John Green v. Stephen Robertson, Commissioner, Indiana Department of Insurance , 2016 Ind. App. LEXIS 219 ( 2016 )

FILED
Jul 05 2016, 10:38 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Nathaniel Lee James F. Bleeke
Lee & Fairman, LLP Bleeke Dillon Crandall
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John Green, July 5, 2016
Appellant-Petitioner, Court of Appeals Case No.
49A02-1509-MI-1487
v. Appeal from the Marion Superior
Court
Stephen Robertson, The Honorable John M.T. Chavis,
Commissioner, Indiana II, Judge
Department of Insurance, Trial Court Cause No.
Appellee-Respondent. 49D12-1412-MI-40514
49D05-1412-MI-40514
Robb, Judge.
Case Summary and Issues
[1] John Green filed a petition for excess damages from the Indiana Patient’s
Compensation Fund (“PCF”) after settling a medical malpractice claim against
Health and Hospital Corporation of Marion County d/b/a Wishard Memorial
Hospital (“Wishard”) and Emergency Medical Group, Inc. (“EMG”). The trial
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court awarded Green an additional $300,000.00. Green appeals, raising several
issues, which we consolidate and restate as whether the findings and judgment
of the trial court are clearly erroneous. Concluding the trial court’s findings and
judgment are not clearly erroneous, we affirm.
Facts and Procedural History
[2] Around 2:00 a.m. on March 29, 2008, Green lost control of his legs and fell in
his bedroom. Green was also experiencing ringing in his ears, headache,
nausea, and vomiting. Once Green realized he could not get up from the floor,
he told his fiancée, Elaine Wise, to call 911. Fire department records indicate
an ambulance was dispatched at 2:28 a.m. and arrived at Green’s home at 2:35
a.m. Green’s “chief complaint” was listed as “vomiting/weakness” and the
paramedic’s notes indicate Green complained of “nausea, vomiting, weakness,
lightheadedness starting approx 3 hrs prior.” Appellee’s Appendix at 19. The
ambulance departed at 2:45 a.m. and transported Green to Wishard, arriving at
3:00 a.m. Emergency room records indicate Green’s condition was assessed
“non-urgent.” Id. at 24.
[3] At approximately 3:30 a.m., Wise called Green’s daughter, Geneisha Berry, to
inform Geneisha of her father’s condition. Geneisha immediately called her
brother, John Berry, and both children set out for Wishard. Green was first
examined by a physician at 4:30 a.m., and his children arrived between 4:00
and 5:00 a.m. Geneisha and John recall their father was experiencing
numbness and loss of motor function on the left side of his body, drooping on
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the left side of his face, headache, and difficulty speaking. Yet, Wishard staff
did not document any of these symptoms, all of which indicated Green was
experiencing a stroke. Dr. Becky Doran ordered an abdominal x-ray to
evaluate Green’s gastrointestinal symptoms, but the results were
“unremarkable.” Id. at 134. Dr. Jeff Hamman ordered an electrocardiogram to
determine whether Green was experiencing a heart attack; he was not.
Ultimately, Green was diagnosed with nausea and vomiting and prescribed an
anti-nauseant.
[4] Dr. Jordan Schmitt discharged Green from Wishard at 12:51 p.m. Geneisha
and John recall their father could not stand on his own when he was discharged
and had to be lifted into a wheelchair in order to leave the hospital. When they
reached Wise’s car in the parking lot, John had to lift him again. Once John
lifted Green and placed him in the vehicle, Green was unable to pivot his body
to face forward in the seat; John had to pick up his limbs, turn him, and place
his limbs inside the vehicle. When Green arrived home, John lifted Green out
of the vehicle and helped Green walk to the door. Green was unable to move
his left side, so John was “carrying that half of him.” Id. at 62. Green “was
actually feeling worse” than when he arrived at Wishard earlier that day. Id. at
46. His condition did not improve:
Q. Okay. Were you still having problems when you left
Wishard Hospital?
A. Yes.
Q. So the problems that you had that took you to Wishard
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Hospital never got better?
A. No.
Q. They just continued?
A. Uh-huh. And got worse.
Id. at 172 (Deposition of John Green); see also Plaintiff’s Exhibit 12 (Answer to
Dr. Doran’s Interrogatory No. 12, in which Green states, “My condition got
worse after being released from Wishard Hospital.”).
[5] On March 30, 2008, Green’s friend and former physician, Dr. Earnest Berry,
stopped by to visit Green. Dr. Berry suspected Green had suffered a stroke:
When I got to his house, I went in and he was in a chair facing
the wall. I came from the back. And when I said “John” . . . he
tried to turn around, and I went in front of him and I noticed that
he had slurred speech, he couldn’t get up with[out] help, and he
had upper extremity – left upper extremity – I think at that time
the left upper extremity wasn’t moving. And at that point I
thought maybe it was a stroke . . . . His wife was there and his
daughter was there and I asked them what had happened and
they told me . . . he had gone to Wishard the night before and
that was it. So I said let’s get him to the hospital.
Appellee’s App. at 183. Green was admitted to St. Vincent Hospital (“St.
