Emphatically rejecting the Indiana Solicitor General's argument that the constitutionality of a state cap on compensatory damages in medical malpractice cases was settled for all time when the Court upheld its constitutionality in a 1980 case, Johnson v. St. Vincent Hospital, the Indiana Supreme Court on January 15, 2013, held that plaintiffs who timely raise their constitutional objection are entitled to put on evidence in support of their arguments.  The cap originally limited all damages in medical malpractice cases to $500,000 and, after several amendments, now imposes a limit of $1.25 million.

The case argued by CCL's Robert S. Peck was brought after Debra L. Plank's doctors failed to diagnose an obstructed bowel that caused her death.  In 2009, a jury sustained her estate's charge that the doctors had committed malpractice and awarded compensatory damages of $8.5 million.  That verdict was reduced pursuant to the cap to $1.25 million.

The State of Indiana argued that the Johnson case "definitively settled" the cap's constitutionality. The Indiana Supreme Court unanimously held that was wrong.  Instead, the Court accepted CCL's argument that, whatever crisis conditions were deemed to have justified the cap in the 1970s, changed modern circumstances can render the cap unconstitutional today.  To that end, overruling a contrary trial court determination, the Court said plaintiffs may introduce evidence of how circumstances have changed and why the cap no longer fits its intended purposes.

Unfortunately, the decision will not help the Plank family.  The Court also found that, by not asserting their constitutional objection early enough in the case and thereby providing sufficient notice to the defendant that it might want to pursue a different trial strategy to avoid potential liability above the cap, the Planks had waived their constitutional objection. Other plaintiffs will instead have to undertake the constitutional challenge strategy that the Court approved in Plank.