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DTCI: The medical review panel process

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By William A. Ramsey and Catherine Hart
 

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The medical review panel process plays an important role in medical malpractice litigation, including separating meritorious claims from meritless claims. The panel process and its effect on subsequent or concurrent litigation in court are the subjects of numerous debates and a large body of case law on a variety of issues. This article addresses two such issues: (1) a medical provider’s right to anonymity when a party files a motion for preliminary determination during the panel process; and (2) whether the statutory 90-day period following the issuance of the medical review panel’s opinion should be added to any time remaining under the statute of limitations before the plaintiff files a claim with the Indiana Department of Insurance.

No court has specifically addressed the first issue, but policy and rules of statutory construction should lead to the conclusion that providers have the right to remain anonymous until the medical review panel issues its opinion. A federal court and the Indiana Supreme Court have made opposing statements on the second issue. Although the Supreme Court’s decision binds state courts; policy, logic and case law on similar issues support the federal court’s position.

Does a Medical Provider Have a Right to Anonymity on a Motion for Preliminary Determination?

A medical provider has a clear right to remain anonymous in a state court complaint filed before the medical review panel has issued its decision. A medical provider loses this right after the medical review panel issues its opinion. The open question is whether a medical provider has a right to remain anonymous when a party files a motion for preliminary determination before the medical review panel has issued its opinion.

Why anonymity is legally required

Indiana’s Medical Malpractice Act generally prohibits claimants from commencing an action against a qualified healthcare provider before presenting the proposed complaint to a medical review panel and allowing the panel to render an opinion. See Ind. Code § 34-18-8-4. The Act allows plaintiffs to commence an action in state court before the medical review panel issues an opinion if the state court complaint contains no information that identifies the defendants. See Ind. Code § 34-18-8-7(a)(1); Hubbard v. Columbia Women’s Hosp. of Indianapolis, 807 N.E.2d 45, 52 (Ind. Ct. App. 2004). The anonymity requirement “serves to ‘disfavor subjecting a health care provider to public accusations of medical malpractice until after such claim is presented to a medical review panel.’” Kho v. Pennington, 875 N.E.2d 208, 213 (Ind. 2007) (quoting Schriber v. Anonymous, 848 N.E.2d 1061, 1065 n.3 (Ind. 2006)).

A medical provider has a legitimate interest in controlling the amount of publicity generated by a malpractice claim, which can damage a medical provider’s reputation and mental well-being. See, e.g., Sara Charles, Coping with a Medical Malpractice Suit, 174 West J. Med. 55 (2001); Paul Levy, The Shame of Malpractice Lawsuits, available at http://thehealthcareblog.com/blog/2010/10/27/the-shame-of-malpractice-lawsuits/; Sheila L. Birnbaum, Physicians Counterattack: Liability of Lawyers for Instituting Unjustified Medical Malpractice Actions, 45 Fordham L. Rev. 1003 (1977), available at http://ir.lawnet.fordham.edu/flr/vol45/iss6/1; Roland Gray, M.D., Dealing with Malpractice Stress, Part I, 90 Tenn Med. 30 (2006). Policy and principles of statutory interpretation should lead to the conclusion that this interest is protected not only in situations where a plaintiff files a complaint before the medical review panel issues its opinion but also in situations where a party files a motion for preliminary determination during the panel process.

The preliminary determination context

The statute allowing a party to file a motion for preliminary determination is silent on whether the caption to the preliminary determination action should identify the medical providers. See Ind. Code § 34-18-11-2. A survey of appellate decisions indicates that, although most decisions identify the providers anonymously, no uniform practice exists. Compare Mooney v. Anonymous M.D. 4, 991 N.E.2d 565 (Ind. Ct. App. 2013); Johnson v. Dr. A., 973 N.E.2d 623 (Ind. Ct. App. 2012); Doe Corp. v. Honore, 950 N.E.2d 722, 724 (Ind. Ct. App. 2011); Kolozsvari v. Doe, 943 N.E.2d 823 (Ind. Ct. App. 2011); Anonymous Hosp. v. A.K., 920 N.E.2d 704, 705-706 (Ind. Ct. App. 2010); with Manley v. Sherer, 2013 WL 4039391 (Ind. 2013); Helms v. Rudicel, 986 N.E.2d 302 (Ind. Ct. App. 2013).

