Indiana Medical Malpractice Act
IC 34-18-1 to IC 34-18-18

IC 34-18-1  -  Chapter 1. Application

IC 34-18-1-1
    Sec. 1. This article does not apply to an act of malpractice that occurred before July 1, 1975.
As added by P.L.1-1998, SEC.13.

IC 34-18-18-2
    Sec. 2. A patient has the right to elect to pay for the attorney's services on a mutually satisfactory per diem basis. The election, however, must be exercised in written form at the time of employment.
As added by P.L.1-1998, SEC.13.

IC 34-18-2  -  Chapter 2. Definitions

IC 34-18-2-1
    Sec. 1. The definitions in this chapter apply throughout this article.
As added by P.L.1-1998, SEC.13.

IC 34-18-2-2
    Sec. 2. A legal term or word of art that is used in this article, if not otherwise defined, has the meaning that is consistent with the common law.
As added by P.L.1-1998, SEC.13.

IC 34-18-2-3
    Sec. 3. (a) "Advanced emergency medical technician", except as provided in subsection (b), has the meaning set forth in IC 16-18-2-6.
    (b) The term does not include such a person while operating an emergency vehicle.
As added by P.L.1-1998, SEC.13.

IC 34-18-2-4
    Sec. 4. "Ambulance service" means a person who employs:
        (1) emergency medical technicians;
        (2) advanced emergency medical technicians; or
        (3) paramedics.
As added by P.L.1-1998, SEC.13.

IC 34-18-2-5
    Sec. 5. "Annual aggregate" means the limitation on a health care provider's liability as provided in IC 34-18-4.
As added by P.L.1-1998, SEC.13.

IC 34-18-2-6
    Sec. 6. "Authority" refers to the residual malpractice insurance authority established under IC 34-18-17 (or IC 27-12-17 before its repeal).
As added by P.L.1-1998, SEC.13.

IC 34-18-2-7
    Sec. 7. "College, university, or junior college" means an institution for postsecondary school education accredited by the North Central Association.
As added by P.L.1-1998, SEC.13.

IC 34-18-2-8
    Sec. 8. "Commissioner" refers to the insurance commissioner.
As added by P.L.1-1998, SEC.13.

IC 34-18-2-9
    Sec. 9. "Community health center" means a provider of primary health care organized as a nonprofit corporation under IC 23-7-1.1

(Before its repeal on August 1, 1991) or IC 23-17 and governed by a board of directors, at least fifty-one percent (51%) of whom are representatives of consumers.
As added by P.L.1-1998, SEC.13.

IC 34-18-2-10
    Sec. 10. "Community mental health center" means a public or private mental health center established under IC 12-29.
As added by P.L.1-1998, SEC.13.

IC 34-18-2-11
    Sec. 11. "Community mental retardation center" means a public or private community mental retardation and other developmental disabilities center established under IC 12-29.
As added by P.L.1-1998, SEC.13.

IC 34-18-2-12
    Sec. 12. "Emergency medical technician" has the meaning set forth in IC 16-18-2-112 but does not include such a person while operating an emergency vehicle.
As added by P.L.1-1998, SEC.13.

IC 34-18-2-13
    Sec. 13. "Health care" means an act or treatment performed or furnished, or that should have been performed or furnished, by a health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement.
As added by P.L.1-1998, SEC.13.

IC 34-18-2-14
    Sec. 14. "Health care provider" means any of the following:
        (1) An individual, a partnership, a limited liability company, a corporation, a professional corporation, a facility, or an institution licensed or legally authorized by this state to provide health care or professional services as a physician, psychiatric hospital, hospital, health facility, emergency ambulance service (IC 16-18-2-107), dentist, registered or licensed practical nurse, physician assistant, midwife, optometrist, podiatrist, chiropractor, physical therapist, respiratory care practitioner, occupational therapist, psychologist, paramedic, emergency medical technician, or advanced emergency medical technician, or a person who is an officer, employee, or agent of the individual, partnership, corporation, professional corporation, facility, or institution acting in the course and scope of the person's employment.
        (2) A college, university, or junior college that provides health care to a student, faculty member, or employee, and the governing board or a person who is an officer, employee, or agent of the college, university, or junior college acting in the course and scope of the person's employment.
        (3) A blood bank, community mental health center, community mental retardation center, community health center, or migrant health center.
        (4) A home health agency (as defined in IC 16-27-1-2 ).
        (5) A health maintenance organization (as defined in IC 27-13-1-19).
        (6) A health care organization whose members, shareholders, or partners are health care providers under subdivision (1).
        (7) A corporation, limited liability company, partnership, or professional corporation not otherwise qualified under this section that:
            (A) as one (1) of its functions, provides health care;
            (B) is organized or registered under state law; and
            (C) is determined to be eligible for coverage as a health care provider under this article for its health care function.
        Coverage for a health care provider qualified under this subdivision is limited to its health care functions and does not extend to other causes of action.
As added by P.L.1-1998, SEC.13.

IC 34-18-2-15
    Sec. 15. "Health facility" means a facility licensed under IC 16-28.
As added by P.L.1-1998, SEC.13.

IC 34-18-2-16
    Sec. 16. "Hospital" means a public or private institution licensed under IC 16-21-2.
As added by P.L.1-1998, SEC.13.

IC 34-18-2-17
    Sec. 17. "Insurer" means the authority or an insurance company engaged on an admitted or nonadmitted basis in making in this state Class 2(h) malpractice liability insurance under IC 27-1-5-1.
As added by P.L.1-1998, SEC.13.

IC 34-18-2-18
    Sec. 18. "Malpractice" means 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.
As added by P.L.1-1998, SEC.13.

IC 34-18-2-19
    Sec. 19. "Midwife" means a registered nurse who holds a limited license to practice midwifery under IC 25-23-1-13.1.
As added by P.L.1-1998, SEC.13.

IC 34-18-2-20
    Sec. 20. "Migrant health center" means a provider of primary health care organized as a nonprofit corporation under IC 23-7-1.1 (before its repeal on August 1, 1991) or IC 23-17 governed by a board of directors, at least fifty-one percent (51%) of whom are representatives of consumers and funded under Section 329 of the United States Public Health Service Act (42 U.S.C. 254b).
As added by P.L.1-1998, SEC.13.

IC 34-18-2-21
    Sec. 21. (a) "Paramedic", except as provided in subsection (b), has the meaning set forth in IC 16-18-2-266.
    (b) The term does not include such a person while operating an emergency vehicle.
As added by P.L.1-1998, SEC.13.

IC 34-18-2-22
    Sec. 22. "Patient" means an individual who receives or should have received health care from a health care provider, under a contract, express or implied, and includes a person having a claim of any kind, whether derivative or otherwise, as a result of alleged malpractice on the part of a health care provider. Derivative claims include the claim of a parent or parents, guardian, trustee, child, relative, attorney, or any other representative of the patient including claims for loss of services, loss of consortium, expenses, and other similar claims.
As added by P.L.1-1998, SEC.13.

IC 34-18-2-23
    Sec. 23. "Physician" means an individual with an unlimited license to practice medicine under IC 25-22.5.
As added by P.L.1-1998, SEC.13.

IC 34-18-2-24
    Sec. 24. "Psychiatric hospital" means a private institution licensed under IC 12-25 and public institutions under the administrative control of the director of a division as designated by IC 12-24-1-1 or IC 12-24-1-3.
As added by P.L.1-1998, SEC.13.

IC 34-18-2-24.5
    Sec. 24.5. "Qualified provider" means a health care provider that is qualified under this article (or by IC 27-12 before its repeal) by complying with the procedures set forth in IC 34-18-3 (or IC 27-12-3 before its repeal).
As added by P.L.111-1998, SEC.4.

IC 34-18-2-25
    Sec. 25. "Representative" means the spouse, parent, guardian, trustee, attorney, or other legal agent of the patient.
As added by P.L.1-1998, SEC.13.

IC 34-18-2-26
    Sec. 26. "Risk" means a health care provider that must apply for malpractice liability insurance coverage under IC 34-18-17.
As added by P.L.1-1998, SEC.13.

IC 34-18-2-27
    Sec. 27. "Risk manager" means an insurance company that is:
        (1) admitted to make insurance and actively engaged in making in this state Class 2 insurance under IC 27-1-5-1; and
        (2) appointed by the commissioner to manage the authority.
As added by P.L.1-1998, SEC.13.

IC 34-18-2-28
    Sec. 28. "Tort" means a legal wrong, breach of duty, or negligent or unlawful act or omission proximately causing injury or damage to another.
As added by P.L.1-1998, SEC.13.

IC 34-18-3  -   Chapter 3. Need to Qualify; Qualification Procedure

IC 34-18-3-1
    Sec. 1. A health care provider who fails to qualify under this article is not covered by this article and is subject to liability under the law without regard to this article. If a health care provider does not qualify, the patient's remedy is not affected by this article.
As added by P.L.1-1998, SEC.13.

IC 34-18-3-2
    Sec. 2. For a health care provider to be qualified under this article, the health care provider or the health care provider's insurance carrier shall:
        (1) cause to be filed with the commissioner proof of financial responsibility established under IC 34-18-4; and
        (2) pay the surcharge assessed on all health care providers under IC 34-18-5.
As added by P.L.1-1998, SEC.13.

IC 34-18-3-3
    Sec. 3. The officers, agents, and employees of a health care provider, while acting in the course and scope of their employment, may be qualified under this chapter if the following conditions are met:
        (1) The officers, agents, and employees are individually named or are members of a named class in the proof of financial responsibility filed by the health care provider under IC 34-18-4.
        (2) The surcharge assessed under IC 34-18-5 is paid.
As added by P.L.1-1998, SEC.13.

