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Indiana Legislature Approves Increase on Medical Malpractice Damages Cap


By Codie J. Ross and Rafael P. McLaughlin

March 16, 2016

On March 8, 2016 the Indiana State Senate approved Senate Enrolled Act 28, which had been previously passed by the House of Representatives five days earlier. The act is expected to be signed into law by Governor Michael Pence.

Since 1999, the state's Medical Malpractice Act ("MMA") which is embodied by I.C. § 34-18-14-3, has capped medical malpractice awards against "Qualified Healthcare Providers" at $1.25 million. Under the present MMA, no "Qualified Health Care Provider" is liable for more than $250,000 for a single malpractice incident. The total maximum recovery is $1.25 million, with the first $250,000 paid by the healthcare provider, and the remaining $1 million paid by the Indiana Patient Compensation Fund.

Assuming Governor Pence signs the bill into law, as expected, the new cap will be increased twice. The first increase, to be effective on July 1, 2017, will raise the cap to $1.65 million, with the first $400,000 of any award to be paid by the healthcare provider. The cap would be further raised in 2019 to $1.8 million, and require that the first $500,000 come from the healthcare provider.

Other anticipated changes to the MMA per the enacted legislation include:

1. Statutory Language Addressing Dilatory Acts. Senate Enrolled Act 28 would require that no party be "dilatory" during the medical review panel process, and directs the courts and medical review panels to enforce timeliness. This language is believed to be aimed at the dilatory nature of plaintiffs in medical malpractice actions being litigated under the MMA.

2. Anesthesiologist Assistants to be considered "Qualified Health Care Providers". Anesthesiologist Assistants are expected to be added to the class of providers who may now undergo the process of becoming "qualified health care providers."

3. Timelier Payments from the Indiana Patient's Compensation Fund. The Indiana Patient's Compensation Fund funds awards and settlements that exceed the statutory limit imposed on "Qualified Healthcare Providers." Under the revised law, payment from "the Fund" cannot be made later than 60 days after the issuance of a court-approved settlement or a final, non-appealable judgment. Plaintiffs were previously only allowed to receive fund payments twice per year.

4. Fee Increases. Under the new version of the MMA, plaintiffs' attorney fees would increase to 32%. Furthermore, the fees paid to Medical Review Panel members would increase from $350.00 to $500.00. Panel chairs would see an increase in fees from $2,000.00 to $2,500.00.

The caps in Indiana had not been raised in nearly two decades. The effort was a compromise by a variety of interest groups - both for and against raising the caps. The comparatively modest increases maintain Indiana's reputation as an attractive locale in which to practice medicine. If you have any questions regarding medical malpractice liability or damages in Indiana, Ohio or Kentucky, please call one of our Medical Malpractice Practice Group members.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.