INDIANA MEDICAL MALPRACTICE

Norris Cunningham Jarrod Malone Hall Render Killian, Heath & Lyman

April 17, 1975 Indiana was the first state in the U.S. to adopt comprehensive medical malpractice reform to address access to physicians and medical care. A History of the Medical Liability Issue, Indiana Compensation Act for Patients (INCAP), ISMA, Third Ed., 2003

The requirement of the statute that malpractice claims be first submitted to a medical panel for evaluation is one reasonable means of dealing with the threatened loss to community of health care services. Johnson v. St. Vincent, 404 N.E.2d 585, 594 (Ind. 1980)

Financial Responsibility Patient s Compensation Fund Medical Review Panels Damage Caps Attorney s Fees Caps

Financial Responsibility FINANCIAL RESPONSIBILITY I N D I A N A M E D I C A L M A L P R A C T I C E A B A L A N C I N G A C T

Financial Responsibility Health Care Providers Must Submit Proof of Financial Responsibility (Insurance) and Pay a Surcharge. Health Care Providers=$250k/$750k. Hospitals <100 beds: Annual Aggreg.=$5 mil. Hospitals >100 beds: Annual Aggreg.=$7.5 mil. Health Facility <100 beds: Annual Aggreg.=$750k. Health Facility >100 beds: Annual Aggreg.=$1.25 mil. IC 34 18 4, et seq.

Patient s Compensation Fund PATIENT S COMPENSATION FUND I N D I A N A M E D I C A L M A L P R A C T I C E A B A L A N C I N G A C T

Patient s Compensation Fund A state-run insurance fund to pay large claims which levies an annual surcharge on health care providers premiums. Since July 1, 1999, the surcharge is based on an average of actual rates for all physicians in the same specialty class according to the specialty s risk to the Patient s Compensation Fund. A History of the Medical Liability Issue, Indiana Compensation Act for Patients (INCAP), ISMA, Third Ed., 2003

Indiana Patient s Compensation Fund 2009 Annual Report

Medical Review Panels MEDICAL REVIEW PANELS I N D I A N A M E D I C A L M A L P R A C T I C E A B A L A N C I N G A C T

Medical Review Panels Selection Consists of One Attorney and Three Health Care Providers The Attorney Doesn t Vote. Any Party Can Request Formation of Panel. Each Side Nominates a Panel Member and Those Panelists Select a Third Member. Each Side Can Strike the Other s Nomination Two Times and Then a Striking Panel Will Be Appointed. IC 34 18 10, et seq.

Medical Review Panels Practical Points Selection of a Qualified Panel Chair is Difficult. Requesting Formation of Panel is Rare. Parties Often Disagree over Panelist s Specialty. Parties Rarely Make Nominations Most Request the Panel Chair to Appoint Striking Panels. No Provision to Replace a Panel Member but Most Panel Chairs Will When a Conflict Exists. IC 34 18 10, et seq.

Medical Review Panels Possible Opinions 1) The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint. 2) 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. IC 34 18 10 22

Medical Review Panels Possible Opinions 3) There is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court or jury. 4) The conduct complained of was or was not a factor of the resultant damages. If so, whether the plaintiff suffered: a) any disability and the extent and duration of the disability; and b) any permanent impairment and the percentage of the impairment. IC 34 18 10 22

Old Way To Do Panel Submissions STATE OF INDIANA BEFORE THE DEPARTMENT OF INSURANCE LINDA SMITH and ) BOB SMITH, ) ) Plaintiffs ) ) v. ) ) DR. BILL WILLIAMS, ) ) Defendant. ) DR. BILL WILLIAMS SUBMISSION MEDICAL REVIEW PANEL: Douglas J. Molehill MOLEHILL FUNKY & MATT Two Ohio Sq., Ste. 2500 Indianapolis, IN 46204 I.Introduction Linda Smith lived at home with her husband, Bob Smith, on November 11, 1978, when she presented herself to her family doctor, Dr. Bill Williams. She complained of chest pain, shortness of breath and tingling in her left arm. Her blood pressure was 190/90, and her respiration rate was 32. According to the record, her pain had been going on for about a month. Reportedly, it started when she helped her husband remove the engine from their car. Mrs. Smith past medical history was significant for TAH and GERD. She smoked for 30 years but quit about 3 weeks ago. She only occasionally drinks alcohol. She suffered from diabetes and tried to watch her diet. She was non-compliant with her Insulin regimen. Dr. Williams physical exam revealed an obese female with a pendulous abdomen (362#) The patient s chest pain increased with deep inspiration. Dr. Williams requested Mrs. Williams be sent to the University Medical Center for cardiac workup including EKG and cardiac enzymes. However, the patient declined EMT transport stating, I think Bob can get me there faster than some ambulance! The record reveals Mrs. Smith left Dr. Williams office at 6:30 p.m., but she didn t arrive at the University Medical Center until 9:11 p.m. At that time, she reported her chest pain was better from early, but she was still short of breath. Fictitious Parties and Facts

This Is Not Your Father s Submission! Excerpts of Redacted Submission

This Is Not Your Father s Submission! Excerpts of Redacted Submission

Post Panel Proceedings After the Medical Review Panel renders its Written Opinion, Plaintiff has 90 days plus whatever time remained on the underlying Statute of Limitations to refile. Plaintiff can refile their claim even if they receive a Negative Opinion against them. Plaintiff must retain an expert to overcome Summary Judgment.

