Indiana Law Review Judicial Policy and Quantitative Research: Indiana's Statute of Limitations for Medical Practitioners Randall R. Bovbjerg* Joel M. Schumm" Introduction More than twenty years after the Indiana General Assembly enacted comprehensive medical malpractice reform in 1975, 1 the Indiana Supreme Court heard oral argument in four cases 2 challenging the constitutionality of Indiana's special occurrence-based statute of limitations for medical liability. 3 In deciding whether medical malpractice claims should be subjected to a more stringent statute of limitation than all other tort claims, the supreme court has been asked to consider numerous historical and constitutional claims, but little empirical evidence, either about the problems that precipitated reform or the results that it produced. This Article attempts to fill in these gaps. We sketch the history of empirical information on medical malpractice issues (Part I), present new information about pre-reform patterns of malpractice claiming and the likely effects of the reform (Part II), and consider the implications for judicial policy (Part III). We conclude that a sizable block of late-discovered claims against physicians and hospitals may have been barred by Indiana's statute of limitations. We argue that the judiciary should create for itself better data systems with which to manage its cases and evaluate future controversies about dispute resolution. Medical malpractice reform remains an active concern in many other states as well, despite the absence of anything like the insurance "crisis" that drove * Principal Research Associate, Health Policy Center, The Urban Institute, Washington, D.C. This Article was supported in part by funding from the Urban Institute. A version of parts of this Article, "Tort Reform and Quantitative Evidence about Malpractice Issues: Uses, Abuses, and Comments," was presented at the Symposium "Lies, Damn Lies, and Statistics: How Empirical Research Shapes Health Law and Policy" at the Indiana University School of Law—Indianapolis, April 5, 1997. Other Symposium presentations are published in Issue 1, Volume 31 of the Indiana Law Review. See 31 Ind. L. Rev. 1 (1998). The authors extend special thanks to Professor Eleanor Kinney of the Center for Law and Health, who served as co-host of the Symposium and who offered considerable encouragement and support for this Article. ** B.A., 1992, Ohio Wesleyan University; M.A., 1994, University of Cincinnati; J.D., 1998, Indiana University School of Law—Indianapolis. 1 . Act ofApr. 17, 1975, No. 146, 1975 Ind. Acts 854 (codified as amended at Ind. Code §§ 27-12-1 to 27-12-18 (1993)). 2. Johnson v. Gupta, 682 N.E.2d 827 (Ind. Ct. App. 1 997), petitionfor transferfiled, Aug. 13,1 997; Harris v. Raymond, 680 N.E.2d 55 1 (Ind. Ct. App. 1 997), petitionfor transferfiled, July 1 1, 1997; Martin v. Richey, 674 N.E.2d 1015 (Ind. Ct. App. 1997), petitionfor transferfiled, July 10, 1997; Jordan v. Read, No. 49A04-9606-CV-256 (Ind. Ct. App. Mar. 18, 1997), petitionfor transferfiled, April 16, 1997. 3. Ind. Code § 27-12-7-1 (b) (1993). 1 052 INDIANA LAW REVIEW [Vol. 3 1 : 1 05 1 reforms in the mid-1970s and 1980s. Liability reform in its own right has been kept on legislative agendas by defense and insurance interest groups, with medical practitioners in a lead role, as well as by general proposals for health systems reform, including malpractice. 4 Over time, numbers have played an increasingly large role in the public debates, particularly evidence on insurance premiums and defensive medicine. In practical policy making, however, anecdote and personal experience continue to dominate perceptions, and large policy arguments turn on very small amounts of quantitative evidence. 5 This Article blends empirical research with legal policy analysis and argument. I. POLICY-MAKING AND QUANTITATIVE INFORMATION A. The First Medical Malpractice Crisis: Policy-Making in an Information Vacuum Medical liability first came to public prominence during the insurance crisis ofthe mid-1970s. At this time, especially in the media centers ofNew York and California, liability insurers awoke to a sharp upward trend in the number of claims for professional liability and the number and amount of verdicts. In response, some insurers exited the market, while others demanded very large premium increases,6 some quitting the market after not getting as much as they thought they needed. The first round of "tort reform" occurred at that time.7 4. Active tort-reform-promoting groups include the Health Care Liability Alliance, 1 130 Connecticut Ave, N.W., Suite 800, Washington DC 20036 and the American Tort Reform Association, 1212 New York Ave., N.W., Suite 515, Washington, DC 20005. The latter's website tracks state enactments . Tort reform has also figured in many proposals for health systems reform in the early 1990s, from both executive and Congressional sources and under both Republican and Democratic administrations. See Eleanor D. Kinney, Malpractice Reform in the 1990s: Past Disappointments, Future Success?, 20 J. HEALTH POL. POL'Y & L. 99, 1 12-19 (1995) (thorough review of legislative proposals through mid 1994) and Randall R. Bovbjerg, Promoting Quality and Preventing Malpractice: Assessing the Health Security Act, 19 J. Health Pol. Pol'y & L. 207 (1994) (Clinton proposals in particular). Tort reform for medical providers, though not of the statute of limitations, also comprised part of Congressional Republicans' 1994-95 "Contract with America," has since been added as an amendment to budget bills (unsuccessfully), and as this Article is being edited has been proposed for the House Republicans' version of a "patient bill of rights;" see, e.g., American Health Line, National Journal's Daily Briefing, Politics & Policy—House Republicans: Unveil Patients ' Rights Bill (visited June 25, 1998) . 5. See generally Stephen Zuckerman et al., Information on Malpractice: A Review of Empirical Research on Major Policy Issues, 49 Law & CONTEMP. PROBS. 85 (1986). 6. See generally James R. Posner, Trends in Medical Malpractice Insurance, 1970-1975, 49 Law & CONTEMP. Probs. 37, 38-39 (1986) (noting some states had premium increases of up to 500%). See also infra note. 7. See generally Randall R. Bovbjerg, Legislation on Medical Malpractice: Further Developments and a Preliminary Report Card, 22 U.C. DAVIS L. REV. 499 (1989). Fig. 1, id. at 1998] INDIANA'S STATUTE OF LIMITATIONS 1053 Compared with other states, Indiana's response came faster, its reforms were more comprehensive, and the provisions were more stringent. In January 1975, Governor Otis Bowen, M.D., called for action in his State of the State message; and the General Assembly enacted comprehensive reform in April of the same year. The key provisions of the 1975 Medical Malpractice Act were (1) a comprehensive cap on all damages, (2) mandatory medical review before a panel of health care providers before filing suit, (3) a state-run insurance fund to pay large claims, and (4) a two-year, occurrence-based statute of limitations for adults and a longer statute of repose for children. 8 The reform clearly created a new and shorter period of limitations for children, running to a maximum of age eight. For adults it restated the pre-existing occurrence-based rule, evidently intending to prevent the judicial development of a "discovery rule" allowing long delays before lawsuit. 9 Nationally, the widespread 1970s legislative debates were marked by a significant absence of broad-based, relevant, objective information about trends 505, shows that for several medical specialties, national average premiums doubled or tripled in "real" terms, i.e., inflation-adjusted, between 1974 and 1975. 