IC 34-18-3-4
    Sec. 4. (a) As used in this section, "employee of a governmental entity" has the meaning set forth in IC 34-6-2-38.
    (b) As used in this section, "governmental entity" has the meaning set forth in IC 34-6-2-49.
    (c) A claim against a governmental entity or an employee of a governmental entity based on an occurrence of malpractice is governed exclusively by this article if the governmental entity or employee is qualified under this article.
As added by P.L.1-1998, SEC.13.

IC 34-18-3-5a
    Note: This version of section amended by P.L.91-1998, SEC.21. See also following version of this section, amended by P.L.111-1998, SEC.5.
    Sec. 5. (a) Except as provided in subsection (b), the receipt of proof of financial responsibility and the surcharge constitutes compliance with section 2 of this chapter:
        (1) as of the date on which they are received; or
        (2) as of the effective date of the policy;
if this proof is filed with and the surcharge paid to the Department of Insurance not later than ninety (90) days after the effective date of the insurance policy.
    (b) If an insurer files proof of financial responsibility and makes payment of the surcharge to the department of insurance at least ninety-one (91) days but not more than one hundred eighty (180) days after the policy effective date, the health care provider is in compliance with section 2 of this chapter, if the insurer demonstrates to the satisfaction of the commissioner that the insurer:
        (1) received the premium and surcharge in a timely manner; and
        (2) erred in transmitting the surcharge in a timely manner.
    (c) If the commissioner accepts a filing as timely under subsection (b), the filing must, in addition to any penalties under IC 34-18-5-3, be accompanied by a penalty amount as follows:
        (1) Ten percent (10%) of the surcharge, if the proof of financial responsibility and surcharge are received by the commissioner at least ninety-one (91) days and not more than one hundred twenty (120) days after the original effective date of the policy.
        (2) Twenty percent (20%) of the surcharge, if the proof of financial responsibility and surcharge are received by the commissioner at least one hundred twenty-one (121) days and not more than one hundred fifty (150) days after the original effective date of the policy.
        (3) Fifty percent (50%) of the surcharge, if the proof of financial responsibility and surcharge are received by the commissioner at least one hundred fifty-one (151) days and not more than one hundred eighty (180) days after the original effective date of the policy.
As added by P.L.1-1998, SEC.13. Amended by P.L.91-1998, SEC.21.
    Note: See also following version of this section, amended by P.L.111-1998, SEC.5.

IC 34-18-3-5b
    Note: This version of section amended by P.L.111-1998, SEC.5. See also preceding version of this section, amended by P.L.91-1998, SEC.21.
    34-18-3-5 Sec. 5. (a) Except as provided in subsection (b), the receipt of proof of financial responsibility and the surcharge constitutes compliance with section 2 of this chapter:
        (1) as of the date on which they are received; or
        (2) as of the effective date of the policy;
if this proof is filed with and the surcharge paid to the department of insurance not later than ninety (90) days after the effective date of the insurance policy.
    (b) If an insurer files proof of financial responsibility and makes payment of the surcharge to the department of insurance at least ninety-one (91) days but not more than one hundred eighty (180) days after the policy effective date, the health care provider complies with section 2 of this chapter if the insurer demonstrates to the satisfaction of the commissioner that the insurer:
        (1) received the premium and surcharge in a timely manner; and
        (2) erred in transmitting the surcharge in a timely manner.
    (c) If the commissioner accepts a filing as timely under subsection (b), the filing must, in addition to any penalties under IC 34-18-5-3, be accompanied by a penalty amount as follows:
        (1) Ten percent (10%) of the surcharge, if the proof of financial responsibility and surcharge are received by the commissioner at least ninety-one (91) days and not more than one hundred twenty (120) days after the original effective date of the policy.
        (2) Twenty percent (20%) of the surcharge, if the proof of financial responsibility and surcharge are received by the commissioner at least one hundred twenty-one (121) days and not more than one hundred fifty (150) days after the original effective date of the policy.
        (3) Fifty percent (50%) of the surcharge, if the proof of financial responsibility and surcharge are received by the commissioner at least one hundred fifty-one (151) days and not more than one hundred eighty (180) days after the original effective date of the policy.
As added by P.L.1-1998, SEC.13. Amended by P.L.111-1998, SEC.5.
    Note: See also preceding version of this section, amended by P.L.91-1998, SEC.21.

IC 34-18-3-6
    Sec. 6. Within five (5) business days after the department of insurance receives the information required under section 2 of this chapter for the qualification of a health care provider, the commissioner shall notify the health care provider of the following:
        (1) Whether the provider is qualified.
        (2) If the provider is qualified, the date the provider becomes qualified.
As added by P.L.1-1998, SEC.13.

IC 34-18-3-7
    Sec. 7. (a) The commissioner shall adopt rules under IC 4-22-2 to establish the following:
        (1) Criteria for determining, upon application, whether a corporation, limited liability company, partnership, or professional corporation is subject to IC 34-18-2-14(7) and thus is eligible to qualify as a health care provider under this chapter.
        (2) The minimum annual aggregate insurance amount necessary for the corporation, limited liability company, partnership, or professional corporation to become qualified under IC 34-18-2-14(7).
    (b) The criteria to be established by rule under subsection (a)(1) must include the identification of the health care purpose and function of the corporation, limited liability company, partnership, or professional corporation.
    (c) The minimum annual aggregate insurance amount to be set by rule under subsection (a)(2) may not exceed five hundred thousand dollars ($500,000).
    (d) The commissioner may require a corporation, limited liability company, partnership, or professional corporation that seeks to qualify under IC 34-18-2-14(7) and this chapter to provide information necessary to determine eligibility and to establish the minimum annual aggregate amount applicable to the corporation, limited liability company, partnership, or professional corporation.
As added by P.L.1-1998, SEC.13.

IC 34-18-4  -   Chapter 4. Establishment of Financial Responsibility

IC 34-18-4-1a
    Note: This version of section effective until 7-1-99. See also following version of this section, effective 7-1-99.
    Sec. 1. Financial responsibility of a health care provider and the provider's officers, agents, and employees while acting in the course and scope of their employment with the health care provider may be established under subdivision (1), (2), or (3):
        (1) By the health care provider's insurance carrier filing with the commissioner proof that the health care provider is insured by a policy of malpractice liability insurance in the amount of at least one hundred thousand dollars ($100,000) per occurrence and three hundred thousand dollars ($300,000) in the annual aggregate, except for the following:
            (A) If the health care provider is a hospital, as defined in this article, the minimum annual aggregate insurance amount is as follows:
                (i) For hospitals of not more than one hundred (100) beds, two million dollars ($2,000,000).
                (ii) For hospitals of more than one hundred (100) beds, three million dollars ($3,000,000).
            (B) If the health care provider is a health maintenance organization (as defined in IC 27-13-1-19 ) or a limited service health maintenance organization (as defined in IC 27-13-34-4 ), the minimum annual aggregate insurance amount is seven hundred thousand dollars ($700,000).
            (C) If the health care provider is a health facility, the minimum annual aggregate insurance amount is as follows:
                (i) For health facilities with not more than one hundred (100) beds, three hundred thousand dollars ($300,000).
                (ii) For health facilities with more than one hundred (100) beds, five hundred thousand dollars ($500,000).
        (2) By filing and maintaining with the commissioner cash or surety bond approved by the commissioner in the amounts set forth in subdivision (1).
        (3) If the health care provider is a hospital or a psychiatric hospital, by submitting annually a verified financial statement that, in the discretion of the commissioner, adequately demonstrates that the current and future financial responsibility of the health care provider is sufficient to satisfy all potential malpractice claims incurred by the provider or the provider's officers, agents, and employees while acting in the course and scope of their employment up to a total of one hundred thousand dollars ($100,000) per occurrence and annual aggregates as follows:
            (A) For hospitals of not more than one hundred (100) beds, two million dollars ($2,000,000).
            (B) For hospitals of more than one hundred (100) beds, three million dollars ($3,000,000).
        The commissioner may require the deposit of security to assure continued financial responsibility.
As added by P.L.1-1998, SEC.13.
    Note: See also following version of this section, effective 7-1-99.

IC 34-18-4-1b
    Note: This version of section effective 7-1-99. See also preceding version of this section, effective until 7-1-99.
    Sec. 1. Financial responsibility of a health care provider and the provider's officers, agents, and employees while acting in the course and scope of their employment with the health care provider may be established under subdivision (1), (2), or (3):
        (1) By the health care provider's insurance carrier filing with the commissioner proof that the health care provider is insured by a policy of malpractice liability insurance in the amount of at least two hundred fifty thousand dollars ($250,000) per occurrence and seven hundred fifty thousand dollars ($750,000) in the annual aggregate, except for the following:
            (A) If the health care provider is a hospital, as defined in this article, the minimum annual aggregate insurance amount is as follows:
                (i) For hospitals of not more than one hundred (100) beds, five million dollars ($5,000,000).
                (ii) For hospitals of more than one hundred (100) beds, seven million five hundred thousand dollars ($7,500,000).
            (B) If the health care provider is a health maintenance organization (as defined in IC 27-13-1-19) or a limited service health maintenance organization (as defined in IC 27-13-34-4), the minimum annual aggregate insurance amount is one million seven hundred fifty thousand dollars ($1,750,000).
            (C) If the health care provider is a health facility, the minimum annual aggregate insurance amount is as follows:
                (i) For health facilities with not more than one hundred (100) beds, seven hundred fifty thousand dollars ($750,000).
                (ii) For health facilities with more than one hundred (100) beds, one million two hundred fifty thousand dollars ($1,250,000).
        (2) By filing and maintaining with the commissioner cash or surety bond approved by the commissioner in the amounts set forth in subdivision (1).
        (3) If the health care provider is a hospital or a psychiatric hospital, by submitting annually a verified financial statement that, in the discretion of the commissioner, adequately demonstrates that the current and future financial responsibility of the health care provider is sufficient to satisfy all potential malpractice claims incurred by the provider or the provider's officers, agents, and employees while acting in the course and scope of their employment up to a total of two hundred fifty thousand dollars ($250,000) per occurrence and annual aggregates as follows:
            (A) For hospitals of not more than one hundred (100) beds, five million dollars ($5,000,000).
            (B) For hospitals of more than one hundred (100) beds, seven million five hundred thousand dollars ($7,500,000).
        The commissioner may require the deposit of security to assure continued financial responsibility.
As added by P.L.1-1998, SEC.13. Amended by P.L.111-1998, SEC.6.
    Note: See also preceding version of this section, effective until 7-1- 99.

