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Health Law - Indiana Appellate Court Rules that Medical Malpractice Statute of Limitations Applies to Minors in Derivative Claims - Anonymous M.D. v. Lockridge.

Indiana has a specific statute of limitations for medical malpractice claims that bars claims not filed within two years of the alleged malpractice. (1) Enacted under Indiana's Medical Malpractice Act ("MMA"), the medical malpractice statute of limitations has a unique exception specifically for minors that can delay the running of the limitations period, referred to as the "tolling provision." (2) The exception gives minors under the age of six at the time of the alleged malpractice until their eighth birthday to file medical malpractice claims. (3) The recent Indiana Appellate Court ruling in Anonymous M.D. v. Lockridge addressed an issue of first impression as to whether a minor included in this statute must be the party directly injured by the alleged malpractice, or whether they can bring a derivative claim. (4) The court ruled that the tolling provision must apply whether or not the minors are derivative or direct claimants. (5)

In July of 2011, Traci Leach had a CT scan for a lung tumor at a hospital ( 'Hospital'). (6) The scan was later interpreted by a physician ('Doctor'), who allegedly failed to identify a lung tumor on the scan. (7) On August 30, 2012, Traci learned that she had lung cancer, and subsequently died on July 17, 2014. (8) Traci had five children, three of whom were under the age of six at the time of the complaint in July 2011: Lily, Rose, and Kenneth Jr. ('Children'). (9) The Children filed a complaint for medical malpractice with the Indiana Department of Insurance. (10) The Hospital and the Doctor responded by filing a motion for summary judgment, arguing that the Children's complaint was not timely filed. (11) Since the Children were under the age of six in July 2011, the trial court did not grant the motion for summary judgment for the Children's claims. (12) Instead, the trial court held that the Children's claims were derivative claims under the statute, since they were not the direct claimants. (13) The trial court concluded that a derivative claim may be maintained even if the underlying claim would be time-barred. (14)

The Hospital and the Doctor appealed the denial of the summary judgment motion, and the Indiana Appellate Court reviewed the summary judgment motion de novo. (15) The court addressed three main issues: (1) the date on which the statute of limitations began to run; (2) whether an exception applied; and (3) whether the Children's derivative claim could survive after the underlying claim was dismissed as untimely. (16) While the Indiana Supreme Court had already answered the first two issues in previous cases, the third issue regarding the Children's derivative claim was an issue of first impression. (17) The court held that even though the underlying malpractice claim may have been time-barred, the tolling provision exception for minors under the age of six applied regardless of whether their claims were direct or derivative. (18)

Indiana was the first state to pass medical malpractice reform legislation in an attempt to counter the rising malpractice insurance costs. (19) Indiana passed the MMA in 1975 and included the statute of limitations chapter. (20) Indiana courts have interpreted this medical malpractice statute and constructed standards and exceptions at various points over the years. (21) The statute of limitations reads as follows:
   A claim, whether in contract or tort, may not be brought against a
   health care provider based upon professional services or health
   care that was provided or that should have been provided unless the
   claim is filed within two (2) years after the date of the alleged
   act, omission, or neglect, except that a minor less than six (6)
   years of age has until the minor's eighth birthday to file. (22)


Indiana courts initially interpreted the statute as having an occurrence-based standard. (23) The standard provides the padent two years after the alleged malpractice to file a claim, rather than allowing them to file two years after the discovery of the malpractice or resulting injury. (24)

The Indiana Supreme Court departed from this occurrence-based standard by creating exceptions in two separate cases in 1999. (25) In Martin v. Rickey, the court found that this standard was unconstitutional when applied to a patient's situation where it is impossible to know about the malpractice until after two years. (26) Rather than declaring the entire statute unconstitutional, however, the Indiana Supreme Court set forth principles in Van Dusen v. Stotts to reconfigure the statute of limitations to avoid an unconstitutional application. (27) These principles would help guide the court to choose the trigger date for when the statute of limitations begins to run. (28) The Van Dusen court created the 'discovery rule,' the original standard that focuses on the discovery date when determining when the statute of limitations is triggered. (29)

