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Monday, January 18, 2016

Ind. Law - "GOP plots revamp of medical malpractice law"

Lengthy, must-read Jan. 16th article by Hayleigh Colombo in the IBJ. A sample:

A Republican lawmaker’s plan to raise the caps on successful medical malpractice claims and increase doctors’ liability—legislation that Indiana Senate Republicans included on their 2016 legislative agenda—wouldn’t normally be the preferred option for Indiana health care providers.

But there’s widespread belief that, if the maximum damage caps aren’t raised for the first time in 17 years, the law could be susceptible to a constitutional challenge—which could rock the health care system even more than a steady stream of increases.

From later in the story:
Meanwhile, the Indiana Trial Lawyers Association has deemed the legislation a “good start,” but trial attorney Dan Ladendorf said it won’t fully address patients’ needs.

“We believe there should never be a cap on damages,” said Ladendorf, a governing board member for the association. “You are minimizing a person’s responsibility for a harm they’ve caused. That just doesn’t seem like a fair measure of justice.”

Republican Senate leadership sees the bill as a last-ditch effort to preserve the Medical Malpractice Act, which both sides agree could otherwise be overturned in court.

“The goal is not to punish anyone,” said Senate President Pro Tem David Long, R-Fort Wayne. “It’s to preserve an outstanding law, [and] makes sure it’s modernized to avoid a constitutional attack, which I think it is vulnerable to.”

Though 35 states and jurisdictions impose a limit or cap on damages, according to the National Conference of State Legislatures, the caps have been vulnerable to court challenges. * * *

The Illinois Supreme Court struck down a similar law in 2010 that capped jury payouts, ruling they were unconstitutional under the Illinois Constitution’s “separation of powers” clause because juries were not able to determine fair damages. [ILB: see this post and links]

Caps have also been ruled unconstitutional in Alabama, Georgia, Oregon, New Hampshire and Washington.

But opponents in Indiana so far haven’t been successful—though not without trying.

The Indiana Supreme Court in 2013 ruled that plaintiff Timothy Plank, who lost his wife to alleged medical malpractice, forfeited his opportunity to challenge the constitutionality of the law because he failed to make a pretrial motion regarding his intent or mention anything during the trial.

Now, a high-profile case in Evansville challenging the constitutionality of the law is on deck. An Evansville couple says medical malpractice is the reason their daughter is a quadriplegic. A Vanderburgh County judge is expected to take up the case.

ILB: The bill that is the focus of this story is SB 152. It is scheduled to be heard in Senate Judiciary on Wed., Jan. 20th.

Posted by Marcia Oddi on January 18, 2016 09:39 AM
Posted to Indiana Government