Statutes of Limitations

Subject to an exception discussed below, a medical malpractice action must be brought within two years from the date of the alleged act, omission, or neglect. Ind. Code Ann. § 34-18-7-1 (West Supp. 1998). A minor under the age of six years has until his eighth birthday to file. Id. No other instance of minority or other legal disability tolls the medical malpractice statute of limitations. Id. Wrongful death actions arising out of medical malpractice are subject to the medical malpractice limitations period. Yarnell v. Hurley, 572 N.E.2d 1312, 1314 (Ind. Ct. App. 1991).

The Indiana Supreme Court recently resolved a conflict among lower court decisions as to the validity of the two-year statute. It held that the statute is constitutional on its face, but that it cannot be constitutionally applied in cases where the long latency period of a medical condition prevents the injured party from discovering the malpractice within two years. Martin v. Richey, 711 N.E.2d 1273, 1279 (Ind. 1999) (failure to diagnose breast cancer). When this exception applies, plaintiff may file within two years from the discovery of the malpractice and resulting injury, or from learning facts that, with reasonable diligence, should have led to such discovery. Van Dusen v. Stotts, No. 03S00-9711-CV-631, 1999 WL 463489 (Ind. July 8, 1999). See also Ledbetter v. Hunter, 652 N.E.2d 543 (Ind. Ct. App. 1995) (questioning the constitutionality of the statute as it applies to minors).

Contributory or Comparative Negligence

Most medical malpractice actions in Indiana are brought under the terms of the Medical Malpractice Act, which was formerly codified at Ind. Code Ann. §§ 27-12-1-1 to 27-12-18-2, but which was moved in 1998 to Ind. Code Ann. §§ 34-18-1-1 to 34-18-18-2 (West Supp. 1998). This act governs actions against "qualified providers," a term that is discussed below in Patient Compensation Funds and Physician Insurance and that refers to participants in the state-sponsored excess insurance program. Not all health care providers participate, however. It is therefore important to distinguish, in this section and others, between laws that apply to cases brought under the Medical Malpractice Act and those that apply in other cases.

In cases brought under the Medical Malpractice Act, contributory negligence is held to be a complete defense that bars any recovery by plaintiff. King v. Clark, 709 N.E.2d 1043, 1046 (Ind. Ct. App. 1999); Smith v. Hull, 659 N.E.2d 185, 191 (Ind. Ct. App. 1995). A patient has a duty to exercise reasonable care, which includes providing his doctor with accurate and complete information and following the doctor's instructions. Smith, 659 N.E.2d at 191.

In other cases, the Comparative Fault Act provides for a modified form of comparative negligence. Recovery is barred if the claimant's fault exceeds 50 percent of the total fault. Ind. Code Ann. §§ 34-51-2-5 to 34-51-2-8 (West Supp. 1998). However, the Comparative Fault Act does not apply to medical malpractice claims against qualified providers or to tort claims against governmental entities or public employees. Ind. Code Ann. §§ 34-51-2-1 and 34-51-2-2 (West Supp. 1998).

Joint and Several Liability

Prior to the adoption of the Comparative Fault Act, it was the rule in Indiana that defendants who engaged in separate and independent acts of negligence that combined to cause a single injury were jointly and severally liable. Sanders v. Cole Municipal Finance, 489 N.E.2d 117 (Ind. Ct. App. 1986). It appears that this rule continues to apply to those persons and entities not covered under the Comparative Fault Act, including qualified providers sued under the Medical Malpractice Act. See Smith v. Pancner, 679 N.E.2d 893 (Ind. 1997).

In cases covered by the Comparative Fault Act, the trier of fact allocates liability on the basis of individual fault and a several judgment is granted against each defendant. Ind. Code Ann. § 34-51-2-8 (West Supp. 1998).

Contribution

Both the common law of Indiana and the Comparative Fault Act prohibit contribution among joint tortfeasors. Mullen v. Cogdell, 643 N.E.2d 390, 400 (Ind. Ct. App. 1994); Ind. Code Ann. § 34-51-2-12 (West Supp. 1998).

Vicarious Liability

The Indiana Supreme Court recently adopted an interpretation of Restatement (Second) of Torts § 429 to hold that a hospital may be liable, under the theory of apparent or ostensible agency, for the negligence of a physician acknowledged to be an independent contractor. The court focused on the reasonableness of the patient's belief that hospital employees were rendering care. It held that a hospital will be deemed to have held itself out as the provider of care and the patient to have relied on this representation unless the hospital gives notice that the physician is an independent contractor, generally by providing written notice at the time of admission, or the patient has some special knowledge of the physician's independence, as through a relationship pre-dating the hospital treatment. Sword v. NKC Hospitals, Inc., No. 10S05-9610-CV-637, 1999 WL 512010 (Ind. June 25, 1999). In addition, cases prior to the adoption of the apparent agency theory held that if a hospital is aware that the care a physician is providing has deviated from normal practice, its personnel must either question the physician's orders or inform the proper authorities. Yaney v. McCray Memorial Hospital, 496 N.E.2d 135, 137 (Ind. Ct. App. 1986).