Vincent”) around noon. Dr. Mark Janicki concluded Green did suffer a stroke:
[Green] is a 56-year-old gentleman who had been seen at
Wishard Hospital [the day] before this admission. He presented
with severe dizziness, nausea and trouble walking. He was
released after nothing acute was found. He was reevaluated in
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our Emergency Room, again, with nausea and difficulty walking
and now with a left facial droop. He is also experiencing slurred
speech. . . . An MRI scan performed . . . showed an acute left
cerebellar stroke and a right occipital stroke. . . .
Id. at 30 (St. Vincent Discharge Summary). Green was released from St.
Vincent on April 4, 2008, and transferred to Rehabilitation Hospital of Indiana
for physical, occupational, and speech therapies. He was released to go home
several weeks later but subsequently required two surgeries because his left
eyelid no longer closed on its own, resulting in permanent corneal scarring.
[6] On February 19, 2010, Green filed a proposed complaint with the Indiana
Department of Insurance against Wishard, Dr. Hamman, Dr. Schmitt, and Dr.
Doran. On December 9, 2014, the parties reached a settlement, which provided
Wishard and EMG would pay Green a structured settlement totaling
$250,000.00.1 On December 11, 2014, Green filed a petition for excess
damages from the PCF, which alleged in relevant part:
5. Plaintiff John Green presented to the Emergency Room at
[Wishard] on March 29, 2008 with facial drooping and
inability to stand up and maintain his balance and was
discharged after being evaluated by agents of Wishard for
which the hospital is vicariously liable . . . .
6. John Green was admitted the following day to St.
Vincent’s Hospital for a stroke and has residuals from the
stroke.
1
The nature of EMG’s involvement and liability in this matter is unclear from the record.
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7. Defendants breached and violated their duty to Plaintiff
John Green in one or more of the following ways:
a. They failed or refused to adequately
assess/evaluate/treat John Green’s condition.
8. As a direct and proximate result of the negligence and/or
medical malpractice of Defendants, Plaintiff John Green
was injured.
Appellant’s Appendix at 7. At the excess damages stage, Green maintained he
was experiencing a transient ischemic attack (“TIA”) when he arrived at
Wishard, subsequently experienced an acute ischemic stroke, and was injured
by the physicians’ failure to administer tissue plasminogen activator (“tPA”), a
clot-busting drug used to treat strokes.2 He requested the trial court award
$1,000,000.00 in excess damages. The PCF maintained Green was fully
compensated by the underlying settlement.
[7] A bench trial was held on June 19, 2015. The trial court admitted into evidence
the depositions of Green, Green’s children, physicians who treated Green, and
a United Auto Workers Union (“UAW”) representative. The PCF called Dr.
Kevin Puzio, a neurologist, as an expert witness. Green called Dr. Debra
2
By contrast, in his Submission of Evidence to the Department of Insurance, Green maintained,
Green was denied the rapid response for his ischemic stroke during the so called “golden
window” of opportunity for effective treatment which is the key to minimizing the effects of a
stroke; this was due to the misdiagnosis of his condition by the Wishard Hospital Emergency
Department staff. . . . If a stroke is promptly and correctly diagnosed, lasting damage can often
be avoided by the administration of blood thinning/clot dissolving medication . . . . [B]y the
time he was treated at St. Vincent Hospital the next day, it was too late.
Pl.’s Ex. 24.
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Carter-Miller, his primary care physician; Dr. Claude Anderson, his
optometrist; and Michael Blankenship, a vocational rehabilitation expert. On
June 29, 2015, the trial court entered its findings and conclusions and awarded
Green an additional $300,000.00 in damages. The trial court’s findings
included the following:
1. This case arises from the alleged injuries Mr. Green
experienced following a stroke on March 29, 2008, which were
caused by the failure of doctors and staff at [Wishard] to
diagnose Mr. Green’s stroke and treat him with [tPA], a
medication that reduces clotting factors in an effort to break up or
eliminate clots in affected arteries.
***
6. At Wishard Hospital, Mr. Green experienced left-sided
numbness, drooping facial features, loss of motor function, and
could not speak. Mr. Green’s children, John Berry and Geneisha
Berry, visited him at Wishard Hospital, and stated that he was
almost falling out of bed, was not making sense when he tried to
speak, and could not walk.
7. Time is of the essence in assessment of emergency conditions
and there was a “Golden Window” of three (3) hours to
administer tPA, so that critical time was lost.
***
10. Wishard Hospital staff observed Mr. Green and diagnosed
him with vomiting and discharged him that day without
diagnosing his stroke or providing treatment with tPA.
11. The Wishard Hospital records did not document Mr.
Green’s neurologic findings. Dr. Puzio explained that the
physicians and staff at Wishard Hospital apparently had
incorrectly focused on a gastrointestinal problem, and had
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negligently failed to document Mr. Green’s neurologic symptoms
of a stroke. Thus, Dr. Puzio placed greater weight upon the
history provided by Mr. Green and his children, which explained
that Mr. Green could not walk or talk coherently throughout the
time he was at Wishard Hospital. The Court concludes that the
factual testimony of Mr. Green and his children detailing Mr.
Green’s symptoms of inability to walk or talk, and of left-sided
weakness are more reliable than the Wishard Hospital Chart,
which fails to document anything about Mr. Green’s neurologic
status.
12. Mr. Green returned home and continued to experience left-
sided numbness affecting his face, arms and legs, the loss of
control of his legs, difficulty speaking, and difficulty moving.