In Booth v. Wiley, the Indiana Supreme Court further determined the framework of when the discovery rule may apply. (30) The court examined the facts necessary to trigger a discovery date that would allow the statute of limitations to extend past the two years from the date of malpractice. (31) First, a court must determine the date on which the alleged malpractice occurred. (32) Second, it must determine the "trigger date", which occurs when the claimant has sufficient information so that a reasonably diligent person would have discovered the alleged malpractice. (33) The court distinguished between knowledge of a patient's injury and the knowledge of a physician's malpractice, stressing the importance of a physician's input rather than just a patient's symptoms when triggering the statute of limitations. (34)

In 2006, the Indiana Supreme Court reasserted the principal purpose of the medical malpractice statute's occurrence-based standard in Ellenwine v. Fairley, a case in which the patient's death was caused by medical malpractice. (35) If the patient's death was caused by malpractice more than two years after the occurrence, the court said the claim must still be filed within the two years of the occurrence of the malpractice. (36) In these instances, the court confirmed that the two-year statute of limitations begins on the date of the occurrence of the malpractice. (37) The Ellemvine court, however, discussed the exception rule for children under the medical malpractice statute of limitations, but its analysis only discussed situations when the child is a direct victim of medical malpractice rather than a derivative claim. (38)

In Anonymous M.D. v. Eockridge, the court examined whether the minor included in the MMA statute must be the one who is directly injured by the alleged negligence, or if they may bring a derivative claim. (39) The court evaluated the plain language of the statute. (40) Since the medical malpractice statute applies to claims relating to health care, it looked to the definition of "health care," within the statute. (41) "Health care" is defined as "an act or treatment performed or furnished ... by a health care provider for, to, or on behalf of a patient." (42) The court then looked to the definition of a patient, and found that it includes "a person having a claim of any kind, whether derivative or otherwise, as a result of alleged malpractice." (43) It made the connection that the MMA statute applies to negligence claims pertaining to "health care" given to "patients," the definition of which specifically includes derivative claimants. (44) Furthermore, this statute defines derivative claimants, which includes children. (45) The court reasoned that this clear and unambiguous language meant that children can be included in derivative claims under the MMA statute. (46)

If the legislature intended to exclude derivative claimants, it would not have included them in the definition of patients. (47) The portion of the MMA statute that includes the tolling provision for minors does not specifically exclude derivative claimants. (48) The court reasoned that the legislature would have specified that the minor had to be the one who was treated. (49) Given that there is no explicit limitation, the court concluded that the tolling provision applies to minors whether they are bringing a derivative or direct medical malpractice claim. (50)

The court also addressed the issue of whether the underlying claim would be dismissed as untimely under the MMA statute. (51) The Doctor argued that even if derivative claims brought by children were included under the tolling provision, the original claim was untimely. (52) The Doctor referenced the case Ellenwine v. Fairley, in which the Indiana Supreme Court held that if the underlying claim is time-barred, the claim that it derives from is also time-barred. (53) The Lockridge court specified that this type of reasoning does not apply to the tolling exception in the MMA statute. (54) Since there is a specific exception to the two-year statute of limitations for minors, the Lockridge court stated that applying the Ellenwine reasoning would make the exception meaningless. (55) The court bolstered its argument by citing Henderson v. Coutee, which established that a court may not interpret one part of a statute in a way that leaves other parts of the statute meaningless. (56)

The Lockridge court ruled on the basis of a strict interpretation of the tolling provision in the MMA statute rather than interpreting the original intent of the statute. (57) The court expressed a sense of frustration that it was "bound by the language [the legislature] selected, which clearly includes derivative claimants as patients." (58) Rather than attempting to rule based on the original intent of the statute, the court left it to the legislature to amend the language of the statute to reflect its intent. (59) Under the Lockridge ruling, minor children will potentially be able to bring derivative medical malpractice claims long after the two-year statute of limitation. (60) A child born on the date of the alleged malpractice could have up to eight years to file a derivative claim. (61) The intention of enacting the MMA statute was to reduce medical malpractice insurance expenditures to ensure that the availability of medical services would not be cost prohibitive. (62) The court's ruling highlights the complication of an exception which may lead to high costs in medical malpractice insurance premiums. (63) The original intention of the statute was to balance the rights of the patient while also protecting the medical professional and minimizing costs of medical malpractice insurance premiums. (64) This ruling may open the door to drawn-out law suits and higher medical malpractice claims. (65)

