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ISMA’s legal activities reap medical malpractice benefits, dues payback for you
e-Reports, Jan. 23, 2012
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The Indiana Department of Insurance (IDOI) reduced your Patient’s Compensation Fund (PCF) surcharge by 10.2 percent for this year. IDOI officials consulted the ISMA during the actuarial analysis process, in meetings to discuss and obtain input.

“After taking our comments under advisement, Insurance Commissioner Steve Robertson ultimately reduced physician surcharges more than initially anticipated,” said Julie Reed, ISMA legal counsel. “That’s real money that stays in your pocket to help you run your business or cover the cost of your ISMA dues.”

In more than half the eight PCF surcharge classes, rate reductions cover the cost of ISMA annual dues. In fact, some physicians enjoy a six-fold payback of the amount they pay for ISMA membership.

At times like these, when physicians are struggling to keep their businesses afloat and reimbursement is decreasing, the ISMA is working harder than ever to protect the Indiana Medical Malpractice Act and stabilize the medical malpractice pressures on you and every medical practice.

Defending our law in the courts
In addition to closely monitoring the PCF surcharges and balance, the ISMA files amicus curiae (“friend of the court”) briefs in medical malpractice cases – on behalf of all Indiana physicians.

“The briefs explain the impact a case could have on patients, health care professionals and the health care industry,” Reed noted.

In Robertson vs. B.O., the ISMA is helping defend the PCF’s ability to challenge damages in a med mal case. In this particular case, the PCF’s experts concluded the patient does not have an alleged health condition, which could not have resulted from the health care provider’s conduct.

The trial court would not allow the PCF’s evidence. On appeal, the ISMA explained it would be unfair to limit the PCF’s ability to argue amount of damages just because the case was settled by the health care provider. The PCF cannot control when cases are settled, which occurs for many reasons.

The Indiana Court of Appeals unanimously agreed with us. The Indiana Supreme Court heard oral arguments Dec. 20 and a decision is pending. The case could be worth $650,000 to the PCF, funded exclusively by health care providers.

surchargeA second pending case, Plank vs. Community Hospital, challenges the constitutionality of our cap on malpractice damages. A cornerstone of our medical malpractice act, the cap was enacted in 1975 in response to a crisis that made malpractice insurance unaffordable or unavailable to many physicians.

The ISMA became involved in the Plank case in 2009 after plaintiff belatedly challenged imposition of the cap on what was otherwise an $8.5 million jury verdict in an adult wrongful death case. The ISMA filed an amicus brief detailing the history and purpose of our medical malpractice act. The AMA has also provided assistance.

Plank wants an evidentiary hearing – a mini trial – on the constitutionality of the medical malpractice damages cap. The trial court denied his request, but the Court of Appeals overturned it. Defense counsel and the state attorney general asked the Indiana Supreme Court to accept the case and deny the hearing.

The ISMA joined the request; briefing concluded Dec. 28 and a ruling is pending. If Plank succeeds, elimination of our damages cap would mean all Indiana physicians would have unlimited liability in medical malpractice cases.

“The challenge to our medical malpractice act is real and it is serious,” said Reed. “Support from physicians, in the form of ISMA membership, is absolutely critical to our ongoing defense of these cases and the law.”

*ISMA Dues have not increased since 1992.
**ISMA cumulative dues 2007-2012 are $1,925.
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