Indiana's medical malpractice cap

Dateline: Sat 05 Sep 2009

Good story today by Indianapolis Star reporter Jeff Swiatek, about a Hancock County man who successfully won a medical malpractice lawsuit on behalf of his late wife.

The widower, Tim Plank, lost his wife Debbie in 2001 after Community Hospital North delayed getting an X-ray showing she had a bowel obstruction. The Planks' case was represented by attorney John Muller. The outrage factor was particularly incredible: after the woman died, the hospital never apologized (they have now). Then, a few days after his wife's death, a hosptial spokesperson called Mr. Plank and asked him to create a customer satisfaction survey.

That aside, here is why the story is important: Plank was awarded $8.5 million in the verdict, but state law requies that the amount would be reduced to $1.25 million. (The cap was last raised by the state legislature in 1998, when it went up from $750,000, Swiatek reports).

Plank and his attorney plan to challenge that $1.25 million figure, and go for the full award.

What the story does not say is that Indiana has one of the lowest caps on medical malpractice awards in the nation. Of course, if you are a hospital or a physician, the usual terminology is that Indiana has a "mocel"law limiting such awards.

The story also does not say that legislation was enacted in Indiana during Gov. Otis Bowen's tenure; he was governor in the 1970s and, as everyone knows, a prominent physician who later served as secretary of health and human services under President Reagan.

Maybe I'm just pro-patient, but I've heard medical malpractice attorneys complain for years that Indiana's caps make it almost impossible for attorneys to get any kind of just settlement for patients/clients. In addition to the caps, Indiana has strict laws about a panel of physicians, etc., that must review each case -- and guess in whose favor they typically decide?

That's why Swiatek's story this morning is signficant; if Plank and attorney Muller can successfully topple the cap system, the legislature might have to rethink or rewrite the law.

Would that be a good thing? Nobody wants to run good doctors out of business -- "Doc" Bowen certainly wanted to protect his fellow m.d.'s, and he did.

But attorneys have said for years now that medical malpractice cases in Indiana were not worth their time and money to even take; the work to prepare a case was so taxing, and the awards so minimal, that it simply did not pay for their effort.

Now, maybe that will change.





hendy [Member] said:

There are multiple dimensions to malpractice, and sadly, the system is rife for abuse. Lifting the caps may or may not serve a good purpose unless we take a look at the nature of litigation itself.

2009-09-05 11:06:50

Gary Welsh [unverified] said:

Ruth, I don't know if you recall this story, but the person who got bitten big time by the malpractice limits was the very lobbyist who helped enact the law on behalf of the Insurance Institute of Indiana. He was struck by a bus crossing the Capital by the State House. As a result of a doctor's negligence at the hospital, he wound up being a parapalegic, but he was stuck with the cap in his malpractice claim, which I think was only about $500,000 at that time. He became an outspoken advocate for the trial lawyers against the Insurance Institute to do away with the caps but the legislature was not moved by his appeal. He eventually committed suicide.

2009-09-05 19:58:53

Dan Brown [unverified] said:

Sorry, Ruth , but I have had two family doctors give up their practices in the last three years. One sold his and retired, the other became a emergency room doctor, both because of the absurd prices of malpractice insurance. Cry me a river that attorney's think a $1.2 million settlement isn't worth taking on. I'm frankly thrilled Indiana has common sense caps on malpractice cases.

2009-09-06 00:47:24

ruthholl [Member] said:

Gary, I recall the lobbyist's accident but not all the background and fallout. That is a hell of a story. That would have made a decent sidebar, going into the background with Doc Bowen and then bringing readers up to date with that particular history. Not blaming the reporter, because he is meticulous and seasoned, but I imagine there is no time/space for such nuanced reporting.
Dan, I know malpractice has been a ridiculous cost and threat, especially for ob/gyn docs. But to hear my family practitioner tell it, there are many issues that drive good people out of medicine, including intrusive and ridiculous state/health protocols and docs being checked up on. My doctor told me one day, "I just feel like coming in without a shirt on, so they'd have something real to write up."
Perhaps the bigger point is how complex medicine has become -- legally, and as a business with all the insurance handlers -- and that's another story that could/should be told. It is no longer a ticket to instant wealth/status. I've also been told that docs at Riley (and I presume elsewhere in Clarian) have a quota system; they must bring in X number of patients in order to remain employed. That is absurd.
Lots to write about in the changing field of medicine: history lessons and future projections.

2009-09-06 10:49:01

Tom Greenacres [unverified] said:

Why has the "conversation" about health care reform turned almost exclusively to the issue of the uninsureds?

If health care costs could be contained, the uninsureds might not represent such a problem.

Health care costs continue to spiral upward. And it isn't just the insurers' fault. Hospital shareholders, Big Pharma, doc practices all contribute to rising costs.

If the AMA would enable more medical schools and more doctors, without such onerous burdens of personal debt, we'd have more docs, man willing to make less money than the current spate of specialists.

In my opinion the biggest problem with America's healtcare system is not the number of uninsureds- it is the ever escalating cost of care.
And nobody is talking about this- the focus has devolved to "Help The Uninsureds."

2009-09-06 16:38:34

hendy [Member] said:

TG-- you're hitting part of the nail, but bending it. There's a systemic failure in health care in most all quadrants.

We have a bribed legislature and congress, so the facts won't be found and lobbyists will contort and distort the picture until it's the lack of reality we have now.

Follow the money:

Insurance companies
Pharmaceutical companies (ortho, and other suppliers, too)
Plain working folks
Plain not working folks
Management types that have had insurance as a perk
Government employee health care systems
- Government workers and retired
Public safety (paramedics, first responders, etc)
Government aid providers and recipients
Wellness operations

Each one of these has a horse in the race. Some are fast horses, others rather large and obese but run on special tracks for the financially endowed.

Take 300 million people. Add in a sucky economy. Sprinkle in trade organizations liberally. Spice with disinformation/propaganda units. Bake in the oven of Congress and the Executive Branch.

This is one ugly fruit cake we're baking here. I wish Obama luck. I wish us luck, too.

2009-09-06 18:58:41

Tell The Truth [Member] said:

Dan, if any doctor in Indiana quits practicing because of medicla malpractice insurance premiuims, then he/she practices with multiple claims, or has other reasons for quitting. They're feeding you a line. A relative practices in North Carolina, and he freely admits Indiana and Utah are the nation's best states for malpractice caps and insurance premiums.

The problem is not lawyers. It's mistakes that rob patients of vital functions, or even life.

Doc Bowen cost us plenty, in this law, and in the ridiculous property tax system. Under Doc, the Property Tax Replacement Fund was created. This inane Fund was established to be the repository of the state's (then-) doubled sales tax revenue, most of which was to be allocated to Property Tax Relief.

PTRF still exists, as an artificial cover-up for inept tax policy that was finally declared unconstitutional by a state judge. It was created as a buy-off for the Farm Bureau and similar interests, which were heavily in Doc's back pocket, or vice-versa.

Tax policy wasn't Doc's forte. Neither was malpractice law. But hell, at the time, the chairman of the Senate's committee that oversaw nursing home regulations, was Dick Miller, Republican from Plymouth, who owned--you guessed it--over two dozen nursing homes.

Responsible medical malpractice caps are smart. Try to support a parapelegic on $1.2 million gross (before attorney's fees are deducted)--over a lifetime. You'd better hope no other health problems arise.

The furor over attorneys' fees, while sometimes well-earned, should not outweigh the benefit for wronged plaintiffs. Many of whom have a long lifetime of no income, and huge medical debt.

But hell no, our health care system doesn't need reformed!

2009-09-08 13:31:09

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