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INDIANA TORT LAW -- DEFENDANTS 1 PLAINTIFFS 0
By Derrick H. Wilson
A. SUBSTANTIVE DIFFERENCES I. MEDICAL MALPRACTICE
A number of years ago, Indiana became one of the first states to find that a medical malpractice crisis existed and enacted very comprehensive tort legislation to remedy this perceived problem. The current codification of this legislation is Indiana Code (hereinafter I.C.) 27-12-1-1. Under I.C. 27-12-7-1, there is a two year statute of limitations for medical malpractice. Please note that under Indiana law, the malpractice statute currently is an occurrence statute, i.e., the statute begins running when the malpractice occurs, not when it is discovered. There is a special statute of limitations for minors. At least one Court of Appeals' decision in Indiana has held that the Indiana Medical Malpractice Statute of Limitations is unconstitutional because it has the effect of denying a certain number of people, who have no information about their medical condition until long past the statute of limitations, of the ability to file a lawsuit. Martin v. Richey. As of this date, this matter has not been resolved by the Indiana Supreme Court. Plaintiffs should be advised that the statute of limitations may be tolled during the continuation of the physician-patient relationship or by fraudulent concealment. Every medical malpractice claim aside from those which are not greater than $15,000.00, (see, I.C. 27-12-9-2), must be presented to a Medical Review Panel. Procedurally, the patient files a complaint with the Indiana Department of Insurance. A copy of this complaint is sent to the Defendant. Counsel for both parties select an attorney who will act as a panel chairperson. The panel chair is responsible for getting together the Medical Review Panel and answering any legal questions associated with the panel process. By statute, the Medical Review Panel is a panel composed of three doctors, at least two of which must be the same as the Defendant's specialty. Each party is entitled to select one member for the panel. As a practical matter, most of the time, the parties agree that the Medical Review Panel chairman will simply provide a panel of three physicians to the Plaintiff and one panel for the Defendant. Each party strikes from a panel leaving one person from the Plaintiff's panel and one person from the Defendant's panel. Those two physicians mutually pick a third. Each party prepares a submission of written evidence to the panelists, typically the medical records, a statement by the patient, a statement by the Defendant and some discussion about the specific allegations. Eventually, the panelists meet to render an opinion as to whether the Defendant's conduct was negligent and/or whether the negligence was a cause of any damages. The panel may also find that there is a material issue of fact which precludes an opinion. This process may take anywhere from eight months to a year and a half. The next step is for the Plaintiff to finally file his complaint in the proper court. If the Defendant is successful at the panel opinion stage, the Defendant will likely file a Motion for Summary Judgment and attach the panel opinion. The panel opinion is admissible evidence in a court of law thus requiring the Plaintiff to produce an expert to defeat a Motion for Summary Judgment in almost all cases. From this stage forward, the claim is prosecuted like any other civil matter. Almost all physicians in Indiana have limited coverage amounts, i.e, $100,000 per occurrence/$300,000 per year. The reason for this limited coverage is the patient's right of access to the Patient's Compensation Fund. A doctor's personal liability for medical malpractice is capped at $100,000.00. For any claims in excess of this matter, the patient has the right to seek access to the Patient Compensation Fund. The Patient Compensation Fund can litigate issues pertaining to damages, but may not litigate issues about liability. The maximum that any patient can get from a combination of the doctor's insurance and the Patient Compensation Fund, is $75,000.00. The patient may obtain access to the Patient Compensation Fund by settlement as well as by trial. So long as a structured settlement has a present value in excess of $750,000.00, this will allow access to the Patient Compensation Fund. (Note: At least one qualified Defendant must pay $50,000.00 to get access to the fund.) Aside from the damage limitations there are also strict limitations on the amount of attorney fees that can be charged out of monies received from the Patient Compensation Fund. It is very important to read the medical malpractice chapter of the Indiana Code. It provides a number of answers to more common questions. For example, during the panel process either party can conduct discovery just as if they would in a normal lawsuit, i.e., depositions, Interrogatories and the like. Either party may resort to the Courts to address affirmative defenses or discovery problems. It is very important to remember who is covered by the act. In order to receive the benefits of the Medical Malpractice Act, a health care provider must be "qualified" before the Indiana Department of Insurance. A provider generally qualifies by filing proof of insurance and some other minor documentation with the Department of Insurance. A number of health care providers who practice both in Indiana and Kentucky forget this fact. You can easily check whether a doctor is qualified before the Department of Insurance by calling the Indiana Department of Insurance. (The Indiana Department of Insurance's general number is 317-232-2385.) It is often a wise practice to file both before the Indiana Department of Insurance and in Court to ensure a timely filing. If a person is not qualified under the act, they may be sued in Court and there are no limitations on damages.
