CHAPTER 8. COMMENCEMENT OF A MEDICAL MALPRACTICE ACTION
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.