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Sunday, September 06, 2009

Ind. Law - Indiana malpractice cap may be challenged

Jeff Swiatek's story Sept. 5th in the Indianapolis Star was headed "Widower might challenge malpractice cap." Some quotes:

A widower who won an $8.5 million medical malpractice verdict against Community Hospital North in his wife's death now might challenge a state law that reduces the award to $1.25 million.

The verdict was issued Thursday in the case of Debbie Plank, a Hancock County mother of three. She died in 2001 after the hospital failed to promptly get an X-ray to doctors that showed she had a dangerous bowel obstruction, her family's lawyers claimed.

The damage award will be capped at $1.25 million by a state law that limits malpractice verdicts against medical providers.

"We think that cap is unconstitutional," said John Muller, attorney for the Plank family.

The cap was last raised by the state legislature in 1998, when it went up from $750,000. * * *

Tim Plank said he didn't file the lawsuit for the money. One motivation was the lack of an apology by the hospital.

Muller said Plank also was angered when a hospital representative called after his wife's death, asking him to complete a customer satisfaction survey.

"It just made him so angry. They had the gall to ask him, 'Are you satisfied?' " It was like they didn't even know what they had done to his wife and him," Muller said.

Plank said a hospital attorney approached him after testimony in the trial ended and passed on an apology from the hospital.

The Shelbyville News had this story by Jeff Tucker. Some quotes from this much more comprehensive report:
A local law firm was a successful litigant in a two-week medical malpractice case that ended late Thursday with a Marion County jury imposing an $8.5 million judgment against an Indianapolis doctor and hospital.

How much will actually be awarded to the family of a McCordsville woman who died at Community North Hospital in 2001 from bowel obstruction complications was uncertain Friday, given the freshness of the verdict and the state’s cap on medical malpractice claims, said attorneys and the judge in the case.

Mike Stephenson of McNeely Stephenson Thopy & Harrold of Shelbyville was lead counsel for the plaintiffs in the case against Dr. Joseph Pavlik and Community Hospitals of Indiana, based in Indianapolis.

Debbie Plank of McCordsville died at Community North Hospital on Dec. 1, 2001, after her radiology imagery was lost and a surgery to relieve a bowel obstruction delayed, according to court testimony. She was 47.

Plank went to the emergency room at Community North on Nov. 13, 2001, the third time in a week, complaining of stomach pains. She was admitted to the hospital, and at 5 a.m. Nov. 13 had an X-ray taken that showed a small bowel obstruction, according to court testimony.

Stephenson said the two-week proceeding established that the hospital’s radiology department should have alerted hospital physicians of the potential need for an emergency surgery.

Plank was seen by hospital doctors, including Pavlik, a general surgeon with Castleton Surgical Group with 20 years of experience. Pavlik, unaware that Plank had a bowel obstruction, went to the radiology department to check on Plank’s X-rays, but could not find any film, according to testimony.

“Pavlik claimed it was a very rare event to have this type of bowel obstruction and, had he known of the X-ray, his course of treatment would have been completely different and Debbie Plank would be alive today,” Stephenson said.

Plank’s attending physicians did not know of her condition until later, and the surgery was delayed 24 hours, until Nov. 14, 2001, court testimony established.

“When they did the surgery, they found that part of her intestine had already died,” said plaintiffs’ co-counsel John Muller.

Plank had surgeries on Nov. 14 and 15, was placed on life support after the second surgery and died on Dec. 1, 2001.

The Marion County Circuit Court jury returned the whopping judgment at about 11 p.m. Thursday after deliberating for about six hours after the nine-day trial. * * *

“She was really an exceptional woman,” said Muller, an attorney with Montross Miller Muller Mendelson & Kennedy of Indianapolis. “I think the verdict reflected the fact that this was really a close-knit family that really suffered from the loss of her.”

Circuit Judge Louis F. Rosenberg confirmed Indiana’s maximum medical malpractice claim is $1.25 million and told The Shelbyville News Friday afternoon that no new motions had been filed in the case.

“There are no pending motions as far as I can tell,” he said. “I will issue a judgment based on the jury verdict.”

The co-defendants can appeal the ruling to the Indiana Court of Appeals, and the plaintiffs could question the constitutionality of the state’s cap.

Robert G. Zeigler of Ziegler Cohen & Koch of Indianapolis represented Community Hospitals of Indiana, while David J. Beach of Eichhorn & Eichhorn in Hammond represented Pavlik. * * *

Stephenson and Muller said Friday that it was too early to tell how the plaintiffs would proceed, but said any appeal of the state cap would begin with a motion and hearing in Marion County Circuit Court.

The Medical Malpractice Act of 1976 originally imposed a $500,000 cap on medical malpractice claims, they noted.

“There have been cases in the past where the verdict has exceeded the cap. There hasn’t been a constitutional challenge to the cap,” Muller said. “We’re in discussions, evaluating. We’re looking at it to see if there is a constitutional challenge to that cap. In other states, these caps have been found to be unconstitutional.

“It’s up to the client to decide if the cap will be challenged.”

The plaintiffs’ attorneys said the jury wasn’t told about the $1.25 million cap during the trial and based its judgment on the merits of the case.

“The jury isn’t told about the cap. The jury listened to the evidence and returned a verdict for the damages,” Muller said. “Typically, the judge would reduce the judgment to the cap.”

Stephenson said that by law the judge is compelled to reduce the jury’s judgment to $1.25 million.

Posted by Marcia Oddi on September 6, 2009 02:46 PM
Posted to Ind. Trial Ct. Decisions | Indiana Law