Johnson v. Anya Elizabeth Wait As Pers. Representative of The EState Jon Wait

• Decision Date: 23 June 2011
• Docket Number: No. 82A01–0910–CV–498.,82A01–0910–CV–498.
• Citation: 947 N.E.2d 951
• Parties: Cassandra JOHNSON and Jarrett Wayne Buse, Appellants–Plaintiffs,v.Anya Elizabeth WAIT as Personal Representative of the Estate of Erik Jon Wait, M.D., Deceased, St. Mary's Medical Center Welborn, and James R. Miller, M.D., Appellees–Defendants.
• Court: Indiana Appellate Court

947 N.E.2d 951

Cassandra JOHNSON and Jarrett Wayne Buse, Appellants–Plaintiffs,

v.Anya Elizabeth WAIT as Personal Representative of the Estate of Erik Jon Wait, M.D., Deceased, St. Mary's Medical Center Welborn, and James R. Miller, M.D., Appellees–Defendants.

No. 82A01–0910–CV–498.

Court of Appeals of Indiana.

April 12, 2011.Rehearing Denied June 23, 2011.

Rocco A. Marrese, Evansville, IN, Attorney for Appellants.John Christopher Wall, William W. Drummy, Wilkinson, Goeller, Modesitt, Wilkinson & Drummy, LLP, Terre Haute, IN, Attorneys for Appellee Miller.Patrick A. Shoulders, Steven K. Hahn, Ziemer, Stayman, Weitzel & Shoulders, LLP, Evansville, IN, Attorneys for Appellee St. Mary's Medical Center Welborn.

Clay A. Edwards, Joshua W. Davis, O'Bryan, Brown & Toner, PLLC, Louisville, KY, Attorneys for Appellee Estate.

OPINION

KIRSCH, Judge.

Cassandra Johnson (“Johnson”) and her husband, Jarrett Wayne Buse (“Buse”), appeal from a negative judgment after a jury trial in their medical malpractice action against Erik Jon Wait, M.D. (“Wait”), James R. Miller, M.D. (“Miller”), and St. Mary's Medical Center Welborn (“SMMC”) arising from an undiagnosed bilateral shoulder dislocation and shoulder fracture suffered by Johnson during her hospital stay due to the birth of her child. Johnson raises the following restated issues for our review:

I. Whether the trial court erred by giving, over objection, an instruction on contributory negligence that was not supported by the evidence;

II. Whether the trial court erred by refusing to give an instruction on res ipsa loquitur; and

III. Whether the trial court erred by allowing a defense expert to give certain opinions relating to causation.

We affirm.

FACTS AND PROCEDURAL HISTORY¹

On May 1, 2000, Johnson was admitted to SMMC under the care of Wait for the cesarean birth of Johnson's fourth child. The delivery of Johnson's child that day was successful and without complications. Johnson received pain medication and medication for nausea following her surgery.² On the evening of May 2, 2000, Johnson began complaining of bilateral shoulder pain which persisted throughout the remainder of her admission and discharge from SMMC on May 7, 2000. A nurse noted that Johnson appeared to be anxious and panicky. In regard to Johnson's shoulder pain symptoms, Wait first sought a consultation from an orthopedic surgeon, who declined to see Johnson. Wait then sought a consultation from Miller, a neurologist.

Miller first attempted to examine Johnson on May 4, 2000. The nurses present informed him that Johnson's family was “crazy,” and they described Johnson as a “real crazy patient” who needed a lot of medication. Id. at 1241. When Miller entered Johnson's hospital room, he observed Johnson lying in bed with a towel over her head. After receiving Johnson's “okay” to begin his examination of her, Miller placed his hand behind Johnson's neck. Id. at 1180–81, 1242–43. Johnson then bounced her pelvic area up and down on the bed while screaming, “Don't touch me!” Id. at 1192–93; 1244. Johnson's mother-in-law, who was in the room at the time, interposed herself, and Miller's examination of Johnson ended.

Miller's impression of Johnson based upon that visit was “[c]onversion reaction and hysterical depersonalization. I will scan her neck with an MRI to make sure that there is no cervical cord problem.” Id. at 1188. Miller never completed a physical examination of Johnson while she was at SMMC prior to her May 7, 2000 discharge from SMMC, although he made a total of four attempts to do so: the initial attempt, while in transit for her MRI, shortly after the MRI was complete, and when she was seen playing with and feeding her baby. Miller's diagnosis of conversion reaction ³ signaled to physicians and nurses that Johnson did not have a physical ailment, but rather a psychiatric problem. Id. at 1271. The cervical MRI result was abnormal showing disk protrusions. Miller left orders for physical therapy, among other things. Miller saw Johnson on May 5, 2000 and recorded a progress note observing that Johnson seemed “much better, calmly playing with baby and holding it [sic] in her arms.” Id. at 2493; SMMC Ex. B at 39.