II. WRONGFUL DEATH Like many other states, Indiana provides that a wrongful death action is a creature of statute which did not exist at common law and therefore the right is purely statutory. I.C. 34-1-1-1 et seq . provides the statutory framework for wrongful death actions. The most important considerations are that any wrongful death claim must be filed within two years of the person's death by the personal representative of the decedent. There are different causes of action for the wrongful death of adults versus children. In an action for the wrongful death of a child, the statute provides that a parent may recover for the loss of the child's love and companionship, medical expenses, funeral and burial expenses and psychiatric and psychological counseling incurred by the surviving parent or minor sibling of the child as a result of the death of the child. I.C. 34-1-1-8. Generally speaking, damages are limited, pursuant to I.C. 34-1-1-8, until the day the child would have reached 20 years of age or 23 years of age if in school or the day of the last surviving parent's death, whichever occurs first. I.C. 24-1-1-8. In a case involving the wrongful death of a child, an estate need not be opened as the action belongs only to the child's parents. The statutes involving the wrongful death in the case of adults are very similar, but the only person who may bring this is a duly appointed personal representative. The only exception to this rule is a case involving medical malpractice; in a medical malpractice action, a personal representative is unnecessary. See , Community Hospital v. McKnight , 493 N.E.2d 75 (Ind. 1986). The decedent's survivors are entitled to medical, hospital, funeral and burial expenses which inure to the benefit of the decedent's estate. The decedent's survivors are also allowed to recover damages for the loss of love and affection. The decedent's dependent next of kin are also covered by the Wrongful Death Act. Although there is no clear authority in Indiana, it seems unlikely that punitive damages are recoverable in wrongful death cases because the statute does not expressly allow for the recovery of such damages. If a decedent dies without leaving a spouse, or dependent children or dependent next of kin, the only damages which are recoverable are reasonable and necessary funeral and burial expenses, and the cost of expenses of administering the estate, including a reasonable attorney fee. Pursuant to I.C. 34-1-1-2, no other damages are recoverable. This is especially important in the case of the death of an adult child, leaving his parents who were not dependent upon their child for support. III. COMPARATIVE FAULT Indiana, for a number of years, has embraced modified comparative fault, i.e., if the Plaintiff is over 50% at fault, he is entitled to no recovery. To my knowledge, Kentucky still remains one of the few states that has pure comparative fault. Indiana retains the modified comparative fault rule, but added another provision concerning comparative fault in 1993. Most of the common problems are addressed by the statutory framework. I.C. 34-4-33-1 et. seq. The Comparative Fault Act does not apply to medical malpractice cases involving qualified health care providers. Importantly, fault includes acts which are negligent, willful, wanton, reckless or intentional . The comparative fault provisions also do not apply to claims against government entities pursuant to I.C. 34-4-16.5-1 et seq . (Claims against governmental entities will be discussed infra ). The Comparative Fault Act provides one significant benefit to the Defendant -- the non-party defense. In any comparative fault case, a Defendant may assert that the damages were caused in full or part by a non-party. The Defendant must assert the non-party generally as part of his Answer and specifically identify who the non-party is. Although the Comparative Fault Act states that it doesn't apply to medical malpractice, the non-party defense specifically does apply to medical malpractice claims. See , I.C. 34-4-33-10(d). Essentially, anyone can be named as a non-party regardless of whether they are immune from liability or otherwise the Plaintiff could not have named them. A very common tactic in automobile cases, for example, is to name the car manufacturer as a non-party if there is any allegation that the vehicle had any type of mechanical problem whatsoever. Your simple intersection case can become a full fledged products liability action without any major problems. IV. AUTOMOBILE CASES Indiana does not have "no fault". If you have a very small PI case, you may well want to see about filing it in Indiana if you would otherwise be stuck with your "no fault" right. Importantly, Indiana retains a guest statute. I.C. 34-4-30-3 states that: The owner, operator or person responsible for the operation of a motor vehicle is not liable for loss or damage arising from injuries to or the death of the person's parent, spouse, child or stepchild, brother, sister or a hitchhiker, resulting from the operation of the motor vehicle while the parent, spouse, child or stepchild, brother, sister or hitchhiker was being transported without payment in or upon the motor vehicle unless the injuries or death are caused by the wanton or willful misconduct of the operator, owner or person responsible for the operation of the motor vehicle.
