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Long-term care facilities commonly include arbitration provisions in their admission agreements as an efficient and cost-effective way to resolve legal disputes. However, LTC facilities in Indiana should carefully consider the unique nature of the Indiana Medical Malpractice Act to avoid the unintentional waiver of provider protections created by the act, including the medical review panel process and limitations on damages.
The Medical Malpractice Act
The act establishes a framework for handling medical malpractice claims against qualified health care providers in Indiana. Two important protections available to providers via the MMA are the medical review panel requirement and the statutory caps on damages.
The MMA requires that, absent written agreement by the parties, a plaintiff must present his or her claim to a medical review panel for its expert opinion before proceeding in state court. A medical review panel’s opinion is admissible as expert evidence at trial and can therefore be a powerful tool to combat meritless claims filed against qualified providers.
The MMA also sets statutory caps on the amount that may be recovered from a qualified provider, with the cap dependent on the date of the alleged malpractice.
A broadly worded arbitration agreement, if not drafted with intention, could result in an unintentional waiver of one or both protections.
Indiana courts generally enforce arbitration clauses and, when applied to claims covered by the MMA, have held that a broad arbitration clause that does not include language requiring compliance with the MMA as a condition precedent to arbitration will result in a waiver of the MMA’s provisions, including the medical review panel process and limitations on damages. See Estate of King v. Aperion Care, 155 N.E.3d 1193 (Ind. Ct. App. 2020), holding that a broad arbitration provision included in a LTC admission agreement resulted in a waiver of the MMA’s protections where the provision did not require the MMA procedures as a condition precedent to arbitration.
Key takeaways
Indiana LTC facilities can reap the benefits of arbitration clauses while also enjoying the MMA’s protections by carefully drafting arbitration clauses to carve out claims covered by the MMA — for example, by requiring the plaintiff to submit a claim to a medical review panel before the claim may be submitted to arbitration or by specifically incorporating the limitations on damages provisions into the arbitration clause.
Indiana LTC facilities should carefully review their admission agreements to ensure any arbitration clauses incorporated therein reflect the facility’s intention to participate in or waive the benefits of the MMA.•
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Osborne is a partner with Riley Bennett Egloff LLP.
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