By William A. Ramsey and Catherine Hart
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.