8. See supra note 1 ; see also Geoffrey Segar, Background of, Preparation of, and Passage ofthe Indiana Medical Malpractice Act, in HOOSIER HOSPITAL ECONOMICS AND PUBLIC POLICY: A Collection of Historical Essays 69 (Ind. Hosp. Ass'n ed., 1995); Otis R. Bowen, Medical Malpractice Law in Indiana, 1 1 J. LEGIS. 15, 19-21 (1984); Eleanor D. Kinney et al., Indiana 's Medical Malpractice Act: Results ofa Three-Year Study, 24 IND. L. REV. 1275, 1277-78 (1991). Nationally, malpractice reforms can be categorized as aiming at (1) insurance (such as giving notice of claims, joint underwriting associations, patient compensation funds, and other efforts to attempt to deal with the problem of availability and affordability of liability insurance), (2) medical quality (such as promoting peer review by immunizing it from legal claims of defamation, increasing disciplinary board powers, and creating the National Practitioner Data Bank and state analogs), and (3) tort law (addressing mainly(a) the number of claims, as through statutes of limitation and arbitration, (b) the amounts of payouts, notably through caps on awards and collateral source offset provisions, (c) plaintiffs' likelihood of winning, as through expert witness requirements and res ipsa loquitur restrictions, and (d) the functioning ofjudicial process, including new pre-calendar conference requirements and preferred scheduling for malpractice cases). See generally Bovbjerg, supra note 7, at 513-32. 9. The 1975 reform aimed mainly at suits on behalf of children. The Indiana Supreme Court had just ruled that the statute of limitations was tolled until the age of majority, Chaffin v. Nicosia, 310 N.E.2d 867 (Ind. 1974), thus allowing up to 23 years for a claim arising from childbirth. A 1941 malpractice reform had created the basic, two-year statute, running from the time of the "act, omission or neglect complained of," ch. 1 16, § 1 (Acts 1941), now codified at Ind. CODE § 34-4-19-1 (1993). Indiana had to 1975 not developed a "discovery rule," although tolling the statute was relatively easy under a broadly conceived doctrine of "fraudulent concealment" by physicians, until termination of the physician-patient relationship. Guy v. Schuldt, 138 N.E.2d 891 (Ind. 1956); Toth v. Lenk, 330 N.E.2d 336 (Ind. App. 1975). The 1975 reformers were concerned to pre-empt further judicial creativity. The 1975 statute essential repeated the 1941 starting point for limitation of malpractice claims, the "alleged act, omission or neglect" of a health care provider, but oddly did not repeal the prior law or address the existing concealment doctrine. 1 054 INDIANA LAW REVIEW [Vol. 31:1051 in injuries, claims, awards, and other effects ofthe liability system. 10 At the time, the federal Secretary's Commission had just done the first-ever series of studies on medical liability issues, nationwide, and one of the conclusions of the individual components of that study was that relatively little was known. 11 In Indiana, just what problems legislators perceived, and with what basis in legislative evidence, is not reliably known. Indiana does not maintain formal legislative histories or even transcripts of committee hearings or floor debates on any proposed bills. Amid the general concern over availability of liability coverage, however, particular problems of late-filed litigation or changes in the discovery rule do not appear to have loomed large. 12 Courts were soon called upon to consider the validity of some of the reforms. In upholding the constitutionality of many aspects of the 1975 Act five years after its passage, the Indiana Supreme Court noted the increase in the number of malpractice claims and large judgments at the time the Act was passed: "[T]he Legislature was undoubtedly moved because of its appraisal that the services of health care providers were being threatened and curtailed contrary to the health interests ofthe community because of the high cost and unavailability of liability insurance." The discussion of the statute of limitations was short and focused upon the shortening of time for children to bring suit. Medical providers were noted to be at "unique" risk of long-delayed claims, which was noted to confound the search for truth, and medical professionals were noted to be licensed, from which the legislature may have deemed them "entitled to a special degree of trust." 13 Data slowly began to trickle into the information vacuum in which legislatures and courts were functioning. In the wake of the 1970s crisis, insurance regulators for the first time began to require carriers to report on malpractice as a line of coverage separate from general liability. Also begun were two notable empirical efforts. One was the major study of medical injury and negligence in hospital medical records undertaken by Don Harper Mills and colleagues with support from the California Medical and Hospitals Associations. 14 The other was a three-year effort by the National Association of 10. See generally Zuckerman et al., supra note 5, at 87. 11. U.S. Dept. Of Health, Education, and Welfare, Report of the Secretary's Commission on Medical Malpractice & Appendix (1973). 12. Reform proponents' legislative intent was indicated by ten proposed findings contained in an earlier version of House Bill 1460. It set out ten findings about the effect of insurance crisis on Indiana health care providers, patients, and citizens. None was directly relevant to the statute of limitations. See section 1 of H.R. 1460, 99th Gen. Assembly, 1st Sess. (Ind. 1975) (version of the bill as printed on March 6, 1975), reproduced in Appendix, infra. These findings were included in the version of the bill that was favorably reported out of the House Committee on Labor and the Economy (March 5, 1975), but were removed before engrossment by the Senate (April 2, 1975). 13. Johnson v. St. Vincent Hosp., Inc., 404 N.E.2d 585, 594, 604 (Ind. 1980). 14. Project results appear in an out-of-print book, Don H. Mills et al., Report on the Medical Insurance Feasibility Study (1977). More accessible is a project summary, Don Harper Mills, Medical Insurance Feasibility Study: A Technical Summary, 128 WEST. J. MED. 360 1998] INDIANA'S STATUTE OF LIMITATIONS 1055 Insurance Commissioners (NAIC) to gather and tabulate information on nearly every medical liability claim closed by all but the country's smallest medical liability insurers. 15 The availability of these data attracted the attention of empirical researchers, notably Patricia Munch Danzon, whose path-breaking studies from the Rand Corporation in the late 1970s and early 1980s first analyzed the effects oftort reform, among other issues. 16 Despite these advances, most information in public arenas and legislative debates came from the same proprietary sources that had dominated debate at the time ofthe mid-1970s crisis, namely, medical societies, insurers, and the plaintiffs' bar. B. The Second Crisis: Further Reforms and More Research The second nationally noticed crisis in liability insurance arose in the mid- 1980s. Problems in liability insurance this time were more general than malpractice-specific. In great measure because medical and hospital professionals had founded their own insurance companies, the problem of securing malpractice coverage was not significant in the mid-1980s.17 The problem was instead a rapid increase in premiums—less sharp a rise than in the 1970s, but starting from a higher base level—to putatively unaffordable levels. 