Indiana Medical Malpractice Laws

I. Indiana Medical Malpractice Act of 1975

Introduction

In 1975, Indiana was the first state in the nation to enact comprehensive medical malpractice reform when it passed the Indiana Medical Malpractice Act of 1975.  The purpose of the legislation was to address the purported medical malpractice crisis at the time of its passage, i.e., healthcare providers’ fear of exposure to malpractice claims, shrinking number of medical malpractice insurance carriers operating in the state, and the escalating cost of malpractice insurance coverage.  Johnson v. St. Vincent Hospital, Inc., 404 N.E.2d 585, 590 (Ind. 1980).  The Legislature concluded that “these conditions implicated the vital interests of the community in the availability of the professional services of physicians and other health care providers.”  Id.  In response, the Legislature passed the Act “in an effort to preserve those services and thereby protect the public health and well being of the community.”  Id.

Significance of Being Qualified Under the Act

The provisions of the Indiana Medical Malpractice Act are currently codified in Indiana Code (“IC”) Title 34, Chapter18, which governs medical malpractice actions against healthcare providers who qualify for coverage under the Act.For purposes of determining whether a healthcare provider is subject to the provisions of the Act, the term ‘qualified’ does not refer to professional credentials or otherwise being deemed competent to furnish professional medical treatment.  Rather, whether a healthcare provider is “qualified” for purposes of applicability of the Act is dictated by the provider’s participation in the Indiana Patient’s Compensation Fund (see Section XIIof this article).

Basically, if the healthcare provider participates in the Fund, then the provider and any medical malpractice actions against him, her, or it, as the case may be, are subject to the provisions of the Act. The Indiana Supreme Court noted that the Act “set up a system under which health care providers meeting qualifications set forth in the act … would enjoy certain benefits, including a limitation on liability.”  In re Stephens, 867 N.E.2d 148, 150 (Ind. 2007).  In doing so, the Supreme Court acknowledged that “various provisions of the Act modified the ‘nature and extent’ of the ‘common law legal duty’ as it previously existed ‘between a health care provider and patient.’”  Poehlman v. Feferman, 717 N.E.2d 578, 582 (Ind. 1999) (quoting Johnson v. St. Vincent Hospital, Inc., 404 N.E.2d 585, 594 (Ind. 1980)).

The Indiana Court of Appeals added: “The Indiana Medical Malpractice Act is in derogation of the common law.  As such, it must be strictly construed against limitations on a claimant’s right to bring suit.” McKeen v. Turner, N.E.3d 1251, 1256 (Ind. Ct. App. 2016) (internal citation omitted).

Participation in the Fund by healthcare providers is voluntary and requires payment of an enrollment surcharge (conceptually like a premium paid to a private insurance carrier) to the Fund.  IC §34-18-3-2.  Participating providers are generally required to carry a specified minimum amount of primary medical malpractice insurance.  Id.  If a healthcare provider elects not to participate in the Fund or otherwise fails to qualify as a participant, the provider is not covered by the provisions (in reality, protections) of IC Title 34, Article 18, i.e., the Indiana Medical Malpractice Act, and “is subject to liability under the law without regard to” the Act.  IC §34-18-3-1.  In addition, if a healthcare provider does not participate in or qualify for the Fund, “the patient’s remedy is not affected by” the Act.  Id.

There are enormous benefits and protections for healthcare providers who participate in the Fund and thereby are covered by the Act.  The Indiana Supreme Court discussed a few of the many significant advantages of being subject to the Act as a healthcare provider in the 2006 case Schriber v. Anonymous, 848 N.E.2d 1061, 1063-1064 (Ind. 2006).  The Court observed:

Disqualifying a qualified healthcare provider from the provisions of the Medical Malpractice Act imposes drastic consequences. Most significant among these is the exposure to unlimited liability, instead of the Act’s $250,000[1]limitation on a provider’s portion of any resulting liability, with any additional damages up to a total of $1,250,000 recoverable from the patient’s compensation fund established by the Act.Ind.Code § 34-18-14-3. A provider qualified under the Act would likely maintain liability insurance only for its exposure to the $250,000 maximum statutory recovery and would remain uninsured for further and unlimited liability that could result if the provider were deprived of the protection of the Act. In addition, the Act provides favorable treatment to qualified healthcare providers by its preliminary medical review panel mechanism and by its retention of the common law defense of contributory negligence rather than statutory comparative fault. Ind.Code §§ 34-18-8-4, 34-51-2-1.

The various procedures and requirements under the Act all greatly benefit defendant healthcare providers vis-à-vis plaintiffs in the commencement and prosecution of a medical malpractice action.  As such, most medical malpractice defendants, and by extension actions, are subject to the provisions of the Act.  Accordingly, the primary focus of this article is on medical malpractice actions that are governed by the Act, and unless explicitly indicated otherwise, the discussions that follow pertain to Indiana medical malpractice law under the Act.

2016 Updates to the Act

On March 24, 2016, then Governor Mike Pence signed into law Senate Enrolled Act No. 28, which provides for several significant changes to the Medical Malpractice Act.  The effective date for the newly enacted provisions is July 1, 2017.  Two especially noteworthy changes made by Act No. 28 (both of which are discussed in Sections IX and X of this article) are:

• Damage Cap Increase—the cap on all damages in medical malpractice cases will increase from $1.25 million to $1.65 million for an act of malpractice that occurs after June 30, 2017 but before July 1, 2019. Acts after June 30, 2019 will be subject to a $1.8 million damage cap.

• Attorney Fee Cap Increase—the cap on contingent attorney fees is increased from 15% to 32% of any recovery.

[1] References to specific figures in the decision are to the Act’s provisions prior to the 2016 updates made via Senate Enrolled Act No. 28.

II. Overview of Basic Principles and Concepts

What is Medical Malpractice in Indiana?

Medical malpractice is a specific type of professional negligence by a healthcare provider.  In the medical malpractice context, negligence means that the healthcare provider’s actions deviated from or fell below the applicable accepted standards of medical practice.  When that negligence results in the patient sustaining injury, becoming ill, or illness worsening, then medical malpractice may have occurred.

Under the Indiana Medical Malpractice Act, medical 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.”  IC §34-18-2-18.  The term ‘health care provider’ is defined very broadly under the statute to include, but not limited to:an individual, a partnership, a limited liability company, a corporation, a professional corporation, a facility, or an institution licensed or legally authorized by Indiana to provide healthcare or professional services as a physician, nurse, dentist, optometrist, podiatrist, chiropractor, physician assistant, psychologist, paramedic, hospital, health facility, or emergency ambulance service.  IC §34-18-2-14.Virtually every type of practitioner who renders any form of medical treatment and thereby potentially subject to a medical malpractice claim is included in the definition.  Refer to the statute for the complete list of occupations and entities included within the definition.

Required Elements of a Medical Malpractice Claim in Indiana

Introduction

It is important to understand that not all mistakes made (instances of negligence) by healthcare providers constitute compensable medical malpractice under Indiana law.  Similarly, not all injuries following medical treatment amount to medical malpractice entitling the injured patient to compensation.  Some degree of risk is inherent in most medical procedures.  The law does not require healthcare providers to guarantee that no harm or unfavorable consequence will arise from treatment.  The law simply requires that healthcare providers meet the legally required standard of care while rendering medical treatment.  While negligence and subsequent injury are necessary factors for a legally valid medical malpractice claim, their mere presence alone is not sufficient for a compensable claim.

Indiana medical malpractice law requires the injured patient to also prove causation between the negligence and the subsequent injury.  The negligence must be the actual cause in fact as well as the proximate (legal) cause of the patient’s injury.  The law does not hold a healthcare provider who was negligent legally responsible for any and all injuries sustained by a patient simply because they happen to occur or manifest themselves after the negligent behavior.  That is, the negligent act must have been the actual cause of the injury, not simply precede it in time, for a viable medical malpractice claim.

The Three Basic Elements

Under Indiana law, there are three basic elements of a compensable medical malpractice claim that must all be proven by the plaintiff.  Mayhue v. Sparkman, 653 N.E.2d 1384, 1386 (Ind. 1995).