Damage Caps DAMAGE CAPS I N D I A N A M E D I C A L M A L P R A C T I C E A B A L A N C I N G A C T

Damage Caps The limitation upon recovery is successful in preserving the availability of health care services. It does so to the benefit of the entire community including the badly injured plaintiff. Johnson v. St. Vincent, 404 N.E.2d 585, 599(Ind. 1980)

Damage Caps $250,000 per Occurrence of Malpractice. Discharge of Liability Through Periodic Payments Agreement. Cost of Agreement Must Exceed $187,000 More Than One Health Care Provider Can Contribute. Total Amount of Recovery for Injury or Death May NOT exceed $1,250,000 ( Hard Cap ). Damage Caps Last Increased in 1999. IC 34 18 14, et seq.

CAPS ON ATTORNEY S FEES I N D I A N A M E D I C A L M A L P R A C T I C E A B A L A N C I N G A C T

Attorney s Fees When a plaintiff is represented by an attorney in the prosecution of the plaintiff s claim, the plaintiff s attorney s fees from any award made from the patient s compensation fund may not exceed 15% of any recovery from the fund IC 34 18 18, et seq.

Cases of Interest CASES OF INTEREST I N D I A N A M E D I C A L M A L P R A C T I C E A B A L A N C I N G A C T

Damage Caps The Supreme Court determined a patient may be entitled to a post-trial evidentiary hearing to determine validity of MMA s cap on damages ($1.25 mil.). Death of 47 year mother of three following failure to diagnose small bowel obstruction. Jury awarded husband $8.5 mil. Marion Circuit Court, Judge Louis F. Rosenberg, reduced verdict to conform with statutory cap of $1.25 mil. Ind. Sup. Ct. accepted transfer. Plank v. Community Hospitals of Indiana, Inc., 956 N.E.2d 731 (Ind.App. 2011) trans. granted

Plank Continued The Indiana Supreme Court issued a 5-0 opinion affirming the trial court s denial of Plank s request for an evidentiary hearing to challenge the constitutionality of the Medical Malpractice Act concluding that Plank had forfeited his opportunity to conduct such a hearing. The Supreme Court disagreed with this position acknowledging that the determination of constitutionality can be challenged. The Court did not address the constitutionality of the cap but whether Plank was entitled to an evidentiary hearing in order to develop the constitutional argument. The Supreme Court s acknowledgement that the constitutionality of the cap on damages under the Indiana Medical Malpractice Act can be revisited suggests that the Court is willing to reevaluate the issue in future cases. Healthcare providers should anticipate plaintiffs will now file notices of intent to challenge the constitutionality of the cap on most, if not all, cases and be prepared to argue the same.

Multiple Caps Supreme Court determined patient can recover for separate acts of malpractice that inflicts distinct injuries. Parents sued physician and hospital for injuries to infant son, and settled with physician. Starke Cir. Ct., David Matsey, granted Hospital s Motion for Summary Judgment finding child suffered only one injury, and Court of Appeals affirmed. Ind. Sup. Ct. reversed, stating complaint articulated two injuries prenatal and postnatal. Fund settled for two maximum statutory caps. Miller v. Memorial Hospital of South Bend, 679 N.E.2d 1329 (Ind. 1997)

Duty Hospital treated woman for injuries from reported fall and discharged her to former husband s custody. He killed her, then himself on way home. Estate claimed Hospital and doctor had duty to protect her from domestic violence. Monroe Cir. Ct., Mary Ellen Diekhoff, granted summary judgment for hospital and doctor based on lack of duty and contributory negligence. In a question of first impression, Ct. of Appeals reversed stating there was a question as to whether hospital had duty not to discharge patient to care of suspected abuser Ind. Sup. Ct. reversed and affirmed trial court s ruling McSwane v. Bloomington Hosp. and Healthcare System, 916 N.E.2d 906 (Ind. 2009)

Acts Not Covered By The Act Court of Appeals determined the MMA is not so broad so that every patient-provider claim is covered. Patient tripped and fell on protruding floor board at a time when she wasn t under care/treatment of medical staff Hancock Sup. Ct., Richard Payne, denied Hospital s Motion for Summary Judgment that patient failed to comply with a precondition of MMA requiring opinion from medical review panel Premise liability claims were not impetus of enactment of MMA It is absurd to believe the legislature would have reached out to restrict such liability by including it with the Act. Winona Memorial Foundation v. Lomax, 465 N.E.2d 731 (Ind.App. 1984)

Punitive Damages Court of Appeals determined punitive damages were allowable under MMA. Patient underwent back surgery and claimed lack of informed consent, battery and punitive damages. Vigo Sup. Ct., Frank Nardi, granted summary judgment for neurosurgeon on battery claim but denied remaining claims. Court of Appeals noted nothing in Medical Malpractice Act prohibited punitive damages. We know of no reason physicians or other medical personnel who engage in such conduct should be immune from such damages. Cacdac v. West, 705 N.E.2d 506 (Ind.App. 1999)

INDIANA MEDICAL MALPRACTICE Norris Cunningham Jarrod Malone