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.”



  • 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. So the prosecutor made an error and the defendants get a full remedy. Just one short paragraph to undo the harm of the erroneous prosecution. Wow. Just wow.

  2. Wake up!!!! Lawyers are useless!! it makes no difference in any way to speak about what is important!! Just dont tell your plans to the "SELFRIGHTEOUS ARROGANT JERKS!! WHO THINK THEY ARE BETTER THAN ANOTHER MAN/WOMAN!!!!!!

  3. Looks like you dont understand Democracy, Civilized Society does not cut a thiefs hands off, becouse now he cant steal or write or feed himself or learn !!! You deserve to be over punished, Many men are mistreated hurt in many ways before a breaking point happens! grow up !!!

  4. It was all that kept us from tyranny. So sad that so few among the elite cared enough to guard the sacred trust. Nobody has a more sacred obligation to obey the law than those who make the law. Sophocles No man is above the law and no man is below it; nor do we ask any man's permission when we ask him to obey it. Obedience to the law is demanded as a right; not asked as a favor. Theodore Roosevelt That was the ideal ... here is the Hoosier reality: The King can do no wrong. Legal maxim From the Latin 'Rex non potest peccare'. When the President does it, that means that it is not illegal. Richard Nixon

  5. So men who think they are girls at heart can use the lady's potty? Usually the longer line is for the women's loo, so, the ladies may be the ones to experience temporary gender dysphoria, who knows? Is it ok to joke about his or is that hate? I may need a brainwash too, hey! I may just object to my own comment, later, if I get myself properly "oriented"