18 In the 1980s, moreover, the need for premium increases became apparent much more quickly, so that there was much less disruption to insurers' continued participation in the market. This crisis also prompted tort reform—often for all personal injuries rather than just malpractice—as well as further development of empirical research. As in the 1970s, a series of state-specific and national task forces or commissions wrote reports, 19 and the attention of additional empirical and other researchers was drawn to the area. Nonetheless, legislative debates continued to be quite contentious, in a kind of adversary legislative process which echoed the adversarial nature of the courtroom, and which continues to this day. Plaintiffs and their lawyers argued (1978). 1 5 . National Association of Insurance Commissioners, Malpractice Claims: Final Compilation (M. Patricia Sowka ed., 1980) [hereinafter NAIC]. 16. Professor Danzon's work of this era is well summarized in her book. See PATRICIA M. Danzon, Medical Malpractice: Theory, Evidence, and Public Policy (1985). 1 7. See generally Posner, supra note 6, at 39; Bovbjerg, supra note 7 at 503. 18. See Posner, supra note 6, at 47; Bovbjerg, supra note 7 at 502-06 (Fig. 1 at 505 shows approximate doubling of five medical specialties' premiums in "real" terms, i.e., inflation-adjusted, between 1982 and 1985). 1 9. see, e.g. , governor's task force on medical malpractice insurance, report of the Governor's Task Force on Medical malpractice Insurance—State of Colorado ( 1 988); Academic Task Force for Review of the Insurance and Tort Systems, Preliminary Report on Medical Malpractice and medical Malpractice Recommendations (1987); Report and Recommendations of the Governor's Task Force on Medical Malpractice (1986). 1056 INDIANA LAW REVIEW [Vol. 31:1051 passionately on one side, doctors and their insurers on the other. 20 The 1980s legislative response followed the lines set in the 1970s, and states like Indiana that had enacted major reforms in the 1970s generally enacted only minor ones in the 1980s. The entire "wave" of 1980s reform was rather broader than that of the 1970s, in several ways. Many provisions applied not just to malpractice but to all personal injuries or all torts. For the first time, moreover, there was federal action on insurance and medical quality. Finally, some tort reforms departed further from traditional tort principles. Most notably, Virginia and Florida enacted an entirely new approach to medical injury, a limited "no fault" system for handling very severely neurologically impaired newborns. 21 What explains the presence or absence of reliable empirical evidence? To paraphrase realtors, the three most important things about empirical research are data, data, and data. It is clearly not possible to do empirical research without some numbers. Furthermore, systematically gathered and carefully processed numbers are necessary for good work, and most of the basic statistics reside in proprietary rather than public databases. For issues of medical utilization, even by the early 1970s, there were enough public databases to allow the issuance of health care data books. But not for medical liability or liability insurance, where there are no such public data on medical injury, medical liability insurance, or medical litigation. Most people new to these issues are astonished to learn that it is not even reliably known how many claims ofmedical liability are made each 22 year. 20. The legislative combatants naturally also take opposing positions in the Martin litigation challenging the legislation. The polarity of the contending views is well-illustrated by two of the amicus briefs filed in the case, which are reproduced in this symposium. See Brief of Amicus Curiae Indiana Trial Lawyers Association (in opposition to petition to transfer), Martin v. Richey, 674 N.E.2d 1015 (Ind. Ct. App. 1997), reprinted in Appendix 1, 31 Ind. L. REV. 1089 (1998) [hereinafter ITLA brief]; Brief of Amicus Curiae Indiana State Medical Association (in support of petition to transfer), Martin v. Richey, 674 N.E.2d 1015 (Ind. Ct. App. 1997), reprinted in Appendix 2, 3 1 IND. L. REV. 1099 (1998) [hereinafter ISMA brief]. The opposing points of view are also discussed in infra notes 43-46 and accompanying text. 21. Reforms addressed insurance, law, and quality of medical care, as discussed in greater detail in Bovbjerg, supra note 7, at 532-40. For the no-fault statutes, see Va. Code Ann. § 38.2- 5000 to -5002 (Michie 1994); Fla. Stat. Ann. § 766.301 to -.316 (West 1997). For empirical information on no-fault performance, see Randall R. Bovbjerg & Frank A. Sloan, No Fault for Medical Injury: Theory and Evidence, 67 U. ClN. L. REV. (forthcoming 1998) (policy overview from major study that includes information from study's five other empirical publications); Jill Horwitz & Troyen A. Brennan, No-Fault Compensationfor Medical Injury: A Case Study, HEALTH AFF., Winter 1995, at 164. 22. Data from the Insurance Services Offices were considered nationally representative in the 1970s, see infra notes 47, 49 and accompanying text, but no longer. Studies of claims trends since have required data collection. Even the word "claim" can be misunderstood. Claims are files opened by insurers concerned with whether they need to investigate and potentially defend an ultimate legal action. They may be opened because of a report from an insured, for example, a doctor or hospital staffer, or are based on other information. In one very large database in Florida, 1998] INDIANA'S STATUTE OF LIMITATIONS 1057 If data are the main prerequisite, the second pillar of empirical research is researchers, whose presence presupposes research support or funding. Since the mid-1980s, far more scholars from different disciplines have addressed medical liability issues, usually as an offshoot of some other interest. Some have come from health economics, others from jury-verdict research, general interest in the phenomena of law and society, and the conventional disciplines of law or medicine. Major studies have examined the universe of hospital treatment, medical injuries, and legally cognizable negligence. One used 1974 hospital records in California 23 and the other 1984 hospital records in New York.24 In each case it was found that about 4% of hospital charts contained evidence of bad outcomes that the researchers were confident were caused by medical care, one percentage point by negligent medical care. 25 Far fewer cases were brought as liability insurance claims or lawsuits. 26 The General Accounting Office studied a national sample of claims closed in 1984. 27 Other studies have considered the resolution of these cases by the legal system and the almost total lack of standards and information for juries and judges acting as factfinders to draw upon in determining damages. 28 Finally, numerous attempts have been made to document "defensive medicine."29 Medical malpractice policy today can draw upon research and researchers, much more than at the time of even the second crisis. There is objective information available on many malpractice issues, and research has become more sophisticated. Researchers have moved beyond mere legal writing and limited descriptive research to more useful—and more difficult to perform—generalizable descriptive research and analysis, nationally and in Indiana. 