This Indiana Appellate Court's strict interpretation of the MMA differs from the Indiana Supreme Court's analysis of medical malpractice cases, where it used judicial construction to interpret the MMA. (66) Before the Indiana Supreme Court case Van Dusen v. Stotts in 1999, the MMA statute of limitations had been interpreted as "occurrence-based," meaning that the occurrence of the alleged negligent act triggered the statute of limitations." (67) Rather than strictly interpreting the language in the statute, the Van Dusen court construed the statute of limitations under the MMA statute so that it would allow claims to be filed two years after the date of discovery of the malpractice and the injury. (68) This interpretation changed the statute from being occurrence-based to an "accrual-based" standard. (69) The Van Dusen court could have strictly interpreted the statute, but instead ruled that the interpretation should be a question of fact, and created a rule for determining the date in which the statute of limitations would begin to run. (70)

Later in 2005, the Indiana Supreme Court examined which facts should trigger a discovery date and provided an updated framework in Booth v. Wiley. (71) The court did not strictly interpret the statute, but rather looked past judicial interpretations such as Van Dusen to construe the statute. (72) In the Booth v. Wiley dissenting opinion, Chief Justice Randall Shepard challenged the interpretation and argued that this statute of limitation standard is "far more elastic than Indiana applies in any other field of tort law." (73) The appellate court in Lockridge avoided creating new catch-all rules within the statute, as the Indiana Supreme Court did in Van Dusen and Booth, and instead strictly and plainly interpreted the statute. (74)

The Lockridge court analyzed an issue of first impression regarding whether or not children within the MMA statute's tolling provision may include direct and derivative claims. (75) Rather than interpret the intention of the statute or create a new interpretation, as courts have done in the past, the Lockridge court looked to the wording of the statute and the definitions of "patient" and "health care." (76) In doing so, the court held that the plain language of the statute included both direct and derivative claims and included the claims of children as derivative claims. (77) It left it to the Indiana legislature to further clarify the statute. (78) If its interpretation of the statute does not align with the intention of the statute, then the burden is on the Indiana General Assembly to update the language to limit the statute's special treatment of children and only allow direct claimants. (79)

Caitlin Doherty, Caitlin Doherty is a third-year law student in the Evening Program at Suffolk University Law School. Her expected graduation date is in December, 2017. Caitlin graduated from Tufts University in 2013 with a B.A. in History and Economics. She currently works full-time at Holland & Knight LLP as a paralegal while attending law school in the evenings. She can be reached at cdoherty3@suffolk.edu.

(1) See Ind. Code [section] 34-18-7-1 (1998) (requiring medical malpractice claims to be filed within two years after the alleged act). Under Indiana's Medical Malpractice Act, the medical malpractice statute of limitations states in Section (b):
   A claim, whether in contract or tort, may not be brought against a
   health care provider based upon professional services or health
   care that was provided or that should have been provided unless the
   claim is filed within two (2) years after the date of the alleged
   act, omission, or neglect, except that a minor less than six (6)
   years of age has until the minor's eight birthday to file.


Id. See also McGill v. Ling, 801 N.E.2d 678, 682 (Ind. Ct. App. 2004) (concluding that failure to file a timely malpractice claim is fatal to the claim).

(2) See IND. Code [section] 34-18-7-1(1998) (allowing an exception for minors under age six). The medical malpractice statute of limitations was enacted under the Indiana Medical Malpractice Act in 1975. Overview of Indiana Medical Malpractice Act, IND. STATE MED. ASS'N, http://www.ismanet.org/legal/malpractice/ (last visited Apr. 15, 2017) (providing an overview of the Indiana MMA). See also Anonymous M.D. v. Lockridge, 60 N.E.3d 249, 254 (Ind. Ct. App. 2016) (referring to the exception in the statute as the tolling provision). See also Chamberlain v. Walpole, 822 N.E.2D 959, 961 (Ind. 2005) (outlining the procedural requirements under the MM A). The MMA did not create the medical malpractice claim, but instead created procedural requirements in order to assert such a claim. Id.

(3) See IND. CODE. [section] 34-18-7-1(1998).

(4) Lockridge, 60 N.E. 3d at 254 (identifying whether direct injury is predicate to tolling claim of minor child).