1. Duty—the healthcare provider owed a duty to the plaintiff;

2. Breach—the healthcare provider’s actions breached that duty; and

3. Causation—the healthcare provider’s breach proximately caused the plaintiff’s injuries.

According to the Indiana Supreme Court, “[t]here are three questions of law to be decided by the trial court concerning these elements before it may submit the case to the jury.”  Miller v. Griesel, 308 N.E.2d 701, 706 (Ind. 1974).  The first question is whether the law recognizes any obligation on the part of the defendant to conform his or her conduct to a certain standard for the benefit of the plaintiff, i.e., duty.  Id.  The next question concerns what standard of care should the court impose on the relationship once a duty is recognized.  Id.Finally, the trial court must decide whether the evidence introduced by the plaintiff is sufficient as a matter of law to enable a jury to conclude that he or she established the elements of the cause of action.  Id.

Duty

The Indiana Supreme Court noted that a negligence action requires judicial determination of the existence of a duty on the part of the defendant in relation to the plaintiff.  Gariup Construction Company, Inc. v. Foster, 519 N.E.2d 1224, 1227 (Ind. 1988).  The legal duty to exercise due care for the safety of the plaintiff arises as a matter of law from some relationship between the parties.  Id.Whether the defendant has a legal duty to the plaintiff is a question of law.  Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991).  The Supreme Court established the following three-factor test for determining whether a legal duty exists between the defendant and plaintiff: (1) the relationship between the parties, (2) the reasonable foreseeability of harm to the person injured, and (3) public policy concerns.  Id.  Whenever a court is called upon to decide whether a legal duty exists, it must analyze each of these three factors.

As to the first factor, the duty of a doctor to his or her patient flows from the special consensual relationship between them.  Id.  The duty has been defined “as an implied contract that the physician possesses the ordinary knowledge and skill of his profession and will utilize such attributes in a reasonable, diligent, and careful manner in undertaking the care and treatment of his patient.”  Id.For a valid medical malpractice claim, there must be some contractual or special relationship between the healthcare provider and the plaintiff.

Next, as to the foreseeability factor, the Supreme Court advised that “we focus on whether the person actually harmed was a foreseeable victim and whether the type of harm actually inflicted was reasonably foreseeable.”  Id. at 997.  The Court reminded that the duty of care is not owed to the entire world, but rather to those who might reasonably be foreseen as subject to injury by the breach of the duty.  Id.Thus, “[i]mposition of a duty is limited to those instances where a reasonably foreseeable victim is injured by a reasonably foreseeable harm.”  Id.

Finally, as to the public policy factor, the Supreme Court stressed that a doctor’s first loyalty is to his or her patient.  Id.  The Court will not force a doctor “to weigh the welfare of unknown persons against the welfare of his patient.  Such an imposition is unacceptable.”  Id.  Doctors must be free to treatment their patients without fear of being exposed to liability to unknow, unidentified third parties.  Id.

The Supreme Court applied the three-factor test to the following facts in the Webb case.  Michael Neal became a patient of Dr. Webb, who began prescribing anabolic steroids to him.  Unbeknownst to Dr. Webb, Neal had a history of battering his wife.  She eventually left him and went to stay with her sister and brother-in-law, Tom Jarvis.  She and Jarvis returned to her home to collect her clothing.  While they were at the home, Neal shot Jarvis, who subsequently filed suit against Dr. Webb on the theory that his overprescribing steroids to Neal resulted in his uncontrollable rage and ultimately injuring Jarvis.

The Supreme Court held that Dr. Webb did not owe Jarvis a duty associated with his medical treatment of Neal.  Id. at 998.  It stated “the balancing of the relationship between the parties, foreseeability, and public policy results in our concluding that Dr. Webb owed Jarvis no duty in his prescribing of medicine to Neal.”  Id.  Consequently, the Court directed the trial court to dismiss Jarvis’ lawsuit against Dr. Webb.

Standard of Care, Breach, and Expert Medical Witnesses

In 1992, the Indiana Supreme Court abandoned the so-called modified locality rule[1] in favor of a standard of care that better reflects the realities of modern medicine and the ever-changingworld in general.  Vergara by Vergara v. Doan, 593 N.E.2d 185, 186 (Ind. 1992).  The Court announced the newly adopted standard of care for medical malpractice actions as follows:

Many states describe the care a physician owes without emphasizing the locality of practice.  Today we join these states and adopt the following: a physician must exercise that degree of care, skill, and proficiency exercised by reasonably careful, skillful, and prudent practitioners in the same class to which he belongs, acting under the same or similar circumstances. Rather than focusing on different standards for different communities, this standard uses locality as but one of the factors to be considered in determining whether the doctor acted reasonably. Other relevant considerations would include advances in the profession, availability of facilities, and whether the doctor is a specialist or general practitioner.Id. at 187.

The issues of what standard of care applies and whether the defendant breached his or her duty to adhere to that standard of care are often questions of fact.  Harris v. Raymond, 715 N.E.2d 388, 393 (Ind. 1999).  To establish the applicable standard of care in a medical malpractice case and breach thereof, the “plaintiff must often present expert testimony to the trier of fact about what other reasonable doctors similarly situated would have done under the circumstances.”  Id. at 394.  The reason expert medical witness testimony is required lies in the fact that the issues involved in medical treatment are often highly technical and complicated in nature.  Id.Due to “the technical and complicated nature of medical treatment, the trier of fact is simply unable to rationally apply the standard of care to it without the benefit of informative expert opinion on the ultimate question of breach of duty.”  Burke v. Capello, 520 N.E.2d 439, 441 (Ind. 1988).

However, expert medical witness testimony is not required in every medical malpractice case.Culbertson v. Mernitz, 602 N.E.2d 98, 104 (Ind. 1992).  In Culbertson, the Indiana Supreme Court held that “in those cases where deviation from the standard of care is a matter commonly known by lay persons,” expert testimony is not necessary to establish whether the defendant doctor complied with the standard of a reasonably prudent doctor.  Id.The classic example of when expert testimony is not required to establish the applicable standard of care and breach thereof is when a foreign object with no continuing therapeutic value is inadvertently left inside a patient’s body following surgery. That the foreign object should have been removed is “an act understandable by the jury without excessive technical input.”  Burke, 520 N.E.2d at 441.  Accordingly, cases involving similar situations of negligence within the common experience and knowledge of the layperson do not require expert opinion testimony.

Proximate Cause

The Indiana Supreme Court conceded that “a rigorous definition is elusive” with respect to proximate cause.  Peters v. Forster, 804 N.E.2d 736, 743 (Ind. 2004).  Nevertheless, the Court offered this definition: “that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the result complained of and without which the result would not have occurred.”Id.  (quoting Orville Milk Co. v. Beller, 486 N.E.2d 555, 559 (Ind. Ct. App. 1985)).

The Court instructed that an “indispensable element of a negligence claim is that the act complained of must be the proximate cause of the plaintiff’s injuries.”  Bader v. Johnson, 732 N.E.2d 1212, 1218 (Ind. 2000).  The Court explained that a “negligent act is the proximate cause of an injury if the injury is a natural and probable consequence, which in the light of the circumstances, should have been foreseen or anticipated.”  Id.  Proximate cause requires that the complained of injury would not have occurred but for the defendant’s conduct.  Id.

The proximate cause analysis involves two inquires: (1) whether the injury would not have occurred but for the defendant’s negligence and (2) whether the plaintiff’s injury was reasonably foreseeable as the natural and probable consequence of the act or omission.  Nasser v. St. Vincent Hospital and Health Services, 926 N.E.2d 43, 48 (Ind. Ct. App. 2010).  As with the determination of the applicable standard of care, when the issue of causation is not within the common understanding and experience of a layperson, expert medical witness testimony is required to establish causation between the defendant’s negligence and the plaintiff’s injury.  Id.

The issue of proximate cause is for the trier of fact if “different minds might reasonably draw different inferences from the facts given.”Elder v. Fisher, 247 Ind. 598, 606 (1966).  “Only in plain and indisputable cases, where only a single inference or conclusion can be drawn, are the questions of proximate cause and intervening cause matters of law to be determined by the court.”  Peters, 804 N.E.2d at 743.  As such, “it is for the jury to determine whether or not the injurious consequences that resulted from negligence are such as ought reasonably to have been foreseen, or whether an intervening cause was such as to break the causal connection.”  Elder, 247 Ind. at 606.

[1] The modified locality rule states: “The standard of care … is that degree of care, skill, and proficiency which is commonly exercised by ordinarily careful, skillful, and prudent [physicians], at the time of the operation and in similar localities.” [emphasis supplied] Burke v. Capello, 520 N.E.2d 439, 441 (Ind. 1988).