This statute has withstood constitutional scrutiny on several occasions in the past. Although legally there is a requirement that a person wear their seat belt, evidence of a failure to wear a seat belt cannot be used to mitigate damages except in the case of a products liability action involving a motor vehicle restraint, or supplemental restraint system. See , I.C. 9-19-10-7. ( Practical tip: Indiana has a statute requiring that a minor requesting a driver's license have somebody sign and agree to be financially responsible for the minor. See , I.C. 24-9-1 et seq . The person who signs agrees to be responsible jointly and severally with the minor for any injury or damage that the minor applicant causes by reason of the operation of the motor vehicle. This liability continues until the minor becomes 18.) V. PRODUCTS LIABILITY Much of the products liability law is also statutory. See , I.C. 33-1-1.5-2. This chapter codifies strict liability in tort. Any product liability action must be commenced within two years after the cause of action accrues or within ten years after the delivery of the product to the initial user or customer. I.C. 33-1-1.5-5. However, if the cause of action accrues at least eight years, but less than 10 years after the initial delivery, the action may be commenced at any time within two years after the cause of action accrues. I.C. 33-1-1.5-5(b). The act allows several affirmative defenses including actual knowledge of the alleged defect, misuse of the product, or a modification or alteration of the product which is the proximate cause of the Plaintiff 's injuries. The chapter also defines what a defective product is. I.C. 33-1-1.5-2.5. There is a rebuttable presumption that a product that caused physical harm was not defective and that the manufacturer or seller of the product is not negligent if before the sale the manufacturer of the product complied with applicable codes, standards, regulations or specifications established, adopted, promulgated or approved by the United States, State of Indiana or any agency thereof. Product liabilities actions are governed by comparative fault. See , I.C. 33-1-1.5-10. VI. PUNITIVE DAMAGES Under Indiana law, a punitive damage award may not be more than the greater of three times the amount of compensatory damages, or $50,000.00. I.C. 34-4-34-4. A party is entitled to punitive damages only if they establish by clear and convincing evidence the facts necessary to support the recovery of punitive damages. The State of Indiana graciously receives 75% of any punitive damage award and remits the remaining 25% to the client. I.C. 34-4-36-6. Thesefunds are used to support a violent crime victims compensation fund. VII. TORT CLAIMS INVOLVING GOVERNMENTAL ENTITIES Yet another comprehensive statutory framework governs claims against the government. I.C. 34-4-16.5-1 et seq . This is the most important thing to know about any claims that potentially involve these governmental Defendants. A "political subdivision" include some unusual entities. For example, a state college or university, a city or county hospital, a school corporation, a board or commissioner of one of these entities. See , I.C. 34-4-16.5-2. The Tort Claims Act provides a number of immunities for governmental agencies including, for example, the temporary condition of a public thoroughfare which results from weather; performance of a discretionary function; adoption, enforcement of or failure to adopt or enforce a law; the issuance, denial, suspension, or revocation or failure or refusal to issue, deny, suspend or revoke any permanent license, certificate, approval, order or similar authorization when the authority is discretionary under the law; and failure to make an inspection or making an inadequate or negligent inspection of any problem other than the property of a governmental entity to determine whether the property complies with or violates any law or contains a hazard to health or safety. Under I.C. 34-4-16.5-4, the combined aggregate liability of all governmental entities cannot exceed $300,000 for injury or death to one person and any one occurrence. A governmental entity can not be liable for punitive damages. I.C. 34-4-16.5-4. The important requirement is the notice requirement. Read this section very carefully and then read it again. I.C. 34-4-16.5-7 states that a claim against a political subdivision is barred unless notice is filed with the governing body of that political subdivision and the Indiana Political Subdivision Risk Management Commission within 180 days after the loss occurs. If the State of Indiana is a party, the attorney general and state agency must also be notified within 270 days after the loss occurs. I.C. 34-4-16.5-6. This notice must be in writing and delivered by registered or certified mail. A person may not file a suit against a governmental agency unless notice has been given that the claim is denied in whole or in part by the governmental agency. The notice itself must contain information about the circumstances which brought about the loss, the extent of the loss, the time and place when the loss occurred, the names of all persons involved, if known, the amount of the damage itself, and the residence of the person making the claim at the time of the loss and at the time of filing of the notice. (Practice note: In one case, Hasty v. Floyd Memorial Hospital , 612 N.E.2d 119 (Ind. App. 1992), the Court noted that a letter sent to an insurer of a county hospital did not constitute substantial compliance with the requirement that the notice of claim be sent to the hospital prior to initiation of suit.) VIII. PROCEDURAL DIFFERENCES 1. Trial Rules . So you don't like the judge. Boy, it would be nice to get him off the case. How can we get him off? In Indiana, there is a procedural device called "asking". Indiana allegedly is the only state where each party is entitled to an automatic change of venue from the judge without any showing of cause. See , Indiana Trial Rule 76(b). A party must request a change of no later than 10 days after the issues are first closed on the merits, typically when the answer is filed. If the case involves a matter to which an answer is not required, e.g., a divorce, each party has 30 days from the date the same is placed and entered on the chronological case summary of the court. (Practice tip: If a complaint or answer is based upon a written instrument, the document must be attached. T.R. 9.2(A)). 