Multiple Recoveries Under Indiana’s Medical Malpractice Act

Medical Malpractice is defined as “a tort or breach of contract based on health care or professional services that were provided, or that should have been provided, by a health care provider, to a patient.”  The total amount recoverable depends on the year the claim accrued. Further, Indiana’s Medical Malpractice Act provides for a cap on the amount recoverable from each healthcare provider for an occurrence of malpractice. In particular:

For claims accruing after June 30, 2009, and through June 30, 2017, a healthcare provider may be responsible to pay up to $250k for each occurrence, with a total cap on damages in the amount of $1.25 million.

For claims accruing after July 1, 2017, and through June 30, 2019, a healthcare provider may be responsible to pay up to $400k for each occurrence, with a total cap on damages in the amount of $1.65 million. 

For claims accruing on or after July 1, 2019, a healthcare provider may be responsible to pay up to $500k for each occurrence, with a total cap on damages in the amount of $1.8 million.

In short, the relevant case law establishes patients may seek separate recoveries where there are two separate and distinct injuries caused by two separate and distinct acts of medical malpractice. None of the cases, however, have defined the terms “distinct” or “separate” when discussing either act or injury.

Most medical malpractice cases are clear-cut, with one act of alleged medical malpractice and one injury as a result. Where the injuries are not separate and distinct and/or the acts of medical malpractice are not separate and distinct, then patients may seek only one recovery. Where there are multiple acts, multiple injuries and/or multiple patients involved in a matter, the analysis is a little muddier. 

In 2004, the Indiana Court of Appeals ruled on a case where plaintiffs were seeking payment of a defendant’s statutory maximum twice before access to the Patient Compensation Fund for excess damages was triggered. In Medical Assurance v. McCarty, 808 N.E.2d 737 (Ind. Ct. App. 2004), the Court reviewed the aforementioned case law and summarized it as follows:

Smith, Bova, Miller, Patel, and McCarty have established the following: (1) a patient who suffers only one compensable injury, regardless of the number of negligent acts causing that injury, is entitled to only one maximum statutory recovery; (2) a doctor who commits more than one negligent act in treating a patient is only liable for one maximum statutory payment if only one compensable injury results; (3) a patient who suffers two or more distinct injuries from two or more negligent acts by one or more health care providers is entitled to the maximum statutory recovery for each injury; and (4) a doctor who commits only one act of malpractice, yet causes more than one compensable injury to more than one patient, is still only liable for one maximum statutory payment.

It further stated, “the most logical extension of these holdings is that a doctor who commits two or more negligent acts in treating a patient and thereby causes two or more distinct injuries is liable for the maximum statutory payment for each compensable injury.” In other words, “Each distinct act of malpractice resulting in a distinct injury is ‘an occurrence of malpractice’ under Section 34-18-14-3(b) for which a health care provider is liable up to the maximum amount.”

The Court provided “guidance in future cases” for “variations on the multiple negligent acts/multiple injuries factual scenarios.” It stated:

Perhaps the best way to address the variations on the multiple negligent acts/multiple injuries factual scenarios and provide guidance in future cases is to give a definition of “occurrence” that is consistent with plain meaning, the purposes of the Act, and the cases from this court and our supreme court: “an occurrence of malpractice” under Section 34-18-14-3(b) is the negligent act itself plus the resulting injury, with a health care provider’s liability limited to the lowest common denominator between act and injury. That is, if there is only one act but two injuries, there can only be one “occurrence” and health care provider payment; if there are two acts but only one injury, there can only be one “occurrence” and health care provider payment; if there are two distinct acts and two distinct injuries, there can be two “occurrences” and health care provider payments.

In that case, the defendant physician and his insurer were required to make two maximum payments to the plaintiff for each distinct and separate injury.

Even with the guidance provided in McCarty, there are rare factual scenarios where it remains unclear whether a defendant must pay two recoveries. For example, a patient may have a shoulder injury and brain damage from alleged medical malpractice. Where there are also two distinct acts, but these acts compound one injury – i.e. the brain injury began in the first act and continued through the second act – whether that plaintiff is entitled to multiple recoveries remains up in the air.

This article is for information purposes only and is not intended to constitute legal advice.