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Medical Malpractice Update: Judge issues favorable ruling in one case, new case surfaces
e-Reports, Sept. 16, 2013
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Your membership, support help the ISMA protect state’s malpractice law Untitled document

In January, the Indiana Supreme Court resolved the case of Plank v. Community Hospitals of Indiana in favor of the defendant health care provider. Agreeing with Community and the ISMA, the unanimous court ruled that Plank waited too long to raise his legal challenge to the constitutionality of the $1.25 million statutory medical malpractice damages cap.

Plank had waited until eight days after the trial and jury verdict to formally provide his notice of intent to challenge the constitutionality of the damages cap. By doing so, the court declared Plank “forfeited any opportunity he otherwise may have been afforded to conduct an evidentiary hearing.”

Although the Plank case is behind us, new cases continue to surface. As previously reported, the second constitutionality challenge came in the form of the Indianapolis case Matthews v. Lupton. Like in Plank, the ISMA sought and received permission to appear in that case last November.

In June, the judge in the Matthews case ruled that Matthews was entitled to receive an evidentiary hearing, despite our urging that their post-verdict challenge was raised too late.

The physician defendant and the ISMA promptly requested to appeal the judge’s ruling. Because of the procedural posture of the case, the judge had discretion to approve or deny our request to appeal her ruling, a remedy not often granted.

Fortunately, the judge agreed that we will incur substantial expense in preparing and retaining expert witnesses to oppose the plaintiff’s challenge and that plaintiffs are raising a substantial question of law by seeking to overturn more than 30 years of Indiana Supreme Court precedent. Therefore, on Sept. 3, the judge granted our request to appeal her order allowing the evidentiary hearing.

The next step will be asking the Indiana Court of Appeals to exercise its discretion to accept the case.

The third constitutionality challenge is now formally making its way through the Indiana court system. On Friday, Aug. 23, a jury issued a $15 million verdict against a hospital and a physician in the birth-related case of Bobbitt v. St. Mary’s Medical Center et al.

Unlike in Plank and Matthews, the challenge to the constitutionality of the malpractice damages cap appears to have been raised before trial. So, this Evansville case may be the first one that receives an evidentiary hearing. The ISMA is assisting with defense efforts in that case. Additional procedural details should be available soon.

“This is still just the tip of the iceberg,” noted Julie Reed, ISMA general counsel. “There are dozens more cases out there waiting for an opportunity to challenge the medical malpractice law. We don’t know why the plaintiff attorneys seem to be bringing a full scale assault on the law now, but we have to defend it. And we are, with the support of our members’ dues dollars.”

If you have any questions about these cases, call Reed in ISMA’s legal department at (800) 257-4762 or (317) 261-2060.

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