Although I.C. Section 34-18-11-2 is silent on the anonymity of medical providers on a motion for preliminary determination, the principle that statutes in pari materia should be construed together should lead courts to look to other sections of the Act, including the anonymity provision. In fact, the anonymity statute specifically references the chapter regarding preliminary determination motions. When looking at the statutes together, Section 34-18-11-2 should require parties seeking a preliminary determination to file a copy of the proposed complaint in the trial court but – pursuant to Section 34-18-8-7 – maintain a healthcare provider’s anonymity.

This interpretation not only comports with Indiana law regarding the interpretation of statutes but also is consistent with the policy behind confidentiality, which “is to protect the professional reputation of the provider from unfounded malpractice claims,” Kho, 875 N.E.2d at 214. It therefore makes sense to maintain the anonymity during preliminary determination proceedings, which inherently cannot reach the issue of whether a medical provider breached the standard of care and which can dispose of a malpractice claim. For example, medical providers can file motions for preliminary determination requesting dismissal for a plaintiff’s failure to act as required by the Act or seeking summary judgment based on lack of a patient-physician relationship or the statute of limitations. None of these reasons provides any reason for a medical provider’s name to appear in a lawsuit.

Admittedly, medical providers accused of malpractice do not enjoy complete anonymity until the completion of the panel process. Someone devoted to learning an anonymous provider’s true identity could likely do so. See Kho, 875 N.E.2d at 218 (Sullivan, J., concurring in part and dissenting in part). But the lack of total anonymity does not mean that all protections should be abandoned. Cf. Hubbard, 807 N.E.2d at 51 n.2 (explaining that the necessity of identifying the provider in the summons “does not … eviscerate the requirement of anonymity in medical malpractice complaints”). Allowing medical providers to remain anonymous on preliminary determination proceedings is a simple but meaningful way to further the policies that led the General Assembly to require complaints filed before the panel process to contain no identifying information at no discernible detriment to medical malpractice plaintiffs.

When Must a Plaintiff File a State Court Complaint Following the Medical Review Panel’s Opinion?

The relevant statute

Medical malpractice plaintiffs must file their complaints within two years of the occurrence of the malpractice. See Ind. Code § 34-18-7-1. Filing of a proposed complaint with the Department of Insurance tolls the statute of limitations “to and including a period of ninety (90) days following the receipt of the opinion of the medical review panel by the claimant.” Ind. Code § 34-18-7-3(a).

Varying applications of the statute

In interpreting the statute, the following question arises: Should a medical malpractice plaintiff be permitted to stack the time remaining on the statute of limitations when the proposed complaint was filed on top of the statutory 90 days provided to file a complaint after the medical review panel issues its opinion? That is, if a plaintiff files a proposed complaint one year before the statute of limitations runs, should the plaintiff have 90 days or one year and 90 days after the medical review panel issues its opinion to file a state court complaint?

According to language in an Indiana Supreme Court decision, plaintiffs may add any time remaining on the two-year statute of limitations when the proposed complaint was filed to the statutory 90-day period. Specifically, in Jordan v. Deery, 609 N.E.2d 1104 (Ind. 1993), the court assessed the timeliness of a child’s medical malpractice claim and concluded that the claim was timely because the running of the limitations period is suspended for the period of time from the date of filing the proposed complaint until 90 days following the receipt of the panel opinion. Id. at 1107; see also 23 Ind. Prac., Personal Injury Law & Practice § 11:16. The Jordan court reasoned that the plaintiff’s limitation period did not expire until approximately 20 months after her eighth birthday. Although the Supreme Court’s decision is currently binding precedent, the court’s reasoning with respect to the application of the tolling provision is arguably dicta, as stacking the limitations period was not necessary to reach the court’s holding in that case because the child filed the state court complaint before the statute of limitations would have expired without the additional 90 days.