IC 34-18-4-2
    Sec. 2. Security provided under section 1(2) of this chapter may be held in any manner mutually agreeable to the commissioner and the health care provider. The agreement must provide that the principal may not be withdrawn before receiving the written permission of the commissioner. However, any interest earned may be withdrawn at any time by the health care provider.
As added by P.L.1-1998, SEC.13.

IC 34-18-4-3
    Sec. 3. For the purposes of section 1 of this chapter, the bed size of a hospital shall be considered to be the bed size published annually by the state department of health.
As added by P.L.1-1998, SEC.13.

IC 34-18-4-4
    Sec. 4. To establish financial responsibility under this chapter, each individual who is a member of a partnership or professional corporation must establish financial responsibility separate from the partnership or professional corporation, as well as pay the surcharge required under IC 34-18-5. However, this section does not require a health care provider to qualify under this article.
As added by P.L.1-1998, SEC.13.

IC 34-18-5  -  Chapter 5. Surcharge

IC 34-18-5-1
    Sec. 1. To create a source of money for the patient's compensation fund, an annual surcharge shall be levied on all health care providers in Indiana.
As added by P.L.1-1998, SEC.13.

IC 34-18-5-2
    Sec. 2. (a) As used in this section, "actuarial program" means a program used or created by the department to determine the actuarial risk posed to the patient compensation fund under IC 34-18-6 (or IC 27-12-6 before its repeal) by a hospital. The program must be:
        (1) developed to calculate actuarial risk posed by a hospital, taking into consideration risk management programs used by the hospital;
        (2) an efficient and accurate means of calculating a hospital's malpractice actuarial risk;
        (3) publicly identified by the department by July 1 of each year; and
        (4) made available to a hospital's malpractice insurance carrier for purposes of calculating the hospital's surcharge under subsection (g).
    (b) Beginning July 1, 1999, the amount of the annual surcharge shall be one hundred percent (100%) of the cost to each health care provider for maintenance of financial responsibility. Beginning July 1, 2001, the annual surcharge shall be set by a rule adopted by the commissioner under IC 4-22-2.
    (c) The amount of the surcharge shall be determined based upon actuarial principles and actuarial studies and must be adequate for the payment of claims and expenses from the patient's compensation fund.
    (d) The surcharge may not exceed the actuarial risk posed to the patient's compensation fund under IC 34-18 (or IC 27-12 before its repeal) by qualified providers.
    (e) There is imposed a minimum annual surcharge of one hundred dollars ($100).
    (f) Notwithstanding subsections (b), (c), and (e), beginning July 1, 1999, the surcharge for a qualified provider who is licensed under IC 25-22.5 is calculated as follows:
        (1) The commissioner shall contract with an actuary that has experience in calculating the actuarial risks posed by physicians. Not later than July 1 of each year, the actuary shall calculate the median of the premiums paid for malpractice liability policies to the three (3) malpractice insurance carriers in the state that have underwritten the most malpractice insurance policies for all physicians practicing in the same specialty class in Indiana during the previous twelve (12) month period. In calculating the median, the actuary shall consider the:
        (A) manual rates of the three (3) leading malpractice insurance carriers in the state; and
        (B) aggregate credits or debits to the manual rates given during the previous twelve (12) month period.
        (2) After making the calculation described in subdivision (1), the actuary shall establish a uniform surcharge for all licensed physicians practicing in the same specialty class. This surcharge must be based on a percentage of the median calculated in subdivision (1) for all licensed physicians practicing in the same specialty class under rules adopted by the commissioner under IC 4-22-2. The surcharge:
        (A) must be sufficient to cover; and
        (B) may not exceed;
        the actuarial risk posed to the patient compensation fund under IC 34-18-6 (or IC 27-12-6 before its repeal) by physicians practicing in the specialty class.
    (g) Beginning July 1, 1999, the surcharge for a hospital licensed under IC 16-21 that establishes financial responsibility under IC 34-18-4 after June 30, 1999, is established by the department through the use of an actuarial program. At the time financial responsibility is established for the hospital, the hospital shall pay the surcharge amount established for the hospital under this section. The surcharge:
        (1) must be sufficient to cover; and
        (2) may not exceed;
the actuarial risk posed to the patient compensation fund under IC 34-18-6 by the hospital.
    (h) An actuarial program used or developed under subsection (a) shall be treated as a public record under IC 5-14-3.
As added by P.L.1-1998, SEC.13. Amended by P.L.111-1998, SEC.7.

IC 34-18-5-3
    Sec. 3. (a) The surcharge shall be collected on the same basis as premiums by each insurer, risk manager, or surplus lines agent.
    (b) The surcharge is due and payable within thirty (30) days after the premium for malpractice liability insurance has been received by the insurer, risk manager, or surplus lines agent from a health care provider in Indiana. If a surcharge is not paid as required by this section, the insurer, risk manager, or surplus lines agent responsible for the delinquency is liable for the surcharge plus a penalty equal to ten percent (10%) of the amount of the surcharge.
    (c) If the annual premium surcharge is not paid within the time limit specified in subsection (b), the certificate of authority of the insurer, risk manager, and surplus lines agents shall be suspended until the annual premium surcharge is paid.
As added by P.L.1-1998, SEC.13.

IC 34-18-5-4
    Sec. 4. (a) The commissioner may adopt rules establishing the following:
        (1) The manner of determination of the surcharge for a health care provider that establishes financial responsibility in a way other than by a policy of malpractice liability insurance.
        (2) The manner of payment of the surcharge by such a health care provider.
    (b) The surcharge calculation established under subsection (a) must provide comparability in rates for insured and self-insured hospitals. This surcharge may not exceed the surcharge that would be charged by the residual authority if the health care provider electing to establish financial responsibility in this manner had applied to the residual authority for insurance.
As added by P.L.1-1998, SEC.13.

IC 34-18-6  -   Chapter 6. Patient's Compensation Fund

IC 34-18-6-1
    Sec. 1. (a) The patient's compensation fund is created to be collected and received by the commissioner for exclusive use for the purposes stated in this article.
    (b) The fund and any income from the fund shall be held in trust, deposited in a segregated account, invested, and reinvested by the commissioner as authorized by IC 27-1-13 and does not become a part of the state general fund.
    (c) Proceeds of the annual surcharge levied on all health care providers in Indiana under IC 34-18-5 shall be deposited in the fund.
As added by P.L.1-1998, SEC.13.

IC 34-18-6-2a
    Note: This version of section effective until 7-1-99. See also following version of this section, effective 7-1-99.
    Sec. 2. The commissioner, using money from the fund as considered necessary, appropriate, or desirable, may purchase the services of persons, firms, and corporations to aid in protecting the fund against claims. All expenses of collecting, protecting, and administering the fund shall be paid from the fund.
As added by P.L.1-1998, SEC.13.
    Note: See also following version of this section, effective 7-1-99.

IC 34-18-6-2b
    Note: This version of section effective 7-1-99. See also preceding version of this section, effective until 7-1-99.
    Sec. 2. (a) The commissioner, using money from the fund, as considered necessary, appropriate, or desirable, may purchase or retain the services of persons, firms, and corporations to aid in protecting the fund against claims. The commissioner shall retain the services of counsel described in subsection (b) to represent the department when a trial court determination will be necessary to resolve a claim against the patient's compensation fund.
    (b) When retaining legal services under subsection (a), the commissioner shall retain competent and experienced legal counsel licensed to practice law in Indiana to assist in litigation or other matters pertaining to the fund.
    (c) The commissioner has sole authority for the following:
        (1) Making a decision regarding the settlement of a claim against the patient compensation fund.
        (2) Determining the reasonableness of any fee submitted to the department of insurance by an attorney who defends the patient compensation fund under this section.
    (d) All expenses of collecting, protecting, and administering the fund shall be paid from the fund.
As added by P.L.1-1998, SEC.13. Amended by P.L.111-1998, SEC.8.
    Note: See also preceding version of this section, effective until 7-1- 99.

IC 34-18-6-3a
    Note: This version of section effective until 1-1-99. See also following repeal of this section, effective 1-1-99.
    Sec. 3. If the fund exceeds the amount of one hundred twenty-five million dollars ($125,000,000) at the end of each of two (2) consecutive six (6) month periods described in section 4 of this chapter after the payment of all claims and expenses, the commissioner shall reduce the surcharge provided in IC 34-18-5 to maintain the fund at an approximate level of one hundred twenty-five million dollars ($125,000,000).
As added by P.L.1-1998, SEC.13.
    Note: See also following repeal of this section, effective 1-1-99.

