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Fate of our state’s medical malpractice law is now with the Indiana Supreme Court
e-Reports, May 14, 2012
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The ISMA is fighting to preserve the 1975 state law Untitled document

The ISMA was at the Indiana Supreme Court May 3 for oral arguments in the case of Plank vs. Community Hospital. For more than two years, the ISMA has been involved in this case challenging the constitutionality of the medical malpractice damages cap. If the plaintiff is successful, the case would result in elimination of the $1.25 million damages cap, leaving physicians and all other health care providers with unlimited liability in cases.

Counsel for the plaintiff, an attorney from Washington, D.C., who has been spearheading many of these constitutionality challenges around the country, tried to take the justices back to the roots of the U.S. Constitution. But the justices didn’t want a “historical tour.”

They wanted to talk about the case at issue and pointedly asked the attorney if they had “played unfairly” by waiting until eight days after the $8.5 million jury verdict to raise a challenge to the law. That concept of waiver – not raising an issue timely – is the key issue pending before the court.

“However, this case isn’t just about waiver,” said Julie Reed, ISMA general counsel. “As one of the justices mentioned, the plaintiff does not argue that the $1.25 million damages cap is inadequate. He argues that a cap is altogether inappropriate and unnecessary. That’s where the ISMA comes in.”

For more background on the Plank case:

The justices clearly understood our position and the ramifications of allowing the plaintiff to receive an evidentiary hearing on the constitutionality of our law. If they deny the right to this new and separate hearing, the case will be over. If they grant it, the case will go back to the trial court, and the parties will gather evidence from experts around the country to be used during the hearing. Then, the trial court’s decision on the constitutionality will be inevitably appealed. There is no timeline for the court to rule.

“If we are unsuccessful, ramifications are extreme. For the first time in 37 years, an $8.5 million verdict might actually mean $8.5 million, not $1.25 million – and that’s scary,” said Reed. Physicians will need to take steps to protect their assets.

Various trial lawyers already are telling medical malpractice defense attorneys to put their clients “on notice that they potentially have personal assets at stake” if Plank’s challenge prevails.

“We want to ensure that Indiana continues to be a great state for practicing medicine and for patients to access the care they need,” Reed said, “but the ISMA can’t do it alone.”

Your association needs the membership support of every physician in Indiana. Dues dollars directly fund ISMA legal efforts, and memberships permit us to say we represent the majority of the practicing physicians in Indiana – from all professions, all settings, and all cities and towns.

Your nonmember colleagues can begin the membership process on the ISMA website.

Copyright: Information written and displayed on www.ismanet.org is the property of ISMA and may not be reproduced without expressed written permission of the Indiana State Medical Association.

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