(5) Id. at 256. The Court underscored that the legislature "decided to treat children under the age of eight in a special way for the purpose of the medical malpractice limitations period" and had "not limited the special treatment to direct claimants." Id.

(6) Id. at 251.

(7) Id.

(8) Id.

(9) Lockridge, 60 N.E. 3d at 251. Traci Leach also had two older children, Dustin and Ashley Leach, over the age of eight at the time of the complaint and whose claims were found by the trial court to be barred under the statute of limitations. Id.

(10) Lockridge, 60 N.E. 3d at 251. Dustin and Ashley Leach, as well as Traci's Estate, also filed a complaint of medical malpractice. Id. However, the trial court granted the motion for summary judgment because the claims were untimely filed. Id. at 251.

(11) Id. See also McGill v. Ling, 801 N.E.2d 678, 682 (Ind. Ct. App. 2004) (stating failure to file a complaint within the statute of limitations warrants summary judgment).

(12) Lockridge, 60 N.E. 3d at 251. The Children were under the age of six in July 2011, and still under the age of eight at the time the complaint was filed. Id. A minor less than six years of age has until their eighth birthday to file a medical malpractice claim. IND. CODE [section] 34-18-7-1 (1998).

(13) Lockridge, 60 N.E. 3d at 251. See also IND. CODE [section] 34-18-2-22 (1998). The statute defines a patient as "an individual who receives or should have received health care from a health care provider ... and includes a person having a claim of any kind, whether derivative or otherwise, as a result of alleged malpractice." Id. It also defines derivative claims as including "the claim of a parent or parents, guardian, trustee, child...." Id.

(14) Lockridge, 60 N.E.3d at 251.

(15) Id. at 252. See Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)) (explaining standard for reviewing summary judgment de novo).

(16) Lockridge, 60 N.E.3d at 253.

(17) Id. See also Ellenwine v. Fairley, 846 N.E.2d 657, 665 (Ind. 2006) (concluding two-year statute of limitations begins to run on date of alleged negligence). The Ellenwine court analyzed the purpose of the MMA's statute of limitations, concluding that it was to "foster prompt litigation of medical malpractice claims." Id. at 664. Following this legislative intent, the Lockridge Court interpreted the two-year statute of limitations period to start at the occurrence of the alleged malpractice, as opposed to the date of the death. Lockridge, 60 N.E.3d at 254. See also Booth v. Wiley, 839 N.E.2d 1168, 1172 (Ind. 2005) (providing framework of analysis when exception applies to statute of limitations). The Booth Court evaluated when the statute of limitation period can be extended in certain medical malpractice claims. Id. First, the court should determine the date at which the alleged malpractice occurred, and second, determine the "trigger date." Id. A trigger date is defined as the period in which a claimant has sufficient information so that a reasonably diligent person would have discovered the alleged malpractice. Id.

(18) Lockridge, 60 N.E.3d at 256.

(19) Neal F. Eggeson, Jr., Snatching Confusion from the Jaws of Clarity: The Pulling Evolution of the Discovery Rule Vis-a-vis Indiana's Medical Malpractice Statute of Limitations, 8 IND. HEALTH L. REV. 95, 100 (2010) (citing rising medical malpractice insurance costs as a reason for the MMA). Prior to the MMA, excessive medical malpractice suits led to costly medical malpractice insurance, which resulted in a decrease of medical services. Id.

(20) 1975 Ind. Acts 146 (formerly codified at Ind. Code [section] 16-9.5-1-1); See also Ind. Code [section] 34-18 for similar current provisions. See supra note 1.

(21) See Eggeson, supra note 19. See generally Martin v. Richey 711 N.E.2d 1273, 1279 (Ind. 1999) (ruling the Indiana statute of limitations is unconstitutional in this specific case); Van Dusen v. Stotts, 712 N.E.2d 491,493-494 (Ind. 1999) (permitting medical malpractice victims to file their claims within two years of the discovery); Booth v. Wiley, 839 N.E.2d at 1172 (Ind. 2005) (differentiating between knowledge of injury and knowledge of malpractice when determining a trigger date); Ellenwine v. Fairley, 846 N.E.2d 657, 664-665 (Ind. 2006) (confirming that the medical malpractice claim must be filed within two years of the occurrence). See also Boggs v. Tri-State Radiology, Inc. 730 N.E.2d 692, 697-98 (Ind. 2000) (concluding the two-year statute of limitations applies so long as there is enough time remaining). The Boggs court found that there is usually a lag between the occurrence and the discovery of the malpractice. Id. at 698. The court held that as long as the amount of time left in the statute of limitations is not "so unreasonable] that it is impractical for a plaintiff to file a claim at all," then the two-year limitations rule applies Id. at 697.

