MEDICAL PROFESSIONAL LIABILITY
Indiana’s Medical Malpractice Statute of Limitations
Robert F. Parker
 Indiana’s Medical Malpractice Act, found at I.C. §34-18-1-1 et seq., is considered one of the more “physician friendly” laws of its kind. In addition to damages caps and procedural protections, I.C. § 34-18-7-1(b) creates an “occurrence based” statute of limitations, which provides that the two year period within which to bring a medical malpractice claim begins to run from the date of the occurrence of malpractice, rather than the date the patient discovers the malpractice. This statute has spawned considerable litigation over the years, particularly in cases where the injury suffered as a result of alleged malpractice has a delayed onset. A typical example might be an alleged misreading of a chest x-ray in a patient who discovers, more than two years later, that he now has advanced lung cancer which should have been diagnosed much earlier, had the x-ray been interpreted properly. Patients in that, or similar, situations claimed that their rights under the Indiana Constitution were infringed if their medical malpractice claim could be barred by the statute of limitations before they could reasonably be expected to know about the existence of the claim, and get an action on file. The Indiana Supreme Court was generally sympathetic to that argument. See, e.g., Martin v. Richey , 711 N.E.2d 1273, 1284-85 (Ind.1999), Van Dusen v. Stotts, 712 N.E.2d 491, 493 (Ind.1999), and Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692 (Ind.2000). After a flurry of litigation in the period 1999-2002, the methodology for handling these situations is now well established.
If the plaintiff discovers the alleged malpractice and resulting injury, or possesses information that would lead a reasonably diligent person to such discovery during the two-year period prescribed by the statute of limitations, then the purely occurrence-based limitation period is both applicable and constitutional, as long as there is sufficient time remaining on the statute of limitations when the plaintiff discovers the existence of the claim, so that the claim can reasonably be asserted before the period expires. It is only if the plaintiff does not discover the alleged malpractice and resulting injury, or possess information that would put him or her on notice, that the second stage of the analysis comes into play, and transforms the occurrence-based statute of limitations to a discovery-based statute, affording the plaintiff two years from the discovery of the alleged malpractice within which to file a claim. See, e.g., Shah v. Harris , 758 N.E.2d 953 (Ind.Ct.App.2001), Rogers v. Mendel, 758 N.E.2d 946 (Ind.Ct.App.2001) and Langman v. Milos, 765 N.E.2d 227 (Ind.Ct.App.2002). The law is now well settled that, except in those rare instances, the occurrence based statute of limitations is constitutional, and will be applied to protect physicians and other healthcare providers from having to defend themselves against claims based on care delivered more than two years before the filing of the lawsuit.
While Indiana’s Medical Malpractice Act statute of limitations provides significant protection to healthcare provider defendants, there are exceptions to the statute, such as instances of “fraudulent concealment,” or “continuing wrongs.” These exceptions are highly technical and fact-specific, making it critical that any healthcare defendant insure that his or her counsel is knowledgeable and experienced in the workings of the Medical Malpractice Act. |
