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Medical malpractice caps challenged in Indiana, fall elsewhere

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Medical malpractice caps are unconstitutional in Missouri. And in Illinois and Georgia. They might be in Indiana, too, if the justices of the Supreme Court grant Timothy Plank the day in court his attorneys say he is entitled to.

“What we are asking for and what the Court of Appeals has agreed to is that we had a right to an opportunity to present our evidence that the cap is not constitutional,” said John Muller, a partner with Montross Miller Muller Mendelson & Kennedy LLP in Indianapolis, who represents Plank.

muller Muller

“I think we have some arguments that haven’t been presented before,” Muller said. “It’s an important issue of fairness to people who get injured by malpractice.”

Plank sued Community Hospitals of Indiana after his wife, Debra, sought treatment in November 2001. Doctors failed to diagnose a small bowel obstruction from which she developed sepsis and died. A jury in 2009 awarded Plank $8.5 million in damages, which the Marion Circuit Court reduced to the statutory limit of $1.25 million.

The Court of Appeals held that Plank was entitled to an evidentiary hearing before the trial court to try to prove the cap is unconstitutional. An appeal was argued before the Indiana Supreme Court in May, and a decision could come at any time.

For Plank, the litigation has meant more than a decade of reliving the experience.

“It takes a strong person to come to court to fight the malpractice caps,” Plank said.

Robert Zeigler, a partner at Zeigler Cohen & Koch in Indianapolis, represents Community Hospitals. An assistant said he would have no comment on the pending case.

Meanwhile, the Missouri Supreme Court on July 31 ruled in a 4-3 decision that medical malpractice caps on non-economic damages violate the right to a jury trial guaranteed in the Missouri Constitution. Similar cases are pending in Florida and Kansas, and caps have been declared unconstitutional in the last two years in Illinois and Georgia, said Robert S. Peck, president of the Center for Constitutional Litigation P.C. in Washington, D.C.

Peck has represented clients in those cases and in challenges to malpractice caps in other states, and Muller invited him to represent Plank. Behind each of the rulings in which caps were struck down as unconstitutional were individual malpractice cases so egregious that courts recognized the caps imposed by state legislatures were encroaching on the rights of juries to decide damages, or on the common law principle of an inviolate right to trial by jury, Peck said.

“Waves of these statutes passed, and they seem to be enacted in clusters around the country, and the cases that make their way through the system were some sort of catastrophic injury, and those are the people that are most affected by it,” he said.

The Plank case differs from those elsewhere that have invalidated malpractice caps in part or whole, said Peck, who called Indiana’s cap enacted in 1975 one of the nation’s most restrictive.

peck Peck

Under Indiana’s cap, doctors, hospitals and care providers will pay no more than $250,000 per incident of malpractice, and the Indiana Patient Compensation Fund will pay damages in excess of that amount up to $1 million.

In other states where caps recently have been ruled unconstitutional or challenges are pending before state supreme courts, the cases have been direct challenges to the constitutionality of statutes. Plank’s challenge entails whether his rights were violated when the trial court declined to allow him to present an argument that medical malpractice caps were unconstitutional.

“Right now we’re at a preliminary, procedural stage in the case,” Peck said. “The court’s decision on that preliminary stage has nothing to do with the substance of the case.”

Muller said that malpractice caps were enacted when the Legislature deemed that a health care emergency existed because malpractice insurers were in financial straits and some areas of the state were underserved by physicians and specialists. The Indiana Supreme Court upheld malpractice caps in Johnson v. St. Vincent Hospital, 273 Ind. 374, 404 N.E.2d 585 (1980).

Both sides in Plank see opportunities to prevail on arguments arising from Johnson v. St. Vincent.

malpractice_map.gif“Since St. Vincent we have had more than 30 years of experience and we can look at it and see if those rationales actually occurred,” Muller said. “But we believe the circumstances have changed in terms of health care, how it’s provided, how insurance is made available, and after 30 years, it’s appropriate to take a look at it and see if the social and economic issues that justified it in the 1970s still exist.”

Laura Binford is a partner at Riley Bennett & Egloff LLP in Indianapolis who concentrates on medical malpractice defense litigation and whose clients include hospitals. She noted that the dissenting justices in the Missouri decision also cited Johnson v. St. Vincent. The dissent pointed out that Indiana upheld caps in that case and that the Indiana Constitution terms the right to trial by jury “inviolate,” as does the Missouri Constitution.

“Hopefully, the Supreme Court will stick with the precedent of the Johnson case and find caps are constitutional,” said Binford, who is not involved in the Plank litigation.

“It seems if we remove the caps, won’t that return us to where we were 30 years ago?” she said. Without caps, the cost of malpractice insurance will rise, Binford said, and the state will no longer be as attractive for health care practitioners.

The Indiana attorney general’s office also intervened in the Plank case, relying on the precedent of Johnson v. St. Vincent that it said settled the question of the constitutionality of caps. Asked to comment on the case, a spokesman for the office said the state’s pleadings speak for themselves.

plank Muller

In its motion to transfer to the Supreme Court, the AG’s pleading said the Court of Appeals disregarded that precedent. “Johnson resolved every issue upon which Plank now seeks an evidentiary hearing,” the state said in defending the cap statutes in Indiana Code 34-18.

If caps were overturned in Indiana, it also would change the way trial and defense attorneys approach cases, Binford said. Currently, malpractice defense attorneys hone in on liability issues and focus on winning the case at the Medical Review Board level, she said.

“If you remove that cap, then you need to worry about damages and give that a whole lot more attention than you do,” Binford said. “I think that’s going to make it a lot more difficult for cases to settle.”

At the time of the Johnson v. St. Vincent ruling, “doctors were in a position where they weren’t able to get insurance and the insurance companies were going out of business, and circumstances have changed dramatically,” Muller said, noting malpractice carriers are “hugely profitable now.

“Secondly, evidence is really overwhelming that the existence of these caps does not prevent doctors from leaving the state or draw doctors to the state,” he said. “To the extent that that was a justification in the Legislature for the cap, that hasn’t borne out. We will prove that caps do not decrease the cost of health care.”

If Timothy Plank gets his day in court.•

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  • IT UNCONSTITUIONAL
    I ALMOST DIED AND VERY WELL COULD HAVE LOST MY ARM BECAUSE OF NEGULANCE OF A INDIANA DOCTOR I HOPE THE SUPREME COURTS VOTE ON THIS .

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

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  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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