Rucker, J.
In this medical negligence action the plaintiff sought an evidentiary hearing to challenge the constitutionality of the Medical Malpractice Act. The trial court denied the request. Concluding that the plaintiff forfeited his opportunity to conduct such a hearing we affirm the judgment of the trial court.
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In any event, the parties’ debate over whether Plank waived his constitutional challenge is somewhat misplaced. It is true that the core of Plank’s complaint is the constitutionality of the cap imposed on damage awards under the Act. But Plank’s more immediate argument is that the trial court erred in denying him an evidentiary hearing so that he could develop a record to support his constitutional challenges. Whether Plank has any right to such a hearing, and if so, whether he intentionally relinquished or abandoned this right, is subject to dispute. Regardless, we address whether Plank has forfeited the opportunity to conduct a hearing to develop his constitutional claim.
Unlike waiver, which involves the intentional relinquishment or abandonment of a known right, “forfeiture is the failure to make the timely assertion of a right[.]” Olano, 507 U.S. at 733. Under this doctrine “appellate courts may sua sponte find an issue foreclosed under a variety of circumstances in which a party has failed to take the necessary steps to preserve the issue.” Bunch v. State, 778 N.E.2d 1285, 1287 (Ind. 2002).
The record shows that by the time Plank’s medical malpractice complaint proceeded to trial this matter had been pending for nearly six years. Both sides had conducted extensive discovery and ultimately the trial lasted nearly two weeks generating a twelve-volume transcript. At no time prior to trial did Plank alert the trial court that he took exception to the cap imposed by the Act.
Plank counters that his first opportunity to raise a challenge to the cap was after the verdict, because until that time there was no way to know whether the damages would exceed the cap. See Amended Reply Br. of Appellant at 4-5. He argues that medical malpractice claims present daunting challenges for plaintiffs. Thus, according to Plank, “[w]hen the compensatory damages are artificially capped, as here, deciding to continue to slog on in a constitutional challenge that is likely to take years to resolve is not a decision that can be made lightly or quickly . . . .” Id. at 5-6 n.2.
We first observe it is certainly true that in a variety of contexts parties must make a number of strategic and tactical decisions concerning the prosecution or defense of their claims. And the risk/reward calculus may often dictate the more appropriate course of action. So, for example, in the medical malpractice context where pretrial discovery reveals that actual medical damages alone approach the statutory cap, it may be reasonable to assume that a verdict in favor of the plaintiff may exceed the cap. And thus among the strategic and tactical decisions a plaintiff must consider is whether to file a pre-trial motion challenging the cap imposed by the Act. Indeed in the case before us, although the record is not altogether clear, at oral argument Plank asserted the “damages here were almost entirely compensatory.” Oral Arg. Video Trans. at 43:31. And he acknowledged that “most of the $8.5 million verdict was in special[] [damages].” Id. at 46:50. Thus we reject Plank’s assertion that there was no way to know whether the damages would exceed the cap and hence the first opportunity to raise the issue was after the jury returned its verdict. Plank was well aware that the limitations of the cap applied to this case. And he certainly could have anticipated a motion to reduce the award in accordance with the cap in the event the jury returned an excess verdict.
In any event, not only did Plank fail to file a pre-trial motion challenging the cap and asserting a need for an evidentiary hearing to develop a record in this regard, but Plank also failed to make any such claim at any time prior to the jury verdict in this nearly two-week long trial. In fact when Community moved to reduce the jury award in accordance with the cap, Plank raised no objection and agreed to “prepare a proposed judgment for the court[.]” Tr. at 1353. It was not until eight days later that Plank objected to the reduction of the award and requested a hearing. This was too late. By that point Plank had forfeited any opportunity he otherwise may have been afforded to conduct an evidentiary hearing. In summary, Plank did not take the steps necessary to preserve his claim.
Conclusion
We affirm the judgment of the trial court.
Dickson, C.J., and David, Massa and Rush, JJ., concur.