Indiana Medical Malpractice Laws

This page is intended to provide a brief overview of what you may expect if you are pursuing a medical malpractice claim in Indiana; however, the best course of action to take if you are considering doing so is to consult with an experienced medical malpractice attorney licensed in Indiana. An experienced attorney will be able to guide you through the specifics of the laws that are more finely tuned with the details of your medical malpractice claim and explore whether your claim has the requisite merit to be filed in court.

Weighing whether or not to bring a medical malpractice action can be a difficult and cumbersome process. You are likely in the midst of healing from your injury and now you are faced with the prospect of extensive litigation against a health care provider that you entrusted with your life.

Medical malpractice litigation can be incredibly nuanced, the complexities of which require skilled and experienced legal counsel. If you or a loved one has been a victim of medical malpractice, you have a specified time period in which you are able to bring a claim. If you fail to file a claim within that timeframe, it is quite possible that you will not be able to do so at any point and you will not be permitted to recover for your pain and suffering.

Suing for Medical Malpractice in Indiana

Since 1975, a good portion of Indiana’s medical malpractice cases have been governed by Indiana’s Medical Malpractice Act which serves to balance protection for both patients and their physicians. The Act governs medical malpractice lawsuits that have been filed against qualified physicians. For a physician to become qualified, they must voluntarily file proof of financial responsibility and pay a surcharge which goes towards the Indiana Patient Compensation Fund. The Fund serves as an additional layer of insurance coverage for each qualified physician.

If the physician for which a medical malpractice lawsuit is being brought is considered to be a qualified physician under the Act, they will then be able to use contributory negligence as a defense. If the physician is not considered to be qualified, they will be relegated to the defense of modified comparative negligence.

In Indiana, a medical malpractice case may be brought by an injured patient against a health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional. The law in Indiana places a set time period for which a medical malpractice claim may be filed.

When it comes to medical malpractice claims, most cases settle out of court prior to the case advancing to the trial stage of litigation. Indiana’s Medical Malpractice Act caps the amount of damages that you may be awarded.

How long do I have to file a medical malpractice case in Indiana?

The first step in bringing a claim for medical malpractice against a healthcare provider is making certain that you are permitted to do so. The law in Indiana mandates that an action for personal injury must be filed within two years from the date the cause of action accrues. [1] This time limitation is known as the “statute of limitations” which refers to the period from the time an injury occurs or is discovered to the final date on which a medical malpractice lawsuit can be filed. If you decide to bring an action after the statute of limitations have passed, a court can dismiss your case and you will be left with no other legal option to pursue justice. The reason behind placing a time limitation on when you may file a medical malpractice claim is based on the notion that a court is interested in credible evidence in order to establish a credible cause of action. As time passes, it is possible that the crucial evidence that would initially aid your case would become less compelling, making your case all the more difficult to prove.

It is important to note that Indiana law states that the statute of limitations clock does not begin to run until your injury has been, or should have been, discovered. This rule is known as the “discovery rule.” Once you discover or should have discovered, your injury, the two-year window to file your lawsuit begins. If the injured party was a minor under six years of age, they have until their eighth birthday to file a medical malpractice lawsuit. [2]

In Indiana Medical Malpractice Cases, who is Responsible?

The law in Indiana considers medical malpractice to be 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. [3]

If you were injured by a health care provider, you may file a medical malpractice lawsuit against the physician, surgeon, osteopath, physician assistant, podiatrist, or health care facility licensed to practice or operate in the State of Indiana.

When bringing a medical malpractice claim against a healthcare provider, the burden of proof rests with you and you must prove:

• The health care provider owed you a duty to act as a reasonably competent physician would act under the same or similar circumstances.
• The health care provider breached that duty.
• You were injured.
• Your injury was caused by the health care provider’s breach of duty.

What if I am partially to blame? Can I Still Recover Money for Indiana Medical Malpractice?

If you are bringing a medical malpractice lawsuit against a qualified physician, your claim will be governed by Indiana’s Medical Malpractice Act. Under the Act, you will be held to the contributory negligence standard. Contributory negligence only allows for an award to be issued to you if it is found that you were not at fault at all in causing your injury. If it is found that you were even only slightly to blame, then you are completely barred from any type of monetary recovery.