III.  Filing Deadlines for Medical Malpractice Claims

Introduction to Statute of Limitations

Filing deadlines are among the most important preliminary issues to consider with respect to any potential legal case.  In particular, medical malpractice claims must be initiated by a specific deadline, or you may be completely barred from proceeding with your lawsuit, even if you have a valid claim that would otherwise entitle you to recover damages for your injuries.

These strict filing deadlines are referred to as a statute of limitations.  Each state establishes deadlines by which you must file various types of legal claims in order to preserve your right to have the substantive merits of your case heard.  In addition to filing deadlines for initiating the lawsuit itself, a statute of limitations commonly prescribes other deadlines by which certain actions must be performed, or once again, you may be barred from proceeding with your lawsuit.

A statute of limitations can often be tolled or extended.  Tolling refers to delaying or pausing the running (or active countdown) of the applicable time period.  For example, if a statute is tolled for 90 days, then the countdown towards the deadline is paused for that duration of time.  The deadline to carry out a specified action under a statute of limitations can also be extended.  For instance, many statutes of limitations add a specified number of years to the applicable deadline if the prospective defendant engaged in fraud or other intentional actions in an attempt to conceal his or her liability.

Statute of Limitations for Medical Malpractice Claims in Indiana

The statute of limitations for filing a medical malpractice action in Indiana is set forth in IC §34-18-7-1(b).  It requires that any such action must be filed within two “years after the date of the alleged act, omission, or neglect….”  Notice that the alleged negligence triggers the running of the two-year limitations period, so under the occurrence-based statute of limitations, plaintiffs have two years from the date the alleged negligence occurred in which to commence an action.

For nearly all actions governed by the Medical Malpractice Act, it is the filing of the proposed complaint with the Insurance Commissioner, as the statutory prerequisite to commencing an action in court, that must be performed within the two-year limitations period.  A plaintiff may not file a complaint in court until after the medical review panel process has been completed, which begins with the filing of the proposed complaint (see Section V of this article for discussion on the medical review panel requirement).The filing of the proposed complaint tolls the statute of limitations.  IC §34-18-7-3(a).

Notably, the statute of limitations contains a provision that expressly states it “applies to all persons regardless of minority or other legal disability….”  IC §34-18-7-1(a).  There is a narrow exception for minors younger than six years of age; they have until their eighth birthday to file an action.  IC §34-18-7-1(b).  The constitutionality of the statute, as it applies to minors, has been challenged over the years, but as recently as 2006, the Indiana Supreme Court rejected a constitutional challenge to the statute, as it applies to minors.  Ledbetter v. Hunter, 842 N.E.2d 810, 812 (Ind. 2006).

This is yet another provision in the Medical Malpractice Act that substantially favors healthcare providers who qualify for coverage under the Act versus nonqualified healthcare providers as well as defendants in other types of tort actions.  For tort actions against defendants other than qualified healthcare providers, the statute of limitations is tolled for minors until their eighteenth birthday.  IC §34-11-6-1.  They must then commence an action within two years after their eighteenth birthday, i.e., prior to turning 20 years old.  In stark contrast, the longest a minor plaintiff under the Medical Malpractice Act has to commence an action is about eight years, i.e., a newborn has until his or her eighth birthday to file suit (whereas, a newborn whose action is not subject to the Act has nearly 20 years to commence an action).

The Discovery Rule

Introduction

Every state has some version of the Discovery Rule.  In general, the Discovery Rule is an exception to the general statute of limitations.  It tolls the applicable statute of limitations until the injury stemming from the alleged medical negligence is or should have been discovered by the plaintiff.  Injuries resulting from medical negligence often do not materialize until years after the negligent act, omission, or decision.  The rationale underlying the Discovery Rule is to prevent the statute of limitations from barring a plaintiff from pursuing a medical malpractice claim until the injury has been discovered or should have been discovered.

The Discovery Rule in Indiana

The Discovery Rule applies to medical malpractice actions governed by the Indiana Medical Malpractice Act through judicial declaration.  The Indiana Supreme Court announced and applied the Discovery Rule to medical malpractice actions in the twin cases ofMartin v. Richey, 711 N.E.2d 1273 (Ind. 1999), and Van Dusen v. Stotts, 712 N.E.2d 491 (Ind. 1999), with both opinions issued by the Court on July 9, 1999.

The Supreme Court acknowledged that the statute of limitations is constitutional on its face but held that under certain circumstances it is unconstitutional as applied to specific plaintiffs who, in the exercise of reasonable diligence, could not have discovered the alleged malpractice within the two-year limitations period.  Martin, 711 N.E.2d at 1285 and Van Dusen, 712 N.E.2d at 495.  To require a plaintiff who was not aware of the injury and could not have discovered it through the exercise of reasonable diligence to file a claim within the two-year limitations period “would impose an impossible condition on her access to the courts and pursuit of a tort remedy.”  Martin, 711 N.E.2d at 1285.  The Supreme Court went on to conclude:

This application of the medical malpractice statute of limitations is so unreasonable as to violate Section 12….  Accordingly, we conclude that the statute of limitations contained in Indiana Code section 34-18-1(b) is unconstitutional as applied to plaintiff under Article I, Section 23 and Section 12, the Privileges and Immunities and Open Courts Clauses of the Indiana Constitution.

The Supreme Court articulated its formulation of the Discovery Rule for application to medical malpractice claims as follows:

We construe section 34-18-7-1(b) to permit plaintiffs like Martin and the Stottses—that is, plaintiffs who, because they suffer from cancer or other similar diseases or medical conditions with long latency periods and are unable to discover the malpractice and their resulting injury within the two-year statutory period—to file their claims within two years of the date when they discover the malpractice and the resulting injury or facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpractice and the resulting injury.Van Dusen, 712 N.E.2d at 497.

Notice that discovery of the injury itself is not sufficient to trigger the running of the Discovery Rule limitations period.  The plaintiff must actually or constructively discover both (1) the alleged malpractice and (2) the resultant injury in order for the two-year limitations period to being running.

The Court in Van Dusen provided guidance with respect to “the question of when a plaintiff discovered facts which, in the exercise of reasonable diligence, should lead to the discovery of the medical malpractice and resulting injury….”  Id. at 499.  The Court noted that it is typically a question of fact and instructed:

In general, however, a plaintiff’s lay suspicion that there may have been malpractice is not sufficient to trigger the two-year period.  At the same time, a plaintiff need not know with certainty that malpractice caused his injury, to trigger the running of the statutory time period.  Moreover, when it is undisputed that plaintiff’s doctor has expressly informed a plaintiff that he has a specific injury and that there is a reasonable possibility, if not a probability, that the specific injury was caused by a specific act at a specific time, then the question may become one of law. Under such circumstances, generally a plaintiff is deemed to have sufficient facts to require him to seek promptly any additional medical or legal advice needed to resolve any remaining uncertainty or confusion he may have regarding the cause of his injury and any legal recourse he may have, and his unexplained failure to do so should not excuse a failure to timely file a claim.  Thus, in such a case, we conclude that the date on which he receives such information—that is, information that there is a reasonable possibility that a specific injury was caused by a specific act at a specific time—is the date upon which the two-year period begins to run.Id. (internal citations omitted).

Fraudulent Concealment

The Indiana Supreme Court has acknowledged the “brutal nature of the medical malpractice statute of limitations.”  Hughes v. Glaese, 659 N.E.2d 516, 519 (Ind. 1995).  But the harshness of the occurrence-based statute of limitations “has been somewhat ameliorated by judicial application of the equitable doctrine of fraudulent concealment.”  Id.

Fraudulent concealment is an equitable remedy that bars a defendant from invoking the statute of limitations as a defense.  Palmer v. Gorecki, 844 N.E.2d 149, 155 (Ind. Ct. App. 2006).  The doctrine holds that a defendant who prevented a plaintiff from discovering an otherwise valid claim, by violation of duty or deception, is estopped from raising a statute of limitations defense.Hughes, 659 N.E.2d at 519.

There are two types of fraudulent concealment—passive and active.  Hopster v. Burgeson, 750 N.E.2d 841, 857 (Ind. Ct. App. 2001).  Passive or constructive concealment is described as merely negligent and arises when the healthcare provider does not disclose to the patient certain material information that he or she has a duty to disclose.  Id.The duty to disclose and the period of estoppel cease upon the termination of the doctor-patient relationship.  Hughes, 659 N.E.2d at 519.

On the other hand, active concealment involves active efforts or deception to conceal the malpractice.  Hospital Corp. v. Hiland, 547 N.E.2d 869, 873 (Ind. Ct. App. 1989).  With active concealment, the termination of the doctor-patient relationship does not affect the period of estoppel, so it continues for a reasonable time after the plaintiff discovers the malpractice or information that would lead to its discovery through the exercise of reasonable diligence.  Hughes, 659 N.E.2d at 519.

