Filing Medical Malpractice Claims
In Indiana

NOTE:  Beginning July 1, 1998, the Medical Malpractice Act will no longer be found under Indiana Code 27-12.  From that date forward the statute may be found under Indiana Code 34-18 et seq.

The following is a basic outline of statutory requirements and other suggested procedures for the filing and processing of medical malpractice claims against qualified health care providers in Indiana. This outline is intended to be used as a general guide and does not summarize, or include reference to, all sections of the Indiana Medical Malpractice Act. The reader is urged to review the Medical Malpractice Act.

The source of this document is the Indiana Department of Insurance.

1. Filing Proposed Complaint-Statute of Limitations

   A copy of the proposed complaint must be filed with the Commissioner of Insurance (hereafter referred to as Commissioner). A proposed complaint is considered filed when a copy of the proposed complaint is delivered or mailed by registered or certified mail to the Commissioner with the required filing fee. 27-12-9-1).

   A filing fee of five dollars ($5.00) and a processing fee of two dollars ($2.00) for each additional defendant must accompany all Proposed Complaints and Amended Proposed Complaints. Please make check or money order made payable to the Indiana Department of Insurance.

   While not required by the Act, it is requested that plaintiff, at the time of filing a proposed complaint, provide the Commissioner with a sufficient number of copies of the complaint, an original plus four copies per each defendant named. Also needed is a self-addressed, stamped envelope back to the person or law firm filing the proposed or amended complaint for return of copies.

   No claim may be brought unless filed within two (2) years from the date of the alleged malpractice except that a minor under the age of six (6) years has until his eighth birthday in which to file. This statute of limitation applies to all persons regardless of minority or other legal disability.  (I.C. 27-12-7-1)

   Filing of a proposed complaint tolls the applicable statute of limitations to and including a period of ninety (90) days following receipt of the opinion of the medical review panel by the claimant. (I.C. 27-12-7-3)

   Only those health care providers who have qualified under the provisions of the Act are protected by its provisions.

    Beginning July 1, 1999, under certain statutory qualifications, 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.
    

2. Comments as to Specifics of Proposed Complaint

   No dollar amount shall be included in the demand in any malpractice complaint; the prayer or demand shall be for such damages as are reasonable. (I.C. 27-12-8-3)

   Full names, middle initials, and suffixes of defendants must be in the defendant captions.

   The date of the alleged occurrence of malpractice should always be set forth in the complaint to allow the Commissioner to determine if the defendant was qualified under the Act at the time of the occurrence. A county of venue should also be designated in the proposed complaint.

3. Commissioner Serves Defendants with Notice

   The Commissioner, within ten (10) days after receipt of the proposed complaint, forwards by registered or certified mail a copy to each health care provider named as a defendantI.C. 27-12-9-1). A copy of the proposed complaint is also forwarded by the Commissioner to each of the insurers of each defendant. A filed-stamped copy of the proposed complaint, along with copies of the cover letters sent to the defendant(s) and insurer(s) will be returned to the plaintiff or plaintiff's attorney.

4. Requesting Formation of a Medical Review Panel

   Not earlier than twenty (20) days after filing 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. (I.C. 27-12-10-2)

5. Selecting the Medical Review Panel

   A. Composition of the medical review panel

   The medical review panel (hereafter referred to as panel) shall consist of one (1) attorney three(3) health care providers. The attorney shall act as chairman of the panel and in an advisory capacity but shall have no vote. (I.C. 27-12-10-3)
    

   B. Selection of the review panel

   Within fifteen (15) days after filing the request formation of a panel, the parties shall select a panel chairman by agreement, or if no agreement 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 qualified to practice and presently on the rolls of the Supreme Court and maintaining offices in the county of venue designated in the proposed complaint or in the contiguous county. Prior to 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. On your request to the clerk, please include names, addresses, and parties represented by the attorneys of record and provide complete caption of the case. The clerk shall notify the plaintiff striking first, until one (1) name remains and that remaining attorney shall be the chairman of the panel. (I.C. 27-12-10-4)
    

   C. Notification of Selection of Panel Chairman

   After striking , the plaintiff shall notify the chairman and all other parties of the name of the chairman. (I.C. 27-12-10-4)
    

   D. Selection of Health Care Providers

   Within fifteen (15) days after the chairman is selected both parties select a health care provider and notify the other party and the chairman of their selection. If a party fails to make a selection within the time provided, the chairman makes the selection and notifies both parties. Within fifteen (15) days after their selection, the two(2) health care provider members select the third member and notify the chairman and the parties. If they fail to make a selection, the chairman shall make the selection and notify both parties. (I.C. 27-12-10-9)
    

