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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