January 21, 2013

162017_132140396847214_292624_nOn January 15, 2013, the Indiana Supreme Court decided an appeal where the medical malpractice plaintiff  received a favorable jury verdict in the amount of $8.5 million that was reduced to $1.25 million pursuant to the Indiana Medical Malpractice Act (“Act”). The Act provides in relevant part: “[t]he total amount recoverable for an injury or death of a patient may not exceed . . . [o]ne million two hundred fifty thousand dollars ($1,250,000) for an act of malpractice that occurs after June 30, 1999.” I.C. § 34-18-14-3.

The trial judge had granted the medical malpractice defendant’s motion to reduce the verdict to $1.25 million under the Act, which the medical malpractice plaintiff did not object to until eight days later when he filed a written objection to the reduction of the damage award alleging that the cap imposed by the Act is unconstitutional and requesting an evidentiary hearing to develop his constitutional challenge.

The trial court denied the plaintiff’s request for an evidentiary hearing from which the plaintiff appealed, contending that he was entitled to an evidentiary hearing on his constitutional challenges. A divided Indiana Court of Appeals (the intermediate appellate court in Indiana) reversed the trial court’s denial of the plaintiff’s request for an evidentiary hearing. The case was then appealed to the Indiana Supreme Court.

In its written decision the Indiana Supreme Court stated, “We do not deny that preferential legislative treatment for a classification which was proper when enacted may later cease to satisfy the requirements of Section 23 [of the Indiana Constitution] because of intervening changes in social or economic conditions … [and that] a determination of constitutionality under Section 23 can be revisited and that the challenging party has the burden to prove that changes in circumstances require reversal of existing law.”

The Indiana Supreme Court stated that in the case before it, the question was whether the medical malpractice plaintiff is entitled to an evidentiary hearing to develop his constitutional argument. The initial issue it addressed was whether the medical malpractice plaintiff  had “waived” his constitutional challenges to the Act.

Waiver Issue

In general, “waiver” connotes an “intentional relinquishment or abandonment of a known right.” Even though the general rule is that failure to challenge the constitutionality of a statute at trial results in waiver of review on appeal, the Indiana Supreme Court has discretion to address the merits of a party’s constitutional claim notwithstanding waiver, and appellate courts are not prohibited from considering the constitutionality of a statute even though the issue otherwise has been waived (an appellate court may exercise its discretion to review a constitutional claim on its own accord).

Forfeiture Issue

Forfeiture is the failure to make the timely assertion of a right and appellate courts may, on their own initiative, find an issue foreclosed under a variety of circumstances in which a party has failed to take the necessary steps to preserve the issue. In the case before it, the Indiana Supreme Court stated that the plaintiff not only failed 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 he also failed to make any such claim at any time prior to the jury verdict in the nearly two-week long trial and when the medical malpractice defendant moved to reduce the jury award in accordance with the cap, the plaintiff failed to object and even agreed to prepare a proposed judgment for the court. It was not until eight days later that the plaintiff objected to the reduction of the award and requested a hearing. The Indiana Supreme Court held that this was too late – by that point, the plaintiff had forfeited any opportunity he otherwise may have been afforded to conduct an evidentiary hearing. In short. the plaintiff did not take the steps necessary to preserve his claim.

Source: Plank v. Community Hospitals of Indiana, Inc., No. 49S04-1203-CT-135.

If you or a loved one have been injured as a result of medical malpractice in Indiana or in another U.S. state, you should promptly seek the advice of an Indiana medical malpractice attorney or a medical malpractice attorney in your state who may be able to assist you with your medical malpractice claim.

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