30 about 40% of claims files closed have been found to consist of these notice type claims in which no claimant actually came forward with a request for money and the insurer spent no significant amount ofmoney on investigation. Randall R. Bovbjerg & Kenneth R. Petronis, The Relationship Between Physicians ' Malpractice Claims History and Later Claims: Does the Past Predict the Future?, 272 JAMA 1421, 1423 (1994). 23. The California Medical Association study is discussed in considerable detail in Danzon, supra note 16, at 19-29. 24. A. Russell Localio et al., Relation Between Malpractice Claims andAdverse Events Due to Negligence, 325 New Eng. J. MED. 245 (1991); Troyen A. Brennan et al., Incidence ofAdverse Events and Negligence in Hospitalized Patients, 324 NEW ENG. J. MED. 370 (1991). 25. Brennan et al., supra note 24, at 371; Danzon, supra note 16, at 20. 26. Danzon, supra note 16, at 24; Localio et al., supra note 24, at 249. 27. U.S. GAO, Characteristics of Claims Closed in 1984 (1987). 28. See generally Randall R. Bovbjerg et al., Valuing Life and Limb in Tort: Scheduling Pain and Suffering, 83 Nw. U. L. REV. 908, 912 (1989). 29. See generally U.S. CONGRESS, OFFICE OF TECHNOLOGY ASSESSMENT, DEFENSIVE Medicine and Medical Malpractice (1994); Randall R. Bovbjerg et al., Defensive Medicine and Tort Reform: New Evidence in an Old Bottle, 21 J. HEALTH POL. POL'Y & L. 267 (1996). 30. Professor Danzon's use of multivariate regression to assess the effect of various tort 1 058 INDIANA LAW REVIEW [Vol. 3 1 : 1 05 1 At the time that the Indiana and other early reforms were enacted, their likely effects were simply not known. Today, however, in considering the constitutionality of certain malpractice reforms, courts may have a body of objective empirical evidence available for their consideration. This Article next explores—and expands upon—empirical evidence relating to the occurrence- based statute of limitations whose constitutionality is presently before the Indiana Supreme Court. II. Assessing Indiana's Occurrence-based Statute of Limitations A. The Policy Balance to Be Struck Lengthening a statute of limitations through a discovery rule increases perceived fairness to arguably injured patients unable to discover their injuries quickly and arguably increases deterrence for medical practitioners by making them pay for negligent care no matter when it comes to light.31 A shorter, occurrence-based statute increases perceived fairness to defendant doctors at risk of erroneous liability findings based on stale evidence and hindsight medical testimony, while encouraging patients allegedly injured by malpractice to act decisively, rehabilitate themselves to the extent possible, and generally "get on with their lives." 32 A fixed time limit is a rule of judicial economy as well. Having to argue out the freshness or staleness of evidence in each case would make judicial process slower and more costly. There is also a more subtle cost of longer statutes of limitations. They increase the cost of liability insurance by even more than the actuarially expected reforms is a good example of sophisticated analysis across the United States. See, e.g., Patricia M. Danzon, The Frequency and Severity ofMedical Claims: New Evidence, 49 LAW & CONTEMP. Probs. 57 (1986). A three-year study addressed many empirical issues about the performance of reform in Indiana, though not including the statute of limitations. See, e.g., William P. Gronfein & Eleanor D. Kinney, Controlling Large Medical Malpractice Claims: The Unexpected Impact ofDamage Caps, 16 J. HEALTH POL. POL'Y & L. 41 1 (1991); Kinney, supra note 8 (reprinting Eleanor D. Kinney & William P. Gronfein, Indiana's Malpractice System: No-Fault By Accident?, 54 L & CONTEMP. PROBS. 167 (1991)). The entire study is reviewed by Professor Kinney's article in this Symposium, Eleanor D. Kinney, Indiana 's Medical Malpractice Reform Revisited: A Limited Constitutional Challenge, 31 IND. L. REV. 1043, 1047-49 (1998). 31. Thus, by hypothesis, doctors should more readily change their practice to meet recognized standards because any mistakes will not go unrecognized just because they are old ones. One problem with this accurately applying expert testimony to older cases. See infra notes 125 and accompanying text. Another is that, if substandard care is not reliably discovered until years later, the deterrent "signal" may do no good if medical practice has already changed. 32. In the full universe of medical care and resulting injury, the problem of stale evidence seems even-handed: The passage of time could hurt either plaintiff or defense, as lost records or witnesses might hurt either side. However, where pro-plaintiff evidence is lost, an injury is unlikely to be discovered or a lawsuit brought. Accordingly, in the universe of legal claims actually seen by judges, older evidence is likely to disfavor defendants. 1998] INDIANA'S STATUTE OF LIMITATIONS 1059 costs of defending and paying additional claims from older incidents because delay increases uncertainty and hence risk. To raise capital, insurers have to pay not just the normal rate of return required to finance a risk-free investment but also an added "risk premium" related to the variability of expected future claims (and hence the likelihood that capital will be lost). 33 Analogously, interest levels are higher for corporate bonds than for government securities, and higher still for lower-rated, riskier investments. The longer the statute of limitations, the more likely that actuaries will mis-predict social or medical-legal trends underlying future rates of claims. 34 For example, if the Indiana statute of limitations is judicially altered, then claims will rise and insurance rates already set may prove to be inadequate (the state Patient Compensation Fund would be especially affected, as it covers the biggest claims, which are slowest to arise and be resolved, as considered below). Errors can also be made predicting the amounts of awards, including the likelihood that claimants will prevail in litigation, as well as inflation of wages and medical prices, along with changes in technology of medical treatment for injuries and disabilities. 35 That this risk is large in malpractice is shown by the general shift in malpractice insurance markets since the early 1970s from "occurrence" coverage to "claims made" policies, which shorten the "long tail" of malpractice payouts.36 Under occurrence coverage, premiums must be set to fund all claims arising from incidents occurring in the policy year, so insurers must predict both the rate of future claims and the amounts likely to be paid under them. Under claims made insurance, as the name implies, premiums cover only those claims made in the policy year. Thus, claims risk needs to be predicted only for a year in advance, only payout risk for longer, and the tail of delay to resolution of claims is shortened by the time between incident and report of claims. There is an additional cost to shortening a statute of limitations as well. A very short statute may encourage concealment of negligent injuries by medical practitioners because it decreases the likelihood that independent evidence will be found during the shorter period and hence that they will be penalized for concealment. It is hard to see why the law should ever accept intentional concealment. 37 33. See generally FRANK A. SLOAN ET AL., INSURING MEDICAL MALPRACTICE (1991 ). 34. Professor Danzon's argument about this "sociolegal risk" is quite persuasive, if somewhat jargon-laden. See DANZON, supra note 16, at 175-78. 35. There is sociolegal risk in claims payments, as well as claims rates. Id. Legal doctrine may change unexpectedly as may jury attitudes about payment. 