***
14. Dr. Berry went to Mr. Green’s home and examined him.
Dr. Berry opined that Mr. Green experienced a stroke-in-progress
when he initially presented to Wishard Hospital. Dr. Berry
testified that Mr. Green was not experiencing a transient
ischemic attack (“TIA”) because his symptoms were continuous
and did not resolve with time . . . .
15. Mr. Green was admitted for additional treatment at St.
Vincent at approximately 12:20 p.m. on March 30, 2008, and
was treated by Dr. Mark Janicki, a board certified neurologist.
Dr. Janicki testified that Mr. Green was suffering from a stroke in
his basilar artery that affected his left cerebellum and right
occipital lobe. Symptoms associated with this type of stroke
include incoordination of left side, right side vision problems,
double vision, slurred speech, and facial droop. These symptoms
develop very quickly after the stroke begins.
16. Dr. Janicki testified that tPA was the only thing we have to
treat ischemic strokes and that in 90 days, 39% of patients who
had tPA did better than those who did not receive it.
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17. Dr. Janicki is . . . familiar with tPA and agrees that it does
not always work. He testified that “people don’t miraculously
get better after tPA is delivered.” Dr. Janicki also testified that
he cannot say whether Mr. Green would have had a better
recovery if he had received tPA.
18. As a result of his stroke on March 29, 2008, Mr. [G]reen
experiences hearing loss in his left ear, difficulty with balance and
coordination, and . . . numbness.
19. Mr. Green was hospitalized at St. Vincent for several days
and referred to physical therapy as a result of his March 29, 2008
stroke. Dr. Debra Carter-Miller, Mr. Green’s treating family
physician, testified that even if Mr. Green had been promptly
given tPA, his ongoing care would have been very similar to
monitor the progress of his recover[y] after his stroke. Dr.
Carter-Miller opined that all stroke patients are initially
hospitalized for one or two days in the Intensive Care Unit;
patients are then transferred to the hospital floor for several more
days of observation; finally, patients are sent to rehabilitation for
therapy and recovery. Dr. Kevin J. Puzio, a board-certified
neurologist, agreed with this pattern of care for stroke patients,
stating that even with successful tPA treatment, recovery and
therapy for a stroke requires extensive hospitalization and
rehabilitation therapy.
20. Dr. Puzio examined Mr. Green on May 6, 2015, at the
request of the PCF and also reviewed Mr. Green’s medical
records and interpreted his CT scans and MRI’s. Dr. Puzio
stated that the tPA is a thrombolytic that attempts to dissolve
clots and restore blood flow to blocked arteries. Dr. Puzio
explained that tPA is most effective in treating relatively small
clots in small arteries. It is less effective in clearing blockages in
medium-sized and larger arteries, such as the basilar and
vertebral arteries that were involved in Mr. Green’s stroke.
21. Dr. Puzio opined that on March 29, 2008 Mr. Green
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experienced an acute stroke that resulted from a blood clot in his
basilar artery, which is a medium-sized artery that feeds his brain
stem in the back of his neck. The clot in Mr. Green’s basilar
artery then broke off and caused a clot in his posterior cerebral
artery, which is a smaller artery feeding his occipital lobe.
Symptoms associated with this type of stroke include nausea,
vomiting, and incoordination.
22. Dr. Puzio opined that Mr. Green did not experience a
transient ischemic attack, because his stroke symptoms never
resolved, as evidenced by the testimony of Mr. Green and his
two children, who all testified that he could not walk and had
facial drooping and difficulty speaking throughout his time at
Wishard Hospital. Mr. Green’s acute stroke is what prompted
him to seek treatment at Wishard on March 29, 2008, (and thus,
it preceded the medical negligence at issue in this case.)
23. Dr. Puzio noted that Mr. Green’s CT scan and MRI revealed
that he had experienced several micro-strokes before his acute
stroke on March 29, 2008. These small, old strokes were not
transient ischemic attacks, because they resulted in permanent
damage to Mr. Green’s brain. Dr. Puzio opined that these prior
micro strokes resulted in reduced brain tissue reserve that made a
full recovery medically improbable, even with prompt
administration of tPA therapy. Dr. Puzio also explained that the
moderate blockage of Mr. Green’s basilar artery and the previous
small strokes demonstrate a history of “very chronic undertreated
hypertension.”
24. Dr. Puzio opined that if Mr. Green had received tPA in a
timely manner, he would have likely regained additional function
in the area of the brain that receives blood supply from the
posterior cerebral artery. A decreased infarction of Mr. Green’s
posterior cerebral artery likely would have primarily improved
his balance and coordination. Dr. Puzio stated that the [b]rain
stem which receives blood supply from the larger basilar artery
would be unlikely to have been significantly improved with tPA
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therapy. Thus, Mr. Green’s hearing and ability to assimilate and
work around moving objects would be unlikely to have been
improved with tPA treatment. Overall, Mr. Green’s symptoms
likely would have improved as follows:
A. Mr. Green’s double vision, loss of motor control, and
balance problems would be slightly improved, but would
not likely have returned to normal;
B. Mr. Green’s hearing loss would not have been
improved;
C. Mr. Green would still be expected to have some
deficits based on the distribution of his stroke; and
D. Mr. Green likely would continue to have significant
fatigue and stamina issues for years.
