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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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

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