IC 34-18-6-3b Repealed
    (Repealed by P.L.111-1998, SEC.16.)
    Note: This repeal of section effective 1-1-99. See also preceding version of this section, effective until 1-1-99.

IC 34-18-6-4
    Sec. 4. (a) Claims for payment from the patient's compensation fund that become final during the first six (6) months of the calendar year must be computed on June 30 and must be paid not later than the following July 15. Claims for payment from the fund that become final during the last six (6) months of the calendar year must be computed on December 31 and must be paid not later than the following January 15.
    (b) If the balance in the fund is insufficient to pay in full all claims that have become final during a six (6) month period, the amount paid to each claimant must be prorated. Any amount left unpaid as a result of the proration must be paid before the payment of claims that become final during the following six (6) month period.
As added by P.L.1-1998, SEC.13.

IC 34-18-6-5
    Sec. 5. The auditor of state shall issue a warrant in the amount of each claim submitted to the auditor against the fund on June 30 and December 31 of each year. The only claim against the fund shall be a voucher or other appropriate request by the commissioner after the commissioner receives:
        (1) a certified copy of a final judgment against a health care provider; or
        (2) a certified copy of a court approved settlement against a health care provider.
As added by P.L.1-1998, SEC.13.

IC 34-18-6-6
    Sec. 6. (a) If an annual aggregate for a health care provider qualified under this article has been paid by or on behalf of the health care provider, all amounts that may subsequently become due and payable to a claimant arising out of an act of malpractice of the health care provider occurring during the year in which the annual aggregate was exhausted shall be paid from the patient's compensation fund under the following terms and conditions:
        (1) A health care provider whose annual aggregate has been exhausted has no right to object to or refuse permission to settle such a claim.
        (2) If a health care provider or the commissioner and claimant agree on a settlement, the following procedure must be followed:
            (A) A petition shall be filed by the claimant with the court in which the action is pending against the health care provider or, if none is pending, in the circuit or superior court of Marion County, seeking approval of the agreed settlement.
            (B) A copy of the petition shall be served on the commissioner and the health care provider at least ten (10) days before filing and must contain sufficient information to inform the other parties about the nature of the claim and the amount of the proposed settlement.
            (C) The commissioner may agree to the settlement, or the commissioner may file written objections to the settlement. The agreement or objections shall be filed within twenty (20) days after the petition is filed.
            (D) The judge of the court in which the petition is filed shall set the petition for approval or, if objections have been filed, for hearing, as soon as practicable. The court shall give notice of the hearing to the claimant, the health care provider, and the commissioner.
            (E) At the hearing the commissioner, the claimant, and the health care provider may introduce relevant evidence to enable the court to determine whether or not the petition should be approved if the evidence is submitted on agreement without objections. If the commissioner and the claimant cannot agree on the amount, if any, to be paid out of the patient's compensation fund, the court shall determine the amount for which the fund is liable and render a finding and judgment accordingly. In approving a settlement or determining the amount, if any, to be paid from the patient's compensation fund, the court shall consider the liability of the health care provider as admitted and established.
            (F) A settlement approved by the court may not be appealed. A judgment of the court fixing damages recoverable in a contested proceeding is appealable under the rules governing appeals in other civil cases tried by the court.
    (b) The commissioner may adopt rules under IC 4-22-2 implementing this section.
As added by P.L.1-1998, SEC.13.

IC 34-18-6-7
    Sec. 7. The following are exempt from IC 5-22 governing state purchasing:
        (1) Technical contractual personnel and services retained by the commissioner for protecting and administering the patient's compensation fund.
        (2) Purchasing of annuities for structuring settlements from the patient's compensation fund or in combination with the patient's compensation fund and the health care provider's insurer.
As added by P.L.1-1998, SEC.13.

IC 34-18-7  -   Chapter 7. Statute of Limitations

IC 34-18-7-1
    Sec. 1. (a) This section applies to all persons regardless of minority or other legal disability, except as provided in subsection (c).
    (b) A claim, whether in contract or tort, may not be brought against a health care 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 eighth birthday to file.
    (c) If a patient meets the criteria stated in IC 34-18-8-6(c), the applicable limitations period is equal to the period that would otherwise apply to the patient under subsection (b) (or IC 27-12-7-1(b) before its repeal) plus one hundred eighty (180) days.
As added by P.L.1-1998, SEC.13.

IC 34-18-7-2
    Sec. 2. Notwithstanding IC 34-18-1-1, any claim, whether in contract or tort, by a minor or other person under legal disability against a health care provider stemming from professional services or health care provided based on an alleged act, omission, or neglect that occurred before July 1, 1975, shall be brought only within the longer of the following:
        (1) Two (2) years after July 1, 1975.
        (2) The period described in section 1 of this chapter.
As added by P.L.1-1998, SEC.13.

IC 34-18-7-3
    Sec. 3. (a) The filing of a proposed complaint tolls the applicable statute of limitations to and including a period of ninety (90) days following the receipt of the opinion of the medical review panel by the claimant.
    (b) A proposed complaint under IC 34-18-8 is considered filed when a copy of the proposed complaint is delivered or mailed by registered or certified mail to the commissioner.
As added by P.L.1-1998, SEC.13.

IC 34-18-8  -  Chapter 8. Commencement of a Medical Malpractice Action

IC 34-18-8-1
    Sec. 1. Subject to IC 34-18-10 and sections 4 through 6 of this chapter, a patient or the representative of a patient who has a claim under this article for bodily injury or death on account of malpractice may do the following:
        (1) File a complaint in any court of law having requisite jurisdiction.
        (2) By demand, exercise the right to a trial by jury.
As added by P.L.1-1998, SEC.13.

IC 34-18-8-2
    Sec. 2. The following fees must accompany each proposed complaint filed:
        (1) A filing fee of five dollars ($5).
        (2) A processing fee of two dollars ($2) for each additional defendant after the first defendant.
As added by P.L.1-1998, SEC.13.

IC 34-18-8-3
    Sec. 3. Except for the declaration called for in section 6(a) of this chapter, a dollar amount or figure may not be included in the demand in a malpractice complaint, but the prayer must be for such damages as are reasonable in the premises.
As added by P.L.1-1998, SEC.13.

IC 34-18-8-4
    Sec. 4. Notwithstanding section 1 of this chapter, and except as provided in sections 5 and 6 of this chapter, an action against a health care provider may not be commenced in a court in Indiana before:
        (1) the claimant's proposed complaint has been presented to a medical review panel established under IC 34-18-10 (or IC 27-12-10 before its repeal); and
        (2) an opinion is given by the panel.
As added by P.L.1-1998, SEC.13.

IC 34-18-8-5
    Sec. 5. Notwithstanding section 4 of this chapter, a claimant may commence an action in court for malpractice without the presentation of the claim to a medical review panel if the claimant and all parties named as defendants in the action agree that the claim is not to be presented to a medical review panel. The agreement must be in writing and must be signed by each party or an authorized agent of the party. The claimant must attach a copy of the agreement to the complaint filed with the court in which the action is commenced.
As added by P.L.1-1998, SEC.13.

IC 34-18-8-6
    Sec. 6. (a) Notwithstanding section 4 of this chapter, a patient may commence an action against a health care provider for malpractice without submitting a proposed complaint to a medical review panel if the patient's pleadings include a declaration that the patient seeks damages from the health care provider in an amount not greater than fifteen thousand dollars ($15,000). In an action commenced under this subsection (or IC 27-12-8-6(a) before its repeal), the patient is barred from recovering any amount greater than fifteen thousand dollars ($15,000), except as provided in subsection (b).
    (b) A patient who:
        (1) commences an action under subsection (a) (or IC 27-12-8-6(a) before its repeal) in the reasonable belief that damages in an amount not greater than fifteen thousand dollars ($15,000) are adequate compensation for the bodily injury allegedly caused by the health care provider's malpractice; and
        (2) later learns, during the pendency of the action, that the bodily injury is more serious than previously believed and that fifteen thousand dollars ($15,000) is insufficient compensation for the bodily injury;
may move that the action be dismissed without prejudice and, upon dismissal of the action, may file a proposed complaint subject to section 4 of this chapter based upon the same allegations of malpractice as were asserted in the action dismissed under this subsection. In a second action commenced in court following the medical review panel's proceeding on the proposed complaint, the patient may recover an amount greater than fifteen thousand dollars ($15,000). However, a patient may move for dismissal without prejudice and, if dismissal without prejudice is granted, may commence a second action under this subsection only if the patient's motion for dismissal is filed within two (2) years after commencement of the original action under subsection (a) (or IC 27-12-8-6(a) before its repeal).
    (c) If a patient:
        (1) commences an action under subsection (a) (or IC 27-12-8-6(a) before its repeal);
        (2) moves under subsection (b) (or IC 27-12-8-6(b) before its repeal) for dismissal of that action;
        (3) files a proposed complaint subject to section 4 of this chapter based upon the same allegations of malpractice as were asserted in the action dismissed under subsection (b) (or IC 27-12-8-6(b) before its repeal); and
        (4) commences a second action in court following the medical review panel proceeding on the proposed complaint;
the timeliness of the second action is governed by IC 34-18-7-1(c).
    (d) A medical liability insurer of a health care provider against whom an action has been filed under subsection (a) (or IC 27-12-8-6(a) before its repeal) shall provide written notice to the state health commissioner as required under IC 34-18-9-2.
As added by P.L.1-1998, SEC.13.

