ILNews

Medical malpractice judgment upheld by appellate court

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals has affirmed the $1.25 million judgment against a gastroenterologist after a patient brought a medical malpractice claim for a missed cancer diagnosis. The judges found the trial court didn’t abuse its discretion in excluding certain evidence.

In John Morse, M.D. v. Jeffrey Wayne Davis, No. 84A05-1103-CT-140, Dr. John Morse appealed the verdict against him – which had been reduced from $2.5 million to the statutory cap of $1.25 million – after a jury found he committed medical malpractice when he failed to order tests or diagnose colon cancer in patient Jeffrey Davis.

Davis visited Morse, who was his mother’s doctor when she had colon cancer, in 2004 complaining of nausea, upper stomach pain and occasional rectal bleeding. Morse performed some tests, but did not order a sigmoidoscopy or colonoscopy. A year later, Davis came back to have medication refilled before he moved to Arizona. Davis’ records don’t note his family history of colon cancer, that Davis reported rectal bleeding or that he reported any other symptoms at his follow-up visit. When Davis moved to Arizona, he visited another doctor, who performed a colonoscopy and found advanced stage four cancer in his bowel, lymph nodes and liver.

There was conflicting evidence as to whether Davis told Morse about his rectal bleeding and that his mother had colon cancer. At a pre-trial hearing, Davis moved to strike two defense witnesses – a doctor who saw Davis for unrelated medical treatment, and a nurse who wrote down Davis’ complaints during the follow-up office visit with Morse. Both would have supported Morse’s argument that Davis was contributorily negligent by not reporting his symptoms. Davis also moved to exclude from evidence a medical history questionnaire submitted to the Arizona doctor which did not indicate a family history of colon cancer. Davis testified that he couldn’t recall whether he or someone else filled the form out. He also moved to preclude any opinion from the medical review panel doctors stating that Morse complied with the standard of care. The jury was instructed on contributory negligence.

The COA found that Morse didn’t show that the trial court abused its discretion when it precluded testimony from his expert witnesses saying that they believed Davis had not advised Morse that his mother had a history of colon cancer despite Davis’ testimony to the contrary. The purpose of that testimony would have been to impeach Davis’ credibility on a critical issue of fact, namely, whether he had told Morse about his mother’s colon cancer, wrote Judge Edward Najam. A determination of Davis’ credibility was within the sole province of the jury, and the proffered testimony was prohibited under Evidence Rule 704(b). Likewise, Dr. Morse has not shown any abuse of discretion in the exclusion of the questionnaire or the testimony of the doctor and nurse, the judges concluded.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

ADVERTISEMENT