36. See, e.g., Posner, supra note 6, at 44-45. 37. See, e.g., Martin v. Richey, 674 N.E.2d 1015, 1027 (Ind. Ct. App. 1997). The doctrine of fraudulent concealment operates to estop a defendant from asserting a statute of limitations defense when that person has concealed material facts from the plaintiff by deception or a violation of duty. This equitable doctrine was adopted in the case of Guy v. Schuldt, as a method of ameliorating the harshness of the stringent occurrence based statute. 1 060 INDIANA LAW REVIEW [Vol. 3 1 : 1 05 1 Setting the length of a statute of limitations thus calls for striking a balance. Someone will be disadvantaged whichever way the statute is set, and there is no objectively "right" length. A legislature setting a statute to begin with or a court considering whether to hold it unconstitutional or to craft a judicial exception for a certain class of cases would therefore benefit from having information about the number and nature of people hurt as well as about the extent of the damage. Clearly, the few claimants in Martin v. Rickey and consolidated cases 38 have been hurt by the Indiana tort reform. If they were the only people in the state so hurt, one suspects that there would be no occasion to write this Article. The claimants' constitutional argument draws force from the implication that they represent a class of other similarly situated people likewise denied a legal remedy. But, unlike a class action, there is no indication here of the size or attributes of the class. 39 A related policy issue is whether the balance is different for different classes of lawsuits, which has implications for "equal privileges and immunities" analysis in Indiana (equal protection elsewhere). Common sense supported the common law distinction drawn by the statute of limitations between actions primarily based on a written contract and those based on witnesses' memories. Indiana law maintains the classic dichotomy between contract and tort. 40 Currently before the Indiana Supreme Court is the issue of whether the 1975 legislature could constitutionally conclude that actions based on medical malpractice need a different, shorter statute of repose than other types of tort action. 41 For non-malpractice torts, the discovery rule still applies, evidently In cases of deception, that is active concealment, the estoppel lasts as long as the concealment; in cases of violation of fiduciary duty to disclose, that is passive concealment, termination of the physician-patient relationship terminates the duty, and the statute of limitations begins to run, without estoppel. See Guy v. Schuldt, 138 N.E.2d 891 (Ind. 1956); Toth v. Lenk, 330 N.E.2d 336 (Ind. App. 1975); see also discussion of concealment in DANZON, supra note 16, at 180. To understand better just how much delay could be excused by the concealment doctrine, it would be necessary to understand just how Indiana trial judges determine when a medical-professional relationship ends. It may be that the doctrine mainly helps plaintiffs avoid demurrer or a motion for summary judgment, getting to the jury on this and all other issues combined. We owe this last insight to Professor Lawrence P. Wilkins, of the Indiana University School of Law—Indianapolis. 38. See supra note 2. 39. The only conjecture as to the size of this group comes from the following sentence from Martin v. Richey: "the statute as it stands completely forecloses the opportunity to be heard to potentially a very large percentage of those plaintiffs within the class." 674 N.E.2d at 1023 (emphasis added). 40. Certain contract actions may be brought for up to 20 years. IND. CODE § 34-1-2-2(6) (1993). Tort claims, however, must be brought within two years after the cause of action accrues. Id. § 34-1-2-2(1). This accrual has been interpreted to mean "when the plaintiff knew, or in the exercise of ordinary diligence, could have discovered that an injury had been sustained as a result ofthe tortious act of another." Wehling v. Citizens Nat'l Bank, 586 N.E.2d 840, 843 (Ind. 1992). 4 1 . The general statute of limitations for torts is two years from the date of discovery. IND. Code § 34-1-2-2(1) (1993). The statute of limitations for medical malpractice torts, however, is 1998] INDIANA'S STATUTE OF LIMITATIONS 1061 including actions arising out of medical care but brought against pharmaceutical companies or manufacturers of medical equipment or supplies. 42 Unfortunately for careful weighing of the factors in the balance, arguments in Indiana have proceeded on a somewhat less broadly based basis. In support of the statute, it is argued that it was necessitated by a crisis in availability of liability insurance and hence in the delivery of medical care—and by implication that crisis-like adverse effects would return under a less stringent statute. 43 In opposition, it is argued that one particularly appealing set of claimants has been harmed by a statute enacted in response to a crisis which did not really exist or does not continue to exist. 44 Neither contention answers the policy questions about the actual magnitude of the reform's effects, 45 especially given that the 1975 reform appears not to have changed the two-year, occurrence-based nature of the statute of limitations as enacted by 1941 malpractice reform. 46 B. Relevant Prior Research 1. The Extent ofMid-1970s Crisis Nationally and in Indiana.—The early 1970s were a time of rapid increase in malpractice claims rates and significant two years from the date of occurrence. Id. §§ 27-12-7-l(b) (1975 version) & 34-4-19-1 (1941 version). See also supra note 9. 42. The Indiana statute is not phrased in terms of the types of tort or factual situations involved but rather in the class of defendant, namely "[licensed] health care provider." Id. § 27-12- 7-l(b). 43. See, e.g., ISMA brief, supra note 20, at 1099. Evidence on the extent of crisis appears at supra note 12 and infra notes 47-53, 96-1 1 1 and accompanying text. 44. See, e.g., Reply Brief of Appellant at 8, Martin v. Richey, 674 N.E.2d 1015 (Ind. Ct. App. 1997); see also ITLA brief, supra note 20. 45. Even informed speculation as to the likely practical impact of a longer statute of limitations is notably absent from the briefs ofthe parties and amid. Martin does, however, offers some quantitative evidence (on malpractice premiums, number of claims, effect of damage caps, etc.) in support of her contention that there is no longer—if there ever was—a malpractice "crisis." Brief of Appellant at 23-27, Reply Brief of Appellant at 7-10, Martin v. Richey, 674 N.E.2d 1015 (Ind. Ct. App. 1997). Dr. Richey and amid do not offer empirical support for their side, but rather focus on the desirability of deference to legislative judgment on the issue. E.g., ISMA brief, supra note 20. We suspect that the medical tort reformers saw themselves as the little Dutch child putting a finger in the hole in a dike. They did not much know or care how much water might be on the other side, just so long as they could keep it out of their side. 46. The statutory posture of Martin v. Richey is confusing. The briefs attack and defend the occurrence-based reform of 1975, along with the severity of insurance problems that prompted the reform, see references cited in supra notes 43-45. However, the 1941 reform used nearly identical language for the starting point of the statute of limitations—the "act" complained of rather than the "accrual" of a cause of action. See supra note 9. "Accrual" is a more common statutory term, see supra note 40, and has often facilitated interpreting the law to include a "discovery" exception. The ISMA brief, supra note 20, mentions the 1941 Act; but no brief appears to address the oddly bipartite nature of statutory support for the occurrence basis of the Indiana malpractice law. 1 062 INDIANA LAW REVIEW [Vol. 31:1051 change in the insurance industry, as already noted. Nationwide, claims rates for physicians and surgeons coverage grew slowly from 1966 through 1970, then doubled by 1973. 