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Malpractice defense accused of ‘egregious mischaracterization’ of record

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Defense attorneys who asked for a rehearing from the Indiana Court of Appeals panel that earlier affirmed a trial court medical malpractice jury verdict failed to sway judges who took the opportunity to call out their “egregious mischaracterization” of the record.

The panel affirmed in all respects its opinion of May 20 that upheld a trial court jury’s verdict against Dr. Roger Jay Piatek in a medical malpractice case. In doing so, the panel had harsh words for attorneys from the Fort Wayne firm of Murphy Ice & Koeneman LLP.

"On rehearing, Piatek argues the trial court should have given a contributory negligence instruction because Beale did not provide Piatek with an accurate medical history. Before we consider that argument, we must address Piatek’s egregious mischaracterization of the record in the Petition for Rehearing," Judge Melissa May wrote for the court in Roger Jay Piatek, M.D., and The Piatek Institute v. Shairon Beale, 49A04-1209-CT-463.

Beale won her medical malpractice complaint against Piatek filed after she developed toxic epidermal necrolysis that was believed to have been caused by the medications Piatek prescribed for weight loss. The rehearing brief claims “Beale herself” asserted the doctor’s lack of accurate medical history was the proximate cause of harm.

"Piatek directs us to three places in the trial transcript, none of which reflect Beale ever made any such assertion, or even suggest she might have. Not only is there no support at those places in the transcript for Piatek’s statement, the pages to which Piatek directs us do not even include evidence,” May wrote. “Rather, all are from opening or closing statements by counsel. It is axiomatic that the arguments of counsel are not evidence.

“We note this misrepresentation in Piatek’s petition for rehearing came after we noted a number of deficiencies in the brief Piatek’s counsel submitted on appeal. Those deficiencies included raising allegations not referred to in the Statement of the Issues as required by Indiana Appellate Rule 46(A)(4),” May continued. Those included a transcript submitted with pages out of order, allegations of error unsupported by explanation or citation to legal authority and mischaracterization of certain testimony.
 

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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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