If a qualified provider is found liable solely due to the negligence of an agent or employee who is also a qualified provider, its liability for itself and the agent or employee is limited to one damage cap amount ($100,000 for acts prior to July 1, 1999, $250,000 thereafter), not two. Ind. Code Ann. § 34-18-14-3(d) (West Supp. 1998).

Expert Testimony

Expert testimony is necessary to establish what the standard of care is and whether the defendant has conformed to it, unless the issue of care is one commonly understood by lay persons. Culbertson v. Mernitz, 602 N.E.2d 98, 104 (Ind. 1992); Stumph v. Foster, 524 N.E.2d 812, 815 (Ind. Ct. App. 1988) (expert not needed when chiropractor broke the patient's rib). Under the Medical Malpractice Act, cases are ordinarily heard before trial by a medical review panel that includes qualified physicians, and the opinion of one of the members of such a panel (even a dissenting member) is sufficient to make a prima facie case. Bonnes v. Feldner, 642 N.E.2d 217, 221 (1994). The panel's report is admissible but not conclusive at trial, and any member can be required to testify as an expert at trial. Ind. Code Ann. § 34-18-10-23 (West Supp. 1998). A plaintiff, therefore, may be able to get his case to the jury without a retained expert.

Damage Caps

The caps on recoveries in medical malpractice claims against qualified providers have increased substantially under new legislation scheduled to take effect in cases arising out of acts of malpractice that occur on or after July 1, 1999. For claims accruing prior to January 1, 1990, the amount recoverable against a single qualified provider may not exceed $100,000, and the total amount recoverable against all qualified providers and the Patient Compensation Fund may not exceed $500,000. Ind. Code Ann. § 34-18-14-3 (West Supp. 1998). As of January 1, 1990, the maximum recoverable from all qualified providers and the Fund was increased to $750,000. Id. For claims accruing on or after July 1, 1999, the limit for each qualified provider is $250,000, and the total cap on damages against all qualified providers and the Fund is $1,250,000. Id. See discussion in Patient Compensation Funds and Physician Insurance. The original version of the cap was held to be constitutional in Johnson v. St. Vincent Hospital, 273 Ind. 374, 394-401, 404 N.E.2d 585, 598-602 (1980).

The Medical Malpractice Act authorizes only one recovery in those cases where a single injury exists, even when multiple acts of malpractice caused the injury. However, if there are two separate and distinct injuries caused by two separate occurrences of malpractice, the statute does not preclude two separate recoveries. Miller v. Memorial Hospital, 679 N.E.2d 1329, 1332 (Ind. 1997). There is no damage cap in cases not brought against qualified providers.

Statutory Cap on Attorneys' Fees

A claimant's attorney may not receive more than fifteen percent of any award from the Patient Compensation Fund. Ind. Code Ann. § 34-18-18-1 (West Supp. 1998). There is no cap on attorneys' fees in cases not brought against qualified providers.

Periodic Payments

The Medical Malpractice Act allows for, but does not require, the periodic payment of a medical malpractice judgment. Ind. Code Ann. § 34-18-15-1 (West Supp. 1998).

Collateral Source Rule

In personal injury or wrongful death cases, proof is admissible of all collateral source payments except the following: (a) payments of life insurance or other death benefits, (b) insurance benefits for which the claimant or his family paid directly, and (c) payments made by Indiana or the United States prior to trial to compensate the claimant for his loss. Ind. Code Ann. § 34-44-1-2 (West Supp. 1998). The claimant may introduce evidence of any repayment of collateral source benefits he is required to make, and the claimant may offer proof of the cost to the claimant or his family of collateral benefits. Id.

Pre-Judgment Interest

Indiana law provides for pre-judgment interest in most tort actions. Ind. Code Ann. § 34-51-4-7 (West Supp. 1998). The court must set the rate at not less than six percent and not more than ten percent simple interest. Ind. Code Ann. § 34-51-4-9 (West Supp. 1998). Such interest cannot be awarded for claims against the Patient Compensation Fund or the state and its political subdivisions. Ind. Code Ann. §§ 34-51-4-2 and 34-51-4-4 (West Supp. 1998).