47 In Indiana, the increase in claims frequency was 42% for 1 970-75. 48 Claims "severity," that is, average payout per claim, also rose sharply. 49 Rises in claims frequency and severity led malpractice insurers to seek much higher insurance premiums, 410% higher from 1970-75 in Indiana.50 Premiums rose sharply all across the country, for some physician specialties more than for others. 51 In some states, notably including Indiana, many carriers even withdraw wholly or partly from offering coverage. 52 Despite the rapid rates of change in Indiana claims and premiums, there are some indications that the state was not high compared with national norms.53 In response, physicians declared a national crisis, and almost all legislatures 47. DANZON, supra note 16, at 61 (Figure 4. 1—national data from the Insurance Services Office). 48. U.S. GAO, Medical Malpractice: Case Study on Indiana (1986) (citing without reference a report from the Indiana Medical Malpractice Commission). 49. DANZON, supra note 16, at 62 (Figure 4.2—noting that severity tripled from 1969-75, according to national data from the Insurance Services Office); U.S. GAO, supra note 48, at 8 (noting that average awards in Indiana almost tripled, from $13,000 to $34,000). 50. U.S. GAO, supra note 48, at 8. 5 1 . One project tracked five specialties' premiums on a consistent basis, using data gathered by the Health Care Financing Administration for different purposes. During 1974-75 (the earliest available data), premiums doubled for obstetricians, nearly tripled for anesthesiologists, even after adjusting for inflation, see Bovbjerg, supra note 7, Fig. 1, at 505. Over a longer time period the largest increase was that for obstetricians, nearly 300% in 1975-86. See SLOAN ET AL., supra note 33, at 8 (Figure 1.1). 52. In Indiana, 7 of 10 insurers stopped writing new policies, canceled policies, or limited new business. U.S. GAO, supra note 48, at 8-9. According to a compilation from the American Medical Association, some 550 practitioners, mainly physicians, were insured by the state's joint underwriting association in 1976, the year after Indiana's malpractice reforms authorized a JUA. This means that a small share of doctors (under 7%) could not get coverage from a conventional carrier at normal premiums. See Indiana, in STATE BY STATE REPORT ON THE PROFESSIONAL Liability Issue (Am. Med. Ass'n Taskforce on Prof 1 Liab.), Oct. 1976 (duplicated report, not consecutively paginated) [hereinafter Report]. 53. Indiana's relative cost of physician coverage in 1972 was only 55.6% of the national average, having declined steadily from 70.7% in 1960, according to data from the then-leading "rating bureau" for the industry, the Insurance Services Office. See Mark Kendall & John Haldi, The Medical Malpractice Insurance Market, in U.S. DEPARTMENT OF HEALTH, EDUCATION, AND Welfare, Report of the Secretary's Commission on Medical Malpractice & Appendlx 539 (1973) (California was highest at 252.2%, Wyoming was lowest at 29.9%.). An almost identical pattern was found for surgeons and for hospital coverage. Id. at 540, 543. The leading carrier for Indiana, however, was Medical Protective, which may not have contributed its data to ISO nor used ISO rates. At least one smaller carrier did use ISO rates. See REPORT, supra note 52. The findings of the NAIC claims census, supra note 15, are discussed infra at notes 92-122 and accompanying text. 1998] INDIANA'S STATUTE OF LIMITATIONS 1063 enacted some form of tort reform, with Indiana the first to act.54 The extent of crisis was somewhat in the eye of the beholder, 55 but physicians fervently believed that their medical practice was at risk, 56 and legislatures found the concerns legitimate. 57 Physicians and hospitals in most states not only lobbied for tort reform but also invested effort and capital in their own insurance reform, by forming their own insurance companies in order to assure continued availability of coverage and fair premium rates. 58 Another private insurance reform also helped stabilize insurance—a general shift from "occurrence" to 54. Bovbjerg, supra note 7, at 514-32; Glen O. Robinson, The Medical Malpractice Crisis ofthe 1970s: A Retrospective, 49 LAW& CONTEMP. PROBS. 5, 18-26 (1986). The Indiana reforms were signed into law on April 24, 1975, the first comprehensive malpractice statute in the country. U.S. GAO, supra note 48, at 9. 55. Compare SYLVIA LAW & STEVEN POLAN, PAIN AND PROFIT: THE POLITICS OF MALPRACTICE (1978) (crisis overstated, driven by insurers), with George L. Priest, The Current Insurance Crisis and Modern Tort Law, 96 YALE L.J. 1521 (1987) (severe crisis arising from legal developments). See also Frank A. Sloan & Randall R. Bovbjerg, Medical Malpractice: Crises, Response and Effects, RESEARCH BULLETIN (Health Ins. Ass'n of Am., Washington D.C.), May 1989. Because "crisis" is not objectively defined nor its existence agreed, this Article might have put every use ofthe term in quotation marks, but we have spared readers such typological overload. 56. The flavor of the times is captured in A LEGISLATOR'S GUIDE TO THE MEDICAL Malpractice Issue (David G. Warren & Richard Merritt eds., 1976). Section two, "Case Studies from Five States," is especially illuminating. Id. at 27-85 (chapters authored by state legislators, not including Indiana). Crisis concerns in California were so strong and devotion to physician insurers so persistent, that the physician insurers today continue to tout their role in ending the crisis. See, e.g., NORCAL Mutual Insurance Company, About NORCAL (visited June 16, 1998) (self-description begins: "For many of our policyholders, the memories of practicing medicine in California in the early 1970's remain all too vivid."). That these perceptions influence commercial insurers' sales was also supported by the first author's personal interviews conducted with insurance-industry participants and observers in California during April and May 1998 for a different purpose (unpublished, confidential information). 57. See supra note 12 and accompanying text. Quite apart from how severe any crisis may have been, using "crisis" as the key argument justifying reform has the classic problem that it "proves too much." That is, there appears to be no way to set any boundary on how much reform is needed. See also text following supra note 125. 58. See Posner, supra note 6, at 39-40; Sloan et al., supra note 33, at 5. Indiana did not get a home-grown physician mutual insurer, possibly because the state already had a physician- owned company, Medical Protective, the state's largest insurer. U.S. GAO, supra note 48, at 7. Medical Protective was chartered at the turn ofthe century. Although physician owned, it is a for- profit stock company, unlike the physician mutuals and similar entities formed in the 1970s. See The Medical Protective Company (home page, visited June 16, 1998) . Availability of coverage in Indiana was also aided by the JUA created by the state, see supra note 52. 1 064 INDIANA LAW REVIEW [Vol. 3 1 : 1 05 1 "claims made" policies. 