However, in the rare circumstance that the health care provider that you are bringing an action against is not deemed to be “qualified,” the lawsuit will not be governed by the Medical Malpractice Act and you will be held to a modified comparative fault standard. Indiana, along with 32 other states recognizes the doctrine of modified comparative fault. The doctrine allows a court to assign a percentage of blame to each party involved in the lawsuit and any damage award is reduced in proportion to your apportioned fault. Of the 33 states that follow a modified version of comparative fault, Indiana is one of 22 states (Connecticut, Delaware, Hawaii, Illinois, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin and Wyoming) that follow a 51% rule where you are only able to recover damages for an injury if a court determines that your apportionment of fault for your own injury is 50% or less. [4] In other words, if you wish to recover a monetary award for your injury, you must not have contributed more to the injury that the health care provider that you are suing.

For example, imagine you become very sick after ingesting medication that was prescribed to you by your doctor. A court finds that your sickness was caused by a combination of a disclosed allergy and other medication that was against the doctor’s instructions that you consumed while on the newly prescribed medication. The court ultimately finds that the doctor should never have prescribed that specific type of medication due to your allergy and assigns the defendant 50% of the blame while assigning 50% of the blame to you for not following the doctor’s instructions when you consumed medication that was not permitted while on the newly prescribed medication. Since you were assigned 50% of the blame, you would be able to recover a portion of damages because you were not found to have been 51% or more at fault for your injury. If the court awarded $100,000 in damages, you would be able to recover $50,000 after the apportioned 50% of fault is applied.

Are there medical malpractice recovery caps in Indiana?

If you are ultimately successful in your medical malpractice claim, you will be awarded damages. The term “damages” is synonymous with a monetary award which is used to compensate the plaintiff for the injuries they sustained as a result of the plaintiff’s negligence. There are two types of damage awards you may receive in Indiana:

Compensatory Damages are meant to place you in the position you would have been in had your injury never occurred as they are meant to compensate you for your injury. Compensatory damages are usually split into two categories – economic damages and non-economic damages.

Economic damages reimburse you for out-of-pocket items that can easily be accounted for like:

• Medical bills
• Prescription fees
• Nursing costs
• Physical therapy costs
• Wages lost from an inability to work

Non-economic damages compensate you for occurrences that are hard to properly value. For example:

• Pain and suffering
• Loss of consortium
• Loss of enjoyment of life
• Future medical costs
• Loss of future wages

Punitive Damages are different from compensatory damages in that they are intended to punish the defendant rather than provide compensation to you. The law in Indiana allows punitive damages to be awarded if you are able to establish that the defendant’s conduct was willful and wanton. Therefore, if the defendant took some conscious act to further their conduct beyond general negligence, it is likely that you may be successful when seeking punitive damages. An award of punitive damages is limited to the greater of three times the amount of compensatory damages or $50,000.

Under the Indiana Medical Malpractice Act, if you are awarded compensatory damages stemming from a medical malpractice lawsuit against a qualified health care provider, the defendant medical provider is responsible for the first $250,000 in damages. After the first $250,000, the Patient’s Compensation Fund is responsible for paying the remainder of the balance up to an overall damage cap of $1,250,000. However, lawmakers in Indiana recently approved an increase to the $1,250,000 damage cap which would see the cap stretch to $1,650,000 in 2017 and $1,800,000 in 2018. The bill currently sits with the Governor.

Damage caps do not exist in Indiana if your medical malpractice lawsuit is being brought against a non-qualified health care provider.

Expert witness reporting and testimony

An expert witness is a person who is a specialist in a subject who may present their expert opinion without having been a witness to any occurrence relating to the claim being brought before the court.

The testimony of an expert witness is of utmost importance in Indiana because their words can help prove causation. The expert will help to establish the standard of medical care in the geographical area or in the area of medical specialty at issue. Additionally, the expert will help establish the acceptable standard of care and how the health care provider’s conduct did not meet that standard of care.

Are some parties immune from medical negligence cases?

Indiana’s Medical Malpractice Act provides immunity from liability to government entities and their employees when acting within the scope of their employment. [5]

Settling medical malpractice cases in Indiana

Many medical malpractice cases settle out of court. For this reason, many states have enacted laws that require some type of mandatory pretrial mediation or screening panel and Indiana is no different.

