Changes being considered for medical malpractice claims

January 28, 2015

More medical malpractice cases could be filed directly in state trial courts without first having to go through the exhaustive and mandatory medical review process under legislation pending in the Indiana Senate. A proposal in the Indiana House of Representatives aims to raise the caps on damages and insurer liability.

Senate Bill 55, which cleared the Senate Judiciary Committee Jan. 21, raises the dollar amount of malpractice claims exempt from the medical review panel process from the longtime threshold of $15,000 to $50,000.

Steele Steele

That’s a far cry from what committee chairman Sen. Brent Steele initially proposed. The Bedford Republican wrote the bill to allow claims of up to $187,500 to skip the medical review panel process enacted in 1975. Several senators were discouraged with the drastically reduced limit, but nonetheless, Steele and others voted to move the amended bill out of committee and will try to raise the limit on the Senate floor.

“We don’t get this, we don’t get anything,” Sen. R. Michael Young, R-Indianapolis, said to a colleague dissatisfied with the lower limit in the amended bill, urging his vote to move the measure to the full Senate. Earlier, Sen. Susan Glick, R-LaGrange, told the panel she couldn’t support raising the limit above $50,000. The committee voted 6-3 to amend the bill. Neither advocates nor opponents of the bill who testified before the committee were pleased with the compromise that advanced to the full Senate on an 8-1 vote.

Trial lawyers say the costs incurred and time required in bringing a claim before a review panel makes the current limit a bar to smaller claims. For many lawyers, bumping that limit to $50,000 won’t change their minds.

Langer Langer

“I don’t think $50,000 is fair to patients or even hospitals,” said Indiana Trial Lawyers Association President Steve Langer, who testified in favor of the original measure raising the limit to $187,500. He noted a representative of St. Francis Health in Indianapolis testified in support of raising the limit to $75,000.

Steele said he tried to work with trial lawyers, insurers and health care providers before filing the bill, but the parties couldn’t find common ground on raising the current exemption level that was enacted in 1985, but hasn’t been increased since.

“The Legislature created an exemption for direct access,” Steele said. “They made the public policy decision that a less-serious case should have direct access without having to go through a panel, which is a very complicated and expensive process.”

Steele, a lawyer himself, said opponents of raising the cap would rather see no exemption from medical review panels. “They know it is a hurdle too high, and they’re not honest brokers,” he said. “They’re well aware there are some inequalities.

“Doctors make mistakes, lawyers make mistakes, and when you make mistakes, you gotta pay the piper, I’m sorry,” he said.

Opponents of SB 55 say they won’t support any legislation that they contend would undermine the medical review panel process they say has proven successful over decades.

Engelking Engelking

Lara Engelking is a registered nurse and Carmel attorney whose firm, Engelking Law Group LLC, represents Indiana health care providers. She said any increase in the limit that would remove cases from review panel oversight would be “very concerning” to her clients.

Medical malpractice law under I.C. 34-18-8 requires medical review panels consisting of three health care providers to render opinions on proposed claims before they may be heard in court. An attorney also is appointed to chair these panels but has no vote.

Engelking testified that data on the performance of panels is persuasive, noting that 83 percent of cases brought before medical review panels concluded with a finding that the case was or was not malpractice. “Those cases get resolved,” she said. “It’s working in Indiana.”

Malpractice cases “require a panel to help a jury sort through the complexities,” Engelking testified. She said colleagues in other states tell her that malpractice trials in their jurisdictions frequently devolve into a “battle of experts” where jurors are left not knowing who to believe. She said one colleague in a neighboring state admitted that jury decisions there are often made on which side’s expert was the better actor.

Engelking cited a 2006 American Medical Association medical liability national survey that found 44 of 50 states were in crisis or showing problem signs. Indiana was among the six that received a clean bill of health from the AMA, largely on the strength of the medical review panel process.

Young and other senators, though, said they were sensitive to testimony of trial attorneys who said the cost of bringing cases even involving low-damage claims before a medical review panel can easily run to $20,000.

“It is a process that requires lawyers,” Sen. John Broden, D-South Bend, said in supporting an increase in the limit greater than the $50,000 sum the committee ultimately passed.

Several senators expressed unease with the $187,500 limit initially proposed, but the committee struggled to reach consensus.

Glick’s amendment setting the limit at $50,000 passed after the committee narrowly voted down a proposed amendment from Sen. Greg Taylor, D-Indianapolis, that would have set the limit at $105,000.

“Both sides have compelling arguments about the cost-benefit analysis” of medical review panels, Taylor said.

Taylor tied his proposed figure to the rise in the medical consumer price index since the $15,000 limit was enacted. Glick’s figure is closer to the rise in the overall consumer price index during that time. Taylor cast the lone vote against the bill as amended.

Zachary Cattell, general counsel for the Indiana Health Care Association, said groups representing about 85 percent of the skilled nursing facilities in Indiana oppose SB 55. Other opponents of the bill include Hoosier Owners and Providers for the Elderly, and Leading Age Indiana, organizations that represent care facilities and providers.

Some experts believe the low limit on exempting claims from medical review panels and the costs involved in bringing those cases to panels suppresses the number of cases on the lower end of the damages scale. According to the fiscal impact statement accompanying SB 55, just 11 proposed medical malpractice claims made to the Indiana Department of Insurance were for amounts between $15,000 and $187,5000.

Meanwhile, medical malpractice awards in Indiana remain capped at $1.25 million, with a health care provider insurer’s liability capped at $250,000 per claim. Any judgments in excess of $250,000 are paid from the Indiana Patient’s Compensation Fund.

Trial lawyers argue the current $1.25 million cap on medical malpractice claims is too low.

All that would change under House Bill 1043. Rep. Jerry Torr, R-Carmel, authored legislation that would increase the award cap to $1.65 million and raise insurers’ liability to $300,000.

House Bill 1043 has been assigned to the House Judiciary Committee, but a hearing date had not been set at IL deadline.•


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