Proposed med mal complaint fee divides Court of Appeals

In a dissent from Judge Nancy Vaidik involving a proposed medical malpractice complaint filed with the Department of Insurance before filing fees were paid, Vaidik claimed Judge James Kirsch created a new test to determine whether a complaint is timely filed and shifted the burden of ensuring fees are paid to the Department of Insurance instead of the attorney.  

In Ann L. Miller and Richard A. Miller v. Glenn L. Dobbs, D.O., and Partners in Health, 15A05-1108-CT-431, the majority reversed the grant of summary judgment for Dr. Glenn Dobbs and Partners in Health on the issue of whether Ann and Richard Miller’s proposed medical malpractice complaint was timely filed with the DOI. Ann Miller had a stroke a few weeks after giving birth.

The complaint was mailed March 18, 2008, within the two-year statute of limitations, but the $7 filing fee was not included. The attorney sent the fee on the date the statute of limitations expired, and the department file-stamped the proposed complaint April 7, 2008.

Indiana Code 34-18-7-3(b), in the Medical Malpractice Act, provides that, “A proposed complaint under IC 34-18-8 is considered filed when a copy of the proposed complaint is delivered or mailed by registered or certified mail to the commissioner.” Indiana Code 34-18-8-2 provides that the filing fees “must accompany each proposed complaint filed.”

Kirsch decided the matter is not controlled by Supreme Court precedent, which has said filing fees must be filed with the complaint within the statute of limitations or the complaint is considered untimely. He wrote the case should be decided on the merits and can proceed two ways: treat the proposed complaint as unfiled until the fees are paid, or treat the complaint as filed and issue a show cause to the plaintiffs that they must pay the fee “in short order.” He went with the second option as it will allow the parties to proceed to determine the complaint on the merits.

Judge Elaine Brown concurred in result, writing, “… under the MMA, filing the proposed complaint by delivering or mailing by registered or certified mail, by itself, tolls the statute of limitations.” Under I.C. 34-18-7-3(b), the limitations period was tolled beginning on that date, and under I.C. 34-18-8-2, the Millers had to pay the $7 in fees to commence their action, which they satisfied in short order, she wrote.

Vaidik argued that Kirsch’s opinion creates a new test that is “fraught with problems.” She questioned where the line would be drawn in his test in other cases regarding how late the fees were paid and how much was owed. Requiring the trial courts and DOI to file show-cause orders to ensure that filing and processing fees are paid goes “too far,” and that burden should remain on attorneys, she wrote.

She believes Supreme Court precedent applies to this case, and that the statute is clear that a proposed medical malpractice complaint isn’t considered filed until the fees are paid.

“We should expect a minimum level of competence from the attorneys who practice in this State, and this minimum level of competence includes knowing that the filing and processing fees must be included with a proposed complaint in order for it to be considered filed,” she wrote.