A recent court decision and $8.5 million jury award may put the question of Indiana’s stringent medical malpractice award limits to the test.

The family of Debbie Plank was awarded that amount against Community Hospital North after the hospital mismanaged an X-Ray taken and read in 2001. She died from a bowel obstruction injury that could have been detected and surgically repaired had the hospital managed the radiograph appropriately.

Of course, that award was reduced to $1.25 million by Indiana state law. The Plank’s lawyer has said he will appeal the reduction as unconstitutional under Article 1 Sections 20 and 23 of the Indiana Constitution.

Indiana’s current malpractice cap has been in place since 1999, when it was raised from $750,000. Besides the claim of unconstitutionality, that amount doesn’t even keep up with inflation – $1.25 million in 1999 equates to a little over $1.65 million in 2008 dollars, adjusted for inflation.

According to Injuryboard.com, thirty-two states have some kind of damage cap in medical malpractice cases. Alaska, Florida, Ohio and Massachusetts have caps that can be waived or increased in severe cases. Two states cap only wrongful death cases. Four states have a $250,000 general award cap, four states have a total damages cap, eighteen states have non-economic damages caps between $250,000 and $500,000, and four states have damages caps that exceed $500,000.

When these caps are challenged across the country, the constitutional claims against them usually come under state constitutional equivalents to the United States Constitution’s 7th Amendment right to trial claims and 14th Amendment equal protection and due process claims. The Georgia Supreme Court has just heard oral arguments on this issue. Georgia passed a $350,000 cap in 2005. It was declared unconstitutional, and the appeal comes from the medical community.

The results are somewhat mixed in these challenges. Caps were upheld in Virginia by a federal appeals court in 1986, but declared unconstitutional by a Florida court in 1973. The Sixth Circuit upheld the constitutionality of Michigan’s $359,000 cap on non-economic damages in medical malpractice cases.

As Indiana medical malpractice attorneys we will try to keep abreast of the Plank case. Hopefully, justice will prevail in patient’s rights at the appellate level.

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