A federal District Court, on the other hand, addressed a situation where the stacking question was determinative and decided that plaintiffs cannot stack the limitations period. See Payton v. Benson, M.D., 717 F. Supp. 1346 (S.D. Ind. 1989). The Payton court unequivocally concluded that a plaintiff has only the 90-day period following the issuance of the medical review panel opinion to file in state court. See id. at 1349.

In its thorough and well-reasoned analysis, the Payton court was unable to reconcile the stacking interpretation of the tolling provision with the occurrence nature of the Act’s statute of limitations. See id. Specifically, the court found that stacking is inconsistent with the express legislative goal of shortening the time period in medical malpractice cases and in curtailing rising malpractice insurance costs. Id. at 1350. The court also noted that if a plaintiff were allowed to stack the periods, a plaintiff would essentially be allowed to stretch the statute of limitations “beyond recognition” by adding unused time to the end of the tolling provision after the original two-year statute of limitation has elapsed — a result which is inconsistent with the intended purposes of the Act.

To further support its holding, the court also looked to the application of tolling provisions in other areas. For example, the court looked to employment discrimination cases in which claimants are required to bring suit 90 days after they receive a right to sue letter from the Equal Employment Opportunity Commission. Id.; see also Baldwin County Welcome Center, 466 U.S. 147 (1984) (finding that plaintiff who failed to file within the 90-day requirement did not commence her claim within the limitations period).

Based on these considerations, the court concluded that, unless more than 90 days remains on the statute of limitations after the medical review panel process ends, plaintiffs have only 90 days to file a state court complaint after the decision of the panel. The federal courts’ interpretation of the tolling provision is at odds with the Indiana Supreme Court’s later statement in Jordan. Interestingly, our Supreme Court in Jordan did not discuss, scrutinize or otherwise reference the federal court’s Payton decision.

Why the federal court got it right

A stacking interpretation of the tolling provision compromises the clear objective behind a statute of limitations, which encourages the prompt presentation of claims. See e.g., Havens v. Ritchey, 582 N.E.2d 792, 794 (Ind. 1991). As the Payton court pointed out, stacking essentially allows a plaintiff to stretch the limitations period beyond recognition, and it allows a claim to languish over the medical providers’ heads well in excess of the applicable two-year occurrence-based statute of limitations in malpractice claims.

Stacking the 90 days onto any time that remained before filing the proposed complaint also is inconsistent with the language of the tolling statute. The statute states that the statute of limitations is tolled “to” a period of 90 days after the panel opinion, not “for a period of” 90 days. The use of the word “to” suggests that the Legislature intended 90 days to be a stopping point.

Finally, it is difficult to see why a malpractice plaintiff would need more than 90 days after the panel process ends to decide whether to file a complaint. By the time the panel process ends, both parties have had the opportunity to gather any relevant records and conduct discovery. The parties also have the opinions of three experts who have reviewed the case. It is therefore highly unlikely that adopting the nonstacking Payton rule would cause any hardship to malpractice plaintiffs. And if a particular plaintiff needed additional time to decide whether to file a complaint, the plaintiff could ask for a tolling agreement.

Although most trial courts will likely view the Indiana Supreme Court’s decision as binding precedent, urging the court to reexamine its stance or the General Assembly to modify the statute is clearly warranted. One body or the other should clearly indicate that the 90-day period is not stacked based upon a variety of compelling policy considerations and the purposes of the Act and its statute of limitations.•

Mr. Ramsey and Ms. Hart are associates with Murphy Ice & Koeneman in Fort Wayne and are members of the Defense Trial Lawyers of Indiana. The opinions expressed in this article are those of the authors.

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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