Free Consultation
888.922.2889
    sitemap  
 Home  Free Case Review  Articles  Laws  About Us Contact Us
Need Information or Legal Representation?

Call Us.  888.922.2889

Free Call.  Free Consultation.
Learn About

Medical Malpractice FAQs

Breast Cancer Misdiagnosis

VBAC Dangers

Sepsis and Septic Shock

Recognizing Nursing Home Abuse and Neglect


 

 
IC 34-18-8
     Chapter 8. Commencement of a Medical Malpractice Action
 

IC 34-18-8-1
Commencement of action; complaint
    
Sec. 1. Subject to IC 34-18-10 and sections 4 through 6 of this chapter, a patient or the representative of a patient who has a claim under this article for bodily injury or death on account of malpractice may do the following:
        (1) File a complaint in any court of law having requisite jurisdiction.
        (2) By demand, exercise the right to a trial by jury.
As added by P.L.1-1998, SEC.13.
 

IC 34-18-8-2
Fees
    
Sec. 2. The following fees must accompany each proposed complaint filed:
        (1) A filing fee of five dollars ($5).
        (2) A processing fee of two dollars ($2) for each additional defendant after the first defendant.
As added by P.L.1-1998, SEC.13.
 

IC 34-18-8-3
Demand; reasonable damages
    
Sec. 3. Except for the declaration called for in section 6(a) of this chapter, a dollar amount or figure may not be included in the demand in a malpractice complaint, but the prayer must be for such damages as are reasonable in the premises.
As added by P.L.1-1998, SEC.13.
 

IC 34-18-8-4
Prerequisites to commencement of action; presentation of claim to medical review panel
    
Sec. 4. Notwithstanding section 1 of this chapter, and except as provided in sections 5 and 6 of this chapter, an action against a health care provider may not be commenced in a court in Indiana before:
        (1) the claimant's proposed complaint has been presented to a medical review panel established under IC 34-18-10 (or IC 27-12-10 before its repeal); and
        (2) an opinion is given by the panel.
As added by P.L.1-1998, SEC.13.
 

IC 34-18-8-5
Agreements not to present claims to medical review panels
    
Sec. 5. Notwithstanding section 4 of this chapter, a claimant may commence an action in court for malpractice without the presentation of the claim to a medical review panel if the claimant and all parties named as defendants in the action agree that the claim is not to be presented to a medical review panel. The agreement must be in

writing and must be signed by each party or an authorized agent of the party. The claimant must attach a copy of the agreement to the complaint filed with the court in which the action is commenced.
As added by P.L.1-1998, SEC.13.
 

IC 34-18-8-6
Claims not greater than $15,000; commencement of action; dismissal without prejudice
    
Sec. 6. (a) Notwithstanding section 4 of this chapter, a patient may commence an action against a health care provider for malpractice without submitting a proposed complaint to a medical review panel if the patient's pleadings include a declaration that the patient seeks damages from the health care provider in an amount not greater than fifteen thousand dollars ($15,000). In an action commenced under this subsection (or IC 27-12-8-6(a) before its repeal), the patient is barred from recovering any amount greater than fifteen thousand dollars ($15,000), except as provided in subsection (b).
    (b) A patient who:
        (1) commences an action under subsection (a) (or IC 27-12-8-6(a) before its repeal) in the reasonable belief that damages in an amount not greater than fifteen thousand dollars ($15,000) are adequate compensation for the bodily injury allegedly caused by the health care provider's malpractice; and
        (2) later learns, during the pendency of the action, that the bodily injury is more serious than previously believed and that fifteen thousand dollars ($15,000) is insufficient compensation for the bodily injury;
may move that the action be dismissed without prejudice and, upon dismissal of the action, may file a proposed complaint subject to section 4 of this chapter based upon the same allegations of malpractice as were asserted in the action dismissed under this subsection. In a second action commenced in court following the medical review panel's proceeding on the proposed complaint, the patient may recover an amount greater than fifteen thousand dollars ($15,000). However, a patient may move for dismissal without prejudice and, if dismissal without prejudice is granted, may commence a second action under this subsection only if the patient's motion for dismissal is filed within two (2) years after commencement of the original action under subsection (a) (or IC 27-12-8-6(a) before its repeal).
    (c) If a patient:
        (1) commences an action under subsection (a) (or IC 27-12-8-6(a) before its repeal);
        (2) moves under subsection (b) (or IC 27-12-8-6(b) before its repeal) for dismissal of that action;
        (3) files a proposed complaint subject to section 4 of this chapter based upon the same allegations of malpractice as were asserted in the action dismissed under subsection (b) (or IC 27-12-8-6(b) before its repeal); and


        (4) commences a second action in court following the medical review panel proceeding on the proposed complaint;
the timeliness of the second action is governed by IC 34-18-7-1(c).
    (d) A medical liability insurer of a health care provider against whom an action has been filed under subsection (a) (or IC 27-12-8-6(a) before its repeal) shall provide written notice to the state health commissioner as required under IC 34-18-9-2.
As added by P.L.1-1998, SEC.13.
 

IC 34-18-8-7
Commencement of action while claim being considered by medical review panel
    
Sec. 7. (a) Notwithstanding section 4 of this chapter, beginning July 1, 1999, a claimant may commence an action in court for malpractice at the same time the claimant's proposed complaint is being considered by a medical review panel. In order to comply with this section, the:
        (1) complaint filed in court may not contain any information that would allow a third party to identify the defendant;
        (2) claimant is prohibited from pursuing the action; and
        (3) court is prohibited from taking any action except setting a date for trial, an action under IC 34-18-8-8 (or IC 27-12-8-8 before its repeal), or an action under IC 34-18-11 (or IC 27-12-11 before its repeal);
until section 4 of this chapter has been satisfied.
    (b) Upon satisfaction of section 4 of this chapter, the identifying information described in subsection (a)(1) shall be added to the complaint by the court.
As added by P.L.111-1998, SEC.9.
 

IC 34-18-8-8
Motion to dismiss filed by commissioner
    
Sec. 8. If action has not been taken in a case before the department of insurance for a period of at least two (2) years, the commissioner, on the:
        (1) motion of a party; or
        (2) commissioner's own initiative;
may file a motion in Marion county circuit court to dismiss the case under Rule 41(E) of the Indiana Rules of Trial Procedure.
As added by P.L.111-1998, SEC.10.

 


 

Note:

Anyone who believes they may have a medical malpractice claim should immediately consult an attorney with experience in handling such cases.  As with many areas of the law, medical malpractice law in Indiana is very complex and contains numerous caveats and peculiarities. One should not attempt to interpret or apply the law to one's case without the consultation of a medical malpractice lawyer.  Given that various time limitations may apply, it is highly advisable to consult such an attorney without delay, in order to avoid having a potential claim barred.

For more information, or for a free attorney consultation with The Powless Law Firm, click here, or call toll-free: (888)922-2889

This page was last updated on 8/8/05.  It is highly advisable to undertake an independent review of the current statute to ensure that no legislative changes have been adopted since such time.

 
 


 
  Free Attorney Consultation

  Name
 
  Email
 
  Telephone
 
  City/State
 
  Tell Us About Your Case:
 
 
 


 

Home | About Us | Free Case Review | Indiana Medical Malpractice Laws | Disclaimers | Articles
Copyright 2004-2005 The Powless Law Firm. All rights reserved