IC 34-18-8-7 (Effective 7-1-99)
    Sec. 7. (a) Notwithstanding section 4 of this chapter, beginning July 1, 1999, a claimant may commence an action in court for malpractice at the same time the claimant's proposed complaint is being considered by a medical review panel. In order to comply with this section, the:
        (1) complaint filed in court may not contain any information that would allow a third party to identify the defendant;
        (2) claimant is prohibited from pursuing the action; and
        (3) court is prohibited from taking any action except setting a date for trial, an action under IC  34-18-8-8 (or IC 27-12-8-8 before its repeal), or an action under IC  34-18-11 (or IC 27-12-11 before its repeal);
until section 4 of this chapter has been satisfied.
    (b) Upon satisfaction of section 4 of this chapter, the identifying information described in subsection (a)(1) shall be added to the complaint by the court.
As added by P.L.111-1998, SEC.9.

IC 34-18-8-8
    Sec. 8. If action has not been taken in a case before the department of insurance for a period of at least two (2) years, the commissioner, on the:
        (1) motion of a party; or
        (2) commissioner's own initiative;
may file a motion in Marion county circuit court to dismiss the case under Rule 41(E) of the Indiana Rules of Trial Procedure.
As added by P.L.111-1998, SEC.10.

IC 34-18-9  -   Chapter 9. Reporting and Review of Claims

IC 34-18-9-1
    Sec. 1. Within ten (10) days after receiving a proposed complaint under IC 34-18-8, the commissioner shall forward a copy of the complaint by registered or certified mail to each health care provider named as a defendant, at the defendant's last and usual place of residence or the defendant's office.
As added by P.L.1-1998, SEC.13.

IC 34-18-9-2
    Sec. 2. A medical liability insurer of a health care provider against whom an action has been filed under IC 34-18-8-6(a) shall provide written notice to the commissioner within thirty (30) days after:
        (1) the filing of the action; and
        (2) the final disposition of the action.
As added by P.L.1-1998, SEC.13.

IC 34-18-9-3a
    Note: This version of section effective until 7-1-99. See also following version of this section, effective 7-1-99.
    Sec. 3. (a) A health care provider's insurer shall notify the commissioner of any malpractice case upon which the insurer has placed a reserve of at least fifty thousand dollars ($50,000). The insurer shall give notice to the commissioner under this subsection immediately after placing the reserve. The notice and all communications and correspondence relating to the notice are confidential and may not be made available to any person or any public or private agency.
    (b) All malpractice claims settled or adjudicated to final judgment against a health care provider shall be reported to the commissioner by the plaintiff's attorney and by the health care provider or the health care provider's insurer or risk manager within sixty (60) days following final disposition of the claim. The report to the commissioner must state the following:
        (1) The nature of the claim.
        (2) The damages asserted and the alleged injury.
        (3) The attorney's fees and expenses incurred in connection with the claim or defense.
        (4) The amount of the settlement or judgment.
As added by P.L.1-1998, SEC.13.
    Note: See also following version of this section, effective 7-1-99.

IC 34-18-9-3b
    Note: This version of section effective 7-1-99. See also preceding version of this section, effective until 7-1-99.
    Sec. 3. (a) A health care provider's insurer shall notify the commissioner of any malpractice case upon which the insurer has placed a reserve of at least one hundred twenty-five thousand dollars ($125,000). The insurer shall give notice to the commissioner under this subsection immediately after placing the reserve. The notice and all communications and correspondence relating to the notice are confidential and may not be made available to any person or any public or private agency.
    (b) All malpractice claims settled or adjudicated to final judgment against a health care provider shall be reported to the commissioner by the plaintiff's attorney and by the health care provider or the health care provider's insurer or risk manager within sixty (60) days following final disposition of the claim. The report to the commissioner must state the following:
        (1) The nature of the claim.
        (2) The damages asserted and the alleged injury.
        (3) The attorney's fees and expenses incurred in connection with the claim or defense.
        (4) The amount of the settlement or judgment.
As added by P.L.1-1998, SEC.13. Amended by P.L.111-1998, SEC.11.
    Note: See also preceding version of this section, effective until 7-1- 99.

IC 34-18-9-4
    Sec. 4. (a) The medical review panel (as described in IC 34-18-10) shall make a separate determination, at the time that it renders its opinion under IC 34-18-10-22, as to whether the name of the defendant health care provider should be forwarded to the appropriate board of professional registration for review of the health care provider's fitness to practice the health care provider's profession. The commissioner shall forward the name of the defendant health care provider if the medical review panel unanimously determines that it should be forwarded. The medical review panel determination concerning the forwarding of the name of the defendant health care provider is not admissible as evidence in a civil action. In each case involving review of a health care provider's fitness to practice forwarded under this section, the appropriate board of professional registration and examination may, in appropriate cases, take the following disciplinary action:
        (1) censure;
        (2) imposition of probation for a determinate period;
        (3) suspension of the health care provider's license for a determinate period; or
        (4) revocation of the license.
    (b) Review of the health care provider's fitness to practice shall be conducted in accordance with IC 4-21.5.
    (c) The appropriate board of professional registration and examination shall report to the commissioner the board's findings, the action taken, and the final disposition of each case involving review of a health care provider's fitness to practice forwarded under this section.
As added by P.L.1-1998, SEC.13. Amended by P.L.111-1998, SEC.12.

 

IC 34-18-10  -   Chapter 10. Medical Review Panel

IC 34-18-10-1
    Sec. 1. This chapter provides for the establishment of medical review panels to review proposed malpractice complaints against health care providers covered by this article.
As added by P.L.1-1998, SEC.13.

IC 34-18-10-2
    Sec. 2. Not earlier than twenty (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.
As added by P.L.1-1998, SEC.13.

IC 34-18-10-3
    Sec. 3. (a) A medical review panel consists of one (1) attorney and three (3) health care providers.
    (b) The attorney member of the medical review panel shall act as chairman of the panel and in an advisory capacity but may not vote.
    (c) The chairman of the medical review panel shall expedite the selection of the other panel members, convene the panel, and expedite the panel's review of the proposed complaint. The chairman may establish a reasonable schedule for submission of evidence to the medical review panel but must allow sufficient time for the parties to make full and adequate presentation of related facts and authorities.
As added by P.L.1-1998, SEC.13.

IC 34-18-10-4
    Sec. 4. A medical review panel shall be selected in the following manner:
        (1) Within fifteen (15) days after the filing of a request for formation of a medical review panel under section 2 of this chapter, the parties shall select a panel chairman by agreement. If no agreement on a panel chairman can be reached, either party may request the clerk of the supreme court to draw at random a list of five (5) names of attorneys who:
            (A) are qualified to practice;
            (B) are presently on the rolls of the supreme court; and
            (C) maintain offices in the county of venue designated in the proposed complaint or in a contiguous county.
        (2) Before selecting the random list, the clerk shall collect a twenty-five dollar ($25) medical review panel selection fee from the party making the request for the formation of the random list.
        (3) The clerk shall notify the parties, and the parties shall then strike names alternately with the plaintiff striking first until one (1) name remains. The remaining attorney shall be the chairman of the panel.
        (4) After the striking, the plaintiff shall notify the chairman and all other parties of the name of the chairman.
        (5) If a party does not strike a name within five (5) days after receiving notice from the clerk:
            (A) the opposing party shall, in writing, request the clerk to strike for the party; and
            (B) the clerk shall strike for that party.
        (6) When one (1) name remains, the clerk shall within five (5) days notify the chairman and all other parties of the name of the chairman.
        (7) Within fifteen (15) days after being notified by the clerk of being selected as chairman, the chairman shall:
            (A) send a written acknowledgment of appointment to the clerk; or
            (B) show good cause for relief from serving as provided in section 12 of this chapter.
As added by P.L.1-1998, SEC.13.

IC 34-18-10-5
    Sec. 5. Except for health care providers who are health facility administrators, all health care providers in Indiana, whether in the teaching profession or otherwise, who hold a license to practice in their profession shall be available for selection as members of the medical review panel. Health facility administrators may not be members of the medical review panel.
As added by P.L.1-1998, SEC.13.

IC 34-18-10-6
    Sec. 6. Each party to the action has the right to select one (1) health care provider, and upon selection, the two (2) health care providers thus selected shall select the third panelist.
As added by P.L.1-1998, SEC.13.

IC 34-18-10-7
    Sec. 7. If there are multiple plaintiffs or defendants, only one (1) health care provider shall be selected per side. The plaintiff, whether single or multiple, has the right to select one (1) health care provider and the defendant, whether single or multiple, has the right to select one (1) health care provider.
As added by P.L.1-1998, SEC.13.

IC 34-18-10-8
    Sec. 8. If there is only one (1) party defendant who is an individual, two (2) of the panelists selected must be members of the profession identified in IC 34-18-2-14(1) of which the defendant is a member. If the individual defendant is a health care professional who specializes in a limited area, two (2) of the panelists selected must be health care professionals who specialize in the same area as the defendant.
As added by P.L.1-1998, SEC.13.

IC 34-18-10-9
    Sec. 9. Within fifteen (15) days after the chairman is selected, both parties shall select a health care provider and the parties shall notify the other party and the chairman of their selection. If a party fails to make a selection within the time provided, the chairman shall make the selection and notify both parties. Within fifteen (15) days after their selection, the health care provider members shall select the third member within the time provided and notify the chairman and the parties. If the providers fail to make a selection, the chairman shall make the selection and notify both parties.
As added by P.L.1-1998, SEC.13.