Based upon Miller's diagnosis of a conversion disorder, Wait requested a psychiatric consult, which was performed by Dr. David Hilton (“Hilton”). A day prior to the psychiatric examination, a social worker performed an initial interview with Johnson. The social worker noted inconsistencies between Johnson's complaints about shoulder pain and inability to move her arms, and her observed activities, i.e., her ability to move her arms without problem. Hilton examined Johnson and made the following notations in his record: “Neuro ruled out [a] medical cause.” Id. at 1869–70; 1903–04. Based upon Miller's diagnosis and the social worker's notes detailing Johnson's history of extreme sexual and physical abuse as a child, Hilton diagnosed Johnson with a likely personality disorder.

Wait reviewed Hilton's psychiatric consultation report, and Johnson was discharged on May 7, 2000 without a complete physical examination, but with Wait and Hilton understanding that Miller had ruled out a physiological cause of Johnson's complaints regarding shoulder pain.

Johnson made two visits to the emergency room complaining first of swelling and pain in her left arm, and then later, of pain in her spine radiating down to the shoulders on each side. Two days after her second visit to the emergency room, on May 18, 2000, Johnson went to see her family physician and an orthopedic surgeon. The orthopedic surgeon by shoulder x-ray found that Johnson had bilateral shoulder dislocations and an avulsion fracture. On May 19, 2000, Johnson's shoulder dislocations were reduced under general anesthesia.

Johnson and Buse filed a proposed complaint against Wait, Miller, and SMMC, and the members of the Medical Review Panel found, on May 3, 2006, that only Wait had failed to meet the applicable standard of care as charged in the proposed complaint. Johnson and Buse filed their amended complaint for damages on May 22, 2007. The jury trial commenced on June 29, 2009, nearly nine years after the birth of Johnson's fourth child. At the end of Johnson and Buse's case-in-chief, the trial court determined that based on the evidence presented, that the events surrounding Johnson's May 1, 2000, admission to the hospital were the only events at issue. The trial court also granted, in part, SMMC's motion for directed verdict in favor of only the physical therapist defendants. The trial ended on July 9, 2009, with a total defense verdict. The trial court entered judgment on the verdict on July 13, 2009. Johnson and Buse filed a motion for judgment on the evidence and/or motion to correct error on August 10, 2009, which the trial court denied on September 14, 2009. Johnson and Buse now appeal. Additional facts will be supplied.

DISCUSSION AND DECISION

Before addressing the issues in this case, we note that the procedure that the trial court followed in hearing the objections to the court's jury instructions was not in accordance with Indiana Trial 51(C). Here, trial court heard the objections after instructing the jury and the jury had already retired to deliberate. The parties agreed to the procedure and that no party waived any rights by not objecting prior to final argument and instructions.

Indiana Trial Rule 51(C) provides in pertinent part that

[n]o party may claim as error the giving of an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury. The court shall note all instructions given, refused or tendered, and all written objections submitted thereto, shall be filed in open court and become a part of the record.

As we have previously stated,

The purpose of T[.]R. 51(C) is to guarantee counsel the opportunity to make objections which will afford the trial court the opportunity to correct any instruction before giving it to the jury if it is erroneous. Absent proper objections to instructions, once those instructions are read to the jury, they become the law of the case.

Nelson v. Metcalf, 435 N.E.2d 39, 41 (Ind.Ct.App.1982). Because of the parties' acquiescence, we find no reversible error in the procedure followed by the trial court, but we caution against it and reiterate our position that recording of objections to final instructions after the jury has been instructed and has retired to deliberate, is not the preferred procedure. See e.g., Manning v. Allgood, 412 N.E.2d 811, 814 (Ind.Ct.App.1980) (not preferred procedure, but no reversible error where party acquiesced in procedure and no rights were lost or compromised); Piwowar v. Washington Lumber & Coal Co., 405 N.E.2d 576, 582 (Ind.Ct.App.1980) (although not preferred procedure, no reversible error), abrogated on other grounds by Osmulski v. Becze, 638 N.E.2d 828 (Ind.Ct.App.1994).

I. Contributory Negligence Instruction

“The purpose of an instruction is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict.” Joyner–Wentland v. Waggoner, 890 N.E.2d 730, 733 (Ind.Ct.App.2008) (quoting Estate of Dyer v. Doyle, 870 N.E.2d 573, 581 (Ind.Ct.App.2007)). We review a trial court's decision to give or refuse a tendered instruction for an abuse of discretion. Id. Upon review of a trial court's decision to give or refuse a tendered instruction, we consider whether the instruction (1) correctly states the law, (2) is supported by evidence in the record, and (3) is covered in substance by other instructions. Id. at 734.

In the present case, the trial court gave an instruction on contributory negligence. Miller had tendered an instruction on the subject. We...