Posted By Steven Langer
Indiana lawmakers are responsible for authoring statutes that govern the amount of time an injured person can file a lawsuit against a negligent party, which is typically known as the statute of limitations.
Specific statutes of limitations govern medical malpractice cases. And you should be aware, this topic gets complex. If you contact an attorney to review a potential claim too close to the end of the statute of limitations, the attorney may politely decline to investigate the claim because medical malpractice cases often require substantial preliminary investigation and enough time may no longer be available.
To complicate matters even further, Indiana lawmakers are responsible for creating the Medical Malpractice Act, – which states that if a person is hurt by a negligent healthcare provider, the injured person must first bring the case before a medical review panel if the negligent healthcare provider is “qualified” under Indiana’s Medical Malpractice Act (“Act”).
A healthcare provider is “qualified” under the Act when the provider or their insurance company pays money to a state fund. If the healthcare provider is “qualified,” the amount an injured person can recover is likely capped, regardless of how severe the person is harmed. There is also a special statute of limitations on the time period by which a person may bring a claim against a “qualified” healthcare provider. Since nowadays, most healthcare providers obtain qualified status, this article will focus on the statute of limitations applicable to qualified healthcare providers.
In general, an injured person only has two years from the date the medical malpractice occurred to file a medical malpractice action in the appropriate venue. For example, if a person goes to the emergency room on March 1, 2014, with severe chest pain, is then discharged a few hours later, and the patient dies at home two days later on March 3, 2014, because the doctor negligently discharged the patient when the patient was experiencing a heart attack, the statute of limitations is two years from the date of malpractice – March 1, 2014, and not two years from the date of death.
This general two-year medical malpractice statute of limitations has some exceptions, which sometimes can be difficult to prove. Some of those exceptions are:
- Minors – Parents of any child younger than six who is the victim of medical negligence has only until the child’s 8th birthday to file a claim. Parents of children six years and older only have two years from the date of malpractice to file a claim. Therefore, the parent or guardian of a child must be vigilant in having an attorney review a potential claim.
- Consideration of a particular patient’s circumstances – Sometimes, it is impossible for a patient to know or discover they have been a victim of medical malpractice within two years of the date of malpractice. This happens frequently in cases where tumors or other abnormalities were missed on imaging studies. If there is no possible way a patient could discover malpractice within the general two-year time limitation and discovery occurs after the running of the general two-year statute of limitations, a patient may be able to argue they have two years from the date of discovery of the malpractice. However, this issue gets complicated when a patient may not know of the malpractice on the date it occurs, but discovers the malpractice before the end of the two-year statute of limitations. The Indiana Supreme Court has ruled that a patient who does not know of malpractice on the date it occurs, but discovers it within the two-year time limitation, must file the claim before the end of the general two-year statute of limitations, unless no reasonable time remains. However, Indiana courts have held that as little as four months remaining on the statute may be sufficient time to file the claim.
- Doctrine of continuing wrong – The doctrine of continuing wrong applies when a healthcare provider’s entire course of conduct combines to cause an injury. When this happens, the statute of limitations starts to run when the continuing negligent action stops. For instance, say a family physician misdiagnoses the patient for many years. Because the patient had been treated by the same physician for numerous years, the statute would likely begin on the last date of treatment with that particular doctor.
- Active fraudulent concealment – Active fraudulent concealment occurs when a healthcare provider by deception or active efforts conceals material facts from a patient so as to prevent the patient from discovering a wrong. If this occurs, a patient must file suit within a reasonable time period after the discovery of malpractice.
- Passive fraudulent concealment – This circumstance arises out of a doctor-patient relationship – in other words, the doctor is under a duty to inform the patient of material facts. Here, the statute of limitations begins to run at the end of the doctor-patient relationship. After the termination of the relationship, the patient has the duty to discover malpractice and the doctor no longer has a duty to disclose. A patient must file a suit within a reasonable time period after the termination of the doctor-patient relationship.
In medical malpractice cases, determining whether any of these exceptions apply and when the statute ends can be a difficult task, which is why it is extremely important to contact an experienced Indiana medical malpractice lawyer as soon as someone feels malpractice might have occurred.