The law in Indiana requires anyone interested in filing a medical malpractice claim against a qualified health care provider to go before a medical review panel where the facts of the case will be presented to a panel comprised of one lawyer and three members of the health care profession. [6] After hearing arguments from each side, the panel will issue an opinion as to whether or not the named defendants acted or failed to act within the appropriate standards of care and whether the failure contributed to your injury. [7]

While not mandatory, if both parties agree, the lawsuit may be moved to an arbitration proceeding which means that the case will be handled outside of the court system. Arbitration is often seen as a less expensive, expedited method of resolving a dispute that would otherwise proceed to trial.

Litigating medical negligence cases in Indiana

After first having your case presented in front of a medical review panel and possibly undergoing voluntary arbitration, if a settlement was not ultimately reached, your claim will likely advance to trial.

A claim for medical malpractice in Indiana is initiated by preparing a Complaint that must be served on the named defendants in your case. The defendant is then required to file a document that is called the Answer which provides responses to the allegations you made in the Complaint and will also list the affirmative defenses that will be used.

Initiating the Case

Indiana’s Medical Malpractice Act states that for a medical malpractice lawsuit to be initiated, the case must first be reviewed by a medical review panel prior to the claim being filed in court. To begin the process, you must file a proposed medical malpractice complaint with the Indiana Department of Insurance. Once filed, the department will notify all named healthcare providers as well as their insurance carriers of the proposed complaint.

A medical review panel will then be assembled which is usually comprised of a lawyer and three doctors. The panel will review the case and then each panelist will provide an opinion as to whether the evidence supports your complaint. The opinion must be rendered within 180 days of the panel being assembled. However, the panel’s opinion is not the end-all, be-all to your case. If the panel’s opinion is that the evidence does not support your complaint, you still have the right to go to court.

To begin a civil action in Indiana, you must file a Complaint with the clerk of the court. The Complaint should include the proper name of every plaintiff and of every defendant as well as a statement of facts constituting the cause of action.

A Civil Summons is also required and notifies the court and the defendant that you are filing a lawsuit. [8]

After the Complaint and Summons are served upon all named defendants, each defendant has 20 days to provide an Answer to the complaint. [9] A copy of the Answer should be served upon the plaintiff’s attorney or the plaintiff.

Preparing for Litigation

After the medical review panel inquiry has concluded and the Complaint, Summons, and Answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is a procedure designed to allow disclosure between both sides of a lawsuit which allows both sides to know what to expect at trial.

In a medical malpractice case, medical records and doctor’s notes are usually items that will be requested for disclosure.

Each side may obtain discovery by:

• Deposition
• Written interrogatories
• Production of documents
• Physical or mental examinations
• Requests for admission [10]

A deposition is a fact-finding tool where the opposing side is permitted to ask questions of the witness being deposed who is under oath. A deposition does not usually take place in a courtroom. Instead, the questions are asked in an attorney’s office where attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary. Through the question and answer session, opposing counsel will try to find out what facts the opposing party believes to be true and what facts they may be exaggerating. A court reporter is usually present during a deposition. At the trial any part of a deposition, if admissible under the rules of evidence, may be used against any party who was present at the deposition. [11]

Written interrogatories are written questions sent to the opposing side that request answers which will be used to establish the facts that will be presented once the case goes to trial.

Production of documents is a request made to the opposing side whereby tangible documents are sought. In a medical malpractice case, an example of a request for production of documents would be a request to view the medical records of the claimant.

Request for admission is a set of statements drafted by one side and sent to the other where the receiver must answer in the affirmative or the negative. In a medical malpractice case, an example of a request for admission would be a statement like, “the defense has no evidence to support a basis that the claimant caused their own injuries.” If the defense answers in the negative, the claimant would know that the defense is intending to proffer some type of evidence in an attempt to prove that they were at least partially to blame for their own injury.

When your physical condition is in controversy, the court in which the action is pending may order you to submit to a physical examination. In order for the examination to take place, an order must be made based upon good cause. The examination will serve to corroborate that the injury being complained of does in fact exist. [12]

Pretrial Litigation

Litigation can be expensive and there is no guarantee that either side will come out unscathed. For these reasons, it is not uncommon for a case to settle prior to reaching the trial stage of litigation.