(22) See IND. CODE [section] 34-18-7-1 (b) (1998).

(23) See Eggeson, supra note 19 at 101 (explaining that Indiana Courts treated the statute as occurrence-based). See also Hosp. Corp. of Am. v. Hiland, 547 N.E.2d 869, 872 (Ind. Ct. App. 1989) (using the occurrence-based standard to bar a medical malpractice claim). In Hospital Corp. of America v. Hiland, the court described the Indiana statute of limitations as "an 'occurrence' rather than a 'discovery' statute." Id. The court explained that a medical malpractice claim must be filed within two years of the date in which the alleged negligent act occurred, rather than the date it was discovered. Id.

(24) See supra note 23 and accompanying text (describing the occurrence-based standard for interpreting statutes).

(25) See Martin, 711 N.E.2d at 1279 (ruling the statute of limitations can be unconstitutional when applied in certain cases); see also Van Dusen v. Stotts, 712 N.E.2d 491, 497 (Ind. 1999) (ruling the statute of limitations can sometimes be triggered at the discovery date). The Van Dusen court ruled that if the medical conditions have "long latency periods", and the patients are therefore unable to discover the malpractice within the two-year statutory period, then the discovery rule should apply. Id.

(26) See Martin, 711 N.E.2d at 1279 (comparing discovery statutes versus occurrence statutes).

(27) Van Dusen v. Stotts, 712 N.E.2d 491, 493 (Ind. 1999).

(28) See id. at 493-94, 497.

(29) Eggeson, supra note 19, at 116 (referring to original formulation of discovery rule in Van Dusen). See also Van Dusen, 712 N.E.2d at 499-500 (holding that two-year period is triggered upon discovery of malpractice).

(30) Booth v. Wiley, 839 N.E.2d 1168, 1172 (Ind. 2005).

(31) See id. at 1175-76 (noting importance of physician input in selecting trigger date).

(32) Id. at 1172.

(33) Booth v. Wiley, 839 N.E.2d 1168, 1172 (Ind. 2005) (identifying trigger date under discovery rule). In setting forth a rule to determine when the discovery date is triggered, the court clarified that it was merely "synthesizing" the rulings in both Martin and Van Dusen. Id. See Martin v. Richey, 711 N.E.2d 1273, 1279 (Ind. 1999); See also Van Dusen, 712 N.E.2d 491 at 499.

(34) Booth, 839 N.E.2d at 1175-76 (distinguishing between knowledge of injury and knowledge of malpractice).

(35) See Ellenwine, 846 N.E.2d at 666-67 (concluding that a claim must be filed within two years after the occurrence of malpractice). The court summarized its conclusions by outlining the statutes as applied to "an adult patient who is the victim of medical negligence who dies within two years of the occurrence of the malpractice." Id. at 664-65. The court confirmed that if the patient's death was caused by the malpractice, the claim must be filed within two years of the occurrence of the medical malpractice. Id. at 665.

(36) Id. at 665 (confirming that a claim must be filed within two years of the occurrence).

(37) See Id. at 666. The court examined the "principal legislative purpose" behind the MMA, concluding "the two-year occurrence-based statute of limitations in particular was to foster prompt litigation of medical malpractice claims." Id. at 665.

(38) See Ellemvine, 846 N.E.2d at 665-66 (confirming conclusions "with respect to a child patient who is the victim of medical negligence ...").

(39) Lockridge, 60 N.E.3d at 254 (analyzing the central question of the case).); see also IND. CODE [section] 34-18-7-1 (b) (2016) (defining the tolling provision in the MMA statute). The tolling provision refers to the last phrase, "except that a minor less than six (6) years of age has until the minor's eighth birthday to file." Id.

(40) Lockridge, 60 N.E.3d at 255; see also supra note 37 (regarding legislative purpose behind language).

