ILNews

Appellate court rules man can challenge med mal cap's constitutionality

Back to TopCommentsE-mailPrintBookmark and Share

A Hancock County widower who lost his wife to a hospital medical mistake a decade ago will get his day in court to challenge the constitutionality of the state’s medical malpractice cap on damages.

Timothy Plank wants to use his wife’s story to try and hold hospitals and doctors accountable so that the same kind of medical malpractice that took his wife doesn’t happen to other patients in the future.

plank Timothy Plank lost his wife, Debra, in December 2001 after a missed medical diagnosis. He’s challenging the state law that limits an $8.5 million jury award to $1.25 million. (IBJ Photo/ Perry Reichanadter)

“I was raised on the belief that everyone is created equal, but it appears that doctors and hospitals have a little more protection than regular people do,” Plank said. “It seems this malpractice law was drawn up to discourage people from filing suits and getting their day in court, so that’s what this is about.”

With an Indiana Court of Appeals ruling Oct. 25, Plank may be on his way to getting that day in Marion Circuit Court. The appellate court issued an 18-page ruling that determined Plank is entitled to an evidentiary hearing to make his case on whether the state’s $1.25 million cap on medical malpractice awards is unconstitutional.

The 2-1 decision in Timothy W. Plank v. Community Hospitals of Indiana and State of Indiana, No. 49A04-1004-CT-254, reversed a ruling by Marion Circuit Judge Lou Rosenberg in the legal action that stems from the death of Debra Plank on Dec. 1, 2001.

In November of that year, Debra Plank began experiencing severe abdominal pain and sought treatment at Community North Hospital in Indianapolis. Doctors failed to diagnosis a small bowel obstruction and, as a result of the missed diagnosis, she contracted sepsis and died. Timothy Plank filed a claim in November 2003, just before the state’s two-year statute of limitations expired.

A medical review panel determined malpractice occurred and the case went to trial against Community Hospital after the three physician defendants were dismissed. After a nine-day trial in September 2009, a jury ruled in Plank’s favor and awarded $8.5 million in damages. The hospital moved to reduce the amount to the statutory limit of $1.25 million pursuant to the Indiana Medical Malpractice Act.

One week after trial, Plank objected and requested an evidentiary hearing to pursue his constitutional challenge to Indiana Code 34-18-14-3. Rosenberg denied the request, relying on an Indiana Supreme Court decision from 31 years ago that upheld the med mal cap, Johnson v. St. Vincent Hospital, 273 Ind. 374, 404 N.E.2d 585 (1980).

Plank’s attorney, John Muller at Montross Miller Muller Mendelson & Kennedy in Indianapolis, argued that circumstances have changed since the cap was implemented in 1975 and it is no longer constitutional, while the hospital and state contend the cap can’t be reconsidered because the justices previously upheld its constitutionality.

Originally set at $500,000 and last increased from $750,000 to the current $1.25 million in 1998, this court case represents the first full-fledged challenge to the cap’s constitutionality since the Johnson case.

Judges Edward Najam and Patricia Riley decided Plank had the right to challenge the caps at an evidentiary hearing, and that three state Supreme Court decisions from the past 30 years support their conclusion that a statute’s constitutionality can be re-examined despite past caselaw. Plaintiffs have the burden to prove changes in circumstances warrant reversal of existing precedent, the panel said.

“Without a hearing, Plank has no means to satisfy his burden of proof,” Najam wrote. “We need not address the merits of Plank’s constitutional challenge, which are not before us in this appeal.”

The majority rejected the state’s categorical assertion that the Legislature, not the courts, must amend or repeal the statute in order for that cap to change. The opinion points out that lawmakers receive substantial deference but the courts are also responsible for determining the constitutionality of law.

Judge John Baker agreed with his colleagues generally on the issue of the evidentiary hearing, but believed Plank waived his right to challenge the statutory cap because he didn’t object at trial or before the verdict was issued. As a result, Plank shouldn’t be allowed to advance those arguments at a subsequent hearing, he wrote.

The case now goes back to Marion County, where Rosenberg is instructed to hold the evidentiary hearing and listen to Plank’s constitutional challenges to the medical malpractice act, whether facial or as applied. That may also lead to a trial court judgment on what analysis or factors should be used in exploring the constitutionality.

Plank said that his attorney sent him a message about the appellate court’s ruling that same evening and he was able to read it around 11 p.m. after a day of plowing cornfields. He remarried about five years ago, and his yelling and screaming in excitement about the decision made his wife nervous, he said.

“The more I read, the more I wasn’t sure if I should be happy, because as a layperson it’s tough to understand,” Plank said, noting that he talked to Muller the following morning and reaffirmed the ruling was in his favor.

The appellate decision keeps alive a case that has drawn widespread attention from the plaintiff and defense bars, and has amicus curiae parties that include the Indiana Hospital Association and Indiana State Medical Association. This case could be a testing ground for a nationwide court debate on the constitutionality of med mal caps.

Courts in some places like Georgia have struck them down in the past year, and Illinois lawmakers have eliminated them, while other jurisdictions such as West Virginia and Florida have upheld the limits.

“We think patient safety doesn’t get enough attention in this state,” Muller said. “These caps don’t help, because they don’t deter mistakes that endanger patient safety. That’s what it’s about.”

Indianapolis attorney Bob Zeigler, who represents Community Hospital in this case, said no decision has been made on whether his client would seek transfer to the Indiana Supreme Court or proceed at the evidentiary hearing stage. He said the merits haven’t been addressed at this point and he declined to speak on that.

Angela Smith at Hall Render Killian Heath & Lyman, representing the Indiana Hospital Association, said she was disappointed by the majority’s findings and agreed with Baker’s dissent. But even with the evidentiary hearing, she’s confident the malpractice cap will be upheld on the merits.

“We trust the evidence will demonstrate the continuing existence of very valid public policy reasons for the Legislature’s decision to limit damage awards in med mal cases,” she said. “The cost of medical malpractice insurance continues to be a serious concern for providers, many of whom are running on an increasingly thin margin. This is particularly true for some of the outlying critical access and rural community hospitals. The Legislature is the appropriate forum for this debate.”

Muller and Plank see this evidentiary hearing ruling as another move forward in what has already been an eight-year battle, but they believe it’s one of the most significant steps because it allows them to address the merits of the state’s cap. Plank said it’s not about the money, which he said would go to the local church Debra attended and a Hancock County Community Foundation Fund to provide scholarships for those involved in 4-H.

“This isn’t about the money, because nothing will bring her back. This is about the principle of holding doctors accountable for their actions or inactions, so they are more focused on this not happening to people.”•
 

ADVERTISEMENT

  • good
    excellent decision. hospitals are awfully heavy handed and arrogant today. the arbitrary cutoff of damages in these kinds of cases gives them special unequal protection from the legislature

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

ADVERTISEMENT