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Medical malpractice caps challenged in Indiana, fall elsewhere

August 29, 2012
Laura Binford is a partner at Riley Bennett & Egloff LLP in Indianapolis who concentrates on medical malpractice defense litigation and whose clients include hospitals. She noted that the dissenting justices in the Missouri decision also cited Johnson v. St. Vincent. The dissent pointed out that Indiana upheld caps in that case and that the Indiana Constitution terms the right to trial by jury “inviolate,” as does the Missouri Constitution.

“Hopefully, the Supreme Court will stick with the precedent of the Johnson case and find caps are constitutional,” said Binford, who is not involved in the Plank litigation.

“It seems if we remove the caps, won’t that return us to where we were 30 years ago?” she said. Without caps, the cost of malpractice insurance will rise, Binford said, and the state will no longer be as attractive for health care practitioners.

The Indiana attorney general’s office also intervened in the Plank case, relying on the precedent of Johnson v. St. Vincent that it said settled the question of the constitutionality of caps. Asked to comment on the case, a spokesman for the office said the state’s pleadings speak for themselves.

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In its motion to transfer to the Supreme Court, the AG’s pleading said the Court of Appeals disregarded that precedent. “Johnson resolved every issue upon which Plank now seeks an evidentiary hearing,” the state said in defending the cap statutes in Indiana Code 34-18.

If caps were overturned in Indiana, it also would change the way trial and defense attorneys approach cases, Binford said. Currently, malpractice defense attorneys hone in on liability issues and focus on winning the case at the Medical Review Board level, she said.

“If you remove that cap, then you need to worry about damages and give that a whole lot more attention than you do,” Binford said. “I think that’s going to make it a lot more difficult for cases to settle.”

At the time of the Johnson v. St. Vincent ruling, “doctors were in a position where they weren’t able to get insurance and the insurance companies were going out of business, and circumstances have changed dramatically,” Muller said, noting malpractice carriers are “hugely profitable now.

“Secondly, evidence is really overwhelming that the existence of these caps does not prevent doctors from leaving the state or draw doctors to the state,” he said. “To the extent that that was a justification in the Legislature for the cap, that hasn’t borne out. We will prove that caps do not decrease the cost of health care.”

If Timothy Plank gets his day in court.•

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