The Indiana Supreme Court described the interaction between fraudulent concealment and the statute of limitations as follows:

Regardless whether the fraudulent concealment is active or constructive, a plaintiff must institute an action within a reasonable time “after a patient learns of the malpractice, or discovers information which would lead to the discovery of malpractice if the patient exercises reasonable diligence.”  Thus, when the concealment is constructive, the plaintiff’s duty of diligence is triggered by the termination of the physician-patient relationship or by the actual discovery or reasonable opportunity to discover the malpractice, whichever occurs first; but when the concealment is active, the duty of diligence does not commence until such actual or reasonably possible discovery.Hughes, 659 N.E.2d at 519.

Continuing Wrong

The doctrine of continuing wrong can also operate to toll the commencement of the statute of limitations.Garneau v. Bush, 838 N.E.2d 1134, 1143 (Ind. Ct. App. 2005).  When the doctrine applies, “the statutory limitations period begins to run at the end of the continuing wrongful act.”  Id.  For it to apply, “the plaintiff must demonstrate that the alleged injury-producing conduct was of a continuous nature.”  Id.That is, “the statute of limitations will not begin to run until there is a cessation of the overt acts constituting the wrong.”  Havens v. Ritchey, 582 N.E.2d 792, 795 (Ind. 1991) (quoting Montgomery v. Crum, 161 N.E. 251, 259 (Ind. 1928)).  Continuing wrongis not an equitable doctrine; it is simply a legal concept used to define when an act, omission, or neglect took place.Id.

IV. Immunities and Limitations on Liability

Sovereign Immunity

Introduction

Sovereign immunity is the legal doctrine that holds the government is immune from lawsuits or other legal actions except when and to the extent it consents to them.  The doctrine traces its origins back to English common law where the king made the laws, so the king could do no wrong.  As a result, there could be no valid claim against a government entity.  The doctrine crossed the ocean and found its way to the United States in the early 1800s, and it was soon adopted in some form in nearly every state.  Today, most states have either limited or eliminated, to some extent, sovereign immunity by judicial action or statute.

Sovereign Immunity in Indiana

The Indiana Supreme Court abolished sovereign immunity in the state for most purposes in the 1972 case Campbell v. State, 259 N.E.2d 733, 736-737 (Ind. 1972).  In response, the Legislature enacted the Indiana Tort Claims Act, which is currently codified in IC §34-13-3.  Cantrell v. Morris, 849 N.E.2d 488, 495 (Ind. 2006).  In general, the Act immunizes both governmental entities and their employees when acting “within the scope” of their employment from liability in a number of areas.  IC §34-13-3-3.  While plaintiffs may bring certain specified actions against the government under the Tort Claims Act, doing so requires successfully navigating a series of highly technical and complex procedures and requirements established by the Act.

A comprehensive review of the myriad intricacies set forth in the Act is well beyond the scope of this article.  However, three very significant provisions will be briefly discussed.  First, the Act establishes a stringent notice requirement in order to bring a claim against a government defendant.  For a claim against the state, the notice must be filed with the Attorney General or the state agency involved within 270 days of the date of the alleged negligence.  IC §34-13-3-6.  If the claim is against a political subdivision, then the notice must be filed with the governing body of that political subdivision within 180 days of the alleged negligence.  IC §34-13-3-8.Notice that either notice period is extremely short even compared with the two-year occurrence-based statute of limitations governing medical malpractice claims.  Failure to timely comply with the applicable notice requirement will result in the claim being barred.  IC §34-13-3-6 and -8.

The governmental entity has 90 days to notify the plaintiff in writing whether the claim has been approved or denied.  IC §34-13-3-11.  A claim is treated as denied if the defendant fails to approve the claim in its entirety within the 90-day period.  Id.  An action may not be commenced in court unless the plaintiff’s claim has been denied in whole or in part; claim denial is a statutory prerequisite to filing suit in court.  IC §34-13-3-13.

The next aspect of the Tort Claims Act of which plaintiffs need to be aware is the inapplicability of the Comparative Fault Act to claims brought under the Tort Claims Act.  IC §34-51-2-2.  It reads: “This chapter does not apply in any manner to tort claims against governmental entities or public employees under” the Tort Claims Act.  The common law doctrine of contributory negligence applies to Tort Claims Act lawsuits.

There is a profound difference in results between the application of comparative fault and contributory negligence.  Under Indiana’s version of comparative fault, the plaintiff is still entitled to recovery even if he or she is determined to be up to 50% at fault in causing his or her injury.  In contrast, under contributory negligence, the plaintiff is completely barred from any recovery if he or she is even 1% at fault (see Section VIII of this article for full discussion).

Finally, plaintiffs must be aware of the limitations on damages imposed by IC §34-13-3-4 of the Tort Claims Act.  Damages that may be recovered by a single person injured by government defendants is limited to $700,000, and damages that may be recovered by all persons injured in a single occurrence is limited to $5 million.  IC §34-13-3-4(a).  In addition, governmental entities and their employees are not liable for punitive damages while acting within the scope of employment.  IC §34-13-3-4(b).

Good Samaritan Law

Introduction

The general rule in the United States holds that an individual is under no legal duty to provide assistance to someone in need during an emergency.  While there may, for some, be a moral obligation to aid others in emergency situations, there is no corresponding legal duty to do so.  It is a different story if an individual is responsible for creating the emergency situation from which a victim needs saving or an individual is under a pre-existing duty to save others from a specific situation (on-duty lifeguard has a duty to recuse swimmers under his or her watch).

In response, states have enacted Good Samaritan laws.  While they do not impose a legal duty to help others, they do eliminate a potential barrier for some in coming to the aid of others during an emergency.  Good Samaritan laws are designed to provide immunity from civil liability for individuals who voluntarily render assistance to those in need during an emergency situation.  As a public policy matter, society does not want concerns about potential civil liability stopping individuals from helping others in need of emergency assistance.

Good Samaritan Law in Indiana

Indiana’s Good Samaritan law is contained in IC §34-30-12.  Basically, a person is immune from civil liability for rendering emergency care in good faith at an emergency or accident scene outside a healthcare facility without the expectation of compensation and not acting with gross negligence or willful or wanton misconduct.The person can either come upon the scene or be summoned to the scene and be shielded from liability.  Notice that the standard of conduct under the statute is “gross negligence or willful or wanton misconduct.”  The statute effectively immunizes Good Samaritans from liability for ordinary negligence while attempting to render emergency care.

Additional Immunities and Limitations on Liability

There are numerous statutes providing some form of immunity or limitation on liability for various healthcare practitioners, emergency personnel, healthcare related entities, and specific situations scattered throughout the Indiana Code.  However, most of the immunities and limitations on liability that medical malpractice plaintiffs may encounter while pursuing their claim are contained in IC Title 34, Article 30.

V. Pre-Suit Requirement: Medical Review Panel

Introduction

The Indiana Medical Malpractice Act requires plaintiffs to submit their claim to a medical review panel as a statutory prerequisite to commencing an action in court.  “Until the panel issues its opinion, the trial court has no jurisdiction to hear and adjudicate the claim.”  Stafford v. Szymanowski, 13 N.E.3d 890, 897 (Ind. Ct. App. 2014).  The rules governing medical review panels are set forth in IC §34-18-10-1 to IC §34-18-10-26.

A medical malpractice action may not be commenced in court until the plaintiff has presented the proposed complaint to a medical review panel, and the panel has rendered its opinion.  IC §34-18-8-4.  The medical review panel requirement can be waived if the plaintiff and all parties named as defendants in the proposed action agree in writing not to present the complaint to a panel, and a copy of the agreement must be attached to the complaint filed in court.  IC §34-18-8-5.  Presentation of the proposed complaint is also not required if the complaint includes a declaration that the damages sought from the defendant does not exceed $15,000.  IC §34-18-8-6(a).

Purpose of Medical Review Panel

The Indiana Supreme Court explained the purpose of the medical review panel requirement as follows:

The delay [in commencing an action in court] accommodates the discernment of facts by the medical review panel and the forming of its expert opinion. The participation of the claimant, the insurer, and the health care provider in the panel processes results. Their knowledge and experience so gained will encourage the mediation and settlement of claims and discourage the filing of unreasonably speculative lawsuits. The mental, financial and time-consuming burdens imposed upon health care providers by lawsuits which should have been settled by their insurers or which should not have been instituted will be lessened, and the disruption of and impairment to their continued vital services reduced.Johnson v. St. Vincent Hospital, Inc., 404 N.E.2d 585, 595 (Ind. 1980).

