Late Filing Fee Not Fatal to Timely Medical Malpractice Claim

A woman underwent a Cesarean section and a tubal ligation. Two weeks later the woman suffered a bilateral stroke that left her with permanent injuries. Nearly two years later, the woman and her husband's attorney sent a proposed medical malpractice complaint to the Indiana Department of Insurance by certified mail. The $7.00 statutory filing and processing fees were not included. Within two weeks the woman and her husband filed their complaint against the obstetrician who performed the procedures and his medical group in the Dearborn Superior Court.


The Indiana Department of Insurance notified the attorney of the fee omission. The attorney sent a check to the Department by first-class mail that same day. The Department received the check and re-file-stamped the proposed complaint with a date over two years past the woman’s stroke. The proceedings in the trial court were stayed pending completion of the Medical Review Panel opinion, which was issued over two years later. The defendants subsequently raised an affirmative defense of the statute of limitations and moved for summary judgment on that basis. The wife and husband moved to strike that motion, arguing the defendants waived it by failing to raise it before the Medical Review Panel issued its opinion. The Dearborn Superior Court granted the defendants' motion for summary judgment and denied the wife and husband’s motion to strike based on finding that the proposed complaint had not been timely filed with the Department of Insurance.


The Supreme Court of Indiana reversed and remanded. The court held that the obstetrician and hospital did not waive the affirmative statute of limitations defense, and the complaint was considered filed the day it was mailed, rather than the day on which the filing and processing fees were paid.


The court reasoned that the failure of the obstetrician and hospital to move for a preliminary determination of law during pendency of proceedings before the Medical Review Panel did not constitute a waiver of their affirmative statute of limitations defense, where, although the obstetrician and hospital were statutorily authorized to seek a written opinion from the Panel on an affirmative defense, Indiana’s statute expressly provided that failure to do so did not constitute waiver.


The court also held that the complaint was considered filed the day it was mailed, rather than the day on which the filing and processing fees were paid. He court examined the language of the provision governing the fees and noted that the provision suggested that a proposed complaint was considered filed regardless of whether the required fees are submitted with it. The court also noted that the provision stated that the fees accompanied the filed complaint, but they were not actually part of it.


See: Miller v. Dobbs, 2013 WL 3895070 (Ind., July 30, 2013) (not designated for publication).