Tuesday, January 15, 2013
Ind. Decisions - Supreme Court decides one today
In Timothy W. Plank, Individually and as Personal Representative of the Estate of Debra L. Plank, Deceased v. Community Hospitals of Indiana, Inc., and State of Indiana, a 9-page, 5-0 opinion, Justice Rucker writes:
In this medical negligence action the plaintiff sought an evidentiary hearing to challenge the constitutionality of the Medical Malpractice Act. The trial court denied the request. Concluding that the plaintiff forfeited his opportunity to conduct such a hearing we affirm the judgment of the trial court. * * *Practitioners' note: On p. 8, J. Rucker cites the oral video transcript in this manner: "Oral Arg. Video Trans. at 43:31."
[N]ot only did Plank fail to file a pre-trial motion challenging the cap and asserting a need for an evidentiary hearing to develop a record in this regard, but Plank also failed to make any such claim at any time prior to the jury verdict in this nearly two-week long trial. In fact when Community moved to reduce the jury award in accordance with the cap, Plank raised no objection and agreed to “prepare a proposed judgment for the court[.]” Tr. at 1353. It was not until eight days later that Plank objected to the reduction of the award and requested a hearing. This was too late. By that point Plank had forfeited any opportunity he otherwise may have been afforded to conduct an evidentiary hearing. In summary, Plank did not take the steps necessary to preserve his claim.
Conclusion. We affirm the judgment of the trial court.
Here is an Oct. 27, 2011 ILB entry on the Court of Appeals opinion.
Posted by Marcia Oddi on January 15, 2013 11:19 AM
Posted to Ind. Sup.Ct. Decisions