Indiana was the first state to pass
a comprehensive Medical Malpractice Act. The Act became effective
July 1, 1975 and has been amended from time to time since
then. The Medical Malpractice Act was passed as a reaction
by the legislature to a perceived insurance crisis in 1975
regarding healthcare providers in Indiana.
In a medical malpractice action, the plaintiff
must prove that:
1. The physician owed a duty to the plaintiff;
2. The physician breached the duty; and
3. The physician's breach proximately caused the plaintiff
to suffer a compensable injury.
The definition of "duty" revolves
around whether or not the physician fell below a specific
standard of care, given his expertise and professional responsibilities.
The total amount recoverable for an injury
or death of a patient may not exceed $500,000.00 for an act
of malpractice which occurs before January 1, 1990; $750,000.00
for an act of malpractice which occurs after December 31,
1989 and before July 1, 1999; and $1,250,000.00 for an act
of malpractice which occurs after June 30, 1999. Of that $1,250,000.00,
the healthcare provider is personally responsible for the
first $250,000.00 for an occurrence of malpractice (formerly
it was $100,000.00). The remainder of the recovery amount
comes from a "patient recovery fund".
In 1985, the Act was modified to provide
that, as a prerequisite to filing suit, complaints in cases
in which recovery in an amount greater than $15,000.00 was
sought had to be presented to a medical review panel (established
pursuant to the Act) for an opinion to be rendered by the
panel. This provision has a great tendency to slow down the
recovery time--or, at least, the ability to get to trial.
The medical review panel consists of three
doctors, usually appointed by plaintiff and defendant, and
a panel chairman, who usually is a lawyer.
Recent constitutional challenges to the
Act have successfully limited the time of occurrence (two-year
statute of limitations) to a time of discovery--although all
of the fine points of that issue have yet to be ironed out.
In addition, for a minor (more than six years of age) who
is/was injured after July 1, 1977, there are only two years
from the date of the occurrence of the malpractice within
which to file a claim with the Commissioner of Insurance.
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