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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. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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