25. Dr. Puzio testified it is rare that a stroke patient returns to
and continues a full-time job after a stroke due to fatigability and
trouble maintaining focus. Dr. Puzio testified that he would not
have released Mr. Green to return to work in the auto industry
after his stroke because of safety concerns. The Court
acknowledges that Mr. Green continues to be so fatigue[d] that
he fell asleep during the damages hearing on June 19th. Thus,
the Court agrees that Mr. Green’s fatigue and lack of stamina
would probably prevent Mr. Green from performing most jobs.
Dr. Puzio explained that fatigue problems would have been an
issue for Mr. Green even if he had been treated successfully with
tPA.
26. Dr. Puzio acknowledges that it is not possible to predict
exactly what Mr. Green’s precise recovery would have been if he
had been successfully treated with tPA. However, Dr. Puzio
stated that he could use his 30 years of experience treating
thousands of stroke patients, his review of the statistics in the
medical literature, and the location and extent of Mr. Green’s
presenting stroke symptoms to state to a reasonable degree of
medical probability that Mr. Green would have still had
substantial deficits that would prevent him from returning to
work even with successful tPA therapy.
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27. The seventh nerve palsy was documented in the assessment
of John Green on 3-31-08 at St. Vincent Hospital for the first
time and Dr. Claude Anderson testified that this medical
condition usually develops within 1 hour – a short period of time
following a stroke. To treat [Green’s] condition, the surgical
procedure resulted in a gold bar being placed in his eyelid to
assist in closure. The patient is required to engage in regular
treatment on his eyes for the remainder of his life on a daily
basis.
28. Dr. Anderson opined that John Green sustained permanent
corneal scarring and will require being seen two times a year for
his lifetime and will require ointment and lubricants.
29. Mr. Green must tape his eye closed every night or this can
lead to further corneal scarring and can lead to blindness.
30. Mr. Green can drive himself in his own vehicle, but he
normally only drives short distances, and does not drive at night
due to vision limitations. These limitations have caused him to
lose a portion of his freedom.
31. Mr. Green’s talents and abilities to play golf have been
greatly diminished by the negligence of Wishard.
32. Mr. Green currently walks without assistance of a cane,
walker or other assistive device; however, his balance has still
been diminished by the stroke.
33. On February 28, 2007, Mr. Green, at the age of 57, accepted
a buyout package from his employer, Ford Motor Company.
***
35. Mr. Green did not work at any job that produced income for
thirteen months up to the time of his stroke on March 29, 2008
....
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36. Mr. Green told his vocational rehabilitation expert, Michael
Blankenship that he hoped to return to Purdue University to
complete his engineering degree and then obtain a master’s
degree to start his own engineering company. . . .
37. Mr. Blankenship stated that it would be unrealistic for Mr.
Green to work in the auto industry and pursue his dream of
completing his education at Purdue.
38. Mr. Green offered the testimony of [a UAW representative],
who stated . . . very few people were being hired into the auto
industry in 2008 and 2009 due to the significant economic
downturn . . . .
***
41. Mr. Green testified that he intended to invest in real estate
following his elective retirement. In the 13 months after he left
Ford, Mr. Green attended real estate seminars around the
country.
42. Mr. Green then purchased two residential properties after his
injury on March 29, 2008 . . . .
43. Mr. Green also testified that he had many “back-up plans”
following his buyout. He volunteered for a political campaign
and hoped to work for his candidate in Washington D.C., but his
candidate lost the election. Mr. Green also “dreamed of”
opening a bookstore. Mr. Green also hoped to make some
money playing golf leisurely.
Id. at 29-38 (citations omitted).
[8] Based on these findings, the trial court concluded Green was entitled to
additional compensation from the PCF:
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7. The Court after looking at all expenses to Mr. Green’s eye and
the expenses he will incur in the future to keep his eye from going
blind calculated a total of $167,842.94. However, Dr.
Anderson’s testimony at the hearing showed this is a very
common condition of stroke patients and therefore Mr. Green’s
compensation for his damage should be reduced. The Court
determined Mr. Green should only receive thirty-nine percent of
the total eye cost because this was the chance of recovery if Mr.
Green had properly been treated with tPA at Wishard Hospital.
Therefore, Mr. Green will receive $65,692.75 for the damage to
his eye from Wishard’s negligence.
***
9. The evidence established that Mr. Green would have suffered
from fatigue, stamina issues, and some level of physical deficits
from his stroke even with successful tPA treatment. Those
limitations more likely than not would have prevented Mr. Green
from returning to work as an assembly line operator.
10. Even if Mr. Green had been physically capable of returning
to work, the automobile industry was in an economic downfall in
2007 through 2009, and into 2010. There is no evidence that any
auto company was hiring[,] to the extent that Mr. Green had
viable job prospects in the auto industry during that time.
11. The Court after taking all these factors into consideration for
possible job opportunities after Mr. Green’s buyout, finds Mr.
Green is not entitled to [compensation for] lost earning capacity
because he still would have experienced a stroke which would
have highly impaired his capabilities to work. The Court also
concludes Mr. Green had not taken sufficient affirmative steps to
seek employment prior to his stroke to make any future earnings
anything more than speculation. However, the court takes these
“back-up plans” into consideration when figuring Mr. Green’s
loss of enjoyment of life.
12. Mr. Green also may not recover economic damages for lost
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real estate investments. No evidence supports Mr. Green’s claim
that he lost real estate investments as a result of his injury. Mr.
