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Mills: Updates to Indiana’s Medical Malpractice Act are here

June 28, 2017
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By Courtney David Mills

In 2016, the Indiana Legislature made significant changes to Indiana’s Medical Malpractice Act to take effect on July 1, 2017, giving insurance companies and health care providers time to adapt and implement the changes. Most of the changes involved increasing fees paid by medical providers, but a potentially significant change could expedite the administrative phase of a medical malpractice case. Below are the primary changes affecting health care providers.

1. Increase to Indiana’s cap on damages

Indiana is one of the few states that has a statutory cap on all damages in a medical malpractice case. The Indiana MMA cap on damages has three key amounts that are relevant to medical providers. The first amount is the discounted primary liability cap (i.e., the amount a medical provider can typically pay to resolve a case by settlement). Currently, that amount is set at $187,001. The second amount is the maximum primary liability cap, which is the maximum liability for an individual health care provider (whether paid as a cash settlement or in response to a verdict at trial). This amount is currently set at $250,000. The third amount is the total cap on all damages (i.e., the maximum amount a patient can receive for an act of malpractice). Currently that amount is set at $1.25 million.

In a hypothetical case involving significant damages, a plaintiff will typically seek a settlement of $250,000 from the medical provider’s insurance company. (This amount is typically set up as an annuity with a present cost of $187,001 or a cash payment of $250,000.) After a plaintiff receives $187,001/$250,000 from the health care provider, he or she can petition the Indiana Patient’s Compensation Fund for up to an additional $1 million in damages. The PCF is funded by annual surcharges paid by all qualified health care providers in the state, and on average, pays approximately $100 million in excess damages per year. In the coming years, these amounts will increase (see chart).

2. Increase of panel fees paid to members of medical review panels

A medical review panel is similar to a peer review committee established to review a medical malpractice claim before the Indiana Department of Insurance. A medical review panel consists of three health care providers (typical of the same specialty as the defendant health care providers); and one attorney (the panel chair). The physician members of the panel are charged with reviewing the evidence in the case and rendering an opinion regarding the applicable standard of care. The panel chair is selected by agreement of the parties and is a non-voting member of the medical review panel charged with ensuring the process runs smoothly. The physician members of the panel are paid a flat fee of $350, but that amount is set to increase to $500. The panel chair is typically paid a flat fee of $2,000, but that amount is set to increase to $2,500.

3. New section regarding timeliness

focus-malpractice-table.gifEffective July 1, the Medical Malpractice Act will mandate all parties follow the timelines set forth under the MMA unless there is a mutual written agreement between the parties. In other words, dilatory conduct will no longer be tolerated unless the parties consent to such delays.

Conclusion

The recent updates to the MMA are the most significant changes since 1999. Several groups supported by health care providers contend that the recent updates will stave off constitutional challenges to the MMA (which have become increasingly prevalent in recent years). At very least, the updates demonstrate the Legislature’s intent to periodically review the MMA and to update it accordingly. As these updates are implemented in the coming years, we will see whether the effects are helpful or harmful.•

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Courtney David Mills is an associate at Riley Bennett & Egloff LLP, where he concentrates his practice in medical malpractice defense. The opinions expressed are those of the author.

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  • Change is good
    It's nice to see snail progress in the Indiana medical malpractice laws. My husband and I had a winning case and out lawyer missed the filing dates, therefore our case was thrown out. I filed Pro Per Se from Boston and of course we lost. I found the whole process to be unconstitutional.
  • Article
    Nice work, Courtney!

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  1. He TIL team,please zap this comment too since it was merely marking a scammer and not reflecting on the story. Thanks, happy Monday, keep up the fine work.

  2. You just need my social security number sent to your Gmail account to process then loan, right? Beware scammers indeed.

  3. The appellate court just said doctors can be sued for reporting child abuse. The most dangerous form of child abuse with the highest mortality rate of any form of child abuse (between 6% and 9% according to the below listed studies). Now doctors will be far less likely to report this form of dangerous child abuse in Indiana. If you want to know what this is, google the names Lacey Spears, Julie Conley (and look at what happened when uninformed judges returned that child against medical advice), Hope Ybarra, and Dixie Blanchard. Here is some really good reporting on what this allegation was: http://media.star-telegram.com/Munchausenmoms/ Here are the two research papers: http://www.sciencedirect.com/science/article/pii/0145213487900810 http://www.sciencedirect.com/science/article/pii/S0145213403000309 25% of sibling are dead in that second study. 25%!!! Unbelievable ruling. Chilling. Wrong.

  4. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  5. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

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