There are two relatively important decisions by the Indiana Supreme Court over the past few months regarding medical malpractice cases.

The first case involves the Indiana Patient's Compensation Fund and contesting, or re-litigating, a health care provider's liability. In the case of Stephen W. Robertson, et al v. B. O., et. al., the Indiana Supreme Court held that the Indiana Patient's Compensation Fund was precluded from disputing the cause of a boy diagnosed with a mild form of cerebral palsy when the family filed a petition for damages with the Indiana Patient's Compensation Fund. In so holding, the Indiana Supreme Court noted the Indiana Code 34–18–15–3(5) stated that the relevant portion of the statute as “In approving a settlement or determining the amount, if any, to be paid from the patient's compensation fund, the court shall consider the issue of the health care provider as admitted and established.” (Emphasis added).

This is important because in order for a plaintiff to get to the Indiana Patient's Compensation Fund, where there can be an additional $1,000,000.00 in compensation, the plaintiff must first obtain the requisite amount of damages from the health care provider (i.e., $250,000.00). Now, with the Robertson decision, Indiana plaintiffs does not have to worry about, or deal with, the Indiana Patient's Compensation Fund attempting to argue the health care provider's negligence did not cause the plaintiff's damages; this issue has already been established by the time a plaintiff gets to the Indiana Patient's Compensation Found. Now, once at the Indiana Patient's Compensation Fund, the only thing to litigate is damages up to the $1,000,000.00 cap.

Speaking of caps, the second important Indiana medical malpractice case, issued around January 15, 2013, dealt with challenging the Indiana medical malpractice cap which is currently set at $1,250,000.00. In the case of Timothy W Planck, Individually and as Personal Representative of the Estate of Debra L. Planck, Deceased, v. Community Hospitals of Indiana, et. al., the Indiana Supreme Court unanimously ruled that Timothy Planck, who filed a medical malpractice complaint following the death of his wife in 2001, forfeited his opportunity to conduct an evidentiary hearing challenging the constitutionality of the medical malpractice act In so holding, the Justices found that Plank forfeited the opportunity to conduct a hearing to develop his unconstitutional claim as he did not file a pre-trial motion challenging the unconstitutional challenge to the Indiana Medical Malpractice Cap and asserting a need for an evidentiary hearing to develop a record prior to trial.

The whole purpose of Plank's challenge was that Indiana's medical malpractice cap, currently set at $1.25 million, was unconstitutional.

It looks like it will be left up to another day to raise this battle. I commend the plaintiff attorneys who handled this case and raised the argument in the first place.