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

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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.”•
 

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  • Amen
    There are other ways to reduce malpractice costs that don't penalize victims of medical malpractice. The cap hasn't been raised since 1998. I wonder if the lawyers arguing against the rise and the doctors and most importantly, the lawmakers want to go back to,their rate of pay in 1998? At bare minimum a yearly COLA should be considered. I am very sorry for this gentleman's loss and applaud his courage in standing up,for what he believes to be justice and accountability for all.
  • 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

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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