Gerald Hause, as Administrator of the Estate of Jon Michael Hause v. Indiana University Health, Inc. f/k/a Clarian Health (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Aug 11 2016, 8:31 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John P. Young Kelly J. Pitcher
Young & Young Adam R. Doerr
Indianapolis, Indiana Clendening Johnson & Bohrer,
P.C.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gerald Hause, as Administrator August 11, 2016
of the Estate of Jon Michael Court of Appeals Case No.
Hause, Deceased, 49A05-1511-CT-1946
Appeal from the Marion Superior
Appellant-Plaintiff, Court
The Honorable Timothy W.
v. Oakes, Judge
Trial Court Cause No.
Indiana University Health, Inc. 49D02-1111-CT-42819
f/k/a Clarian Health,
Appellee-Defendant.
Najam, Judge.
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Statement of the Case
[1] Gerald Hause (“Hause”), as Administrator of the Estate of Jon Michael Hause
(“Jon”), Deceased, appeals the trial court’s denial of his motion for judgment
on the evidence. Hause presents a single issue for our review, namely, whether
the trial court erred when it denied his motion for judgment on the evidence.
We affirm.
Facts and Procedural History
[2] On September 10, 2008, Jon sought medical treatment for nasal congestion and
right ear pain and drainage. Dr. Randall Strate diagnosed Jon with an ear
infection and prescribed an antibiotic and a medication to treat his cold
symptoms. On September 15, Jon telephoned Dr. Strate’s office to report that
he was still having symptoms of a head cold and was experiencing bloody
mucous coming out of his nose and mouth. Dr. Strate considered changing
Jon’s antibiotic but ultimately recommended giving the medicine a few more
days to work.
[3] During the early morning of September 21, Jon needed emergency medical
assistance and called for an ambulance. Jon was transported to Methodist
Hospital. Dr. Reagann McCreary examined Jon and noted that Jon: had had
an earache for two weeks; had been taking amoxicillin and Rondec for one and
one-half weeks; had surgery on his right ear ten years prior; had a fever, chills,
headache, weakness, and sore throat; and had purulent drainage from his right
ear. Dr. McCreary diagnosed Jon with an ear infection and prescribed a new
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antibiotic by injection, antibiotic ear drops, and pain medication. The
antibiotic Dr. McCreary prescribed provided “coverage for 24 hours[.]” 1 Tr. at
365.
[4] Dr. McCreary told Jon to follow up with his primary care physician the
following day. Jon was given written discharge instructions, signed by Dr.
McCreary, that included “Follow-Up Instructions” advising Jon to follow up
with Dr. Strate in “5 to 7 days.” Appellant’s App. at 49. A “Comments”
section advised Jon to “[f]ollow up with your primary doctor tomorrow. Take
the hydrocodone for pain—do not drive while taking this medication. Return if
you are not improving, you continue to have high fevers, or for any other
concerns.” Id. At the bottom of the instruction sheet was a paragraph stating
as follows:
I, Jon Hause, understand that the treatment that I have received
was rendered on an emergency basis only and is not meant to
take the place of complete care from a personal physician or
clinic. Furthermore I may have been released before all of my
medical problems were apparent, diagnosed, or treated. If my
condition worsens or I have new symptoms I have been
instructed to call my primary care physician or return to
Methodist Hospital Emergency Medicine and Trauma Center or
the nearest emergency center. I have read and understand the
1
Dr. McCreary was a resident physician at the time of the examination. Accordingly, an attending
physician reviewed Dr. McCreary’s notes and also examined Jon before he was discharged. The attending
physician signed Jon’s chart without making any changes.
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above, received a copy of this form and applicable instruction
sheets, and will arrange for follow-up care.
Id. Jon signed and dated that document.
[5] Jon did not see a doctor the next day as instructed. A few days later, on
September 24, Jon returned to work. But the following day, September 25, Jon
left work early because of an earache and headache. Jon did not seek
additional medical attention. On September 28, Jon was found dead at his
residence. It was later determined that Jon died due to an infection that spread
from his ear into his brain.
[6] On November 7, 2011, Hause filed a complaint for damages with the trial court
alleging that Indiana University Health, Inc., f/k/a Clarian Health (“IU”), Dr.
McCreary’s employer, was negligent in causing Jon’s death.2 At trial, IU
alleged that Jon’s complaint was barred by his contributory negligence. At the
close of IU’s presentation of evidence, Hause moved for judgment on the
evidence on IU’s affirmative defense, alleging that IU had failed to prove Jon’s
contributory negligence with expert testimony to a reasonable degree of medical
certainty. The trial court denied that motion. The jury then entered a general
verdict in favor of IU. This appeal ensued.
2
Hause was required to file a proposed complaint for damages with the Indiana Department of Insurance
under the Medical Malpractice Act. Hause has not provided us with a copy of that proposed complaint, so
we do not know when it was filed. We note that a medical review panel was convened, and a majority of
that panel concluded that IU was not negligent in providing medical care to Jon.
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Discussion and Decision
[7] Hause contends that the trial court erred when it denied his motion for
judgment on the evidence under Trial Rule 50. The applicable appellate
standard of review is well-established:
It is axiomatic that in reviewing the trial court’s ruling on a
motion for judgment on the evidence the reviewing court must
consider only the evidence and reasonable inferences most
favorable to the nonmoving party. Judgment on the evidence in
favor of the [the moving party] is proper when there is an absence
of evidence or reasonable inferences in favor of the [nonmoving
party] upon an issue in question. The evidence must support
without conflict only one inference[,] which is in favor of [the
moving party]. If there is any probative evidence or reasonable
inference to be drawn from the evidence or if there is evidence
allowing reasonable people to differ as to the result, judgment on
the evidence is improper.
Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048, 1051 (Ind. 2003) (emphasis
and citations omitted).
[8] On appeal, Hause contends, in effect, that he was entitled to judgment on the
evidence because IU did not present sufficient evidence to prove that Jon was
contributorily negligent in causing his own death. That argument assumes that
the only basis for the jury verdict was Jon’s contributory negligence. However,
the jury entered a general verdict, and it is well settled that a challenge to the
sufficiency of the evidence must demonstrate inadequate evidence under every
theory of liability, not merely one of many, before prejudice is established.
Picadilly, Inc. v. Colvin, 519 N.E.2d 1217, 1221 (Ind. 1988). In short, a general
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verdict will be sustained if the evidence is sufficient to sustain any theory of
liability. Id.[9] Because Jon’s alleged contributory negligence was not the exclusive basis on
which the jury’s verdict for IU might have been based—IU also argued and
presented evidence that it was not negligent on the merits of Hause’s
complaint—and because Jon does not challenge the sufficiency of the evidence
upon the alternative general negligence theory, we hold that the trial court did
not err when it denied Hause’s motion for judgment on the evidence.
[10] Affirmed.
Vaidik, C.J., and Baker, J., concur.
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