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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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