If you believe you were harmed because of a mistake made by a doctor or other health care provider in Indiana, you might be thinking of suing for medical malpractice. The first thing you should know is that these cases have very complicated rules and procedures, and they can be daunting for injured patients. Although you’ll almost certainly want to get a lawyer’s help (more on that below), it’s helpful to have a basic understanding of the rules in Indiana, so that you don’t make a mistake at the outset that could spell the end of your case before it has started.
This article gives an overview of the most important Indiana laws that can affect the outcome of your medical malpractice claim, including the deadlines for taking action, the state’s requirement for a medical review panel, limits on how much compensation you may receive if you win or settle your case, and limits on attorney’s fees.
(Note: All of the rules discussed in this article apply only when the health care provider you plan to sue has qualified for coverage under the state’s medical malpractice laws—including by showing proof of financial responsibility and paying a surcharge into Indiana’s patients’ compensation fund (Ind. Code § 34-18-3-1 (2021)). In the rare situation when you learn that the provider hasn’t qualified, regular personal injury laws generally should apply to your injury claim.)
A "statute of limitations" is a law that sets a deadline for filing a lawsuit in court. Like many states, Indiana has a specific statute of limitations for medical malpractice cases. The law says that injured patients must file these lawsuits within two years after the alleged medical negligence happened. If the injured patient was a child under the age of six, the lawsuit may be filed any time before the child’s eighth birthday. Otherwise, Indiana doesn't extend the deadline just because the patient was a minor. (Ind. Code § 34-18-7-1 (2021).)
The two-year statute of limitations also applies to filing proposed complaints for a medical panel review—which Indiana requires before many medical malpractice cases can go forward—but the lawsuit filing deadline is suspended during the review process (more on that below).
In some situations, it might be years before patients realize that they’ve suffered injury as a result of medical malpractice—such as when a negligent misdiagnosis led to the progression of cancer or another illness with a long latency period. That’s why many states use what’s known as the “discovery rule” in medical malpractice cases. Under most versions of this rule, the “clock” for the statute of limitations doesn’t start running until the discovery date—when the patients learned about (or reasonably should have discovered) the alleged medical negligence and the resulting injury.
Although Indiana’s law doesn’t specifically mention the discovery rule, the state’s courts apply a version of it—but with a twist. When patients couldn’t have been expected to discover the medical negligence and the resulting injury until after the two-year deadline already passed, Indiana courts have held that it would violate the state’s constitution to bar those patients’ lawsuits for being too late. In that situation, the patients have two years after the discovery date to file.
But here's the twist: When injured patients discover the alleged malpractice (or learn facts that would lead to that discovery using reasonable diligence) within the two-year period, they must meet the deadline as long as they have a reasonable amount of time left to file the lawsuit. If they’ve discovered the malpractice shortly before the deadline, then they must file within a reasonable amount of time after that (in other words, they won’t have a full two years to file after the discovery date).
Of course, it’s not always clear exactly when patients should have discovered medical malpractice. Also, Indiana’s courts haven’t settled on one universal standard for what would be a “reasonable” amount of time to file a lawsuit when the discovery date was before the expiration of the two-year deadline. Those issues typically get hashed out in individual court cases, based on the specific circumstances. That’s why it’s important to speak with a medical malpractice attorney as soon as possible after you suspect that you’ve been harmed by a doctor’s or other health care provider’s negligence.
In an effort to weed out frivolous medical malpractice lawsuits, many states require injured patients to provide some kind of proof to back up their claims at the outset of their case—typically in the form of an affidavit of merit. Indiana requires most injured patients to go through a more complex and time-consuming procedural hurdle—a medical review process—before they may file a lawsuit.
Unless you sincerely believe that you will not have more than $15,000 in losses (or damages) as a result of the alleged malpractice, you must file a proposed complaint with the Indiana Department of Insurance by the deadline for filing a lawsuit (discussed above). That will start the medical panel review process.
You (or your lawyer) and the defendant health care provider(s) will participate in the selection of the the medical review panel, which will include three licensed health care professionals and a nonvoting attorney chairperson. Once the panel has been formed, you and the defendant must promptly submit written evidence, including medical records, transcripts of depositions of witnesses (such as the parties and experts), and any other evidence the panel allows. After all the evidence is submitted, both you and the defendant have the right to request a meeting of the panel and to question the panelists.
Within 30 days after reviewing all the evidence (and within 180 days after the panelists were selected), the panel will issue one or more of the following expert opinions:
The panel’s opinion may be admitted as evidence in a subsequent trial in your lawsuit, just like any other expert evidence. The panelists may also be called to testify as witnesses.
You will have to pay the panelists’ fees and other expenses if the panel’s majority opinion is in your favor, and you’ll pay half of the costs if there isn’t a majority opinion.
If you want to go ahead with your medical malpractice case after completion of the medical panel review, you must file the lawsuit within 90 days after receiving the panel’s opinion. (Ind. Code §§ 34-18-7-3, 34-18-10-1 and following (2021).)
Indiana law allows you to file a medical malpractice case without going through a medical panel review only if:
What if you filed a lawsuit with that declaration, but you later discover that your injuries were more serious than you originally believed, and $15,000 wouldn’t be adequate compensation for your damages? If your belief was reasonable, you may ask to have your case dismissed “without prejudice.” Then you can start over with the review panel process described above. However, you must file your proposed complaint within the original two-year deadline (discussed above), plus an extra 180 days. Ind. Code §§ 34-18-7-1, 34-18-8-5, 34-18-8-6 (2021).)
Many states have laws that set limits on how much money injured patients may receive in court awards (or settlements) in medical malpractice cases. Most of these damage caps apply only to “noneconomic damages,” such pain and suffering or emotional problems. Indiana sets a cap on all medical malpractice damages, including economic losses like medical expenses, lost income, and reduced ability to earn in the future.
The amount of Indiana’s damages cap depends on when the malpractice happened. The limit is $1.65 million for cases involving malpractice that happened between July 1, 2017, and June 30, 2019; if the malpractice happened on or after July 1, 2019, the cap is $1.8 million. (Ind. Code § 34-18-14-3 (2021).)
Indiana’s courts have found that the law with the damages cap doesn’t violate the state’s constitution.
You’ve probably figured out by now that medical malpractice cases are complicated. This article has only given an overview of the basic requirements for filing one of these lawsuits. If you believe you have a valid malpractice claim against a health care provider, you’ll want to do your best to find the right lawyer to help you navigate the process.
But how will you pay for a medical malpractice lawyer? It may help to know that these attorneys almost always charge what’s known as a contingency fee—which means they collect a percentage of any settlement or award that they help you win. And Indiana law sets an upper limit on that percentage: for cases involving malpractice that happened after June 30, 2017, the cap is 32% of the amount you receive. (Ind. Code § 34-18-18.1 (2021).)