In addition, the Supreme Court explained the functioning of the medical review panel as follows:

The statute contemplates that the panel will function in an informal and reasonable manner. It is guided by a trained lawyer who presumptively will not deny to each party a reasonable opportunity to present its evidence and authorities. The scope of the panel’s function is limited. It does not conduct a hearing or trial and does not render a decision or judgment. There is, therefore, no reason to mandate that the statute relegate burdens of proof or production and to otherwise specify procedures applicable in hearings and trials. The panel is conducting a rational inquiry into the extent and source of the patient’s injuries for the purpose of forming its expert opinion. The absence from the statute of specific procedures is reasonable in light of this limited purpose and function and does not raise a serious constitutional question on the ground of vagueness or indefiniteness.Id. at 596.

Requirements and Functioning

The plaintiff must file a proposed complaint with the Department of Insurance[1] at least 20 days before either the plaintiff or defendant may request the formation of a medical review panel.  IC §34-18-10-2.  After the 20-day waiting period, either party may request the formation of a medical review panel by serving a request by registered mail upon all parties and the Insurance Commissioner.  Id.

A medical review panel consists of one attorney and three healthcare providers.  IC §34-18-10-3(a).  The attorney member serves as the chairman of the panel in an advisory capacity, but he or she does not vote.  IC §34-18-10-3(b).  Within 15 days of the request for the formation of a panel, the parties must agree on an attorney who will serve as the chairman.  IC §34-18-10-4(1).  Each party to the action has the right to select one healthcare provider for the panel, and the two party-selected healthcare panelists then agree upon the third healthcare panelist.  IC §34-18-10-6.  In the event there are multiple parties on a side to the action, then the parties on that side must agree on a single panelist.  IC §34-18-10-7.

Note that the statute does not limit healthcare panelists to doctors; rather, it states that, except for 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.”  IC §34-18-10-5.  However, healthcare providers who are not licensed doctors potentially may be deemed unqualified by the courts to render an expert opinion on causation[2].

In cases where there is one defendant, two of the panelists must be members of the same profession identified in IC §34-18-2-14(1) as the defendant.  IC §34-18-10-8.  If the defendant is a specialist, two of the panelists must specialize in the same area as the defendant.  Id.

Once the medical review panel is formed, the chairman must notify the Insurance Commissioner and the parties to the action within five days after formation by registered or certified mail the (1) names and addresses of the panel members and (2) the date on which the last member was selected.  IC §34-18-10-11.  The panel must issue its expert opinion within 180 days of the date the final panelist was selected.  IC §34-18-10-13.

The parties to the action and their agents are prohibited from communicating with any panelist prior to the issuance of the panel’s expert opinion.  IC §34-18-10-18.  However, after all evidence has been submitted to the panel and upon ten days’ notice to the other side, a party has the right to convene the panel to question it on any relevant issues upon which the panel must decide.  IC §34-18-10-20.  The chairman is required to preside over all meetings, which are required to be informal.  Id.

A medical review panel’s sole duty is to express its “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.”  IC §34-18-10-22(a).  According to IC §34-18-10-22(b), the panel is required to give one or more of the following expert opinions in writing and signed by the panelists:

• The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint.

• 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.

• There is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court or jury.

• The conduct complained of was or was not a factor of the resultant damages. If so, whether the plaintiff suffered:

• any disability and the extent and duration of the disability; and

(B) any permanent impairment and the percentage of the impairment.

The panel’s report is admissible as evidence in any subsequent action brought by the plaintiff in court.  IC §34-18-10-23.  However, it is important to note that the expert opinion contained in the report is not conclusive, and any party to the action has the right to call any panelist as a witness.  Id.

VI. Required Elements of a Medical Malpractice Complaint

Under the Indiana Rules of Court Rules of Trial Procedure, there is only one recognized form of action, and it is known as a “civil action.”  Rule 2.  In general, a civil action is commenced by filing a complaint with the appropriate court.  Rule 3.  A complaint is one of the six authorized pleadings in Indiana courts.  Rule 7.  In particular, a claim for bodily injury or death based on medical malpractice is commenced by filing a complaint in any court of law having the requisite jurisdiction.  IC §34-18-8-1.

The complaint must contain a caption setting forth the name of the court, the title of the action, the file number, names of all the parties, and a designation as a ‘complaint.’ Rule 10(A).  All allegations or statements of a claim must be made in numbered paragraphs, and the contents of each must be limited, as far as practicable, to a statement of a single set of circumstances. Rule 10(B).

Each allegation or statement in the complaint “shall be simple, concise, and direct.  No technical forms of pleading or motions are required.” Rule 8(E)(1).  The complaint may set forth two or more statements of a claim alternatively or hypothetically. Rule 8(E)(2).  The complaint may state as many separate claims as the plaintiff has regardless of consistency.  Id.According to the Indiana Supreme Court, “Rule 8(E) is designed to avoid the problem that a plaintiff may recover nothing on a valid claim if forced to speculate as to which theory a jury will ultimately find credible.”  Cahoon v. Cummings, 734 N.E.2d 535, 543 (Ind. 2000).  All complaints shall be construed as to do substantial justice, lead to disposition on the merits, and avoid litigation of procedural points. Rule 8(F).

To state a claim for relief, the complaint must contain (1) a short and plain statement of the claim showing that the plaintiff is entitled to relief and (2) a demand for relief to which the plaintiff is entitled. Rule 8(A).  Relief in the alternative or of several different types may be demanded.  Id.  In a medical malpractice complaint, no dollar amount or figure may be included in the demand.  IC §34-18-8-3.

If the plaintiff is represented by a lawyer, he or she must sign the complaint as the attorney of record in his or her individual name, and the lawyer must provide his or her address, telephone number, and attorney number. Rule 11(A).  A plaintiff who is not represented by a lawyer must sign the complaint and provide his or her address.  Id.

VII. Medical Expert Witnesses

Introduction

In medical malpractice cases, expert witnesses are nearly always required.  The medical issues and related facts are generally far too complex for non-medical professionals to understand without the aid of expert medical witnesses.  As a general rule of law, expert witnesses are needed to (1) establish the applicable standard of care, (2) help educate the judge and jury (or in furtherance of settlement negotiations) about what the defendant healthcare practitioner should have done or refrained from doing under the specific circumstances in the case, and (3) whether the defendant’s conduct breached the recognized standard of care for the profession or specialization.  Additionally, expert witnesses are needed to help determine whether the defendant’s medical negligence caused the plaintiff’s injury.

Qualifying as Expert Medical Witness in Indiana

The starting point in determining whether a prospective expert medical witness is qualified to provide opinion testimony is Rule 702 of the Indiana Rules of Court Rules of Evidence, which sets forth the basic qualifications.  Rule 702 states:

• A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.

• Expert scientific testimony is admissible only if the court is satisfied that the expert testimony rests upon reliable scientific principles.

The Indiana Supreme Court stated that the criteria for qualifying as an expert witness under Rule 702 are that person’s knowledge, skill, experience, training, or education, and the purpose for which the expert witness testimony may be admitted into evidence is to assist the trier of fact.  Bennett v. Richmond, 960 N.E.2d 782, 786 (Ind. 2012).With respect to the qualification criteria enumerated in Rule 702, the Supreme Court clarified that only one of them is needed in order to qualify as an expert witness.  Id. at 789.  Accordingly, a witness may qualify as an expert on the basis of practical experience alone (or any of the other listed means depending on the facts of the particular case).  Creasy v. Rusk, 730 N.E.2d 659, 669 (Ind. 2000).

Indiana law does not impose a ridged degree, license, certification, or specialty requirement for an expert witness to be qualified to provide opinion testimony on a particular issue that is otherwise within the proposed expert’s area of competence.  Id. at 790-791.  In Bennett, the Supreme Court concluded that a psychologist (a non-medical doctor)was qualified to provide expert witness testimony about the cause of the plaintiff’s brain injury.  Id. at 791.  The Court rejected the defense’s assertions that the expert was unqualified because he was not a medical doctor nor was he a neuropsychologist.  Id.