Green’s own testimony established that at the time of the
underlying negligence, he owned no real estate investment
properties. All investments were purchased after his injury
without any evidence that Mr. Green’s physical disabilities
affected his ability to make such investments or affected the
income generated from those investments. . . . Thus, this claim
for loss of real estate investment income is speculative and not
related to Mr. Green’s injury.
13. Mr. Green has experienced significant decrease in function
due to the negligent treatment, which adversely affects Mr.
Green’s ability to enjoy life. The Court recognizes the severe
effect Wishard’s negligence had on Mr. Green’s golf game, which
gravely reduces Mr. Green’s enjoyment of life because golf has
always been a major portion of his life. . . .
14. Wishard’s negligence has also caused Mr. Green to live an
extremely restricted lifestyle. Mr. Green can no longer travel like
he once could and his daily activities are limited to a certain
parameter from his house. . . .
15. The Court finds that Mr. Green’s damages for the
aggravation of his condition, the injury associated with the
corneal scarring, pain and suffering, and loss of enjoyment of life
are $550,000.00. After giving the [PCF] full credit for the
$250,000.00 paid by the health care provider, this court finds that
Mr. Green is entitled to an additional award of $300,000.00.
Id. at 39-42 (citations omitted).
[9] Green promptly filed a motion to correct error, arguing the trial court erred by
awarding only $300,000.00 in additional compensation. The trial court denied
the motion, and this appeal followed.
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Discussion and Decision
I. Standard of Review
[10] The trial court in this case entered special findings of fact and conclusions
thereon pursuant to Indiana Trial Rule 52(A). In reviewing a judgment based
on such findings, we must first determine whether the evidence supports the
findings and then determine whether the findings support the judgment.
Atterholt v. Robinson, 872 N.E.2d 633, 638-39 (Ind. Ct. App. 2007). “[T]he court
on appeal shall not set aside the findings or judgment unless clearly erroneous,
and due regard shall be given to the opportunity of the trial court to judge the
credibility of the witnesses.” Ind. Trial Rule 52(A). “Findings are clearly
erroneous only when the record contains no facts to support them either
directly or by inference.” Randles v. Ind. Patient’s Comp. Fund, 860 N.E.2d 1212,
1219 (Ind. Ct. App. 2007) (citation omitted), trans. denied. A judgment is clearly
erroneous if it applies the wrong legal standard to properly found facts. Johnson
v. Wysocki, 990 N.E.2d 456, 460 (Ind. 2013). “In either case, we must be left
with the firm conviction that a mistake has been made.” Id. (citation and
internal quotation marks omitted). When the specific issue on appeal relates to
the award of damages, we will affirm the damage award if it was “within the
scope of the evidence before the trial court.” Smith v. Washington, 734 N.E.2d
548, 550 (Ind. 2000). In conducting our review, we consider only the evidence
favorable to the judgment and the reasonable inferences to be drawn therefrom.
Samples v. Wilson, 12 N.E.3d 946, 950 (Ind. Ct. App. 2014). We do not reweigh
the evidence. Id.
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II. Increased Risk of Harm
[11] Under the Indiana Medical Malpractice Act, the total recovery in a medical
malpractice action is limited to $1,250,000.00. Ind. Code § 34-18-14-3(a)(3).
The liability of a qualified health care provider is limited to the first $250,000.00
in damages. Ind. Code § 34-18-14-3(b). If a judgment fixes damages in excess
of the health care provider’s liability, the patient may recover damages from the
PCF. Ind. Code § 34-18-14-3(c). Recovery of excess damages from the PCF is
allowed only after the health care provider has paid the first $250,000.00, Ind.
Code § 34-18-15-3, or agreed to a settlement in which the present payment of
money and the cost of future payments exceeds $187,000.00, Ind. Code § 34-18-
14-4(b).
[12] In a suit to recover excess damages from the PCF following a settlement, “the
court shall consider the liability of the health care provider as admitted and
established.” Ind. Code § 34-18-15-3(5). Nonetheless, if the information is
relevant to determining the appropriate amount of damages, the PCF may
introduce evidence of a patient’s preexisting risk of harm. Atterholt v. Herbst,
902 N.E.2d 220, 220-21 (Ind. 2009), clarified on reh’g, 907 N.E.2d 528 (Ind.
2009). Our supreme court recently clarified when such evidence is relevant in
Robertson v. B.O., 977 N.E.2d 341 (Ind. 2012). Before addressing B.O., however,
a brief review of the increased risk of harm doctrine is in order.
[13] A plaintiff generally must prove each of the following elements in a medical
malpractice case: (1) the physician owed a duty to the plaintiff; (2) the physician
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breached that duty; and (3) the breach proximately caused the plaintiff’s
injuries. Cutter v. Herbst, 945 N.E.2d 240, 247 (Ind. Ct. App. 2011). A plaintiff
who proves each of these elements “may recover damages for all injuries the
defendant proximately caused.” Ind. Dep’t of Ins. v. Everhart, 960 N.E.2d 129,
135 (Ind. 2012). In Mayhue v. Sparkman, 653 N.E.2d 1384 (Ind. 1995), our
supreme court recognized the plight of patients who stood a 50% or worse
chance of recovery prior to encountering a physician’s negligence:
Where a patient’s illness or injury already results in a probability
of dying greater than 50 percent, an obvious problem appears.
