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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. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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