Rather than focusing on whether the expert held certain degrees, licenses, or credentials, the Court analyzed whether he demonstrated actual knowledge of the specific issue for which his opinion testimony was introduced through his knowledge, skill, experience, training, or education.Id. at 790-791.  The Court concluded that the expert was qualified to testify based on a combination of his education, training, teaching, and decades of relevant experience.Id. Questions and criticisms about an expert’s formal education, experience, and methodology used for reaching his conclusion “go to the weight and credibility of his testimony, not to his qualification to give it.”  Id. at 790.

Admissibility of Expert Testimony About Scientific Principles and Discoveries

Introduction

Trial courts must decide whether to admit expert opinion testimony about scientific principles and discoveries.  Simply put, courts must guard against allowing so-called junk science into evidence.  To achieve that objective, most states[3] follow one of two general standards that have their origins in federal court cases, viz., the Frye and Daubert standards.

Under the Frye standard, expert testimony that is based upon a new scientific principle or discovery is admissible only if the principle or discovery is “sufficiently established to have gained general acceptance in the particular field in which it belongs.”  Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

In comparison, the Daubert standard requires the trial court to serve as a gatekeeper regarding the admissibility of all expert testimony, not just testimony based upon a new scientific principle.  The court must make a determination whether the proposed testimony is both reliable and relevant by analyzing (1) whether the reasoning or methodology upon which the testimony is based is scientifically valid and (2) whether that reasoning or methodology can properly be applied to the facts in the case.  Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Admissibility of Scientific Principles and Discoveries in Indiana

Indiana uses the Daubert standard in determining admissibility of expert witness testimony.  Kubsch v. State, 784 N.E.2d 905, 921 (Ind. 2003).  The Indiana Supreme Court advised that in “determining whether scientific evidence is admissible under 702(b), we consider the factors discussed in” Daubert.  Id.The Supreme Court affirmed that trial courts within the state refer to “a non-exclusive list of factors that may be considered: whether the theory or technique can be and has been tested, whether the theory has been subjected to peer review and publication, whether there is a known or potential error rate, and whether the theory has been generally accepted within the relevant field of study.”  Id. (citing the factors announced in Daubert).

Once an expert witness has been qualified, then the second factor for consideration in the admissibility determination under Rule 702 is the reliability of the opinion testimony.Id. at 791.  In making this determination, “the trial court must make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology properly can be applied to the facts in issue.”  Shafer & Freeman Lakes Environmental Conservation Corporation v. Stichnoth, 877 N.E.2d 475, 484 (Ind. Ct. App. 2007).  The Indiana Supreme Court advised: “In determining reliability, while various factors have been identified[4], there is no specific ‘test’ or set of ‘prongs’ which must be considered in order to satisfy” Rule 702.  McGrew v. State, 682 N.E.2d 1289, 1292 (Ind. 1997).  The party seeking to enter the expert testimony into evidence bears the burden of establishing the reliability of the scientific principles on which it is based.  Bennett, 960 N.E.2d at 791.

The trial court serves as the gatekeeper for the admissibility of expert opinion evidence under Rule 702.  Doe v. Shults-Lewis Child and Family Services, Inc., 718 N.E.2d 738, 750 (Ind. 1999).  The trial court is afforded broad discretion in determining admissibility, and its decision will be reversed only for abuse of that discretion.  TRW Vehicle Safety Systems, Inc. v. Moore, 936 N.E.2d 201, 216 (Ind. 2010).  There is a presumption that the trial court’s decision is correct, and the party challenging that decision has the burden of persuading the appeals court that the trial court abused its discretion.  Id.

According to the Indiana Supreme Court, once the admissibility of the expert’s opinion is established under Rule 702, “then the accuracy, consistency, and credibility of the expert’s opinions may properly be left to vigorous cross-examination, presentation of contrary evidence, argument of counsel, and resolution by the trier of fact.”  Sears Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 461 (Ind. 2001).

[1] For specific procedures and requirements, review the Department of Insurance’s “Filing a Medical Malpractice Complaint” webpage at https://iga.in.gov/legislative/laws/2017/ic/titles/034#34-18-10-1.  Also, to view the Department of Insurance’s sample form for the proposed complaint, click here.

[2] There is a line of cases by the Indiana Court of Appeals that ruled nurses are not qualified to provide expert witness testimony on medical causation.  Nasser v. St. Vincent Hospital and Health Services, 926 N.E.2d 43 (Ind. Ct. App. 2010); Clarian Health Partners, Inc. v. Wagler, 925 N.E.2d 388 (Ind. Ct. App. 2010); and Long v. Methodist Hospital of Indiana, Inc., 699 N.E.2d 1164 (Ind. Ct. App. 1998).  However, in 2012, the Court of Appeals rejected the notion of a blanket prohibition on nurses providing expert witness testimony on medical causation in Curts v. Miller’s Health Systems, Inc., 972 N.E.2d 966, 971 (Ind. Ct. App. 2012).  In Curts, the Court held: “a nurse could qualify as an expert regarding medical standards of care and causation in some circumstances. The determinative question is whether the nurse has sufficient expertise, as provided in Rule 702(a), with the factual circumstances giving rise to the claim and the patient’s injuries.”  Id.

[3]In fact, only Nevada, North Dakota, and Virginia do not follow either the Frye or Daubert standard.  For a state-by-state comparison, see https://www.theexpertinstitute.com/daubert-v-frye-a-state-by-state-comparison/.

[4]Footnote 5 of McGrew reads: “Such factors may include, but are not limited to: 1) whether the technique has been or can be empirically tested; 2) whether the technique has been subjected to peer review and publication; 3) the known or potential rate of error, as well as the existence and maintenance of standards controlling the technique’s operation; and 4) general acceptance within the relevant scientific community. See generally, Daubert, 509 U.S. at 593-95, 113 S.Ct. at 2796-97, 125 L.Ed.2d at 482-83 (“Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test. But some general observations are appropriate.”).”

VIII.  Comparative Negligence

Introduction

This is an area in which there is a profound difference between how Indiana law treats actions against healthcare providers who are not covered by the Indiana Medical Malpractice Act (“non-qualified defendants”) and those who are.

Medical malpractice actions against non-qualified defendants are subject to the Indiana Comparative Fault Act, which is codified in IC §34-51-2.  Cavens v. Zaberdac, 849 N.E.2d 526, 529 (Ind. 2006).  On the other hand, IC §34-51-2-1(b) expressly states that the Comparative Fault Act[1] does not apply to qualified healthcare providers, i.e., those providers who are covered by the Medical Malpractice Act.  Instead, qualified healthcare providers are free to invoke the common law defense of contributory negligence.Id. As discussed below, contributory negligence is far more favorable than comparative negligence for defendants.

Non-qualified Defendants: Comparative Fault with 51% Bar Rule

For medical malpractice actions against non-qualified defendants, Indiana follows the doctrine of modified comparative negligence with a 51% bar rule.IC §34-51-2-5 and IC §34-51-2-6.IC §34-51-2-5 provides “contributory fault chargeable to the claimant diminishes proportionately the amount awarded as compensatory damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery….”  That provision establishes the doctrine of comparative negligence.  IC §34-51-2-6 provides that “the claimant is barred from recovery if the claimant’s contributory fault is greater than the fault of all persons whose fault proximately contributed to the claimant’s damages.”  That provision establishes the 51% bar to recovery.  Thus, under the doctrine of comparative fault with a 51% bar rule, the plaintiff’s own negligence in causing or contributing to his or her injuries is not a bar to recovery unless the plaintiff’s assigned percentage of fault is 51% or greater.

Comparative negligence is a fault and damages allocation system.  Under this system, fault is determined and apportioned among the parties involved (plaintiff and all defendants), and how much compensation the plaintiff may recover is limited by his or her relative share of fault for causing the injury.  As a result, the plaintiff’s recovery is limited by his or her assigned percentage of fault.IC §34-51-2-5 requires that “any contributory fault chargeable to the claimant diminishes proportionately the amount awarded….”

The 51% bar rule means that if the plaintiff’s allocated percentage of fault is 51% or greater he or she is completely barred from recovering any damages.For example, assume a plaintiff is determined to be 50% at fault, and the damage award is $100,000.  The amount to which the plaintiff is entitled is $50,000 because the plaintiff’s allocated percentage share of fault, i.e., 50% or $50,000, is deducted from the damage award.  If the plaintiff were determined to be 51% at fault, he or she would not be entitled to any recovery because Indiana imposes the 51% bar rule.