No matter how negligent the doctor’s performance, it can never
be the proximate cause of the patient’s death. Since the evidence
establishes that it is more likely than not that the medical
problem will kill the patient, the disease or injury would always
be the cause-in-fact.
Id. at 1387.
[14] In Mayhue, Mr. Sparkman filed suit for loss of consortium after a physician
negligently failed to diagnose his wife’s cervical cancer. The Medical Review
Panel believed the physician did not satisfy the standard of care but concluded
his inadequate care was not the proximate cause of Mrs. Sparkman’s death.
The parties agreed that even if the physician had earlier diagnosed Mrs.
Sparkman, she had a less than 50% chance of recovery. Even so, the trial court
denied the physician’s motion for summary judgment. The physician appealed,
and our supreme court affirmed the trial court’s denial, adopting the approach
set forth in Restatement (Second) of Torts § 323 (1965):
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One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for
the protection of the other’s person or things, is subject to liability
to the other for physical harm resulting from his failure to
exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of
such harm . . . .
Mayhue, 653 N.E.2d at 1388-89. The court did not address the issue of
damages.
[15] In Cahoon v. Cummings, 734 N.E.2d 535 (Ind. 2000), two physicians
misdiagnosed a patient’s esophageal cancer. Following the patient’s death, the
patient’s wife filed suit against the physicians. Both physicians admitted their
respective breaches of duty to the patient but denied their breaches proximately
caused the patient’s injuries. At trial, all experts agreed the patient would
probably not have survived, even if he had been properly diagnosed and treated,
but the patient’s expert testified the patient would have had a 25 to 30% chance
of survival with proper diagnosis and treatment. The trial court instructed the
jury that the physicians would be liable for full damages if the jury determined
their actions were a “substantial factor” in the patient’s death. Id. at 540. The
jury found in favor of the patient’s wife and awarded her $269,000.00. The
physicians appealed, and our supreme court held, “[U]pon a showing of
causation under Mayhue, damages are proportional to the increased risk
attributable to the defendant’s negligent act or omission.” Id. at 541.
“[D]amages for such a claim are to be measured in proportion to the increased
risk, and not by the full extent of the ultimate injury[,]” the court explained. Id.
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at 538. And because the jury was instructed to award full damages if the
defendants’ conduct was a “substantial factor” in the patient’s death, the degree
of increased risk was not quantified. Id. at 541. Accordingly, the court reversed
the judgment and remanded the case for a new trial.
[16] In Herbst, 902 N.E.2d 220, a physician misdiagnosed fulminant myocarditis as
pneumonia, and the patient died. The patient’s estate brought a wrongful death
action against the physician and the hospital and later entered into a settlement
agreement permitting access to the PCF. The estate filed a petition for excess
damages from the PCF, and a bench trial was held. Although the settlement
precluded the PCF from litigating the issue of causation, Ind. Code § 34-18-15-
3(5), the PCF “attempted to introduce expert testimony that even with proper
care, [the patient] had a less than ten percent chance of surviving the
hospitalization . . . .” Herbst, 902 N.E.2d at 222. The trial court excluded the
expert testimony and awarded the estate $1,000,000.00 in damages from the
PCF. The PCF appealed, arguing the trial court erred in excluding evidence
relevant to the valuation of damages. Our supreme court held when a plaintiff
seeks excess damages from the PCF after obtaining a settlement from a health
care provider in a medical malpractice case, the PCF may introduce evidence of
the patient’s preexisting risk of harm if it is relevant to establish the amount of
damages, even if it is also relevant to liability issues foreclosed by the judgment.
Id. at 220-21. Stated differently, even if a claim was settled, if recovery is
limited to damages for increased risk of harm, the PCF is entitled to introduce
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evidence of the patient’s underlying risk of harm to assist the factfinder in
determining the appropriate amount of damages.
[17] Finally, in B.O., 977 N.E.2d 341, our supreme court made clear its holding in
Herbst applies only in the context of increased risk of harm claims. In B.O., a
child was diagnosed with a mild form of cerebral palsy at the age of four. The
child’s parents filed suit against the health care providers who attended his
birth, alleging they “failed to adequately monitor his condition during labor and
delivery and then failed to respond when signs of fetal distress appeared.” Id. at
342. The health care providers agreed to a settlement permitting access to the
PCF. Thereafter, B.O.’s parents filed a petition for excess damages from the
PCF, and the PCF disclosed expert witnesses prepared to testify that B.O. either
does not have cerebral palsy—or if he does, the condition did not result from
the conduct of the health care providers at his birth. B.O.’s parents moved for
partial summary judgment to limit the issue at trial to the amount of damages
and exclude any evidence disputing the existence or cause of B.O.’s condition.
The trial court granted partial summary judgment in favor of B.O., and the PCF
appealed, arguing the evidence it sought to introduce was “not only relevant,
but necessary” to a determination of damages. Id. at 344. Our supreme court
held the PCF was not entitled to introduce evidence relevant to liability because
B.O.’s claim was not brought under Mayhue:
Herbst was necessarily limited to Mayhue increased risk of harm
claims because Cahoon established only the measure of damages
in cases involving a Mayhue claim. It is thus only in Mayhue
increased risk of harm claims that evidence of underlying risk
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would be relevant to both liability and to damages.