2. Non-party Discovery . Indiana law allows a party to serve a request for production to non-parties. See , Trial Rule 34(c). Essentially, the party wanting to receive documents from a non-party provides notice to the other party that they will seeking the request 15 days before they actually serve it. This gives either side the opportunity to object. The party seeking the information must inform the non-party that they are entitled to security against damages resulting from the response and that the non-party may respond to the request by submitting different terms, by objecting to it, or moving to quash. 3. Ex Parte Communications with Physicians . In Indiana, based upon the physician-patient privilege, the cases are very clear that defense counsel may not contact the Plaintiff's physicians and discuss the patient's case without consent. In federal court, however, there have been a few decisions by federal magistrates expressly allowing such ex parte communications. 4. Discovery - Federal Court . The Southern District of Indiana has opted out of the mandatory disclosure rules. The local federal courts use the case management system to monitor the progress of individual cases. The local rules provide certain limits on interrogatories (30, including subparts) and the like. The local rules can be found in the back of the Indiana Rules of Court. 5. Rules of Evidence . Indiana adopted the Indiana Rules of Evidence in January of 1994. The rules largely follow the Federal Rules of Evidence, with the most significant exception that Indiana does not recognize the catch all hearsay exception. Indiana also codified a few unusual rules of evidence. For example, IRE 413 which states that statements and charges for medical, hospital or other health care expenses for diagnosis or treatment occasioned by an injury are admissible into evidence. Such statements constitute prima facie evidence that the charges are reasonable. The Indiana Rules of Evidence codify a number of privileges. Note that there are at least 25 other privileges codified throughout the Indiana Code. For example, a school counselor's privilege, I.C. 20-6.1-6-15, a hospital peer review privilege, I.C. 34-4-12.6-2(c), and an accountant-client privilege, I.C. 25-2-1-23. 6. ADR Around 1993, the State of Indiana recognized the importance of ADR and established formal rules for alternative dispute resolution. These rules were amended in 1997. The rules cover mediation, arbitration, many trial, summary jury trial and the use of private judges. Pursuant to ADR Rule 2.2, the court may refer a matter to mediation on its own motion or a motion of either party. Any party may object by filing a written objection within seven days in a domestic relations case or 15 days in a civil case. The objecting party must specify the grounds for the objection. The court then reviews the objection and determines whether it will order mediation. In most courts, as a practical matter, a court will require mediation prior to trial. Indiana set up a list of qualification for mediators. A list of qualified mediators is generally available in any of the local court systems. Mediation generally involves clients as well as lawyers participating in the process. Prior to the actual mediation, either party may submit a confidential statement of the case, not to exceed ten pages. After the mediation, the mediator makes a report to the court simply advising the court whether an agreement was or was not reached without discussing the reasons for that problem. The court has discretion to impose sanctions against any attorney or party who fails to comply with the ADR rules. In certain cases, a mediator has assessed full mediation fees on one party or the other based upon unwillingness to participate in the process or bad faith. Pursuant to ADR Rule 2.2, mediation is regarded as settlement negotiations governed by Indiana Rule of Evidence 408. Although initially, were skeptical of the ADR process, both parties recognize that this is an efficient way of resolving certain cases and provides an avenue of understanding the issues and facts involved in a case.
APPENDIX
1. Floyd and Clark County Local Rules 2. Child Support Guidelines 3. Indiana Rules of Court 4. Child Support Work Sheet 5. Indiana Minimum Visitation Guidelines 6. Form Divorce Pleadings 7. Form of Notice of Tort Claim
The materials contained herein are designed to be an overview of the relative areas of the law. This is not intended to be a substantive course on each and every area discussed herein. Practitioners are strongly advised to review current code and current cases concerning new developments in this area. Statutory citations are believed current through October of 1997. The case information should be current through October 1997 as well.
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