IC 34-18-10-10
    Sec. 10. Within ten (10) days after the selection of a panel member, written challenge without cause may be made to the panel member. Upon challenge or excuse, the party whose appointee was challenged or dismissed shall select another panelist. If the challenged or dismissed panel member was selected by the other two (2) panel members, the panel members shall make a new selection. If two (2) such challenges are made and submitted, the chairman shall within ten (10) days appoint a panel consisting of three (3) qualified panelists and each side shall, within ten (10) days after the appointment, strike one (1) panelist. The party whose appointment was challenged shall strike last, and the remaining member shall serve.
As added by P.L.1-1998, SEC.13.

IC 34-18-10-11
    Sec. 11. When a medical review panel is formed, the chairman shall within five (5) days notify the commissioner and the parties by registered or certified mail of the following:
        (1) The names and addresses of the panel members.
        (2) The date on which the last member was selected.
As added by P.L.1-1998, SEC.13.

IC 34-18-10-12
    Sec. 12. (a) A member of a medical review panel who is selected under this chapter shall serve unless:
        (1) the parties by agreement excuse the panelist; or
        (2) the panelist is excused as provided in this section for good cause shown.
    (b) To show good cause for relief from serving, the attorney selected as chairman of a medical review panel must serve an affidavit upon the clerk of the supreme court. The affidavit must set out the facts showing that service would constitute an unreasonable burden or undue hardship. The clerk may excuse the attorney from serving. The attorney shall notify all parties, who shall then select a new chairman as provided in section 4 of this chapter.
    (c) To show good cause for relief from serving, a health care provider member of a medical review panel must serve an affidavit upon the panel chairman. The affidavit must set out the facts showing that service would constitute an unreasonable burden or undue hardship. The chairman may excuse the member from serving and notify all parties.
As added by P.L.1-1998, SEC.13.

IC 34-18-10-13
    Sec. 13. (a) The panel shall give its expert opinion within one hundred eighty (180) days after the selection of the last member of the initial panel. However, if:
        (1) the chairman of the panel is removed under section 15 of this chapter, another member of the panel is removed under section 16 of this chapter, or any member of the panel, including the chairman, is removed by a court order; and
        (2) a new member is selected to replace the removed member more than ninety (90) days after the last member of the initial panel is selected;
the panel has ninety (90) days after the selection of the new member to give an expert opinion.
    (b) If the panel has not given an opinion within the time allowed under subsection (a), the panel shall submit a report to the commissioner, stating the reasons for the delay.
As added by P.L.1-1998, SEC.13.

IC 34-18-10-14
    Sec. 14. A party, attorney, or panelist who fails to act as required by this chapter without good cause shown is subject to mandate or appropriate sanctions upon application to the court designated in the proposed complaint as having jurisdiction.
As added by P.L.1-1998, SEC.13.

IC 34-18-10-15
    Sec. 15. (a) The commissioner may remove the chairman of the panel if the commissioner determines that the chairman is not fulfilling the duties imposed upon the chairman by this chapter.
    (b) If the chairman is removed under this section, a new chairman shall be selected under this chapter.
As added by P.L.1-1998, SEC.13.

IC 34-18-10-16
    Sec. 16. (a) The chairman may remove a member of the panel if the chairman determines that the member is not fulfilling the duties imposed upon the panel members by this chapter.
    (b) If a member is removed under this section, a new member shall be selected under this chapter.
As added by P.L.1-1998, SEC.13.

IC 34-18-10-17
    Sec. 17. (a) The evidence in written form to be considered by the medical review panel shall be promptly submitted by the respective parties.
    (b) The evidence may consist of medical charts, x-rays, lab tests, excerpts of treatises, depositions of witnesses including parties, and any other form of evidence allowable by the medical review panel.
    (c) Depositions of parties and witnesses may be taken before the convening of the panel.
    (d) The chairman shall ensure that before the panel gives its expert opinion under section 22 of this chapter, each panel member has the opportunity to review every item of evidence submitted by the parties.
    (e) Before considering any evidence or deliberating with other panel members, each member of the medical review panel shall take an oath in writing on a form provided by the panel chairman, which must read as follows:
        "I (swear) (affirm) under penalties of perjury that I will well and truly consider the evidence submitted by the parties; that I will render my opinion without bias, based upon the evidence submitted by the parties, and that I have not and will not communicate with any party or representative of a party before rendering my opinion, except as authorized by law.".
As added by P.L.1-1998, SEC.13.

IC 34-18-10-18
    Sec. 18. Neither a party, a party's agent, a party's attorney, nor a party's insurance carrier may communicate with any member of the panel, except as authorized by law, before the giving of the panel's expert opinion under section 22 of this chapter.
As added by P.L.1-1998, SEC.13.

IC 34-18-10-19
    Sec. 19. The chairman of the panel shall advise the panel relative to any legal question involved in the review proceeding and shall prepare the opinion of the panel as provided in section 22 of this chapter.
As added by P.L.1-1998, SEC.13.

IC 34-18-10-20
    Sec. 20. (a) Either party, after submission of all evidence and upon ten (10) days notice to the other side, has the right to convene the panel at a time and place agreeable to the members of the panel. Either party may question the panel concerning any matters relevant to issues to be decided by the panel before the issuance of the panel's report.
    (b) The chairman of the panel shall preside at all meetings. Meetings shall be informal.
As added by P.L.1-1998, SEC.13.

IC 34-18-10-21
    Sec. 21. (a) The panel has the right and duty to request all necessary information.
    (b) The panel may consult with medical authorities.
    (c) The panel may examine reports of other health care providers necessary to fully inform the panel regarding the issue to be decided.
    (d) Both parties shall have full access to any material submitted to the panel.
As added by P.L.1-1998, SEC.13.

IC 34-18-10-22
    Sec. 22. (a) The panel has the sole duty to express the panel's expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care as charged in the complaint.
    (b) After reviewing all evidence and after any examination of the panel by counsel representing either party, the panel shall, within thirty (30) days, give one (1) or more of the following expert opinions, which must be in writing and signed by the panelists:
        (1) The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint.
        (2) The evidence does not support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint.
        (3) There is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court or jury.
        (4) The conduct complained of was or was not a factor of the resultant damages. If so, whether the plaintiff suffered:
            (A) any disability and the extent and duration of the disability; and
            (B) any permanent impairment and the percentage of the impairment.
As added by P.L.1-1998, SEC.13.

IC 34-18-10-23
    Sec. 23. A report of the expert opinion reached by the medical review panel is admissible as evidence in any action subsequently brought by the claimant in a court of law. However, the expert opinion is not conclusive, and either party, at the party's cost, has the right to call any member of the medical review panel as a witness. If called, a witness shall appear and testify.
As added by P.L.1-1998, SEC.13.

IC 34-18-10-24
    Sec. 24. A panelist has absolute immunity from civil liability for all communications, findings, opinions, and conclusions made in the course and scope of duties prescribed by this article.
As added by P.L.1-1998, SEC.13.

IC 34-18-10-25a
    Note: This version of section effective until 1-1-99. See also following version of this section, effective 1-1-99.
    Sec. 25. (a) Each health care provider member of the medical review panel is entitled to be paid:
        (1) up to three hundred fifty dollars ($350) for all work performed as a member of the panel, exclusive of time involved if called as a witness to testify in court; and
        (2) reasonable travel expense.
    (b) The chairman of the panel is entitled to be paid:
        (1) at the rate of two hundred fifty dollars ($250) per diem, not to exceed one thousand two hundred fifty dollars ($1,250); and
        (2) reasonable travel expenses.
    (c) The chairman shall keep an accurate record of the time and expenses of all the members of the panel. The record shall be submitted to the parties for payment with the panel's report.
    (d) Fees of the panel, including travel expenses and other expenses of the review, shall be paid by the side in whose favor the majority opinion is written. If there is no majority opinion, each side shall pay one-half (1/2) of the cost.
As added by P.L.1-1998, SEC.13.
    Note: See also following version of this section, effective 1-1-99.

IC 34-18-10-25b
    Note: This version of section effective 1-1-99. See also preceding version of this section, effective until 1-1-99.
    Sec. 25. (a) Each health care provider member of the medical review panel is entitled to be paid:
        (1) up to three hundred fifty dollars ($350) for all work performed as a member of the panel, exclusive of time involved if called as a witness to testify in court; and
        (2) reasonable travel expense.
    (b) The chairman of the panel is entitled to be paid:
        (1) at the rate of two hundred fifty dollars ($250) per diem, not to exceed two thousand dollars ($2,000); and
        (2) reasonable travel expenses.
    (c) The chairman shall keep an accurate record of the time and expenses of all the members of the panel. The record shall be submitted to the parties for payment with the panel's report.
    (d) Fees of the panel, including travel expenses and other expenses of the review, shall be paid by the side in whose favor the majority opinion is written. If there is no majority opinion, each side shall pay fifty percent (50%) of the cost.
As added by P.L.1-1998, SEC.13. Amended by P.L.111-1998, SEC.13.
    Note: See also preceding version of this section, effective until 1-1- 99.

IC 34-18-10-26
    Sec. 26. The chairman shall submit a copy of the panel's report to:
        (1) the commissioner; and
        (2) all parties and attorneys;
by registered or certified mail within five (5) days after the panel gives its opinion.
As added by P.L.1-1998, SEC.13.

