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Indiana Medical Malpractice Act - Chapter 8
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IC
34-18-8
Chapter 8.
Commencement
of a Medical
Malpractice
Action
IC 34-18-8-1
Commencement
of action;
complaint
Sec. 1.
Subject to
IC 34-18-10
and sections
4 through 6
of this
chapter, a
patient or
the
representative
of a patient
who has a
claim under
this article
for bodily
injury or
death on
account of
malpractice
may do the
following:
(1)
File a
complaint in
any court of
law having
requisite
jurisdiction.
(2)
By demand,
exercise the
right to a
trial by
jury.
As added
by
P.L.1-1998,
SEC.13.
IC 34-18-8-2
Fees
Sec. 2. The
following
fees must
accompany
each
proposed
complaint
filed:
(1)
A filing fee
of five
dollars
($5).
(2)
A processing
fee of two
dollars ($2)
for each
additional
defendant
after the
first
defendant.
As added
by
P.L.1-1998,
SEC.13.
IC 34-18-8-3
Demand;
reasonable
damages
Sec. 3.
Except for
the
declaration
called for
in section
6(a) of this
chapter, a
dollar
amount or
figure may
not be
included in
the demand
in a
malpractice
complaint,
but the
prayer must
be for such
damages as
are
reasonable
in the
premises.
As added
by
P.L.1-1998,
SEC.13.
IC 34-18-8-4
Prerequisites
to
commencement
of action;
presentation
of claim to
medical
review panel
Sec. 4.
Notwithstanding
section 1 of
this
chapter, and
except as
provided in
sections 5
and 6 of
this
chapter, an
action
against a
health care
provider may
not be
commenced in
a court in
Indiana
before:
(1)
the
claimant's
proposed
complaint
has been
presented to
a medical
review panel
established
under
IC 34-18-10
(or
IC 27-12-10
before its
repeal); and
(2)
an opinion
is given by
the panel.
As added
by
P.L.1-1998,
SEC.13.
IC 34-18-8-5
Agreements
not to
present
claims to
medical
review
panels
Sec. 5.
Notwithstanding
section 4 of
this
chapter, a
claimant may
commence an
action in
court for
malpractice
without the
presentation
of the claim
to a medical
review panel
if the
claimant and
all parties
named as
defendants
in the
action agree
that the
claim is not
to be
presented to
a medical
review
panel. The
agreement
must be in
writing and
must be
signed by
each party
or an
authorized
agent of the
party. The
claimant
must attach
a copy of
the
agreement to
the
complaint
filed with
the court in
which the
action is
commenced.
As added
by
P.L.1-1998,
SEC.13.
IC 34-18-8-6
Claims
not greater
than
$15,000;
commencement
of action;
dismissal
without
prejudice
Sec. 6. (a)
Notwithstanding
section 4 of
this
chapter, a
patient may
commence an
action
against a
health care
provider for
malpractice
without
submitting a
proposed
complaint to
a medical
review panel
if the
patient's
pleadings
include a
declaration
that the
patient
seeks
damages from
the health
care
provider in
an amount
not greater
than fifteen
thousand
dollars
($15,000).
In an action
commenced
under this
subsection
(or
IC 27-12-8-6(a)
before its
repeal), the
patient is
barred from
recovering
any amount
greater than
fifteen
thousand
dollars
($15,000),
except as
provided in
subsection
(b).
(b) A
patient who:
(1)
commences an
action under
subsection
(a) (or
IC 27-12-8-6(a)
before its
repeal) in
the
reasonable
belief that
damages in
an amount
not greater
than fifteen
thousand
dollars
($15,000)
are adequate
compensation
for the
bodily
injury
allegedly
caused by
the health
care
provider's
malpractice;
and
(2)
later
learns,
during the
pendency of
the action,
that the
bodily
injury is
more serious
than
previously
believed and
that fifteen
thousand
dollars
($15,000) is
insufficient
compensation
for the
bodily
injury;
may move
that the
action be
dismissed
without
prejudice
and, upon
dismissal of
the action,
may file a
proposed
complaint
subject to
section 4 of
this chapter
based upon
the same
allegations
of
malpractice
as were
asserted in
the action
dismissed
under this
subsection.
