It is not enough in medical malpractice lawsuits for the plaintiff to simply provide evidence of wrong-doing or negligence. Before you even get to court, your law firm must clear a number of critical hurdles.
There are statutes of limitations on the lawsuit, but there are also numerous deadlines for various filings that must be met before a claim can move forward.
Patients first have to file a complaint with the Indiana Department of Insurance, which will appoint a medical review panel of three physicians to evaluate the case. If there is one defendant, two of the three doctors must be from the defendant’s specialty. If there are multiple defendants, the department must try to make sure the panel displays the most appropriate representation possible.
If the panel gives the green light to a case, the patient can choose to proceed to court. While the panel’s findings aren’t conclusive, those findings are admissible in the court case and the members can even be called later as expert witnesses.
Once the patient has the panel’s approval, he or she can file a medical malpractice lawsuit, based on the guidelines set forth in the Indiana Rules of Trial Procedure. There is the initial pleading, filed by the plaintiff, which is designed to provide notice to the defendant of the claim.
Complaints must be accompanied by a summons and a cover sheet. It has to include jurisdictional facts, background on the case, elements of the cause of actions, damage allegations, prayer for relief and the signature of the plaintiff or plaintiff’s attorney.
In medical malpractice cases, patients have up to two years from the date of the alleged malpractice to file. Some exceptions are made for minors and those who could not have reasonably discovered the malpractice within that time frame.
Following each of these requirements to the letter is critical to the success of your case. Failure to consider every detail could result in the dismissal of your case before it is ever heard by a jury.
That’s what nearly happened in the case of Cannon ex rel. Good v. Reddy, reviewed recently by the Tennessee Supreme Court.
The case started back in 2005 when the patient underwent surgery to have her gallbladder removed. At the start of the procedure, the patient suffered a severe drop in blood pressure and oxygen saturation. Doctors were able to stabilize her, but not before the deprivation of oxygen caused her permanent brain damage.
A close relative was named a conservator, and that person filed a medical malpractice lawsuit on her behalf, naming the county, the regional hospital and the anesthesiologist as defendants. While this action was pending, the state legislature amended a section of its medical malpractice law to require plaintiffs to give written notice of the potential claim to each defendant a full two months prior to filing the complaint. Plaintiffs were additionally required to file a certificate of good faith alongside that complaint in any medical malpractice action that would require expert testimony (which is just about all of them). Where proper notice is given, the law was changed to say that the statute of limitations on claims would be extended for 120 days.
Subsequently, the plaintiff in this case voluntarily dismissed her action, following it with a presuit notice of potential claim to the defendants. The lawsuit was then re-filed against the previously-named defendants.
The plaintiff then made a third filing, which was later consolidated with the second, with the trial court noting her attempt to preserve the claim by filing actions that complied with both the old and new statutes. There was question as to whether the second filing met the legal criteria necessary to move forward.
The defendants moved to dismiss the second claim for failure to comply with pre-suit notice and certificate of good faith requirements and the third action on the basis of the doctrine of prior suit pending.
The plaintiff then voluntarily dismissed her second action.
The trial court reserved its ruling on the doctor’s motion to dismiss. Later, it denied his motion to reconsider on the basis that it was untimely.
The doctor appealed that finding. The court of appeals declined the review, but the state supreme court accepted.
The high court found that the plaintiff’s voluntary dismissal of the second action made the doctor’s argument of prior suit pending (a preclusion of the third action) a moot point.
From there, the question became whether the third action was filed outside of the appropriate statute of limitations. The court determined that on the basis of recent case law, the plaintiff in this case was entitled to the 120-day extension and was therefore within the statutory period.
This means she is free to pursue her medical malpractice claim.
Burton A. Padove handles personal injury matters throughout northern Indiana, including Gary, Hammond and Saint John. Call Toll Free 877-446-5294.
Cannon ex rel. Good v. Reddy, Jan. 29, 2014, Tennessee Supreme Court
More Blog Entries:
Indiana Tort Claims Act Mandates Timely Notice To Sue, Dec. 20, 2013, Munster Medical Malpractice Lawyer Blog