October 8, 2020

The Court of Appeals of Indiana (“Indiana Appellate Court”), in its opinion filed on September 2, 2020, held in an Indiana medical malpractice wrongful death case where the parties had agreed at the time the decedent was admitted to the defendant nursing home to arbitrate any legal claim exclusively by arbitration: “Given that the parties agreed that the exclusive means for resolving any claims was arbitration and our precedent stating that when construing arbitration agreements, “every doubt is to be resolved in favor of arbitration,” Sanford, 813 N.E.2d at 416, we conclude that the Facility relinquished its right to avail itself of the [Indiana Medical Malpractice] Act.”

“Furthermore, we have also held that “parties to an arbitration agreement could, if they wished, make the right to seek arbitration subject to a condition precedent.” Chesterfield Mgmt., Inc. v. Cook, 655 N.E.2d 98, 102 (Ind. Ct. App. 1995). Thus, the parties could have agreed as a condition precedent to arbitration that the arbitration of any issue falling under the Act must be presented to a review panel prior to being submitted to arbitration. The Arbitration Agreement contains no such condition precedent.”

Indiana Code section 34-18-8-4 provides that an action against a qualified healthcare provider may not be commenced in a court in Indiana before: (1) the claimant’s proposed complaint has been presented to a medical-review panel; and (2) an opinion is given by the panel. The medical review panel requirement is a substantive feature of the Act. However, the Indiana Code recognizes that parties can agree to waive the requirement that the case first be submitted to a medical-review panel, providing that “a claimant may commence an action in court for malpractice without the presentation of the claim to a medical review panel if the claimant and all parties named as defendants in the action agree that the claim is not to be presented to a medical review panel.” Ind. Code § 34-18-8-5. Such an agreement “must be in writing and must be signed by each party or an authorized agent of the party” and the claimant “must attach a copy of the agreement to the complaint filed with the court in which the action is commenced.” Ind. Code § 34-18-8-5.

The Indiana Appellate Court had stated in Sanford, “we warned that such all-encompassing language could potentially impact the right to have a claim reviewed by a medical-review panel, stating: “In light of exclusive arbitration clauses, like the one at issue, we query whether qualified medical health care providers retain the ability to avail themselves of the provisions and attendant benefits of the Medical Malpractice Act, including a limitation on the amount of the provider’s liability—i.e., Indiana Code Section 34-18-14-3—and review of the plaintiff’s claim by a medical review panel—i.e., Indiana Code Section 34-18-8-4. Thus, these qualified providers need to be cognizant that, should they include these exclusive arbitration clauses in their contracts, they might be relinquishing not only their rights to a jury trial and to a broader review on appeal, but also their right to avail themselves of the Medical Malpractice Act.””

The Indiana Appellate Court concluded: “Having concluded that the [defendant] relinquished its right to avail itself of the Act, we further conclude that the trial court erred by denying the Estate’s motion to compel arbitration. We therefore remand the matter to the trial court with the instruction to enter an order granting the Estate’s motion to compel.”

Source Estate of Sandra King v. Aperion Care, Court of Appeals Case No. 19A-MI-3037.

If you or a loved one suffered injuries (or worse) while a resident of a nursing home in Indiana or in another U.S. state due to a nursing home fall, nursing home aspiration, nursing home neglect, nursing home negligence, nursing home abuse, nursing home under-staffing, or the nursing home failing to properly care for a vulnerable adult, you should promptly find a nursing home claim lawyer in Indiana or in your state who may investigate your nursing home claim for you and file a nursing home claim on your behalf or behalf of your loved one, if appropriate.

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