   E. Challenge to Selection of Panel Member

   Within ten (10) days after any selection, written challenge without cause may be made to the panel member. Upon challenge or excuse the party whose appointee was challenged or dismissed selects another panelist. If the challenged or dismissed panel member was selected by the other two (2) panel members, they make a new selection. (I.C. 27-12-10-10)
    

   F. Notification of Completion of Panel Selection

   When all members of the panel have been selected, the chairman shall within five (5) days notify the Commissioner and the parties by registered or certified mail of the names and addresses of the panel members and the date on which the last member was selected. (I.C. 27-12-10-11)

6. Form of Evidence Submitted to the Panel

   The Act provides for submission of evidence to the panel in written form only. The evidence may consist of medical charts, x-rays, lab tests, excerpts of treatises, deposition of witnesses including parties, and any other form of evidence allowable by the medical review panel. (I.C. 27-12-10-17)

7. Right to Convene the Panel

   After submission of all evidence to the panel, either party, upon ten (10) days notice to the other party, has the right to convene the panel at a time and place agreeable to the panel. When the panel meets, either party may question the members regarding matters relevant to the issues to be decided by the panel. The chairman presides at the meeting and the meeting is to be informal. (I.C. 27-12-10-20)

8. Panel Opinion-Time Limit and Reporting

   The panel has the sole duty to render an opinion as to whether or not the evidence supports the conclusion that the defendant(s) acted or failed to act within the appropriate standard of care. (I.C.27-12-10-22). The panel shall render its expert opinion within one hundred eighty (180) days of selection of the last member. The opinion shall be in writing, signed by the panelists and shall set forth one or more of the opinions set forth in (I.C. 27-12-10-22).

9. Compensation and Fees of Panel Members

   Each health care provider member of the panel shall be paid up to three hundred fifty ($350) dollars, plus reasonable travel expenses. The chairman receives two hundred fifty ($250) dollars per diem, not to exceed one thousand two hundred fifty ($1250) dollars, plus reasonable travel expenses.

   The chairman shall keep an accurate record of time and expenses said record to be presented to the parties for payment with the report of the panel.

   The fees and expenses set forth above shall be paid by the side in whose favor majority opinion is written. If there is no majority opinion, then each side shall pay one-half (1/2). (I.C. 27-12-10-25)

10. Preliminary Determination-Compelling Discovery

    Any party to a proposed complaint (or the Commissioner or medical review panel chairman) may by motion invoke the jurisdiction of a proper court to:

    (1) preliminary determine any affirmative defense or issue of law of fact that may be preliminary determined under Indiana Rules of Procedure; or (2) compel discover in accordance with Indiana Rules of Procedure; or (3) both. A court may entertain such a motion during that period of time after a proposed complaint is filed but before the medical review panel renders its opinion. Initiation of such a motion stays all further proceedings before the medical review panel (if one has been formed) until the court has entered a ruling on the motion. (I.C. 27-12-11-1).

    The Commissioner has no authority under the Act to rule on motions or to compel discovery.

11. Reporting of Settled or Adjudicated Claims

    All malpractice claims settled or adjudicate, with or without panel review, 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 his insurer or risk manager within sixty (60) days following final disposition. The report shall state:

    a) Nature of claim
    b) Damages asserted and alleged injury
    c) Attorneys fees and expenses
    d) The amount of any settlement or judgment
    (I.C. 27-12-9-3)

    It is urged that claims considered closed or disposed of by the parties for any other reason (dismissed, withdrawn, dropped, etc.) be reported immediately to the Commissioner so that his file can be closed as well.

    If action has not been taken in a case before the Department of Insurance for a period of two (2) years, the Commissioner, on the motion of a party, or by own initiative, may file a motion in Marion Circuit Court to dismiss the case under Rule 41 (E) of Indiana Rules of Trial Procedures.
     

12. Additional information

    The following professional licensing boards function administratively under the Health Professions Services Bureau:

     

    Board of Chiropractic Examiners  Board of Dental Examiners  Medical Licensing Board (physicians, podiatrists, and physical therapists)  Board of Nurse's Registration  Board of Examiners in Psychology  The Health Professions Bureau is located at:  402 W. Washington St.  Rm.#041  Indianapolis, IN 46204

     

 Any attorney or party desiring assistance in learning of potential panel member's names for various specialties may gain assistance by contacting the appropriate association.

 

Indiana Dental Association  1 Virginia Avenue  Indianapolis, IN 46204  (317) 634-2610  Indiana State Medical Association  322 Canal Walk  Indianapolis, IN 46202-3252  (317) 261-2060 or (800) 969-7545  Indiana Hospital Association  One American Square  P.O. Box 82063  Indianapolis, IN 46282  (317) 633-4870  Indiana State Nurses Association  2915 North High School Rd.  Indianapolis, IN. 46224  (317) 299-4575