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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 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.

  2. 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.

  3. 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.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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