healthcare providers and a lawyer. Both parties will submit documentation and evidence for review.
This documentation can include the following:
The panel then offers their expert opinions on any of the following questions:
After receiving the panel’s opinions, you have 90 days to file the lawsuit. If you decide to file a lawsuit, the panel members are allowed to share their expert opinions as evidence or by testifying.
There are no pre-suit requirements for plaintiffs seeking less than $15,000. The victim can hire an attorney, submit the initial complaint to the court, and begin all other aspects of the legal process as long as it’s within the two-year timeline.
If the victim wants to sue and the case is worth more than $15,000 within the first two years, they can drop the case and start again. In this situation, they must complete the pre-suit requirements and submit the complaint to the medical review panel. The victim will be offered an additional 180 days if they choose this option.
In Indiana, once the medical review process has started, the statute of limitations is tolled or paused. After the review is finished, the claimants have 90 days to file a lawsuit, even if the original statute of limitations date has expired.
Medical malpractice lawsuits are some of the hardest to win because they’re time-consuming, costly, and complicated. For example, if you need an extension, it is a challenging process to tackle alone. Navigating the statute of limitations and medical review panel can be complicated and should always be done with an experienced lawyer.
If you or a loved one have been injured due to medical malpractice, contact the attorneys of Wilson Kehoe Winingham today. An experienced Indianapolis medical malpractice lawyer at WKW can review your case and help you file a claim for any damages. Call 317.920.6400 or fill out an online contact form for a free, no-obligation case evaluation.
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