As mentioned, the law in Indiana requires anyone interested in filing a medical malpractice claim against a qualified health care provider to first file an inquiry with a review panel with an eye focused on settlement.

Settlement is permitted at any time prior to the lawsuit proceeding to trial.

Trial

During a trial, all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. In Indiana, medical malpractice cases are decided by a jury consisting of six members. [13] Indiana Rules of Civil Procedure Rule 47

To choose a jury, a procedure known as “voir dire” is conducted whereby attorneys ask potential jurors questions in order to determine what biases the panel members may have in favor or against the case being brought before the court. Once this process is completed, both sides will decide what parties they would like to remove from juror consideration. The law in Indiana allows each side to have three peremptory challenges where jurors may be eliminated from consideration. [13] Once each side finishes announcing the parties they wish to have removed, the jury is impaneled.

In Indiana, a person is considered to be qualified to be a juror if they are:

• a citizen of the United States;
• a resident of Indiana
• at least 18 years of age; and
• of sound mind

After the jury selection is completed, opening statements will begin. An opening statement is an outline of what each side thinks the evidence will be and is offered to help jurors understand and follow the evidence during the trial.

From there, the plaintiff will begin to argue their case. The plaintiff will call witnesses at this time and each witness will be questioned by the plaintiff’s attorney and then likely cross-examined by the

opposing side’s attorney. After all the plaintiff’s witnesses have been called and evidence has been presented, the plaintiff will rest their case.

Once the plaintiff finishes the presentation of their case, the defense will begin to present their evidence. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury.

Once both sides have argued their cases, closing arguments will take place. During closing arguments, each side’s attorney will explain to the jury what they believe the evidence proves. In the final argument, each side will summarize the facts that were presented during the trial and attempt to show how they support their client’s case. The closing arguments allow the jury to better understand the case.

Finally, jury instructions are then given by the judge to the jury and the jury is then free to deliberate and come back with a finding.

Appeal

Many times the losing side in a medical malpractice case will opt to appeal a decision from the lower court. An appeal is a legal proceeding which allows a higher court to review the decision rendered by a lower court. Most appeals taking place in Indiana must be filed within 30 days from notice of the judgment or decision.

How to find the best Indiana Medical Malpractice Lawyer for your case

Achieving the best possible outcome in your medical malpractice case is often contingent upon securing the best possible counsel to represent you in your action. Finding skilled legal representation can take your mind off of the legalese involved in a lawsuit so that you can focus on healing your injury and moving on with your life.

One of the main motivating factors in bringing a medical malpractice lawsuit against a health care provider that caused your injury is to receive proper compensation for the pain, suffering, and losses you have likely endured while also attempting to make sure that the negligent actions taken by the health care provider never happen again. Without a damage award, it is likely that you would be forced to go out-of-pocket in order to help heal your injury. The medical bills can be astronomical, making adequate compensation all the more important.

When looking to hire legal representation, it is important to remember that the attorney will be working for you – not the other way around. The process of hiring an attorney or law firm should be on your timetable, not theirs. Do not let an attorney or firm pressure you into hiring them on the spot. Do your due diligence and interview more than one law firm to make sure that the counsel you end up with is the right fit. Once you have several candidates lined up, weigh the pros and cons of each and decide which you feel most comfortable with.

When looking for legal representation, you will want to search for an attorney or firm that has a wealth of knowledge and experience in cases that are similar to yours. Do not be afraid to ask an attorney or law firm their level of experience. It may also be wise to ask if they have ever litigated a case similar to yours and whether or not they were successful. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last and what your expected damages may be. They can also inform you of the estimated cost of litigation. Do not be afraid to ask about their fee structure and if they prefer to litigate on an hourly or contingency basis.

You may want to get a feel for if you actually like the attorney or law firm that you are interviewing. While you do not have to be best friends with your legal counsel – in fact, it is best not to be – you need to decide if the person or people representing you are people you want to be in constant contact with day in and day out. Communication between attorneys and clients is incredibly important. You should also ask your potential attorney or firm how they communicate with their clients. People communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Your attorney should adapt their communication methods to fit your needs. If the attorney or law firm is unwilling to communicate with you the way you prefer, move on and find representation that will.

