ILNews

Court upholds damages award against doctor

Jennifer Nelson
January 1, 2008
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The Indiana Court of Appeals upheld a damages award to the parents of a stillborn child against a doctor, finding the trial court properly excluded opinion testimony from two treating doctors and a letter written to those doctors before the trial by the parents' attorney.

In Jeffrey L. Cain, M.D. v. Richard Back and Suzette Back, No. 20A03-0705-CV-225, Dr. Jeffrey L. Cain appealed the trial court judgment of $800,000 in damages to Richard and Suzette Back on their claim of medical malpractice.

The Backs' daughter was stillborn at 29 1/2 weeks after Suzette was transferred by Cain from Elkhart General Hospital to South Bend Memorial Hospital. Cain and Dr. Starla Graber at Elkhart determined the baby had a low fetal heartbeat and there was a possible abdominal wall defect. Dr. Maria Evangelista at South Bend agreed to accept Suzette. Evangelista induced labor and the child was stillborn.

The Backs filed a complaint against Cain, alleging damages as a result of their daughter's death because Cain should have performed a Caesarean section instead of transferring her to the other hospital.

Cain had Evangelista and Garber testify at trial that he followed proper procedure and his decision to transfer Suzette was reasonable given the circumstances, but the trial court excluded the opinion testimony of the doctors.

Indiana Evidence Trial Rule 701 pertains to the admissibility of lay opinion testimony, which doesn't specify pretrial disclosure requirements. Under Ind. Evid. T.R. 702, expert opinion testimony is subject to pretrial disclosure requirements.

The trial court found and the Court of Appeals agreed that testimony from Evangelista regarding the knowledge of applicable standard of care is based on the expert knowledge she has as a doctor. Evangelista was not disclosed as a Rule 702 expert witness before the trial, and therefore, her opinion testimony should have been excluded, wrote Judge Margret Robb.

The trial court was also within its discretion to exclude Graber's testimony, which also provided opinion testimony considered to be made by an expert.

Cain also appealed the trial court decision to exclude letters written to Evangelista and Graber by the Backs' attorney one month before the trial began. Cain claims the letters, which told the doctors they weren't allowed to testify adversely to Suzette's positions because of the doctor/client relationship and that they had to contact the Backs' attorney before discussing their trial testimony, were an attempt to influence the doctors' testimony.

After reviewing caselaw regarding intimidating messages before a medical malpractice trial, the appellate judges determined the letters weren't intended to improperly influence the doctors' testimony but to let them know not to discuss the case with Cain's attorneys outside the presence of the Backs' counsel, wrote Judge Robb.
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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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