ILNews

COA rules man can challenge med mal act

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

  • 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.

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  2. If the end result is to simply record the spoke word, then perhaps some day digital recording may eventually be the status quo. However, it is a shallow view to believe the professional court reporter's function is to simply report the spoken word and nothing else. There are many aspects to being a professional court reporter, and many aspects involved in producing a professional and accurate transcript. A properly trained professional steno court reporter has achieved a skill set in a field where the average dropout rate in court reporting schools across the nation is 80% due to the difficulty of mastering the necessary skills. To name just a few "extras" that a court reporter with proper training brings into a courtroom or a deposition suite; an understanding of legal procedure, technology specific to the legal profession, and an understanding of what is being said by the attorneys and litigants (which makes a huge difference in the quality of the transcript). As to contracting, or anti-contracting the argument is simple. The court reporter as governed by our ethical standards is to be the independent, unbiased individual in a deposition or courtroom setting. When one has entered into a contract with any party, insurance carrier, etc., then that reporter is no longer unbiased. I have been a court reporter for over 30 years and I echo Mr. Richardson's remarks that I too am here to serve.

  3. A competitive bid process is ethical and appropriate especially when dealing with government agencies and large corporations, but an ethical line is crossed when court reporters in Pittsburgh start charging exorbitant fees on opposing counsel. This fee shifting isn't just financially biased, it undermines the entire justice system, giving advantages to those that can afford litigation the most. It makes no sense.

  4. "a ttention to detail is an asset for all lawyers." Well played, Indiana Lawyer. Well played.

  5. I have a appeals hearing for the renewal of my LPN licenses and I need an attorney, the ones I have spoke to so far want the money up front and I cant afford that. I was wondering if you could help me find one that takes payments or even a pro bono one. I live in Indiana just north of Indianapolis.

ADVERTISEMENT