IC 34-18-11  -   Chapter 11. Preliminary Determination of Affirmative Defense or Issue of Law or Fact; Discovery

IC 34-18-11-1
    Sec. 1. (a) A court having jurisdiction over the subject matter and the parties to a proposed complaint filed with the commissioner under this article may, upon the filing of a copy of the proposed complaint and a written motion under this chapter, do one (1) or both of the following:
        (1) preliminarily determine an affirmative defense or issue of law or fact that may be preliminarily determined under the Indiana Rules of Procedure; or
        (2) compel discovery in accordance with the Indiana Rules of Procedure.
    (b) The court has no jurisdiction to rule preliminarily upon any affirmative defense or issue of law or fact reserved for written opinion by the medical review panel under IC 34-18-10-22(b)(1), IC 34-18-10-22(b)(2), and IC 34-18-10-22(b)(4).
    (c) The court has jurisdiction to entertain a motion filed under this chapter only during that time after a proposed complaint is filed with the commissioner under this article but before the medical review panel gives the panel's written opinion under IC 34-18-10-22.
    (d) The failure of any party to move for a preliminary determination or to compel discovery under this chapter before the medical review panel gives the panel's written opinion under IC 34-18-10-22 does not constitute the waiver of any affirmative defense or issue of law or fact.
As added by P.L.1-1998, SEC.13.

IC 34-18-11-2
    Sec. 2. (a) A party to a proceeding commenced under this article, the commissioner, or the chairman of a medical review panel, if any, may invoke the jurisdiction of the court by paying the statutory filing fee to the clerk and filing a copy of the proposed complaint and motion with the clerk.
    (b) The filing of a copy of the proposed complaint and motion with the clerk confers jurisdiction upon the court over the subject matter and the parties to the proceeding for the limited purposes stated in this chapter, including the taxation and assessment of costs or the allowance of expenses, including reasonable attorney's fees, or both.
    (c) The moving party or the moving party's attorney shall cause as many summonses as are necessary to be issued by the clerk and served on the commissioner, each nonmoving party to the proceedings, and the chairman of the medical review panel, if any, unless the commissioner or the chairman is the moving party, together with a copy of the proposed complaint and a copy of the motion under Rules 4 through 4.17 of the Indiana Rules of Trial Procedure.
As added by P.L.1-1998, SEC.13.

IC 34-18-11-3
    Sec. 3. (a) Each nonmoving party to the proceeding, including the commissioner and the chairman of the medical review panel, if any, shall have a period of twenty (20) days after service, or a period of twenty-three (23) days after service if service is by mail, to appear and file and serve a written response to the motion, unless the court, for cause shown, orders the period enlarged.
    (b) The court shall enter a ruling on the motion:
        (1) within thirty (30) days after the motion is heard; or
        (2) if no hearing is requested, granted or ordered, within thirty (30) days after the date on which the last written response to the motion is filed.
    (c) The court shall order the clerk to serve a copy of the court's ruling on the motion by ordinary mail on the commissioner, each party to the proceeding, and the chairman of the medical review panel, if any.
As added by P.L.1-1998, SEC.13.

IC 34-18-11-4
    Sec. 4. Upon the filing of a copy of the proposed complaint and motion with the clerk of the court, all further proceedings before the medical review panel shall be stayed automatically until the court has entered a ruling on the motion.
As added by P.L.1-1998, SEC.13.

IC 34-18-11-5
    Sec. 5. The court may enforce its ruling on any motion filed under this chapter in accordance with the Indiana Rules of Procedure, subject to the right of appeal.
As added by P.L.1-1998, SEC.13.

IC 34-18-12  -   Chapter 12. Liability Based on Breach of Contract; Informed Consent

IC 34-18-12-1
    Sec. 1. Liability may not be imposed on a health care provider on the basis of an alleged breach of contract, express or implied, assuring results to be obtained from any procedure undertaken in the course of health care, unless the contract is in writing and signed by that health care provider or by an authorized agent of the health care provider.
As added by P.L.1-1998, SEC.13.

IC 34-18-12-2
    Sec. 2. If a patient's written consent is:
        (1) signed by the patient or the patient's authorized representative;
        (2) witnessed by an individual at least eighteen (18) years of age; and
        (3) explained, orally or in the written consent, to the patient or the patient's authorized representative before a treatment, procedure, examination, or test is undertaken;
a rebuttable presumption is created that the consent is an informed consent.
As added by P.L.1-1998, SEC.13.

IC 34-18-12-3
    Sec. 3. The explanation given in accordance with section 2(3) of this chapter must include the following information:
        (1) The general nature of the patient's condition.
        (2) The proposed treatment, procedure, examination, or test.
        (3) The expected outcome of the treatment, procedure, examination, or test.
        (4) The material risks of the treatment, procedure, examination, or test.
        (5) The reasonable alternatives to the treatment, procedure, examination, or test.
As added by P.L.1-1998, SEC.13.

IC 34-18-12-4
    Sec. 4. This chapter does not relieve a qualified health care provider of the duty to obtain an informed consent.
As added by P.L.1-1998, SEC.13.

IC 34-18-12-5
    Sec. 5. This chapter does not prevent a patient, after having signed a consent, from withdrawing that consent.
As added by P.L.1-1998, SEC.13.

IC 34-18-12-6
    Sec. 6. This chapter does not require that a patient's consent or the information described under section 3 of this chapter be in writing in all cases.
As added by P.L.1-1998, SEC.13.

IC 34-18-12-7
    Sec. 7. Compliance with this chapter is not required to create an informed consent.
As added by P.L.1-1998, SEC.13.

IC 34-18-12-8
    Sec. 8. A patient may refuse to receive some or all of the information described in section 3 of this chapter.
As added by P.L.1-1998, SEC.13.

IC 34-18-12-9
    Sec. 9. Sections 2 and 3 of this chapter do not apply to a person who is mentally incapable of understanding the information required to be provided by section 3 of this chapter. This section does not require consent to health care in an emergency.
As added by P.L.1-1998, SEC.13.

IC 34-18-13  -   Chapter 13. Malpractice Coverage

IC 34-18-13-1
    Sec. 1. Only while malpractice liability insurance remains in force are the health care provider and the health care provider's insurer liable to a patient or the patient's representative for malpractice to the extent and in the manner specified in this article.
As added by P.L.1-1998, SEC.13.

IC 34-18-13-2
    Sec. 2. The filing of proof of financial responsibility with the commissioner constitutes, on the part of the insurer, a conclusive and unqualified acceptance of this article.
As added by P.L.1-1998, SEC.13.

IC 34-18-13-3
    Sec. 3. A provision in a policy attempting to limit or modify the liability of the insurer contrary to this article is void.
As added by P.L.1-1998, SEC.13.

IC 34-18-13-4
    Sec. 4. Every policy issued under this article (or IC 27-12 before its repeal) is considered to include the following provisions, and any change made by legislation adopted by the general assembly as fully as if the change were written in the policy:
        (1) The insurer assumes all obligations to pay an award imposed against its insured under this article (or IC 27-12 before its repeal).
        (2) A termination of this policy by cancellation initiated by the insurance company is not effective for patients claiming against the insured covered by the policy, unless at least thirty (30) days before the taking effect of the cancellation, a written notice giving the date upon which termination becomes effective has been received by the insured and the commissioner at their offices.
        (3) A termination of this policy by cancellation initiated by the insured is not effective for patients claiming against the insured covered by the policy, unless at least thirty (30) days before the taking effect of the cancellation, a written notice giving the date upon which termination becomes effective has been received by the commissioner at the commissioner's office.
As added by P.L.1-1998, SEC.13.

IC 34-18-13-5
    Sec. 5. If an insurer fails or refuses to pay a final judgment, except during the pendency of an appeal, or fails, or refuses to comply with this article, in addition to any other legal remedy, the commissioner may also revoke the approval of the insurer's policy form until the insurer pays the award or judgment or has complied with the violated provisions of this article and has resubmitted its policy form and received the approval of the commissioner.
As added by P.L.1-1998, SEC.13.

IC 34-18-14  -   Chapter 14. Limits on Damages

IC 34-18-14-1
    Sec. 1. As used in this chapter, "cost of the periodic payments agreement" means the amount expended by the health care provider (or its insurer), the commissioner, or the commissioner and the health care provider (or its insurer), at the time the periodic payments agreement is made, to obtain the commitment from a third party to make available money for use as future payment, the total of which may exceed the limits provided in section 3 of this chapter.
As added by P.L.1-1998, SEC.13.

IC 34-18-14-2
    Sec. 2. As used in this chapter, "periodic payments agreement" means a contract between a health care provider (or its insurer) and the patient (or the patient's estate), under which the health care provider is relieved from possible liability in consideration of:
        (1) a present payment of money to the patient (or the patient's estate); and
        (2) one (1) or more payments to the patient (or the patient's estate) in the future;
whether or not some or all of the payments are contingent upon the patient's survival to the proposed date of payment.
As added by P.L.1-1998, SEC.13.

IC 34-18-14-3a
    Note: This version of section effective until 7-1-99. See also following version of this section, effective 7-1-99.
    Sec. 3. (a) The total amount recoverable for an injury or death of a patient may not exceed five hundred thousand dollars ($500,000) except that, as to an act of malpractice that occurs on or after January 1, 1990, the total amount recovered for an injury or death may not exceed seven hundred fifty thousand dollars ($750,000).
    (b) A health care provider qualified under this article (or IC 27-12 before its repeal) is not liable for an amount in excess of one hundred thousand dollars ($100,000) for an occurrence of malpractice.
    (c) Any amount due from a judgment or settlement that is in excess of the total liability of all liable health care providers, subject to subsections (a), (b), and (d), shall be paid from the patient's compensation fund under IC 34-18-15.
    (d) If a health care provider qualified under this article (or IC 27-12 before its repeal) admits liability or is adjudicated liable solely by reason of the conduct of another health care provider who is an officer, agent, or employee of the health care provider acting in the course and scope of employment and qualified under this article (or IC 27-12 before its repeal), the total amount that shall be paid to the claimant on behalf of the officer, agent, or employee and the health care provider by the health care provider or its insurer is one hundred thousand dollars ($100,000). The balance of an adjudicated amount to which the claimant is entitled shall be paid by other liable health care providers or the patient's compensation fund, or both.
As added by P.L.1-1998, SEC.13.
    Note: See also following version of this section, effective 7-1-99.

IC 34-18-14-3b
    Note: This version of section effective 7-1-99. See also preceding version of this section, effective until 7-1-99.
    Sec. 3. (a) The total amount recoverable for an injury or death of a patient may not exceed the following:
        (1) Five hundred thousand dollars ($500,000) for an act of malpractice that occurs before January 1, 1990.
        (2) Seven hundred fifty thousand dollars ($750,000) for an act of malpractice that occurs:
            (A) after December 31, 1989; and
            (B) before July 1, 1999.
        (3) One million two hundred fifty thousand dollars ($1,250,000) for an act of malpractice that occurs after June 30, 1999.
    (b) A health care provider qualified under this article (or IC 27-12 before its repeal) is not liable for an amount in excess of two hundred fifty thousand dollars ($250,000) for an occurrence of malpractice.
    (c) Any amount due from a judgment or settlement that is in excess of the total liability of all liable health care providers, subject to subsections (a), (b), and (d), shall be paid from the patient's compensation fund under IC 34-18-15.
    (d) If a health care provider qualified under this article (or IC 27-12 before its repeal) admits liability or is adjudicated liable solely by reason of the conduct of another health care provider who is an officer, agent, or employee of the health care provider acting in the course and scope of employment and qualified under this article (or IC 27-12 before its repeal), the total amount that shall be paid to the claimant on behalf of the officer, agent, or employee and the health care provider by the health care provider or its insurer is two hundred fifty thousand dollars ($250,000). The balance of an adjudicated amount to which the claimant is entitled shall be paid by other liable health care providers or the patient's compensation fund, or both.
As added by P.L.1-1998, SEC.13. Amended by P.L.111-1998, SEC.14.
    Note: See also preceding version of this section, effective until 7-1- 99.

IC 34-18-14-4a
    Note: This version of section effective until 7-1-99. See also following version of this section, effective 7-1-99.
    Sec. 4. (a) If the possible liability of the health care provider to the patient is discharged solely through an immediate payment, the limitations on recovery from a health care provider stated in section 3(b) and 3(d) of this chapter apply without adjustment.
    (b) If the health care provider agrees to discharge its possible liability to the patient through a periodic payments agreement, the amount of the patient's recovery from a health care provider in a case under this subsection is the amount of any immediate payment made by the health care provider or the health care provider's insurer to the patient, plus the cost of the periodic payments agreement to the health care provider or the health care provider's insurer. For the purpose of determining the limitations on recovery stated in section 3(b) and 3(d) of this chapter and for the purpose of determining the question under IC 34-18-15-3 of whether the health care provider or the health care provider's insurer has agreed to settle its liability by payment of its policy limits, the sum of:
        (1) the present payment of money to the patient (or the patient's estate) by the health care provider (or the health care provider's insurer); plus
        (2) the cost of the periodic payments agreement expended by the health care provider (or the health care provider's insurer);
must exceed seventy-five thousand dollars ($75,000).
    (c) More than one (1) health care provider may contribute to the cost of a periodic payments agreement, and in such an instance the sum of the amounts expended by each health care provider for immediate payments and for the cost of the periodic payments agreement shall be used to determine whether the seventy-five thousand dollar ($75,000) requirement in subsection (b) has been satisfied. However, one (1) health care provider or its insurer must be liable for at least fifty thousand dollars ($50,000).
As added by P.L.1-1998, SEC.13.
    Note: See also following version of this section, effective 7-1-99.

IC 34-18-14-4b
    Note: This version of section effective 7-1-99. See also preceding version of this section, effective until 7-1-99.
    Sec. 4. (a) If the possible liability of the health care provider to the patient is discharged solely through an immediate payment, the limitations on recovery from a health care provider stated in section 3(b) and 3(d) of this chapter apply without adjustment.
    (b) If the health care provider agrees to discharge its possible liability to the patient through a periodic payments agreement, the amount of the patient's recovery from a health care provider in a case under this subsection is the amount of any immediate payment made by the health care provider or the health care provider's insurer to the patient, plus the cost of the periodic payments agreement to the health care provider or the health care provider's insurer. For the purpose of determining the limitations on recovery stated in section 3(b) and 3(d) of this chapter and for the purpose of determining the question under IC 34-18-15-3 of whether the health care provider or the health care provider's insurer has agreed to settle its liability by payment of its policy limits, the sum of:
        (1) the present payment of money to the patient (or the patient's estate) by the health care provider (or the health care provider's insurer); plus
        (2) the cost of the periodic payments agreement expended by the health care provider (or the health care provider's insurer);
must exceed one hundred eighty-seven thousand dollars ($187,000).
    (c) More than one (1) health care provider may contribute to the cost of a periodic payments agreement, and in such an instance the sum of the amounts expended by each health care provider for immediate payments and for the cost of the periodic payments agreement shall be used to determine whether the one hundred eighty-seven thousand dollar ($187,000) requirement in subsection (b) has been satisfied. However, one (1) health care provider or its insurer must be liable for at least fifty thousand dollars ($50,000).
As added by P.L.1-1998, SEC.13. Amended by P.L.111-1998, SEC.15.
    Note: See also preceding version of this section, effective until 7-1- 99.

IC 34-18-14-5
    Sec. 5. (a) If the possible liability of the fund to the patient is discharged solely through a direct payment made under IC 34-18-15-1, the limitations on recovery from the patient's compensation fund established under section 3 of this chapter apply without adjustment.
    (b) If an agreement is made to discharge the fund's possible liability to the patient through a periodic payments agreement, the amount of the patient's recovery from the fund is:
        (1) the amount of any immediate payment made directly to the patient from the fund; plus
        (2) the cost of the periodic payments agreement paid by the commissioner on behalf of the fund;
for the purposes of the limitations on recovery from the fund established under section 3 of this chapter.
As added by P.L.1-1998, SEC.13.

IC 34-18-15  -   Chapter 15. Payment from the Patient's Compensation Fund

IC 34-18-15-1
    Sec. 1. (a) The obligation to pay an amount from the patient's compensation fund under IC 34-18-14-3(c), IC 34-18-6-6, or section 3 of this chapter (or IC 27-12-14-3(c), IC 27-12-6-6, or IC 27-12-15-3 before their repeal) may be discharged as follows:
        (1) Payment in one (1) lump amount.
        (2) An agreement requiring periodic payments from the fund over a period of years.
        (3) The purchase of an annuity payable to the patient.
        (4) Any combination of subdivisions (1), (2), and (3).
    (b) The commissioner may contract with approved insurers to insure the ability of the fund to make periodic payments under subsection (a)(2).
As added by P.L.1-1998, SEC.13.

IC 34-18-15-2
    Sec. 2. Notwithstanding IC 34-18-6, the commissioner may:
        (1) discharge the possible liability of the patient's compensation fund to a patient through a periodic payments agreement (as defined in IC 34-18-14-2); and
        (2) combine money from the fund with money of the health care provider (or its insurer) to pay the cost of the periodic payments agreement with the patient (or the patient's estate). However, the amount provided by the commissioner may not exceed eighty percent (80%) of the total amount expended for the agreement.
As added by P.L.1-1998, SEC.13.

IC 34-18-15-3
    Sec. 3. If a health care provider or its insurer has agreed to settle its liability on a claim by payment of its policy limits of one hundred thousand dollars ($100,000), and the claimant is demanding an amount in excess of that amount, the following procedure must be followed:
        (1) A petition shall be filed by the claimant in the court named in the proposed complaint, or in the circuit or superior court of Marion County, at the claimant's election, seeking:
            (A) approval of an agreed settlement, if any; or
            (B) demanding payment of damages from the patient's compensation fund.
        (2) A copy of the petition with summons shall be served on the commissioner, the health care provider, and the health care provider's insurer, and must contain sufficient information to inform the other parties about the nature of the claim and the additional amount demanded.
        (3) The commissioner and either the health care provider or the insurer of the health care provider may agree to a settlement with the claimant from the patient's compensation fund, or the commissioner, the health care provider, or the insurer of the health care provider may file written objections to the payment of the amount demanded. The agreement or objections to the payment demanded shall be filed within twenty (20) days after service of summons with copy of the petition attached to the summons.
        (4) The judge of the court in which the petition is filed shall set the petition for approval or, if objections have been filed, for hearing, as soon as practicable. The court shall give notice of the hearing to the claimant, the health care provider, the insurer of the health care provider, and the commissioner.
        (5) At the hearing, the commissioner, the claimant, the health care provider, and the insurer of the health care provider may introduce relevant evidence to enable the court to determine whether or not the petition should be approved if the evidence is submitted on agreement without objections. If the commissioner, the health care provider, the insurer of the health care provider, and the claimant cannot agree on the amount, if any, to be paid out of the patient's compensation fund, the court shall, after hearing any relevant evidence on the issue of claimant's damage submitted by any of the parties described in this section, determine the amount of claimant's damages, if any, in excess of the one hundred thousand dollars ($100,000) already paid by the insurer of the health care provider. The court shall determine the amount for which the fund is liable and make a finding and judgment accordingly. In approving a settlement or determining the amount, if any, to be paid from the patient's compensation fund, the court shall con