Plank v. Community Hospitals of Indiana, Inc.

BAKER, Judge,

concurring and dissenting.

I agree with the majority’s conclusion that the trial court did not err in giving the instruction regarding Community Hospital’s (Community) liability for the negligence of independent contractors. And I agree with the rationale that a plaintiff is generally entitled to an evidentiary hearing regarding a constitutional challenge to the statutory cap on medical malpractice awards. Indeed, a change in circumstances may well justify reconsideration of a prior determination of constitutionality under Article I, Section 23 of the Indiana Constitution. Collins v. Day, 644 N.E.2d 72, 81 (Ind.1994).

In this case, Plank might be required to present evidence to sustain his burden of showing that changes in circumstances would warrant the reversal of existing case law; however, I am compelled to agree with the trial court’s initial determination that Plank waived his constitutional arguments as to the reduction of the verdict in this instance. The record reflects that since the inception of the malpractice claim in 2003, Plank has known that the statutory cap would be applied if he received a jury verdict that exceeded $1,250,000. Community’s motion to reduce the jury *741verdict was squarely and clearly presented in open court after the verdict was read. And this is not a case where Community’s request for the reduction in damages was hidden or entangled with other issues in the case.

Plank did not present any evidence, make argument, or otherwise make an effort to challenge the statutory cap during the two-week trial. Moreover, when Community moved to reduce the jury’s verdict, Plank did not object. In fact, Plank consented to the trial court’s directive to prepare a corresponding entry of judgment with regard to the reduced verdict. Appellant’s App. p. 10.

In my view, Plank could and should have moved for a declaratory judgment, or otherwise placed Community and the trial court on notice that he intended to challenge the constitutionality of the statutory cap on damages at some point prior to or during the trial. See Combs v. Tolle, 816 N.E.2d 432, 435 n. 3 (Ind.Ct.App.2004) (holding that challenges to the constitutionality of a civil statute may be waived if they could have been raised to the trial court but were not). Community would have been afforded the opportunity to challenge the amount of damages at trial and, depending on the resolution of the issue before the trial commenced, future litigation regarding various aspects of the damages might very well have been avoided.

In sum, because Plank could have challenged the constitutionality of the statutory damages cap either before or during trial, but he did not, I believe that he has waived his constitutional arguments. As a result, Plank should not be permitted to advance those arguments at a subsequent hearing.