Unless a claim is brought under Mayhue, Herbst is inapplicable.
B.O.’s complaint does not allege an increased risk of harm, but
rather traditional negligence resulting in personal injury, and
therefore Herbst does not apply.
Id. at 347 (citations, internal quotation marks, and alteration omitted).
III. Green’s Damage Award
[18] The trial court awarded Green $300,000.00 in excess damages from the PCF
“for the aggravation of his condition, the injury associated with the corneal
scarring, pain and suffering, and loss of enjoyment of life . . . .” Appellant’s
App. at 42. Green contends the trial court’s findings are clearly erroneous
because he experienced a TIA in the Wishard emergency room, rather than a
stroke, and the administration of tPA could have prevented his stroke.3
Proceeding from these assertions, Green further contends he is entitled to the
statutory maximum in damages, that his medical malpractice claim was settled
on traditional negligence principles, and the trial court erred in reducing at least
a portion of his damages based on increased risk of harm principles. We
conclude the trial court’s findings and judgment are not clearly erroneous and
affirm the judgment awarding Green an additional $300,000.00.
3
We would note tPA is not used to treat TIAs. Appellee’s App. at 243 (Deposition of Dr. Puzio, in which
Dr. Puzio states, “If you have a TIA, you don’t use tPA.”)
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A. Findings of Fact
[19] Green contends the trial court’s findings are clearly erroneous for several
reasons, each of which amounts to a request for this court to reweigh the
evidence. First, Green insists the trial court “did not read” the depositions of
the Wishard physicians, which were admitted in their entirety at the bench trial.
Appellant’s Brief at 18, 27. This argument is disrespectful and entirely
unpersuasive, as the trial court’s thorough findings demonstrate its careful
consideration of all the evidence admitted at trial. The Wishard physicians
could not recall treating Green, but Green argues the trial court should have
given their testimony greater weight. Specifically, Green argues the fact that
they did not observe his neurological symptoms demonstrates he experienced a
TIA, the symptoms of which had resolved.4 In deciding to credit the testimony
of Green’s children and Green himself over the physicians—whose testimony
was based on records that failed to adequately document Green’s condition—
the trial court found, “the factual testimony of Mr. Green and his children
detailing Mr. Green’s symptoms of inability to walk or talk, and of left-sided
4
A TIA is a “transient event” often preceding a stroke. Appellee’s App. at 165. The stroke-like symptoms of
a TIA typically resolve within four hours, and the patient experiences no permanent brain damage as a result.
Id. at 165, 180. If the symptoms do not resolve and the patient suffers permanent brain damage, the patient
has experienced a stroke. Id. at 180. Determining whether a patient is experiencing a TIA or a stroke is a
matter of timing. As Dr. Puzio explained,
A TIA, by definition, has reversed. So . . . you can’t call it a TIA until after the event was either
cleared or completed. In which case, if it’s cleared, it’s a TIA. If it hasn’t cleared then it’s a
stroke. . . . You don’t know if it’s a TIA until after you get to the end point of whatever it’s
going to be . . . .
Id. at 243.
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weakness are more reliable than the Wishard Hospital Chart, which fails to
document anything about Mr. Green’s neurologic status.” Appellant’s App. at
31. The trial court as factfinder was entitled to weigh the evidence and credit
the testimony of certain witnesses over others, and we will not second guess its
determination.
[20] Green also argues he could not have experienced a stroke at Wishard because
his facial drooping was first documented at St. Vincent the following day.
Green relies on the testimony of his optometrist, Dr. Anderson, who stated
seventh nerve palsy causes facial drooping within an hour of a stroke. Given
the Wishard physicians’ total failure to document any of Green’s neurological
symptoms, we are not persuaded. Green’s children testified their father
exhibited facial drooping while he was in the emergency room at Wishard.
Likewise, in his petition for excess damages, Green stated he “presented to the
Emergency Room at [Wishard] on March 29, 2008 with facial drooping and
inability to stand up and maintain his balance . . . .” Appellant’s App. at 7
(emphasis added). We will not reweigh the evidence.
[21] Finally, in order to compute proportional damages in a medical malpractice
case, statistical evidence is admissible to determine the increased risk of harm
attributable to the defendant’s negligence. Cutter, 945 N.E.2d at 248. Green
argues the trial court’s findings are clearly erroneous because the trial court
credited Dr. Puzio’s “speculative” testimony on the effectiveness of tPA. As
our supreme court explained, once the admissibility of an expert’s opinion is
established under Evidence Rule 702, “the accuracy, consistency, and
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credibility of the expert’s opinions may properly be left to vigorous cross-
examination, presentation of contrary evidence, argument of counsel, and
resolution by the trier of fact.” Bennett v. Richardson, 960 N.E.2d 782, 786-87
(Ind. 2012) (citation and internal quotation marks omitted). Green
characterizes Dr. Puzio’s testimony as “pure speculation” based on
“probabilities and statistics” but does not challenge the admissibility of his
opinions under Evidence Rule 702. Appellant’s Br. at 27. Green points to no
evidence in the record contradicting Dr. Puzio’s evaluation, and all of the
physicians who testified to the effectiveness of tPA agreed stroke patients often
retain neurological deficits even after tPA treatment. Green’s own expert, Dr.
