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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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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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