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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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  • 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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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