(41) Lockridge, 60 N.E.3d at 255; see IND. CODE [section] 34-18-7-1 (b)(2016).

(42) Lockridge, 60 N.E.3d at 254-55; see also IND. CODE [section] 34-18-2-13 (2016) (defining "health care"). The statute defines "health care" as, "an act or treatment performed or furnished, or that should have been performed or furnished, by a health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement." Id. The Lockridge court emphasizes the specific part of the definition that says, "for, to, or on behalf of a patient." Lockridge, 60 N.E.3d at 255.

(43) Lockridge, 60 N.E.3d at 255. See IND. CODE [section]34-18-2-22 (2016). The statute reads,
   'Patient' means an individual who receives or should have received
   health care from a health care provider, under a contract, express
   or implied, and includes a person having a claim of any kind,
   whether derivative or otherwise, as a result of alleged malpractice
   on the part of a health care provider. Derivative claims include
   the claim of a parent or parents, guardian, trustee, child,
   relative, attorney, or any other representative of the patient
   including claims for loss of services, loss of consortium,
   expenses, and other similar claims.


Id.

(44) Lockridge, 60 N.E.3d at 255.

(45) See IND. CODE [section] 34-18-7-1 (b) (2016) (stating that minors less than six years of age have until eighth birthday to file).

(46) Lockridge, 60 N.E.3d at 255.

(47) See id. (concluding the General Assembly could have excluded derivative minors within the statute).

(48) See id. (stating that derivative claims includes representatives of the patient). See also IND. CODE [section] 34-18-7-1 (b)(1998)(stating age requirements for minors in filing a claim against the healthcare provider).

(49) See Lockridge, 60 N.E. 3d at 255 (clarifying that children can be both direct and derivative claimants).

(50) Id.

(51) Id. at 13-14.

(52) Id.

(53) See id. at 14. See also Ellenwine, 846 N.E.2d at 664 (holding a claim is time-barred when the underlying claim is time-barred). The Indiana Supreme Court held that when a patient dies as a result of medical malpractice negligence, a derivative action under a wrongful death claim must be filed within the MMA's two-year statute of limitations. Id. The MMA statute of limitations applies, rather than the statute of limitations pertaining to wrongful death actions. Id.

(54) See Lockridge, 60 N.E.3d 249 at 255 (distinguishing case-in-chief from Ellenwine).

(55) See id.

(56) See id. at 255-56 (citing Henderson v. Coutee, 829 N.E.2d 1028, 1030 (Ind. Ct. App. 2005)) (explaining guidelines for interpreting MMA statutory language).

(57) See id. at 255 (claiming to be bound by language chosen by legislature).

(58) See Id. at 255 (interpreting language of tolling provision of MMA statute). The court deferred to the General Assembly and suggested that they could have explicitly specified that "the 'minor' included within the tolling provision must be the person who underwent the allegedly negligent medical treatment." Id.

(59) See lockridge, 60 N.E.3d at 255 (determining that Indiana legislature could have excluded derivative claimants). The original intention of the Indiana MMA was to cap total damages so that more physicians are able to afford to practice in Indiana, which allows patients to have more access to care. See IND. STATE MED. ASS'N, Key Features of Indiana's Medical Malpractice Act, available at http://www.ismanet.org/pdf/Iegal/Overview_Med_Mal_Act_summary.pdf (last visited Apr. 15, 2017) (outlining key features of the MMA). The Act was also enacted to prevent "excessive and unjustifiable malpractice judgments and settlements," expensive attorney fees, and "prolonged time limitations for bringing malpractice actions." Eggeson, supra note 19, at 100.

(60) See Lockridge, 60 N.E.3d at 255-56.

(61) Id. See IND. CODE [section] 34-18-7-1 (1998) (specifying that children under the age of six have until they are eight years old).

(62) IND. STATE MED. ASS'N, Overview of Indiana Medical Malpractice Act, http://www.ismanet.org/legal/malpractice/#act (accessed on Jan. 24, 2017) (explaining that MMA has kept medical malpractice insurance premiums affordable).

