How Long Do You Have to File a Medical Malpractice Claim in Indiana?
In Indiana, the “statute of limitations” is the time limit for filing a medical malpractice lawsuit. It allows for just two years from the date the healthcare provider committed an act of negligence that led to injuries to a patient, not the discovery of the malpractice, except in some specific circumstances.
An act of medical negligence could be failing to act, or taking the wrong action when treating a patient that results in a significant harm. These cases may involve many types of medical negligence, including: a misdiagnosis, a failure to diagnose, surgical errors, medication errors, or an avoidable birth injury.
The Standard of Care: A Medical Professional’s Duty to a Patient
Doctors are held to a specific standard of care in the practice of medicine. This standard is essentially what another similar medical professional would have done to treat the patient when faced with a similar symptom, condition, or illness. When the accepted standard of care is violated, the door is open to filing a medical malpractice claim or lawsuit.
The Time Limit Can Stop a Case from Proceeding
The statute of limitations is a law that sets a time limit on when you can file a personal injury or wrongful death lawsuit based on the malpractice of a doctor or other medical professional. If you file suit after the legal time limits have passed, your case is barred from moving forward. The defense lawyer for the medical professional’s insurance company will simply raise the statute of limitations as a defense, and ask the court to dismiss the lawsuit.
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Indiana Law: The Statute
The Indiana medical malpractice statute of limitations is found at I.C. § 34-18-7-1(b). This section of the law states, in part:
There are some situations under which the two-year time limit may be legally extended, and it is important to speak with an Indiana medical malpractice lawyer at once if you have concerns whether a case can be filed against a healthcare provider who you believe acted negligently.
Is the Statute of Limitations Constitutional in Your Case?
Under Indiana law, the main question to be answered is whether the two-year statute of limitations is “constitutional” when applied to your medical malpractice case. Generally speaking, the statute of limitations will be considered constitutional if it does not unreasonably shorten the time between your discovery of the act of malpractice and injury, and the expiration of the two-year limitations period, making it impractical for you to file a claim for the damages you deserve.
The statute of limitations is constitutional when applied to your case in these situations:
- You discovered the alleged malpractice and the injury that resulted from it within two years after the date of the healthcare provider’s negligent act or omission; or
- You possessed information that would have led a reasonably diligent person to discover the alleged malpractice and injury within that two-year period.
If your case meets either of these factors, then you must file your medical malpractice lawsuit within the two-year period. If you fail to do so, there is a great risk that your case cannot go forward, and will be dismissed.
However, the statute of limitations is deemed to be unconstitutional when applied to your case if:
- You did not discover the alleged malpractice and injury within two years after the date of the alleged negligent act; and
- You did not possess enough information that, in the exercise of reasonable diligence, would have led you to discover the alleged malpractice and injury.
Each case is different. You deserve to get your answers from a trusted legal professional who can review the facts in your case and will help you to find out whether you have the legal right to file a medical malpractice case.
The court may need to determine the date on which you actually did have enough information that in the exercise of reasonable diligence you would have discovered the alleged malpractice and injury. That date will commence the two-year statute of limitations period. Legal professionals call this “tolling.”
How the Statute of Limitations in Indiana Works: Some Examples
Here are some examples of how the Indiana medical malpractice statute of limitations and the interpretation of the case law of this statute may affect a medical malpractice case.
You went to the Emergency Room and the emergency room physician missed an important diagnosis and sent you home. As a result, you suffered a serious injury that caused significant medical bills and permanent injury. You would have two years from the date of the emergency room visit to file your claim.
On Jan. 2, 2012, a medical professional provided you with a wrong diagnosis. This doctor told you that you did not have cancer. One year later, on Jan. 2, 2013, a different doctor informed you that in fact, you did have cancer. This doctor also informs you that your treatment options would have been significantly better, as well as the potential for recovery, if the cancer had been diagnosed a year earlier.
In this scenario, you have now discovered that you may be a victim of an act of medical malpractice. You have suffered an injury, as your treatment options are reduced, or the cancer may have advanced to a stage that is more difficult or impossible to treat. Also, you discovered the malpractice within the two year statute of limitation period following the negligent act.
At this point, the court would likely consider that you have gained enough information that a reasonably diligent person would determine that there was likely a violation of the accepted standard of care. Under the statute and Indiana case law, you would have to file the claim within two years from the date of the negligent act – not the discovery of the act- (Jan. 2, 2012) or before January 2, 2014.
However, under a similar fact scenario, if you did not discover the malpractice relating to the missed cancer diagnosis within the two years and did not learn that you had cancer until after January 2, 2014, then you may have an additional two years from the date of the discovery. You will still have to establish that you did not have enough information that in the exercise of reasonable diligence you would have discovered the alleged malpractice and injury before January 2, 2014.
These cases can be very fact sensitive and you should speak with an attorney as soon as possible to determine if your case can be filed within the statute of limitations time period.
You have a spouse that went to the emergency room on January 2, 2014. The ER doctor missed the fact that your spouse was exhibiting signs of a significant condition that could result in death if not treated. Your spouse was sent home, however died as a result of the undiagnosed condition on January 15, 2014. The claim must be filed within two years of the malpractice (January 2, 2014), NOT two years from the date of your spouse’s death.
Fraudulent Concealment: What is It?
There are two other rules that can impact the statute of limitations in Indiana medical malpractice lawsuits.
A healthcare provider cannot raise the statute of limitations as a defense against a medical malpractice lawsuit if he or she violated a duty or committed an act of deception that prevented you from discovering the alleged malpractice and injury within the two-year limitations period.
There are two types of fraudulent concealment:
- Active Fraudulent Concealment
This occurs when a doctor or other healthcare provider makes some affirmative act (i.e., lying to you) that is intended to mislead or prevent you from discovering the act of medical malpractice.
- Passive Fraudulent Concealment
This occurs when the medical professional, out of negligence, fails to provide important information that would have allowed you to discover the malpractice and injury.
Continuing Wrong Doctrine: What is It?
The law allows exceptions to the statute of limitations if your injury is deemed to be the result of a continuing course of misconduct by your healthcare provider. The two-year limitation period will not begin to run until the date that the continuing conduct has come to an end.
For example, if your injury resulted from a series of misdiagnoses by your doctor, the date of the final misdiagnosis would be considered the date that triggers the start of the two-year period. However, there could be other exceptions, and you should have your case reviewed if you are concerned that your case is past the two-year time period allowed under Indiana law.
Contact an Indiana Medical Malpractice Lawyer Today
It is an urgent that you speak with a skilled and experienced Indiana medical malpractice lawyer immediately if you believe you have been the victim of medical negligence.
There is no question that “time is of the essence” when you file a lawsuit based on medical malpractice. Not only do you need to act in a timely manner, but also there can be real benefits for an attorney getting involved very early after the act of malpractice. Early action can help build strong evidence to support your medical malpractice lawsuit.
With over 15 years of litigation experience, Indianapolis medical malpractice attorney Kelley J. Johnson has the skill and knowledge to hold negligent healthcare providers accountable for the physical, emotional and financial harm they caused a patient.
To schedule a free and confidential review of your case, call the Law Office of Kelley J. Johnson in Indianapolis today at our toll-free number or fill out our online contact form.
- Indiana Codes: Chapter 7, Statute of Limitations
Last updated: April 22, 2015