Qualified Defendants: Contributory Negligence

The Comparative Fault Act is inapplicable to medical malpractice claims brought against qualified healthcare providers; instead, the common law doctrine of contributory negligence applies in those cases.  Spar v. Cha, 907 N.E.2d 974, 980 (Ind. 2009).  Contributory negligence is a complete defense in medical malpractice actions.  Id.  In general, a complete defense means that it nullifies the entire claim or resolves the entire claim in favor of the defendant.  Thus, a “plaintiff’s contributory negligence operates as a complete bar to recovery.”  McSwane v. Bloomington Hospital and Healthcare System, 916 N.E.2d 906, 911 (Ind. 2009).

Under contributory negligence, a plaintiff is completely barred from any recovery if his or her negligent conduct contributed as a legal cause in any degree to the injury.Id.Contributory negligence is extremely unforgiven.  If the plaintiff’s own negligence contributed to the injury in the slightest degree, i.e., even 1%, he or she cannot recover any damages.  It is for this reason that nearly every state has abandoned it.  Only Alabama, Maryland, North Carolina, and Virginia still permit the use of contributory negligence.

In the seminal 1975 case Li v. Yellow Cab Company of California, 13 Cal. 3d 804 (1975), the California Supreme Court issued a highly influential and widely cited critique of the doctrine of contributory negligence.  Following its withering analysis, the Court declared that contributory negligence was no longer applicable in California courts and held that it was being replaced with the doctrine of pure comparative negligence[2].  Id. at 828.  In doing so, the Court concluded that the “doctrine of comparative negligence is preferable to the ‘all-or-nothing’ doctrine of contributory negligence from the point of view of logic, practical experience, and fundamental justice.”  Id. at 807.

To underscore the point, assume that a plaintiff is 10% at fault for contributing to his or her own injuries with the defendant 90% at fault, and the damage award is $1 million.  Under comparative negligence, the plaintiff will recover $900,000 ($1 million less 10% or $100,000 attributable to his or her allocated share of fault).  That is the result for actions against non-qualified defendants in Indiana.  In contrast, under contributory negligence, the plaintiff recovers nothing.  The plaintiff’s 10% allocation of fault serves as a complete bar to recovery.  That is the result for qualified defendants under the Indiana Medical Malpractice Act.

The foregoing discussion serves to illustrate just how pro-defendant the Indiana Medical Malpractice Act is.  In fact, only two categories of defendants are exempt from the Indiana Comparative Fault Act, viz., (1) qualified healthcare providers under the Medical Malpractice Act and (2) the State of Indiana together with its agencies, political subdivisions, public entities, and employees under the Tort Claims Act. IC §34-51-2-1 and IC §34-51-2-2, respectively.

IX. Limitations on Damages

Indiana law imposes limitations on the total amount of all damages that may be recovered in a medical malpractice action. IC §34-18-14-3.  Unlike damage limitations imposed inmost other states, Indiana’s cap is not limited to non-economic damages[3].  Instead, IC §34-18-14-3 caps the amount of both non-economic as well as economic damages that may be recovered.  The statute establishes a two-part cap structure.  That is, the first cap limits the amount for which the defendant healthcare provider is liable, and the second cap limits the excess amount for which the Patient’s Compensation Fund is liable (see Section XII of this article for discussion on Patient’s Compensation Fund).

It should be noted that for the next several years there will be multiple limitation amounts in effect due to the damage cap increases contained in Senate Enrolled Act No. 28.  There will be three separate two-part cap amounts based on the date of the alleged malpractice.

1. For malpractice occurring after June 30, 1999 and before July 1, 2017: the total cap is $1.25 million with each defendant healthcare provider’s liability capped at $250,000, and the Fund is liable for any remaining amount up to the $1.25 million total cap. IC §§34-18-14-3(a)(3), (b)(1), and (c).

2. For malpractice occurring after June 30, 2017 and before July 1, 2019: the total cap is $1.65 million with each defendant healthcare provider’s liability capped at $400,000, and the Fund is liable for any remaining amount up to the $1.65 million total cap. IC §§34-18-14-3(a)(4), (b)(2), and (c).

3. For malpractice occurring after June 30, 2019: the total cap is $1.8 million with each defendant healthcare provider’s liability capped at $500,000, and the Fund is liable for any remaining amount up to the $1.8 million total cap. IC §§34-18-14-3(a)(5), (b)(3), and (c).

The Indiana Supreme Court held that the damage caps provided for in the Medical Malpractice Act do not apply to “collateral litigation expenses” such as post-judgment interest and court costs.  Poehlman v. Feferman, 717 N.E.2d 578, 579 (Ind. 1999).  According to the Court, “collateral litigation expenses arise separately by operation of law and are regulated under distinct statutes, which guide parties’ decisions in nearly every stage of either pursuing or defending medical malpractice claims under the Act.”  Id. at 581.

Because of the bifurcated structure of recoverable damages under the Act, the possibility for two distinct and independent judgment debtors in any case involving a settlement or judgment in excess of the defendant healthcare provider’s liability cap exists.  This leads to the issue of how collateral litigation expenses are allocated between the defendant healthcare provider and the Fund.

The Supreme Court observed that: “Delays resulting from appeals or other procedural maneuvers will generate collateral litigation expenses in differing amounts for the health care provider or the” Fund depending upon the litigation strategy each elects. [emphasis in original] Id. at 583.  The Court held “that each judgment debtor is individually responsible for its collateral litigation expenses.  We find this to be the case even when these collateral litigation expenses are added to a settlement or judgment figure and the resultant total exceeds the Act’s statutory damage limits.” [emphasis in original]  Id. Consequently, a plaintiff’s total damage award can potentially exceed the applicable damage cap under the Act when collateral litigation expenses are added to the full cap amount.

Finally, the Poehlman Court held that “Indiana’s Post-Judgment Interest Statute fully applies to medical malpractice judgments.”  Id. at 584.  The Post-Judgment Interest Statute is contained in IC §24-4.6-1-101, which provides that interest on judgments at an annual rate of 8% shall begin on the date the verdict is returned.The Court’s holdings serve as incentive to “judgment debtors to satisfy expeditiously their debt obligations to avoid this accrual of interest.”  Id.

As a reminder, the limitations on damages discussed apply only to “qualified providers” for purposes of the Medical Malpractice Act.  IC §34-18-14-3(b).  As of the date of this article, there are no damage caps with respect to healthcare providers who are not classified as qualified providers under the Act and thus not subject to the provisions of the Act with its numerous protections for healthcare providers.

X. Limitations on Attorney Fees

Contingent Fee Arrangement

Attorney fees are typically paid on a contingency basis in medical malpractice cases.  That means the attorney’s entire legal fee is paid as a percentage of any settlement amount or jury award.  If there is no recovery, then the attorney does not receive any payment as a legal fee.  Contingent fee arrangements enable all injured parties to have the benefit of legal representation in pursuing their legal claim regardless of their financial resources.  Most people simply cannot afford to hire an attorney on an hourly fee basis to pursue their claim, so they would be left with either just giving up on their claim or attempting to represent themselves, with the likelihood of recovering any damages only slightly higher than the former option.  Contingent fee arrangements empower the injured to take on healthcare practitioners, institutions, and insurance companies as equals.

This type of fee arrangement is permitted in every state as well as the federal court system subject to the basic ethical requirement that the fee amount is reasonable and not excessive.  Most jurisdictions impose a limit on the fee percentage somewhere between 10% to 50% of the amount recovered, depending on one or more of the following factors: (1) the type of claim, (2) the stage of the case in which it is ultimately resolved, and (3) the amount recovered.

It should be noted that costs and expenses are separate from an attorney’s legal fee.  Some examples of costs and expenses include, but are certainly not limited to, medical records, police reports, filing fees, trial exhibits, expert witness fees, and depositions.  Some attorneys will deduct these amounts from the final recovery while others will charge the client as they are incurred.

Limitations on Attorney Fees in Indiana

Attorney fees in medical malpractice cases that are subject to the Medical Malpractice Act are partially capped by statute.  The portion of a recovery amount for which the defendant healthcare provider is liable is not subject to a statutory limit; however, the portion that is paid by the Patient’s Compensation Fund is subject to a statutory cap on attorney fees imposed by IC §34-18-18-1.  For acts of malpractice that were committed before July 1, 2017, the cap is 15% of any recovery from the Fund. IC §34-18-18-1(1).  For acts of malpractice after June 30, 2017, the cap is 32% of any recovery from the Fund.  IC §34-18-18-1(2).

