In 1999, the state of Indiana passed legislation providing for limits on the total amount recoverable by a malpractice plaintiff. Under the law, no health care provider is liable for more than $250,000 for a single malpractice incident. The total amount recoverable by the claimant is up to $1.25 million with the first $250,000 coming from the physician and the remaining $1 million coming from the Indiana Patient Defense Fund. The Patient Defense Fund seeks to balance the need to keep malpractice insurance affordable for doctors by having reasonable damage caps while also being able to adequately compensate those who have suffered. In addition to the Patient Defense Fund, Indiana put in place Medical Review Panels that basically screen cases before they become full-blown lawsuits. Under the provisions of the law, unless a patient is seeking damages of less than $15,000 he or she must file a complaint with the insurance commissioner and go through the medical review panel process before filing a suit in court. The panel is made up of three physicians and one attorney.
Now lawmakers are set to revisit Indiana’s MedMal legislation next month, with some attorneys for both plaintiffs and defendants calling for a raise on the cap on damages. In fact, this year lawmakers have already introduced two bills to raise the caps, but neither passed its house of origin. Senator Brent Steele (R-Bedford) introduced one of those bills: “You just can’t stick with (cap) numbers that were set 20 or however many years ago,” said Steele, who chairs the study committee, and was recently quoted in an article in on-line publication, The Indiana Lawyer.com. Steele’s bill would have allowed more suits to go directly to court in lieu of the medical review panels, but the bill was voted down in the Senate.
There are attorneys, however, that feel even if the cap were raised to keep up with the rate of medical inflation – over $2 million today – it still would not be enough in some cases for plaintiffs to receive adequate compensation. For example, the article cited a case represented by Bruce Kehoe, an attorney with Wilson Kehoe Winingham LLC. His client was left totally disabled and has more than $5 million in medical bills after a surgery that went terribly wrong. Kehoe is challenging the caps as unconstitutional, according to the article, saying: “This is one of the few cases we have where people are simply not going to get compensated even if the cap were at $2.5 million.” He also added of the committee set to review the Indiana law: “I would hope they would have some creative ideas. “One way would be to simply raise the cap; another might be only to have the cap apply to non-economic damages.” He said the state also might consider a fund for catastrophic cases that exceed the caps.
Indeed there is conflict among the legal community over any changes to the medical review panels required for any malpractice claim in excess of $15,000. Attorney and registered nurse Lara Engelking of Engelking Law Group LLC, which represents Indiana health care providers, stated that it’s probably time that the total caps on medical malpractice damages allowed by statute were reviewed. However, she opposes any move to raise the threshold claim cap of $15,000 for cases that are first required to go through a medical review panel. When interviewed for the The Indiana Lawyer.com article, she said the panels work well for all parties involved in a medical malpractice suit. “I think there is a means to get to a compromise” on the total damages cap, Engelking said. “However, we have to be mindful that we cannot lose the process that gets down to the truth of the medicine.”
Indiana Trial Lawyers Association President James McDonald disagrees with Engelking and others, calling the review panels “a very slow, cumbersome process.” He said lawmakers should look at cases, for example, where medical instruments are left inside a patient as the kind that shouldn’t be forced to go through the expense and burden of review panels.
We’re monitoring this issue very closely and will keep you updated on any changes to the legislation. Caitlin Morgan manages member-owned risk retention group Midwest Insurance Group, Inc., which participates in Indiana’s Patient Compensation Fund. Midwest provides $250,000 in MedMal limits with the state taking on the next $1 million of any one claim. If you would like more information about Midwest Insurance Group and our MedMal program, please contact us at 877.226.1027.