(63) See In re Stephens, 867 N.E.2d 148, 150-51 (Ind. 2007) (discussing the Indiana MMA). The court explains that there the Indiana legislature had labeled the inability to obtain adequate medical malpractice insurance coverage at affordable prices as a "health care crisis." Id. The MMA set up a Patient Compensation Fund which limited the liability of physicians by capping the total amount recoverable for malpractice, and for limiting a lawyers' recovery. Id. at 150. However, there is no limit to attorney fees recovered directly from a healthcare provider Id. at 151.

(64) IND. STATE MED. ASS'N, Overview of Indiana Medical Malpractice Act, http://www.ismanet.org/Iegal/malpractice/#act (last visited Apr. 9, 2017) (explaining that the act has kept medical malpractice insurance premiums affordable).

(65) See Lockridge, 60 N.E. 3d at 255-56 (explaining attorney fees are not capped from healthcare providers). IND. CODE [section] 34-18-7-1 (1998) (allowing claims in contract or tort violations against providers within two years of alleged act)

(66) See Van Dusen v. Stotts, 712 N.E.2d 491 (Ind. 1999) (expanding the MMA when claimants are unable to discover the malpractice within the two years). The Indiana Supreme Court held that under the MMA, medical malpractice victims can file their claims within two years of "the date when they discover the malpractice and the resulting injury or facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpractice ..." Id. at 494. The court also established that the trigger date could begin when a patient is told by a doctor of a, "reasonable possibility, if not a probability, that the specific injury was caused by a specific act at a specific time." Id. at 498. See also Booth v. Wiley, 839 N.E.2d 1168, 1172 (Ind. 2005) (creating an outline to determine the trigger date within the MMA).

(67) See Eggeson, supra note 19, at 101 (explaining that the MMA was interpreted as an occurrence-based statute). See also Van Dusen, 712 N.E.2d at 493 (concluding the trigger date is the date of discovery of the malpractice and resulting injury).

(68) See Van Dusen, 712 N.E.2d at 493 (concluding that the trigger date is the date of discovery). See also Ind. Code [section] 34-18-7-1 (1998) (setting forth statute of limitations for medical malpractice claims). The statute reads that a claim is banned unless it "is filed within two (2) years after the date of the alleged act, omission, or neglect ..."

(69) See Van Dusen, 712 N.E.2d at 493 (determining occurrence-based statute of limitations cannot be constitutionally applied). See also Eggeson, supra note 19, at 99 (increasing the likelihood of lawsuits filed to protect the statute of limitations in malpractice cases).

(70) See Van Dusen, 712 N.E.2d at 499 (creating a framework for determining the trigger date of the statute of limitations). The Van Dusen court created a rule to determine when the statute of limitations begins to run. Id. The court said that first, determining when a plaintiff discovered the facts of which "in the exercise of reasonable diligence, should lead to the discovery of the medical malpractice and resulting injury, if often a question of fact." Id. Secondly, a plaintiffs suspicion that there may have been malpractice is not enough to trigger the statute of limitations. Id. Lastly, the court said that a plaintiff does not need to know "with certainty that malpractice caused his injury" in order to trigger the limitations period. Id.

(71) See Booth v. Wiley, 839 N.E.2d 1168, 1172 (holding that courts must determine the date of malpractice and discovery to initiate malpractice actions).

(72) See id. The Booth court took the rule in Van Dusen a step further by distinguishing the knowledge of the injury from the knowledge of potential malpractice when determining the trigger date. Id. First, a court must determine the date of the alleged malpractice and the date the plaintiff discovered the malpractice. Id. If the date is more than two years after the date the malpractice occurred, the claimant has two years after the discovery to file a claim. Id. If the filing is not within the two years, then the statutory limitation applies and the lawsuit must be initiated before the two-year period after discovery expires to be considered by a court. Id.

(73) See Booth, 839 N.E.2d at 1178 (Shepard, C.J, dissenting) (arguing that the majority's rule is an overreaching application of the statute).

(74) See Lockridge, 60 N.E. 3d at 254.

(75) See id.

(76) See id. at 254-55. See supra notes 42-43 and accompanying text (expanding on statutory definitions and the court's interpretation of "patient" and "health care").

(77) See Lockridge, 60 N.E.3d at 255.

(78) See id.

(79) See id.
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Author:Doherty, Caitlin
Publication:Journal of Health & Biomedical Law
Date:Mar 22, 2017
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