COA affirms $550,000 med mal verdict; denies appellate attorney fees

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A Lake Superior judge did not err when he allowed a witness to testify on behalf of the party bringing a medical malpractice complaint against a doctor nor in excluding the testimony of the doctor’s expert witness due to untimely disclosure, the Indiana Court of Appeals held Tuesday.

The estate of John E. Robinson won a $550,000 jury verdict in a medical malpractice complaint filed against Dr. John O. Carter. John Robinson saw Carter with complaints of stress. Carter performed a physical exam and diagnosed Robinson with severe stress and insomnia and prescribed two drugs. That afternoon, Robinson died.

His wife, Loretta, whom he was separated from at the time of his death, hired Dr. James Bryant to perform an autopsy. Bryant concluded that John Robinson died from acute and chronic congestive heart failure. Loretta Robinson filed her proposed medical complaint with the Department of Insurance in 2004 and then filed her lawsuit in 2009.

Carter died unexpectedly several weeks before the June 2011 trial date. His estate sought to introduce an expert witness to rebut Bryant’s conclusions, but the Lake Superior Judge Jeffery Dywan denied his request. Dywan also allowed Bryant to testify over the estate’s objections.

In Mark Carter and John E. Carter, Co-Personal Rep. of the Estate of John O. Carter, M.D., Deceased v. Loretta Robinson, Individually and as Admin. of the Estate of John E. Robinson, Deceased, 45A05-1110-CT-563, the Court of Appeals rejected the estate’s contention that Bryant’s testimony as an expert witness should have been excluded under Ind. Evidence Rule 702. The estate argued that Bryant found one reason as to how John Robinson died and then did not rule out other possible causes. The judges found the autopsy report’s cause of death was derived by employing the differential etiology method, as Bryant did look at other causes and rule them out.

The COA judges also upheld the decision to not allow the estate’s expert witness, Dr. Michael Kaufman, to testify. Kaufman would have spoke about perceived flaws in Bryant’s methodology. The judges agreed that Kaufman was not timely disclosed as a witness. Bryant was deposed by Carter’s counsel in April 2011, although Carter knew he was an expert witness in July 2009. In May 2011, the estate hired Kaufman, but did not include Kaufman on a June 6, 2011, witness disclosure list. It wasn’t until just a few weeks before trial that the estate attempted to add Kaufman as a witness.

The judges pointed out that Carter’s attorney was still able to point out the weaknesses and perceived flaws within Bryant’s methodology and place those before the jury. They also affirmed the refusal to tender final jury instruction No. 3 with the phrase, “This determination should not be based on hindsight,” as another final instruction included language similar in form and substance.

Loretta Robinson’s request for appellate attorney fees was denied.


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