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.


  • 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. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues