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Counsel That You Can Trust & Depend On


Guy DiMartino Nov. 4, 2014

Indiana medical malpractice lawyer discusses a recent case showing how strict Indiana medical malpractice law can be especially when it comes to statute of limitations issues.

Update: The Indiana Supreme Court overturned the Indiana Court of Appeals decision holding that using a third party delivery service such as UPS or Fed Ex is sufficient to comply with the filing requirements of the Indiana Medical Malpractice Act. Specifically, the Court said:

Our decision constitutes a refusal to elevate form over substance. “We are unwilling to fortify the armory of those who attack the law as famous for its ability to elevate form over substance.” State ex rel. Attorney Gen. v. Lake Superior Court, 820 N.E.2d 1240, 1252 (Ind. 2005); see In re Estate of Robertson, 859 N.E.2d 772, 778-79 (Ind. Ct. App. 2007) (J. Robb, dissenting), trans. not sought. We see no substantive difference between a proposed medical malpractice complaint mailed via FedEx Priority Overnight, tracking and return receipt requested, and a proposed complaint mailed via USPS registered and certified mail. And neither does the Indiana General Assembly, as evident by their adoption of Indiana Code section 1-1-7-1.

For many years, Indiana had a strict two year occurrence based statute of limitations. That meant that a person who believed they are a victim of medical malpractice had to file their claim within two years of the “occurrence” or “event” or otherwise the claim would be forever barred. Over the years, Indiana courts have lessened the restriction somewhat – acknowledging that a patient may not even learn they were a victim of medical malpractice until after the two year statute of limitations had expired.

Every year there are a few cases that go up the appellate courts regarding the statute of limitations you can read here and here. The Indiana Court of Appeals recently ruled on another statute of limitations case showing how strict Indiana law can be when it comes to medical malpractice.

Medical malpractice statute of limitations cases are very fact dependent, so let's take a look at the important facts in this case.


  • A patient died on April 20, 2007 in LaPorte Hospital.

  • On Sunday, April 19, 2009, Moryl sent her proposed medical malpractice complaint to the Indiana Department of Insurance via FedEx.

  • The Indiana Department of Insurance received the complaint on April 21, 2009 – 1 day after the statute of limitations had expired.

  • The trial court dismissed Moryl's complaint finding that it was not filed within the two year statute of limitations.

  • Plaintiff appealed the case to the Indiana Court of Appeals.

  • The Appellate Court sustained the dismissal finding the complaint was not timely filed.


The issue in this case had to do with using FedEx to deliver the complaint to the Indiana Department of Insurance. Indiana law for medical malpractice complaints deems a matter filed if it is deposited in US Mail registered or certified. So, if the registered or certified mail was deposited in US Mail on April 19, 2009, the complaint would have been deemed timely filed. Even though there is a record of the fact that the complaint was deposited with FedEx on the 19th – the court said that a private third party carrier – like Fed Ex – was not the same as mailing certified or registered mail because the law that the filing was based on did not mention FedEx or other private commercial carrier.

This is a true example of how strict Indiana medical malpractice law can be and how harsh the results can be if the law is not followed to the “T”. Remember, if you believe that you or a family member has been injured because of medical malpractice, you have to file your claim within two years of the date that the “malpractice occurred.”

If you have any questions about a Northwest Indiana medical malpractice claim, you can always call our Michigan City medical malpractice lawyer at (219) 874-4878 or shoot us an email.