The period during which pre-judgment interest accrues may not exceed 48 months. It begins on the latest of (a) fifteen months after the cause of action accrued; (b) six months after the suit is filed, if the action need not be submitted to a medical review panel; or (c) 180 days after a medical review panel is formed to review the claim. Ind. Code Ann. § 34-51-4-8 (West Supp. 1998). Pre-judgment interest may not be awarded if, within one year after the suit is filed, (a) defendant makes an offer equal to at least two thirds of the judgment, or (b) plaintiff fails to make a demand that exceeds the judgment by no more than one third. Ind. Code Ann. §§ 34-51-4-5 and 34-51-4-6 (West Supp. 1998).

Patient Compensation Funds and Physician Insurance

The Indiana Medical Malpractice Act establishes a Patient Compensation Fund that functions as a system of excess insurance for health care providers. To become a "qualified provider," entitled to the benefits of the Act, a health care provider must file proof of financial responsibility and pay the surcharge assessed by the Commissioner of Insurance to support the Fund. Ind. Code Ann. §§ 34-18-2-24.5 and 34-18-3-2 (West Supp. 1998). A qualified provider establishes financial responsibility by purchasing malpractice liability insurance. Effective July 1, 1999, required limits for physicians are $250,000 per occurrence and $750,000 in the annual aggregate, while required limits for hospitals are $250,000 per occurrence and $5,000,000 in the annual aggregate, if the hospital has not more than one hundred beds, or $7,500,000 in the annual aggregate, if the hospital has more than one hundred beds. (Other aggregate limits are prescribed for other health care entities.) Ind. Code Ann. § 34-18-4-1 (West Supp. 1998). The limits required as of July 1, 1999, are two and one-half times the previous limits. Hospitals may qualify with a self-insurance plan at the discretion of the Commissioner. Id.

The maximum liability of a qualified provider for an occurrence is limited to the amount of required insurance. The Patient Compensation Fund is liable for the excess over what is owed by all the qualified providers, up to an overall damage cap. See discussion in Damage Caps for specific amounts, which have changed over time. Id. The Fund also covers amounts in excess of the required aggregates and amounts owed by insurers that fail to pay. Ind. Code Ann. §§ 34-18-6-6 and 34-18-15-4 (West Supp. 1998).

The Medical Malpractice Act was held to be constitutional in Johnson v. St. Vincent Hospital, 273 Ind. 374, 404 N.E.2d 585 (1980).

Immunities

By statute, Indiana provides sovereign immunity in specific cases to governmental entities and their employees acting within the scope of their employment. A governmental entity includes the state, counties, separate municipal corporations, state colleges and universities, and city or county hospitals. Ind. Code Ann. §§ 34-6-2-49 and 34-6-2-110 (West Supp. 1998). Of nineteen listed actions or conditions that do not create liability for a governmental entity or its employees, the following three might be relevant in medical malpractice actions: (a) the performance of a discretionary function; (b) the act or omission of someone other than a governmental entity employee (i.e., an independent contractor); and (c) injury to the person or property of a person under the supervision of a governmental entity who is on probation or has been assigned to an alcohol and drug services program. Ind. Code Ann. § 34-13-3-3 (West Supp. 1998).

Claims against units of government are barred unless notice is filed with the Attorney General or state agency within 270 days of the loss, in the case of the state, or with the political subdivision within 180 days, in the case of political subdivisions. Ind. Code Ann. §§ 34-13-3-6 and 34-13-3-8 (West Supp. 1998). The maximum combined liability of all governmental entities and all public employees acting within the scope of their employment for an injury or death arising out of a single occurrence is $300,000 per person and $5 million for all persons. Ind. Code Ann. § 34-13-3-4 (West Supp. 1998).

If a government entity or government employee qualifies under the Medical Malpractice Act, by the means discussed in Patient Compensation Funds and Physician Insurance, then all actions against that entity or person are covered by the provisions of the act. Ind. Code Ann. § 34-18-3-4 (West Supp. 1998).

Arbitration

All claims for more than $15,000 against qualified providers under the Indiana Medical Malpractice Act must be heard by a medical review panel (unless each party executes a written waiver). Ind. Code Ann. § 34-18-8-4 to 34-18-8-6 (West Supp. 1998). A medical review panel consists of one lawyer and three health care providers. Ind. Code Ann. § 34-18-10-3 (West Supp. 1998).

It is the duty of the health care providers on the panel to express an expert opinion as to whether the evidence supports the conclusion that the defendant(s) acted or failed to act within the appropriate standards of care and, if so, whether that was a factor in the injury. Ind. Code Ann. § 34-18-10-22 (West Supp. 1998). The opinion issued by the panel is admissible as evidence in any subsequent action, but it is not conclusive. Ind. Code Ann. § 34-18-10-23 (West Supp. 1998).