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. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  2. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  3. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  4. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  5. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

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