Plank failed to preserve claim med mal cap is unconstitutional

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Supreme Court unanimously ruled Tuesday that Timothy Plank, who filed a medical malpractice complaint following the death of his wife in 2001, forfeited his opportunity to conduct an evidentiary hearing challenging the constitutionality of the Medical Malpractice Act.

Plank filed his lawsuit in November 2003 after his wife Debra died of sepsis following failed diagnoses at Community Hospitals of Indiana. The case proceeded to trial in August 2009 with Community as the sole defendant. In September 2009, Plank was awarded damages of $8.5 million by the jury, which was reduced to the statutory cap of $1.25 million following a motion made by Community. Plank did not object to the reduction until eight days later.

He sought an evidentiary hearing to develop his constitutional challenge, which was ultimately denied by the trial court. The Court of Appeals reversed, and the Supreme Court granted transfer to address the propriety of Plank’s constitutional claim.

Plank wants to hold the hearing so he can establish that the factual underpinnings that led the Supreme Court to declare the statutory cap constitutional in 1980 in Johnson v. St. Vincent Hospital, 404 N.E.2d 585 (Ind. 1980), no longer exist today.

In Timothy W. Plank, Individually and as Personal Representative of the Estate of Debra L. Plank, Deceased v. Community Hospitals of Indiana, Inc., and State of Indiana, 49S04-1203-CT-135, the justices found that Plank forfeited the opportunity to conduct a hearing to develop his claim, finding that by the time the complaint proceeded to trial, the matter had been pending for nearly six years. They rejected his assertion that there was no way to know whether the damages would exceed the cap before trial, so his first chance to raise the issues was after the jury returned its verdict.

“In any event, not only did Plank fail to file a pre-trial motion challenging the cap and asserting a need for an evidentiary hearing to develop a record in this regard, but Plank also failed to make any such claim at any time prior to the jury verdict in this nearly two-week long trial. In fact when Community moved to reduce the jury award in accordance with the cap, Plank raised no objection and agreed to ‘prepare a proposed judgment for the court,’” Justice Robert Rucker wrote. “It was not until eight days later that Plank objected to the reduction of the award and requested a hearing. This was too late.”



  • Courts wrong again!
    The government has no right to set a cap on law suits and a juries verdict and award is not to be questioned or amended in any case. If it was one of the morons wives that set this cap they would think differently. The problem with our lawmakers is that they think it will never happen to them and as long as that is the case, the rest of the people be damned!

Post a comment to this story

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
Subscribe to Indiana Lawyer
  1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. 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.

  4. 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.

  5. 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.