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Medical malpractice judgment upheld by appellate court

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The Indiana Court of Appeals has affirmed the $1.25 million judgment against a gastroenterologist after a patient brought a medical malpractice claim for a missed cancer diagnosis. The judges found the trial court didn’t abuse its discretion in excluding certain evidence.

In John Morse, M.D. v. Jeffrey Wayne Davis, No. 84A05-1103-CT-140, Dr. John Morse appealed the verdict against him – which had been reduced from $2.5 million to the statutory cap of $1.25 million – after a jury found he committed medical malpractice when he failed to order tests or diagnose colon cancer in patient Jeffrey Davis.

Davis visited Morse, who was his mother’s doctor when she had colon cancer, in 2004 complaining of nausea, upper stomach pain and occasional rectal bleeding. Morse performed some tests, but did not order a sigmoidoscopy or colonoscopy. A year later, Davis came back to have medication refilled before he moved to Arizona. Davis’ records don’t note his family history of colon cancer, that Davis reported rectal bleeding or that he reported any other symptoms at his follow-up visit. When Davis moved to Arizona, he visited another doctor, who performed a colonoscopy and found advanced stage four cancer in his bowel, lymph nodes and liver.

There was conflicting evidence as to whether Davis told Morse about his rectal bleeding and that his mother had colon cancer. At a pre-trial hearing, Davis moved to strike two defense witnesses – a doctor who saw Davis for unrelated medical treatment, and a nurse who wrote down Davis’ complaints during the follow-up office visit with Morse. Both would have supported Morse’s argument that Davis was contributorily negligent by not reporting his symptoms. Davis also moved to exclude from evidence a medical history questionnaire submitted to the Arizona doctor which did not indicate a family history of colon cancer. Davis testified that he couldn’t recall whether he or someone else filled the form out. He also moved to preclude any opinion from the medical review panel doctors stating that Morse complied with the standard of care. The jury was instructed on contributory negligence.

The COA found that Morse didn’t show that the trial court abused its discretion when it precluded testimony from his expert witnesses saying that they believed Davis had not advised Morse that his mother had a history of colon cancer despite Davis’ testimony to the contrary. The purpose of that testimony would have been to impeach Davis’ credibility on a critical issue of fact, namely, whether he had told Morse about his mother’s colon cancer, wrote Judge Edward Najam. A determination of Davis’ credibility was within the sole province of the jury, and the proffered testimony was prohibited under Evidence Rule 704(b). Likewise, Dr. Morse has not shown any abuse of discretion in the exclusion of the questionnaire or the testimony of the doctor and nurse, the judges concluded.

 

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  1. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  2. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  3. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  4. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  5. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

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