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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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