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Attorneys challenge state's med-mal cap

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Two central Indiana attorneys have filed a challenge to Indiana's Medical Malpractice Cap, arguing the cap violates the Indiana Constitution. The challenge follows a jury verdict in which a widower won $8.5 million following his wife's death.

Attorneys John Muller of the Indianapolis firm Montross Miller Muller Mendelson & Kennedy, and Michael Stephenson of McNeely Stephenson Thopy & Harrold in Shelbyville, filed an objection on Sept. 11 to reduction of the jury's verdict on behalf of Timothy W. Plank in Marion Circuit Court. Plank's wife, Debra, died following surgery at Community North Hospital in Indianapolis.

She went to the hospital's emergency room three times complaining of abdominal pains, and was admitted Nov. 13, 2001. The hospital misplaced an X-ray that showed a small bowel obstruction. Her treating doctors didn't know of the obstruction. When surgery was finally performed, the surgeon discovered part of her intestines had died. Debra was put on life support and died Dec. 1, 2001.

Shortly after his wife's death, the hospital contacted Plank with a customer satisfaction survey and wanted to talk to her about her care in the hospital. He filed suit against the doctor and Community Hospitals of Indiana and won an $8.5 million jury verdict on Sept. 3, 2009. If the jury verdict stands, Plank intends to donate a substantial portion of it to a scholarship in Debra's name, Muller said.

The hospital requested that the jury verdict be reduced to $1.25 million pursuant to Indiana Code 34-18-14-3.

Plank's attorneys contend that the statute violates Section 20 of the Indiana Constitution, which reads "In all civil cases, the right of trial by jury shall remain inviolate," and Section 23, which reads "The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities upon which, upon the same terms, shall not equally belong to all citizens."

Muller said that there was a 1980 case which challenged the overall constitutionality of the Medical Malpractice Act, but there wasn't a challenge specific to the cap as this case contemplates. In Johnson v. St. Vincent Hospital , 273 Ind. 374, 404 N.E.2d 585 (1980), the Indiana Supreme Court determined the occurrence-based statute of limitations contained in the act was constitutional. In that case, the high court was only asked to decide whether the automatic admission of medical review panel opinions interfered with the judicial power to generally admit evidence.

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  1. Can I get this form on line,if not where can I obtain one. I am eligible.

  2. What a fine example of the best of the Hoosier tradition! How sad that the AP has to include partisan snark in the obit for this great American patriot and adventurer.

  3. Why are all these lawyers yakking to the media about pending matters? Trial by media? What the devil happened to not making extrajudicial statements? The system is falling apart.

  4. It is a sad story indeed as this couple has been only in survival mode, NOT found guilty with Ponzi, shaken down for 5 years and pursued by prosecution that has been ignited by a civil suit with very deep pockets wrenched in their bitterness...It has been said that many of us are breaking an average of 300 federal laws a day without even knowing it. Structuring laws, & civilForfeiture laws are among the scariest that need to be restructured or repealed . These laws were initially created for drug Lords and laundering money and now reach over that line. Here you have a couple that took out their own money, not drug money, not laundering. Yes...Many upset that they lost money...but how much did they make before it all fell apart? No one ask that question? A civil suit against Williams was awarded because he has no more money to fight...they pushed for a break in order...they took all his belongings...even underwear, shoes and clothes? who does that? What allows that? Maybe if you had the picture of him purchasing a jacket at the Goodwill just to go to court the next day...his enemy may be satisfied? But not likely...bitterness is a master. For happy ending lovers, you will be happy to know they have a faith that has changed their world and a solid love that many of us can only dream about. They will spend their time in federal jail for taking their money from their account, but at the end of the day they have loyal friends, a true love and a hope of a new life in time...and none of that can be bought or taken That is the real story.

  5. Could be his email did something especially heinous, really over the top like questioning Ind S.Ct. officials or accusing JLAP of being the political correctness police.

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