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The ISMA helps defend Medical Malpractice Act
e-Reports, April 18, 2011
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Background on the Plank case
In 2001, Debra Plank visited Community Hospital in Indianapolis multiple times. After a bowel obstruction was not timely diagnosed, she contracted sepsis and died.

In 2003, Plank’s husband filed a complaint against Community Hospital and five physicians. In 2006, the medical review panel found in favor of the hospital and four physicians, concluding one physician committed malpractice.

Plaintiff proceeded to trial and three years later, a jury ruled in favor of plaintiff and against Community Hospital for $8.5 million, exonerating the physician. In accord with our malpractice law, defense moved to reduce the verdict to $1.25 million, the statutory cap on malpractice damages.

The judge granted it without objection. Later, plaintiff filed an objection to reducing the verdict and notified parties of his intent to challenge the constitutionality of Indiana’s cap.

Plaintiff then asked the court to allow a hearing in support of his position that the cap was unconstitutional; defense argued plaintiff waived his right to challenge by filing a late objection. After motions and briefings, the judge denied plaintiff’s request and granted plaintiff final judgment of $1.25 million. Plaintiff appealed, arguing the trial court should have permitted a hearing on constitutionality of the damages cap.

The ISMA, AMA step in
The ISMA became involved when the case was at trial court. Now the ISMA, the AMA and the Indiana Hospital Association (IHA) have filed a joint amicus curiae brief at the court of appeals on your behalf.

“The ISMA was instrumental in creation of our Medical Malpractice Act in the 1970s and involved through subsequent legislative adjustments and protections of it. We possess documented history and unique perspective critical to this case,” said Julie Reed, ISMA general counsel.

“We are also fortunate to have the assistance of the AMA Litigation Center. I’m not sure who else would have the resources and experience necessary to do what we’re doing in this case,” Reed said.

The current brief
The brief recounts the health care crisis that gripped Indiana’s health care community and consumers in the 1970s. The increasing number and size of jury awards jeopardized availability of health care services as physicians closed practices, stopped performing high-risk procedures (including obstetrics), and were unable to afford or obtain malpractice insurance.

From 1970 to 1975, the average malpractice insurance premium increased 410 percent. Lawsuits against physicians increased 42 percent, and damage awards increased nearly 300 percent. Surgeons stopped performing risky procedures. Hospitals discontinued some emergency services and cancelled some types of surgeries.

The ISMA and IHA worked with concerned health care providers, patients, unions, businesses, insurers, lawyers and legislators in proposing the law, ultimately signed by Gov. Otis Bowen, a physician.

The brief explains that the law has been carefully monitored by the legislature and adjusted over the years as necessary. The ISMA has always participated in that process, including when the damages cap was raised from its original level of $500,000 to $750,000 in 1990 and to $1,250,000 in 1999, the current limit.

Successful results
“Over the years, the ISMA has participated in many cases providing the courts with knowledge about why the law was passed, how it was meant to operate, the careful balances it struck, and why it is as necessary today as in 1975,” Reed noted.

The courts have generally agreed with us.

The damages cap in Indiana has fostered a more stable, predictable health care environment; states without caps have not fared as well. This is supported by widespread industry data, which the brief provides.

The brief states the law: “...has served the state well, by effectuating a public policy designed to afford fair compensation while maintaining access to health care services and the medical malpractice insurance necessary for providers to meet the health care needs of Indiana’s citizens.”

Rights and remedies in the law were meticulously pieced together, and the courts, with ISMA’s involvement, have striven to preserve those over the years. Plaintiff now seeks to disrupt the careful balance.

Cautions about disastrous implications appear in the brief: “A medical malpractice crisis, once stabilized, can always flare up again.” “The preservation of health care for all Hoosiers is just as valid a state interest today as it was in 1975.” “The Legislature, having alleviated the medical malpractice crisis of the early 1970s, should not have its efforts undone…”

The ISMA advised the court not to turn back the clock on 35 years of legislative policy. The timeframe for a court ruling in this case is uncertain.

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