In a second
action
commenced in
court
following
the medical
review
panel's
proceeding
on the
proposed
complaint,
the patient
may recover
an amount
greater than
fifteen
thousand
dollars
($15,000).
However, a
patient may
move for
dismissal
without
prejudice
and, if
dismissal
without
prejudice is
granted, may
commence a
second
action under
this
subsection
only if the
patient's
motion for
dismissal is
filed within
two (2)
years after
commencement
of the
original
action under
subsection
(a) (or
IC 27-12-8-6(a)
before its
repeal).
(c) If a
patient:
(1)
commences an
action under
subsection
(a) (or
IC 27-12-8-6(a)
before its
repeal);
(2)
moves under
subsection
(b) (or
IC 27-12-8-6(b)
before its
repeal) for
dismissal of
that action;
(3)
files a
proposed
complaint
subject to
section 4 of
this chapter
based upon
the same
allegations
of
malpractice
as were
asserted in
the action
dismissed
under
subsection
(b) (or
IC 27-12-8-6(b)
before its
repeal); and
(4)
commences a
second
action in
court
following
the medical
review panel
proceeding
on the
proposed
complaint;
the
timeliness
of the
second
action is
governed by
IC 34-18-7-1(c).
(d) A
medical
liability
insurer of a
health care
provider
against whom
an action
has been
filed under
subsection
(a) (or
IC 27-12-8-6(a)
before its
repeal)
shall
provide
written
notice to
the state
health
commissioner
as required
under
IC 34-18-9-2.
As added
by
P.L.1-1998,
SEC.13.
IC 34-18-8-7
Commencement
of action
while claim
being
considered
by medical
review panel
Sec. 7. (a)
Notwithstanding
section 4 of
this
chapter,
beginning
July 1,
1999, a
claimant may
commence an
action in
court for
malpractice
at the same
time the
claimant's
proposed
complaint is
being
considered
by a medical
review
panel. In
order to
comply with
this
section,
the:
(1)
complaint
filed in
court may
not contain
any
information
that would
allow a
third party
to identify
the
defendant;
(2)
claimant is
prohibited
from
pursuing the
action; and
(3)
court is
prohibited
from taking
any action
except
setting a
date for
trial, an
action under
IC 34-18-8-8
(or
IC 27-12-8-8
before its
repeal), or
an action
under
IC 34-18-11
(or
IC 27-12-11
before its
repeal);
until
section 4 of
this chapter
has been
satisfied.
(b) Upon
satisfaction
of section 4
of this
chapter, the
identifying
information
described in
subsection
(a)(1) shall
be added to
the
complaint by
the court.
As added
by
P.L.111-1998,
SEC.9.
IC 34-18-8-8
Motion to
dismiss
filed by
commissioner
Sec. 8. If
action has
not been
taken in a
case before
the
department
of insurance
for a period
of at least
two (2)
years, the
commissioner,
on the:
(1)
motion of a
party; or
(2)
commissioner's
own
initiative;
may file a
motion in
Marion
county
circuit
court to
dismiss the
case under
Rule 41(E)
of the
Indiana
Rules of
Trial
Procedure.
As added by
P.L.111-1998,
SEC.10.
Note:
Anyone
who believes they may have a medical
malpractice claim should immediately consult
an attorney with experience in handling such
cases. As with many areas of the law,
medical malpractice law in Indiana is very
complex and contains numerous caveats and
peculiarities. One should not attempt to
interpret or apply the law to one's case
without the consultation of a medical
malpractice lawyer. Given that various
time limitations may apply, it is highly
advisable to consult such an attorney
without delay, in order to avoid having a
potential claim barred.
For more information, or for
a free attorney consultation with The
Powless Law Firm,
click here, or call toll-free:
(888)922-2889.
This page
was last updated on 8/8/05. It is
highly advisable to undertake an independent
review of the current statute to ensure that
no legislative changes have been adopted
since such time.
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