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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. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  2. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  3. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  4. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  5. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

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