Although the recovery amount attributable to the defendant healthcare provider is not subject to the statutory cap, the attorney fee is subject to the Indiana Rules of Professional Conduct. Rule 1.5(a) prohibits a lawyer from charging or collecting “an unreasonable fee or an unreasonable amount for expenses.”  The Rule directs that the following factors be considered in determining the reasonableness of a fee:

1. The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

2. The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

3. The fee customarily charged in the locality for similar legal services;

4. The amount involved and the results obtained;

5. The time limitations imposed by the client or by the circumstances;

6. The nature and length of the professional relationship with the client;

7. The experience, reputation, and ability of the lawyer or lawyers performing the services; and

8. Whether the fee is fixed or contingent.

Comment 1 to Rule 1.5 states that the eight enumerated factors are not exclusive and that each of the factors may not be relevant in every case.

Rule 1.5(c) requires that contingent fee agreements be clearly and fully disclosed in writing and signed by the client.  The agreement must state the method by which the fee is to be calculated and what amounts will be paid to the lawyer in the event of settlement, trial, or appeal.  It must also clearly describe what expenses will be deducted from the recovery and whether they will be deducted before or after the contingent fee is calculated.

In 2007, the Indiana Supreme Court addressed the issue of how much may a lawyer charge as a reasonable percentage of the client’s non-Fund recovery (which is not subject to the statutory cap) in order to recover a reasonable total fee from both sources.  In re Stephens, 867 N.E.2d 148 (Ind. 2007).  The Court acknowledged that a numerical answer would be useful, but “it is simply not possible to put a number on the ethical requirement that attorney fees be reasonable.”  Id. at 155.  Similarly, the Court refused to issue a “safe harbor” range of permissible fees.  Id.  The reason the Court gave for it being impossible to provide a numerical answer or safe harbor range was because: “Each case is unique and must be evaluated on its own terms, considering such factors as the complexity of the medical issues, the risk of a finding of no liability, the degree of dispute over damages, whether the case is fully tried, the anticipated litigation expenses, etc.”  Id.

However, the Court offered “guidance for attorneys seeking to ensure that their fee agreements are ethically sound.”  Id.The Court provided its guidance in the form of five principles.

1. The constitutionality of the statutory cap on attorney fees can be questioned if it is applied in a manner that “seriously impede[s] the ability of the injured patient to employ effective counsel.[4]”

2. The Legislature capped attorney fees from the Fund, but it left the determination of the reasonableness of the combined overall fee to the Supreme Court via the Professional Conduct Rules. “Even if a total fee in a medical malpractice case includes 100% of the non-Fund recovery, the legislative limit on Fund money still acts as an effective cap on the total fee at the higher ranges.”

3. Contingent fees of up to 35% are commonly considered reasonable in tort cases. In complex cases not governed by the statutory cap, 40% is ordinarily the maximum.  A contingent fee in the 32-35% range is not unreasonable in medical malpractice cases.

4. Indiana law favors the freedom of parties to enter into contracts of their own making. “If an attorney and client enter into an arms-length, fully informed, and freely negotiated fee agreement … this would be a strong indication that the resulting fee is reasonable and thus ethical.”

5. “Finally, fees of all types in all manner of cases must be reasonable based on all the factors listed in Professional Conduct Rule 1.5(a). In some medical malpractice cases, a total fee of 32-35% may be unreasonably high.”  In some cases, a lower fee may be more appropriate.  at 155-156.

XI. Apologies and Gestures of Sympathy

Forty-two states have some form of apologies or sympathetic gestures statute (commonly referred to as “I’m Sorry” laws) that excludes expressions of sympathy, condolences, or apologies from being used against the person communicating such sentiments in a civil lawsuit.  This is typically achieved by characterizing such expressions as inadmissible evidence in a medical malpractice case.

Indiana is among the states that has enacted an “I’m Sorry” law.  It is contained in IC §34-43.5-1 to IC §34.43.4-1-5.  The statute shields healthcare providers who communicate benevolent gestures by making them inadmissible as evidence of liability in an action for medical malpractice.  The statute provides that “a court may not admit into evidence a communication of sympathy that relates to causing or contributing to:

• a loss;
• an injury;
• pain;
• suffering;
• a death; or
• damage to property.” IC §34-43.5-1-4.

The term ‘communication of sympathy’ is defined in the statute as “a gesture, an act, conduct, or a writing that expresses: (1) sympathy; (2) an apology; or (3) a general sense of benevolence.”  IC §34-43.5-1-3.  The statute specifically states that it applies to medical malpractice actions.  IC §34-43.5-1-2.  However, there is an important exception in the statute, which provides that any statement of fault, even as part of a communication of sympathy, is not covered by the shield of inadmissibility granted by the statute, and any such statement of fault is admissible if otherwise permitted under the Indiana Rules of Evidence.  IC §34-43.5-1-5.

XII. Patient’s Compensation Fund

Indiana was the first state in the nation to establish a Patient’s Compensation Fund via the Medical Malpractice Act of 1975.  The Fund is governed by IC §34-18-6.  It functions as an excess layer of insurance coverage for participating healthcare providers as well as a cap on damages.  That is, the Fund pays damages in excess of the statutory maximum for which a participating healthcare provider is liable up to a statutory maximum applicable to the Fund itself.  Atterholt v. Herbst, 902 N.E.2d 220, 222 (Ind. 2009).  The statutory caps are set forth in IC §34-18-14-3 and discussed in Section IX of this article.

For example, the statutory damage caps for the period between June 30, 2017 and July 1, 2019 for a healthcare provider and the total recoverable amount are $400,000 and $1.65 million, respectively. IC §34-18-14-3(a) and (b).  Accordingly, in a case involving a maximum damage award payout, the healthcare provider’s primary medical malpractice insurance pays the first $400,000 of the damage award, and the Fund pays the remaining $1.25 million for a total payout of $1.65 million.

Participation by healthcare providers is voluntary and requires payment of an enrollment surcharge (conceptually like a premium paid to a private insurance carrier) to the Fund. IC §34-18-3-2.  Participating providers are required to carry a specified minimum amount of primary medical malpractice insurance.  Id.  If a healthcare provider elects not to participate in the Fund or otherwise fails to qualify as a participant, the provider is not covered by the provisions (protections) of IC Title 34, Article 18, i.e., the Indiana Medical Malpractice Act, and “is subject to liability under the law without regard to” the Act.  IC §34-18-3-1.  In addition, if a healthcare provider does not participate or qualify for the Fund, “the patient’s remedy is not affected by” the Act.  Id.For the reasons discussed throughout this article, plaintiffs’ interests are far better served filing suit against a non-qualified healthcare provider than one who is classified as qualified.

The Fund’s obligation to pay a specified amount to a plaintiff may be paid (1) in a lump sum, (2) an agreement requiring periodic payments from the Fund over a period of years, (3) the purchase of an annuity payable to the plaintiff, or (4) any combination of the foregoing methods of payment.  IC §34-18-15-1.

Effective July 1, 2017, claims for payment from the Fund must be computed and paid “not later than sixty (60) days after the issuance of a court approved settlement for final nonappealable judgment.”  IC §34-18-6-4.  The term ‘final nonappealable judgment’ is defined as “a final judgment with respect to which: (1) the time for filing an appeal has expired; (2) all appeals have been exhausted; or (3) both.”  IC §34-18-2-12.5.  A final nonappealable judgment is issued on the date any of the events in (1) through (3) occurs.  Id.

[1] Note that the Act uses the terms ‘comparative’ and ‘contributory’ interchangeably.  For instance, the term ‘comparative’ is used in the title of the Chapter itself while the term ‘contributory’ is used in individual sections such as §34-51-2-6.  Similarly, the terms ‘comparative negligence,’ ‘contributory fault,’ and ‘comparative fault’ are used interchangeable in this article.

[2] Pure comparative negligence is the complete opposite of contributory negligence.  Under pure comparative negligence, the plaintiff may still recover damages even if he or she is 99% at fault; whereas, under contributory negligence, the plaintiff is completely barred from any recovery if he or she is even 1% at fault.

[3] Non-economic damages include (1) physical and emotional pain and suffering, (2) physical impairment, (3) emotional distress, (4) mental anguish, (5) loss of enjoyment, (6) loss of companionship, services, and consortium, and (7) any other nonpecuniary loss proximately caused by the negligence.  IC §34-30-29.2-2.

[4] Quoting the Indiana Supreme Court case Johnson v. St. Vincent Hospital, Inc., 404 N.E.2d 585, 602 (Ind. 1980), in which the Court ruled that the cap on attorney fees is constitutional.

XIII. Disclaimer

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