In any medical malpractice case, the plaintiff’s attorney has to obtain a medical expert’s opinion (which is made after a detailed medical records review) that there is a probable cause for a medical malpractice event before they can file a complaint. The experts retained by the attorney may be required to offer testimony as to causation, and establish the proper measure of damages. Considering the costs of medical malpractice litigation, it is vital that an early and meaningful analysis of potential damages and litigation costs are obtained.
From time to time U.S states make significant changes to their Medical Malpractice Acts and guidelines. Such important changes have taken effect in Indiana on July 1, 2017. These changes were made by Indiana legislature in 2016, and sufficient time was given to insurance companies and healthcare providers to adapt and implement the changes. This is the first time in nearly 2 decades that lawmakers in Indiana voted in favour of a change to the cap on medical malpractice damages for victims in medical malpractice cases.
While most of the changes were related to increasing the fees paid by medical providers, a potentially significant change (mentioned in the third bullet point below) could speed up the administrative phase of a medical malpractice case.
- Indiana’s cap on medical malpractice damages to increase:
For acts of malpractice that occur… prior to 06/30/2017 between 7/1/2017 and 06/30/2019 after 07/01/2019 Discounted primary liability cap $187,001 $300,001 $375,001 Maximum primary liability cap $250,000 $400,000 $500,000 Total cap on damages $1,250,000 $1,650,000 $1,800,000
So what are these figures? These represent the three key medical malpractice damage amounts applicable to medical providers.
- The discounted primary liability cap is the amount a medical provider can usually pay to resolve a case by settlement.
- The maximum primary liability cap is the maximum liability for an individual healthcare provider – whether paid as a cash settlement or in response to a verdict at trial.
- The total cap on damages is the maximum amount a patient can receive for an act of malpractice.
A plaintiff who receives $187,001/$250,000 from the healthcare provider can petition the Indiana Patient’s Compensation Fund (PCF) for an extra $1 million in damages. The PCF is funded by the annual surcharges paid by all qualified healthcare providers in the state. Every year the PCF pays around hundred million dollars in excess damages. This amount is likely to increase in the coming years.
- Panel fees paid to members of medical review panels to increase: A medical malpractice claim is reviewed by a medical review panel similar to a medical peer review committee before the Indiana Department of Insurance. The panel comprises three healthcare providers who belong to the same specialty as the defendant healthcare providers; and an attorney (the panel chair). The physicians in the panel have to review the evidence in the case and provide an opinion as regards the applicable standard of care. The attorney is a non-voting member of the panel and his/her duty is to ensure that the entire process runs smoothly.
- The fees paid to the physician members (currently $350) will increase to $500.
- The panel chair (attorney)’s fees (currently $2,000) will increase to $2,500.
- All parties to follow the strict timeline set forth: From July 1, 2017 onwards the Medical Malpractice Act will mandate all parties to follow the timelines mentioned under the Act unless there is a mutual written agreement between the parties.
- Annuity or periodic payments: Under the new caps, healthcare providers will still be able to settle the case by paying 75% of the provider’s maximum exposure in cash, with the balance in future periodic payments.
- PCF claims payout schedule: Effective July 1, 2017, claims from the PCF must be paid no later than 60 days after the issuance of a court-approved settlement or final non-appealable judgment.
- Anesthesiologist assistants have been added to the definition of healthcare providers: This is for purposes of the law concerning medical malpractice.
Providers of medical record review services for attorneys know how complex and confusing medical malpractice claims are. This makes the services of an attorney valuable for a plaintiff because an attorney will work with his/her client and help them understand everything they need to know about recovering the maximum compensation. The new updates to Indian medical malpractice law are proof of the Legislature’s intention to review the MMA periodically and update the Act if required.