Elkhart County judgment exceeds med-mal cap

A northern Indiana judgment in favor of a man ruled to have suffered a catastrophic medical malpractice injury that left him paralyzed is the latest case challenging the state’s cap on malpractice damages.

Robert Lehman won a $4.25 million judgment earlier this month in his suit against several northern Indiana health care providers. Elkhart Circuit Judge Terry Shewmaker ruled the health care providers failed to meet the standard of care in timely diagnosing cauda equina syndrome, a debilitating spinal injury Lehman developed after receiving injections to treat a workplace injury. Shewmaker also awarded Lehman’s wife, Marla, $450,000 for loss of companionship and consortium.

Shewmaker wrote that a doctor’s failure to see the signs of the developing syndrome and refer Lehman to an expert or hospital for treatment was malpractice.

“When Mr. Lehman did get to the emergency room, there was an immediate diagnosis of Cauda Equina Syndrome and immediate surgery was necessary. Mr. Lehman was lucky to survive. The Defendants breached that standard of care owed to Robert Lehman. This was, in the Court’s opinion, the critical point for Mr. Lehman to have some degree of recovery. This opportunity for recovery was lost due to the failure of Defendants to recognize the worsening symptoms occurring with alarming rapidity,” Shewmaker wrote.

Shewmaker’s order found the direct and proximate costs to Lehman from malpractice was $1,557,200. “Further, the Court intends to compensate Mr. Lehman for pain, suffering and any future expenses which he may incur out of the future and past pain and suffering” in the amount of $2,692,800.

“The Court is cognizant that Ind. Code § 34-18-14-3 limits the amount recoverable” to $1.25 million, Shewmaker wrote, citing the Medical Malpractice Act’s cap on damages. “(H)owever, the injury in this case is catastrophic. Furthermore, the true amount of damages incurred and assessed by the Court are based on evidence presented and proven at trial. Additionally, not only has Mr. Lehman suffered the loss of the use of his legs, being paralyzed and never able to walk again, he nonetheless continues to experience pain … .”

The case is Robert Lehman and Marla Lehman v. Methodist Medical Group/Methodist Occupational Health Centers, Inc., d/b/a Dunlap Occupational Health and Urgent Care Center, Goshen, Indiana; and Jay Schlabach, M.D., 20C01-1106-CT-32.

Gov. Mike Pence signed into law this year the first increase in the med-mal cap in 17 years. The cap will rise from $1.25 million to $1.65 million next year and to $1.8 million in 2019.

Lawmakers passed the increase amid concerns that caps could be ruled unconstitutional if they were found to limit an injured person’s right to a remedy at law. Several states have struck down caps on malpractice. The Indiana Supreme Court last dealt with the question by affirming the caps in Plank v. Community Hospitals of Indiana, Inc., and State of Indiana, 49S04-1203-CT-135.

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