Generally, a plaintiff filing a medical malpractice claim in Indiana must file a proposed complaint with the Indiana Department of Insurance within two years of the occurrence of the alleged malpractice. One exception to this is where the “patient” is a minor less than six years of age at the time of the alleged malpractice. In that instance, the minor has until his or her eighth birthday to file the proposed complaint, regardless of whether two years have passed since the alleged malpractice occurred.
In a matter of first impression, the Indiana Court of Appeals, in Anonymous M.D. v. Lockridge, 2016 Ind. App. Lexis 211 (Ind. Ct. App. June 29, 2016), has held that the exception for minors under the age of six applies not only to claims in which a minor was the person receiving allegedly negligent medical care but also for derivative claims brought by minors.
In Lockridge, a woman received a CT scan on July 6, 2011. However, the physician interpreting the CT scan allegedly failed to diagnose a lung tumor seen on the CT scan. On August 30, 2012, the woman was diagnosed with lung cancer and subsequently died on July 17, 2014. On August 27, 2014, her estate, three children that were under the age of six on the date of the alleged malpractice, and two children that were over the age of six on the date of the alleged malpractice, filed a proposed complaint for medical malpractice with the Indiana Department of Insurance. Because the proposed complaint was filed more than two years after the alleged occurrence of malpractice, the claim of the estate and the two children that were over the age of six at the time of the alleged malpractice were dismissed as time-barred via summary judgment. The question on appeal was whether the claim of the children under the age of six at the time of the alleged malpractice was similarly barred by the statute of limitations as their claim was derivative of their deceased mother’s claim, which would have been time-barred.
In deciding the issue, the Lockridge Court first noted that under Indiana’s Medical Malpractice Act a “patient” is not limited to those persons receiving medical care but includes persons with derivative claims, including the parents or children of persons that allegedly received negligent medical care. The Court then noted that § 34-18-7-1(b) of the Act, which states that the statute of limitations is two years “except that a minor less than six (6) years of age has until the minor’s eight birthday to file,” does not specify that the minor must have been the person allegedly receiving negligent treatment and does not expressly exclude derivative claims. As such, the Lockridge Court held that minor children under the age of six at the time of the alleged malpractice may bring derivative medical malpractice claims until they reach the age of eight.
Unfortunately, under Lockridge, medical providers may be subject to derivative claims brought by minor children long after two years have passed from the date of the alleged malpractice. Theoretically, a minor child born on the date of the alleged malpractice would have eight years to file a derivative claim for medical malpractice.
For further information regarding the implications of Lockridge or other questions regarding Indiana’s Medical Malpractice Act, please contact one of the members of our Medical Malpractice Group.
This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.
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