Be careful of false promises. An attorney or firm who feels your case is a “slam dunk” is likely just trying to secure your business and should raise a red flag. Medical malpractice cases are complex and far from a sure thing. Make certain that an attorney or firm is serious about dedicating the requisite time to put you in a position to have a successful outcome.

Some notable medical malpractice law decisions from Indiana

These cases represent awards to plaintiffs in medical malpractice cases in Indiana. These results are in no way a guarantee that subsequent, similar, cases will see the same results.

Estate of Phyllis R. Barnes vs. Weinberger

The plaintiff, on behalf of Phyllis Barnes’ estate, brought a medical malpractice lawsuit against Dr. Mark Weinberger and a physician’s assistant Joe Clickenbeard.

The lawsuit claimed that Weinberger and Clinkenbeard were liable for the wrongful death of Barnes after failing to properly diagnose her lung cancer. Barnes first saw Dr. Weinberger for symptoms including coughing, hoarseness, and difficulty swallowing and breathing. Weinberger ordered a CT scan of Barnes’s sinuses, which were shown to be clear and normal. Despite the absence of sinus disease, on October 11, 2001, Weinberger performed extensive and risky surgery on Barnes, removing all of her sinus cavities. Barnes continued to have difficulty breathing following the surgery and, after seeking further treatment from Weinberger to no avail, saw Dr. Dennis Han, another ENT. At Barnes’s first appointment, Dr. Han diagnosed her with Stage IV laryngeal cancer. Based on Barnes’s history and condition, Dr. Han believed that Barnes had had cancer for at least six to nine months and that there were clear indications of cancer at the time she saw Dr. Weinberger. Barnes underwent extensive treatment for her cancer, including chemotherapy, radiation, and numerous surgeries. Barnes was cured of laryngeal cancer, but suffered a recurrence in her lungs, leading to her death. Clinkenbeard came into contact with Barnes when he treated her 11 times for a variety of sinus and bronchial issues.

Prior to the trial, the case was presented before a medical review panel that decided that the actions of Weinberger and Clinknbeard were against Indiana’s medical ethical standards.

The defendants claimed that the cancer was difficult to detect and that was the reason other ailments were given treatment. However, the jury decided to hold Dr. Weinberger solely responsible for the death of Phyllis Barnes and did hold Clinkenbeard liable.

The jury ultimately awarded $3 million to the estate in compensatory damages and an additional $10 million in punitive damages. However, because Indiana’s malpractice law currently caps damage awards at a maximum of $1.25 million per alleged incident of malpractice, Weinberger’s insurers are likely to file a motion to reduce the award.

Davis v. Morse

The plaintiff, Jeffrey Davis, filed a medical malpractice lawsuit against Dr. John Morse, based upon the claim that the defendant failed to perform tests that would have properly diagnosed his colon cancer.

Davis saw Dr. Morse after he experienced symptoms that included rectal bleeding and other gastric issues. Dr. Morse failed to order a sigmoidoscopy or colonoscopy, two common exams to rule out colon cancer. Two years later, Davis moved states and saw a different doctor for the same symptoms. That doctor ordered the tests and found that Davis’ cancer was at an incurable Stage 4.

A medical review panel considered the evidence and concluded that the evidence did not support the conclusion that the defendant failed to meet the applicable standard of care as charged in the complaint. However, Davis proceeded with the lawsuit which eventually went to trial.

At trial, there was conflicting evidence as to whether Davis actually told Morse about his rectal bleeding and he had a family history of colon cancer. However, the jury sided with Davis and awarded $2.5 million in compensatory damages. That amount will be reduced to $1.25 million due to Indiana’s damage cap laws.

Footnotes

[1] Ind. Code. § 34-11-2-3

[2] Ind. Code. § 34-11-2-3

[3] Ind. Code. § 34-18-2-18

[4] Ind. Code. § 34-51-2-6

[5] Ind. Code. § 34-6-2-49

[6] Ind. Code. § 34-18-8-4

[7] Ind. Code. § 34-18-10-23

[8] Ind. Code. § 31-32-9-1

[9] Ind. R. Civ. P. Rule 6(c)

[10] Ind. R. Civ. P. Rule 26

[11] Ind. R. Civ. P. Rule 27

[12] Ind. R. Civ. P. Rule 26

[13] Ind. R. Civ. P. Rule 47

[14] Ind. R. App. P. 9, 14