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Plank failed to preserve claim med mal cap is unconstitutional

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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.”

 

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  • 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!

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  1. Payday loans take advantage of people in many ways. It's great to hear that the courts are using some of their sins to pay money back to the community. Hopefully this will help change the culture of many loan companies, and make lending a much safer endeavor for those in need. http://lawsuitlendingnow.com/lawsuit-loans-post-settlement.html

  2. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  3. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  4. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  5. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

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