59 One reason for the steep rise in claims in the early 1970s, though not the only one, was the liberalization ofjudicial doctrine.60 Professor Danzon's analysis found that states adopting four pro-plaintiff changes by 1970 averaged 53% higher claims frequency per capita and 26% higher severity (per insured payout) and thus 86% higher claims cost per capita.61 Longer statutes of limitations were also found to raise claims rates, but not by a large amount. 62 However, insurance crises appear to a great extent to be cyclical, rooted in the difficulties of predicting the future, the tendency of insurance competition to drive prices below actuarially expected losses in good times, and the reactions of insurance investors to unexpected losses. 63 Legal developments can certainly precipitate or exacerbate problems, as the unanticipated run-up of claims did in the early 1970s. And tort reform (not just of the statute of limitations) probably helped to moderate insurance swings, as well as to reduce reform states' insurance premiums relative to others. 64 It is notable that insurance claims dipped in the late 1970s after almost all states enacted some malpractice reform and dipped again in the late 1980s, after most states enacted more tort reforms, often general ones applicable to all torts or all personal injuries. However, the crises ebbed nationwide in the late 1970s and 1980s, both in states with strong tort reform and in those with only weak legislation. And the enactment of strong 1970s reform did not prevent the occurrence of 1980s claims rises, in Indiana or elsewhere. 65 Claims are on the rise again in the 1990s, 66 even though tort reforms 59. See supra note 36 and accompanying text. 60. Many other social and medical reasons are sometimes cited, but are seldom able to be tied directly to observed claims trends. See generally, Robinson, supra note 54, at 11-18, and sources cited therein (noting "intuitive" nature of most assessments, id. at 18). The pioneering work of Professor Danzon is an exception. See supra notes 34-35, 61-62 and accompanying text. 61. Danzon, supra note 16, at 76-77. The doctrines were abolition of the locality rule and of charitable immunity, expansion of informed consent and ofrespondeat superior, as tabulated by Stephen C. Dietz et al., The Medical Malpractice Legal System, in 2 MEDICAL MALPRACTICE: Report of the Secretary's Commission on Medical Malpractice, Appendix (1973). 62. Danzon, supra note 16, at 78. However, this analysis evidently did not account for non- statutory discovery rules that extend the basic statute of limitations. Id. at 245 n.25. 63. See generally SLOAN ET AL., supra note 33; Ralph A. Winter, The Liability Crisis and the Dynamics ofCompetitive Insurance Markets, 5 YALE J. ON REG. 455 (1988). 64. Indiana started low in premiums and stayed low. California's premium history is more remarkable; it enacted even more comprehensive reform than did Indiana, though with slightly less stringent individual provisions (longer statute of limitations and cap on only the non-pecuniary element of awards). In the wake of its reforms, California has gone from the highest-premium state, see Kendall & Haldi, supra note 53, to the low middle range, see Stephen A. Norton, The Medical Malpractice Premium Costs ofObstetrics, 34 INQUIRY 62 (full data in underlying Working Paper 06559-01, Urban Institute, Washington, DC, June 1996). 65. See generally U.S. GAO, supra note 48; Bovbjerg, supra note 7. 66. See, e.g., Health Care Liability Alliance, Health Care Lawsuits, Claim Payments on Upswing (visited June 16, 1998) . 1998] INDIANA'S STATUTE OF LIMITATIONS 1065 have continued to be enacted, and few have been repealed or invalidated. More potent causes and factors are likely at work here, including social attitudes about medicine and about litigation. 67 Other ameliorative factors also helped in the late 1970s, notably the entry ofnew insurers run by medical providers and the change to claims-made coverage. 68 2. One Legislative Response to Crisis: The Balance Struck in Other States ' Reforms ofStatute ofLimitations.—The specific element of Indiana tort reform under attack in Martin v. Richey is Indiana's statute of limitations for medical malpractice cases. The two-year basic statute of limitations on both tort and malpractice filings is not challenged. This is understandable, even though a two- year cut-off almost certainly denies access to the courts for some potential claimants 69—for two years is the national norm. Presumably this arbitrary time limit reflects widely shared qualitative perceptions about the ready discoverability of personal injury in the usual case and the desirability of forcing plaintiffs and their attorneys not to drag their feet before bringing suit. Indiana is also typical in allowing children more time to sue. Where it differs is in the stringency of its denial of extra time for discovery of latent injuries to adults. Indiana was one of a majority of states that legislated changes in their statutes of limitation either in the mid-1970s round of tort reform, or in the similar changes of the mid-1980s. 70 Frequently these changes applied only to malpractice cases, which ironically had sometimes previously had special enactments to lengthen the basic statute. 71 Most commonly enacted were "statutes of repose" that set outer limits on the length of time that reasonable non-discovery of a cause of action could toll the basic statute of limitations. These ranged from three to ten years, sometimes allowing an exception for foreign substances left in a patient or fraudulent concealment by potential defendants. 72 Indiana appears to be one of only a few states to reject any evolution of the discovery rule entirely by legislative action. 73 A number of states, like Indiana, enacted special statutes for children—setting the bar lower 67. A plausible argument can be made, however, that the publicity and lobbying that promoted tort reform in the 1970s and 1980s probably also affected social attitudes. We have not reviewed any evidence from public opinion polls. 68. See supra notes 58-59 and accompanying text. 69. Changes in the length of the statute of limitations have been found to reduce claims frequency. See supra note 62 and accompanying text. 70. Bovbjerg, supra note 7, at 524, 542 (Table 3). 71. /. 129. An important distinction must be made between data and information. Data is accessible, manipulable, and re-analyzable. The best form is micro-data, meaning that the unit of observation is the recording of individual cases with entries for everything which happens to it. This input can then be retrieved for generations to come and analyzed in the context of whatever issue confronts future administrators. The possibilities are only limited by the detail of the original input. Information, on the other hand, is usually a hard copy report. It is inaccessible for almost any use other than the very specific one envisioned at the time the information was created and collected. Even a detailed set of published tables, as in the NAIC information used for this Article, inevitably leaves many questions unanticipated and unanswered. See, e.g., supra notes 15, 95, 111- 12. 1 3 0. See, e.g. , Division of State Court Administration, 1 996 Indiana Judicial Report (1997). 