Carter-Miller, stated tPA is aimed at “mitigating the damage,” not “becoming
symptom free.” Appellee’s App. at 200. The trial court’s findings concerning
the effectiveness of tPA are not clearly erroneous.
B. Judgment
[22] The trial court concluded Green was entitled to an additional $300,000.00 “for
the aggravation of his condition, the injury associated with the corneal scarring,
pain and suffering, and loss of enjoyment of life . . . .” Appellant’s App. at 42.
The trial court did not award damages for lost earning capacity, and at least a
portion of the award was reduced to reflect the degree of risk attributable to the
defendants’ negligence:
The Court after looking at all expenses to Mr. Green’s eye and
the expenses he will incur in the future to keep his eye from going
blind calculated a total of $167,842.94. However, Dr.
Anderson’s testimony at the hearing showed this is a very
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common condition of stroke patients and therefore Mr. Green’s
compensation for his damage should be reduced. The Court
determined Mr. Green should only receive thirty-nine percent of
the total eye cost because this was the chance of recovery if Mr.
Green had properly been treated with tPA at Wishard Hospital.
Therefore, Mr. Green will receive $65,692.75 for the damage to
his eye from Wishard’s negligence.
Id. at 39-40.5
[23] Green contends the trial court’s judgment is clearly erroneous because the
underlying settlement was based on traditional negligence principles, not
increased risk of harm principles. He argues the claim must have been settled
on traditional negligence principles because he did not allege increased risk of
harm in the complaint. He also believes he is entitled to $1,000,000.00 in
excess damages. We disagree on both counts. Although liability was
established by the settlement, the settlement agreement did not specify the
theory of recovery. See Pl.’s Ex. 6. And we do not agree Green’s
characterization of the claim in the pleadings necessarily determines the proper
theory of recovery. Certainly plaintiffs would prefer to prove causation by
traditional means and thereby recover full damages, but in cases where the
patient stood less than a 50% chance of recovery prior to encountering medical
negligence, permitting the plaintiff to recover full damages “would hold doctors
5
It is unclear whether the trial court reduced any other portion of the damage award based on the probability
of a patient having minimal or no disability after receiving tPA.
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liable not only for their own negligence, but also for their patients’ illnesses,
which are not the product of the doctors’ actions.” Cahoon, 734 N.E.2d at 541.
[24] We acknowledge B.O. states Herbst did not apply because “B.O.’s complaint
does not allege an increased risk of harm,” but B.O. is readily distinguishable.
B.O., 977 N.E.2d at 347. In B.O., the malpractice claim arose from a
physician’s failure to adequately monitor and respond to signs of fetal distress
during labor and delivery, resulting in brain injury. B.O.’s parents filed a
malpractice claim, which the health care provider settled prior to trial.
Thereafter, when his parents filed a petition for excess damages, the PCF
disclosed expert witnesses who intended to dispute the existence or cause of
B.O.’s injury. Our supreme court held the PCF was not entitled to introduce
the testimony because it was evident B.O.’s claim sounded in traditional
negligence. Id. Because B.O. did not have a preexisting injury or condition
aggravated by medical negligence, the evidence the PCF proffered was not
relevant to the question of damages.
[25] By contrast, Green’s CT and MRI scans revealed he experienced several small
strokes prior to his acute ischemic stroke on March 29, 2008:
These small, old strokes were not transient ischemic attacks,
because they resulted in permanent damage to Mr. Green’s brain.
Dr. Puzio opined that these prior micro strokes resulted in
reduced brain tissue reserve that made a full recovery medically
improbable, even with prompt administration of tPA therapy.
Dr. Puzio also explained that the moderate blockage of Mr.
Green’s basilar artery and the previous small strokes demonstrate
a history of “very chronic undertreated hypertension.”
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Appellant’s App. at 34. And because Green’s symptoms on March 29, 2008,
never resolved, the medical experts agreed Green was experiencing a stroke in
the Wishard emergency room—a condition that preceded the negligence at
issue. Green maintains he was injured by the physicians’ failure to promptly
administer tPA, but tPA is not always effective. According to a study cited by
Dr. Janicki and Dr. Puzio, only 39% of patients who receive tPA within three
hours of a stroke have minimal or no disability three months later. In the same
study, 26% of patients who received a placebo also had minimal or no disability
three months later. Based on Green’s current disability, Dr. Puzio opined
Green would have had a one in eight (12.5%) chance of having minimal or no
disability if he had received tPA in a timely fashion at Wishard. Yet, the trial
court reduced only a portion of Green’s damage award, and only by 61%.6
[26] The trial court’s judgment is not clearly erroneous because the damage award
was within the scope of the evidence before the trial court. Where recovery is
limited to damages for increased risk of harm because the patient stood less
than a 50% chance of recovery prior to encountering the physician’s negligence,
the trial court may consider evidence of the patient’s underlying risk in order to
determine the appropriate amount of damages. “[D]amages for such a claim
are to be measured in proportion to the increased risk, and not by the full extent
of the ultimate injury.” Cahoon, 734 N.E.2d at 538.
6
The PCF makes the same observation but does not challenge the damage award in this case. See Brief of
Appellee at 24 n.1.
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Conclusion
[27] The trial court’s findings and judgment are not clearly erroneous. We therefore
affirm the judgment awarding Green $300,000.00 from the PCF.
[28] Affirmed.
Najam, J., and Crone, J., concur.
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