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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. 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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