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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. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  2. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  3. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  4. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  5. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

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