1 084 INDIANA LAW REVIEW [Vol. 31:1051 This approach makes for a good snapshot of status and for good history. But good analysis and management call for more. The problem is twofold: First, the current statistical reporting does not ask enough questions—or, for that matter, sufficiently focused and detailed questions. For example, policy makers need to know how many cases there are by subtypes of tort (e.g., personal injury, including medical malpractice, products liability), how long they take to reach each step to resolution, and how often problems of various types arise along the way. Second, the information is kept as reports rather than as data, that is, specific information kept for each case (quantitative and qualitative) and hence re-analyzable in the future. Given only a hard-copy, statewide report, a future manager can know only what a prior compiler chose to include. She cannot break out data more finely or in different categories—for example by urban/rural location, number of senior judges by district, or in any other way. Two recent Supreme Court initiatives illustrate the feasibility and desirability of expanding data collection and improving its archiving for at least some projects. The first of these initiatives addressed a troublesome backlog in cases involving children. The Supreme Court spent all of 1996 assembling the most comprehensive data ever collected about how Indiana's courts handle cases involving abused or neglected children. Hundreds of juvenile judges and magistrates, office of family and children directors and case- workers, guardians and court-appointed special advocates, parents, and practitioners contributed toward this effort. 131 The second initiative involved the development of a weighted caseload measuring system. For 18 months, nearly one-third of Indiana judges and magistrates kept logs and made thousands of entries to determine how much time each sort of case requires on average. The result was a "measuring stick" which legislators can use in assessing requests for new courts and which the judiciary can use in making the most of existing courts. 132 While these initiatives necessitated a great deal of special data collection, they also facilitated making substantial improvements. Ifdone regularly, other straightforward reporting and maintenance ofjudicial information might help inform policy making—and also help make advocates' arguments better informed in cases like this one. For example: What proportion of torts arise from medical care? How many of these involve licensed providers as against drug companies and medical manufacturers not protected by reform? How often do issues of discovery arise? Such judicial information would not answer questions about the number and types of potential cases deterred by current judicial practice, but it would make a major contribution to understanding. The systematic collection of such detailed data could impose new costs, at 131. Chief Justice Randall T. Shepard, State of the Judiciary Address, in 1 Division OF STATE Court Administration, 1996 Indiana Judicial Report 3 (1997). 132. Mat 5. 1998] INDIANA'S STATUTE OF LIMITATIONS 1085 both the trial court level where it would be collected and at the central level where it would be entered and compiled. Economies could be achieved by having a smaller set of routinely reported information, with special samples or studies done each year on one area of interest, or done retrospectively as deemed appropriate. 133 Start-up costs would be highest, maintenance costs lower. However, the benefits—for the judiciary, other policymakers, and academic analysts—would continue to accrue forever. Substantial help in data matters might come from academia, certainly from the public universities that are a sister branch of state government. Social scientists crave social data. Many graduate students spend many unpaid hours building data bases of less import than this. One can envision useful collaborations between courts and researchers with appropriate safeguards for confidentiality, though most court data are public. Researchers would also gravitate toward more complex, longer term analyses than policy makers typically need, but such efforts could be separately funded, as research is today. Some institutional creativity and core funding would be needed to create and nurture such a symbiotic relationship over time, but it could be done. In Martin v. Richey and associated cases, the Supreme Court of Indiana has been asked to steer the constitutional ship of state between the Scylla of insurance crisis and physician flight and the Charybdis of denial of access to the courts. As the parties and amici curiae have structured the dispute, the justices have been well informed about the horrible nature of each prospective peril. But the Court remains wholly uninformed about the likelihood of either crash given any particular adjustment of course or speed—or about the number of casualties likely to be sustained. Let us hope that in the future the waters will be better charted. 133. The two studies just noted are example of special studies. See supra notes 131-32. Attributes reported on all cases filed would be the basic data. For the story of one productive social-medical data set, see Christopher R. Blagg et al., Here Are (Almost All) the Data: The Evolution ofthe U.S. Renal Data System, 14 Am. J. KIDNEY Dis. 347 (1989). 1086 INDIANA LAW REVIEW [Vol. 31:1051 Appendix Proposed Legislative "Findings" Not Part of Final Act134 SECTION 1 . The general assembly finds that: (a) The number of suits and claims for damages arising from professional patient care has increased tremendously in the past several years and the size of judgments and settlements in connection therewith have increased unreasonably. (b) The effect of such judgments and settlements, based frequently on new legal precedents, have [sic] caused the insurance coverage [sic] to uniformly and substantially increase the cost of such insurance coverage. (c) These increased insurance costs are being passed on to the patients in the form of higher charges for health care service and facilities. (d) The increased costs ofproviding health care services, the increased incidents [sic] of claims and suits against health care providers, and the unusual size of such claims and judgments, frequently out of proportion to the actual damage sustained, has [sic] caused many liability insurance companies to withdraw from the insuring of high risk health care providers. (e) The rising number of suits and claims is forcing health care providers to practice defensively, viewing each patient as a potential adversary in a lawsuit, to the detriment of both the health care provider and the patient. Health care provides [sic] for their own protection, are often required to employ excessive diagnostic procedures for their patients, unnecessarily increasing the cost of patient care. (f) Another effect ofthe increase of suits and claims and the costs thereof is that some health care providers decline to provide certain health care services which in themselves entail some risk of patient injury. (g) The cost and difficulty in obtaining insurance for health care providers discourages young physicians from entering into the practice of medicine in the state of Indiana, resulting in the loss of physicians to other states. (h) The inability to obtain or the high cost of obtaining insurance affects the medical and hospital services available in the state of Indiana to the detriment of its citizens. (i) Some health care providers have been forced to curtail the practice of all or a part of their profession because of the non-availability or high cost of liability 1 34. See supra note 1 2 and accompanying text. 1998] INDIANA'S STATUTE OF LIMITATIONS 1087 insurance. (j) The cumulative effect of suits and claims is working both to the detriment of the health care providers and to the citizens of this state.