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COA rules man can challenge med mal act

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The Indiana Court of Appeals ruled a man whose wife died because of a missed medical diagnosis and obtained an $8.5 million jury verdict is entitled to an evidentiary hearing about whether the state’s statutory cap on medical malpractice awards is unconstitutional.

An 18-page ruling came Tuesday in Timothy W. Plank v. Community Hospitals of Indiana and State of Indiana, No. 49A04-1004-CT-254, reversing a lower court ruling by Marion Circuit Judge Lou Rosenberg.

The appellate decision keeps alive a case that has drawn widespread attention from the plaintiffs and defense bar, and has amicus curiae parties that include the Indiana Hospital Association and Indiana State Medical Association.

Timothy Plank sued on behalf of his wife Debra, who in November 2001 began experiencing severe abdominal pain and sought treatment at Community Hospital. Doctors failed to diagnosis a small bowel obstruction and, as a result of the missed diagnosis, she contracted sepsis and died. The husband filed a complaint with the Indiana Department of Insurance against the hospital and three physicians, but prior to trial the three doctors were dismissed. The case went to trial against only Community Hospital. A jury ruled in Plank’s favor in September 2009 and awarded $8.5 million in damages, and the hospital moved to reduce the amount to the statutory limit of $1.25 million pursuant to the Indiana Medical Malpractice Act.

Plank objected one week after trial and requested an evidentiary hearing to pursue his constitutional challenge to Indiana Code 34-18-14-3. Judge Rosenberg denied the request for a hearing, relying on a 1980 decision from the Supreme Court upholding the med mal cap.

The Indiana Court of Appeals did not decide on the constitutionality of the act or Plank’s claims. Instead, the three-judge appellate panel determined Plank should be able to present his case at an evidentiary hearing. Plank’s attorney, John Muller with Montross Miller Muller Mendelson & Kennedy, argued that circumstances have changed since the cap was implemented 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.

Judges Edward Najam and Patricia Riley in the majority relied on three cases decided by the Indiana Supreme Court in the past three decades to support their conclusions.

“In sum, our Supreme Court has declared both that a determination of constitutionality under Section 23 (of Article I of the Indiana Constitution) can be revisited and that the challenging party has the burden to prove that changes in circumstances require reversal of existing caselaw,” the opinion says.

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.

“We hold that Plank is entitled to an evidentiary hearing so that he can attempt to sustain his burden to prove that the statutory cap on medical malpractice awards under the Act is unconstitutional,” Najam wrote. “Without a hearing, Plank has no means to satisfy his burden of proof. We need not address the merits of Plank’s constitutional challenge, which are not before us in this appeal.”

The court also determined Community Hospital didn’t demonstrate that the trial court abused its discretion when it instructed the jury about the damages, and so the hospital isn’t entitled to a new trial.

Judge John Baker agreed with his colleagues generally on the issue of the evidentiary hearing, but believed in this case 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 Circuit Court, 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.

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  • If Courts don't legislate, the Legislature won't decide court cases
    The Title says it all! If the Constitution hasn't changed since 1980 and the Legislature has met every year since 1980, it would be Court legislation to change the statutory cap for med mal.

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  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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