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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. The $320,000 is the amount the school spent in litigating two lawsuits: One to release the report involving John Trimble (as noted in the story above) and one defending the discrimination lawsuit. The story above does not mention the amount spent to defend the discrimination suit, that's why the numbers don't match. Thanks for reading.

  2. $160k? Yesterday the figure was $320k. Which is it Indiana Lawyer. And even more interesting, which well connected law firm got the (I am guessing) $320k, six time was the fired chancellor received. LOL. (From yesterday's story, which I guess we were expected to forget overnight ... "According to records obtained by the Journal & Courier, Purdue spent $161,812, beginning in July 2012, in a state open records lawsuit and $168,312, beginning in April 2013, for defense in a federal lawsuit. Much of those fees were spent battling court orders to release an independent investigation by attorney John Trimble that found Purdue could have handled the forced retirement better")

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  4. I'm currently seeing someone who has a charge of child pornography possession, he didn't know he had it because it was attached to a music video file he downloaded when he was 19/20 yrs old and fought it for years until he couldn't handle it and plead guilty of possession. He's been convicted in Illinois and now lives in Indiana. Wouldn't it be better to give them a chance to prove to the community and their families that they pose no threat? He's so young and now because he was being a kid and downloaded music at a younger age, he has to pay for it the rest of his life? It's unfair, he can't live a normal life, and has to live in fear of what people can say and do to him because of something that happened 10 years ago? No one deserves that, and no one deserves to be labeled for one mistake, he got labeled even though there was no intent to obtain and use the said content. It makes me so sad to see someone I love go through this and it makes me holds me back a lot because I don't know how people around me will accept him...second chances should be given to those under the age of 21 at least so they can be given a chance to live a normal life as a productive member of society.

  5. It's just an ill considered remark. The Sup Ct is inherently political, as it is a core part of government, and Marbury V Madison guaranteed that it would become ever more so Supremely thus. So her remark is meaningless and she just should have not made it.... what she could have said is that Congress is a bunch of lazys and cowards who wont do their jobs so the hard work of making laws clear, oftentimes stops with the Sups sorting things out that could have been resolved by more competent legislation. That would have been a more worthwhile remark and maybe would have had some relevance to what voters do, since voters cant affect who gets appointed to the supremely un-democratic art III courts.

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