Alsheik v. Guerrero

• Decision Date: 22 December 2011
• Docket Number: No. 45A04–1011–CT–680.,45A04–1011–CT–680.
• Citation: 956 N.E.2d 1115
• Parties: Hassan ALSHEIK, Appellant–Defendant,v.Alice GUERRERO, Individually and as Administratrix of the Estate of Israel Arcuri, Deceased, Appellee–Plaintiff.
• Court: Indiana Appellate Court

956 N.E.2d 1115

Hassan ALSHEIK, Appellant–Defendant,

v.Alice GUERRERO, Individually and as Administratrix of the Estate of Israel Arcuri, Deceased, Appellee–Plaintiff.

No. 45A04–1011–CT–680.

Court of Appeals of Indiana.

Oct. 26, 2011.Rehearing Denied Dec. 22, 2011.

David J. Beach, Kirk D. Bagrowski, Eichorn & Eichhorn, LLP, Hammond, IN, Attorneys for Appellant.

Timothy S. Schafer, Schafer & Schafer, Merrillville, IN, Attorney for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant–Defendant, Hassan I. Alsheik, M.D. (Dr. Alsheik), appeals the jury's award of damages in the amount of $1,165,000 to Appellee–Plaintiff, Alice Guerrero, Individually and as Administratrix of the Estate of I.A., Deceased (Guerrero), following Guerrero's Complaint for medical malpractice.

We affirm in part, reverse in part, and remand for further proceedings.

ISSUES

Dr. Alsheik raises three issues on appeal, which we restate as follows:

(1) Whether the trial court abused its discretion by admitting the evidence and results of a second autopsy which was performed by Guerrero's medical expert without prior notification to Dr. Alsheik;

(2) Whether the trial court abused its discretion when it allowed Guerrero's pathologist to testify as an expert witness; and

(3) Whether the trial court abused its discretion when it admitted the post-mortem photographs of the thirteen-month-old victim into evidence.

On cross-appeal, Guerrero raises one issue, which we restate as: Whether the trial court erred by denying Guerrero's request for pre-judgment interest.

FACTS AND PROCEDURAL HISTORY

I.A. was born on May 1, 1999 with an undescended left testicle. His pediatrician referred him to Dr. Alsheik, a urologist, for treatment. On June 5, 2000, when he was thirteen months old, I.A. underwent an orchiopexy surgery ¹ performed by Dr. Alsheik at Community Hospital in Munster, Indiana. After the surgery, Dr. Alsheik told Guerrero that “there was a little complication.” (Transcript p. 116). I.A. was discharged early in the afternoon of that same day.

The morning after the surgery, June 6, 2000, I.A. had a fever and was fussy. Guerrero noticed that his scrotum was swollen, there was redness around the bandage and reddish-brown seepage in the bandage. She contacted Dr. Alsheik's office around 1:30 p.m. Because Dr. Alsheik was in surgery, Guerrero talked to Mrs. Alsheik. According to Guerrero, Mrs. Alsheik told her not to touch the bandage and that antibiotics would be called in to her pharmacy. When Guerrero arrived at the pharmacy, she learned that no antibiotics had been called in. Guerrero denies that she was advised to take I.A. to the emergency room, as alleged by Mrs. Alsheik.

That night, I.A. went to bed at 9:30 p.m. and awoke at midnight for a bottle. At 3:30 a.m. on the morning of June 7, 2000, I.A. woke up with a temperature and was fussy. Guerrero fed him some applesauce and changed his diaper. She noticed that his scrotum was more swollen and redder around the bandage than before. I.A. woke up again at 6:30 a.m. He was grinding his teeth so Guerrero fed him a bottle. This was the last time Guerrero saw I.A. alive.

Guerrero awoke at around 7:45 a.m. I.A. was not moving and she noticed that there was brown vomit around his face. I.A. was rushed to the hospital; he was pronounced dead at 8:16 a.m. The emergency room note documented that I.A. was “stiff with obvious rigor and lividity.” (Appellant's App. p. 972). When Guerrero went to see her son once more, the large bandage which had covered the incision had been removed and she observed that it looked “very black, everything terrible.” (Tr. p. 132). The coroner's investigator arrived at 9:19 a.m.

The following day, on June 8, 2000, the Lake County Coroner's pathologist performed an autopsy on I.A. after conducting a gross inspection of the body. He photographed the progression of the autopsy; he took tissue specimens from various organs, evaluated them under the microscope and preserved them. Despite being contacted by Dr. Alsheik, the coroner's pathologist did not dissect the surgical site. Based on his gross inspection, the coroner found that

[t]here is a recent surgical incision wound which is closed and intact over the left inguinal area; and there is an ecchymosis and mild edema related to postoperative changes. There is ecchymosis related to postoperative changes over the scrotum which contains both testicles. There is also a small wound with sutures over the left side of the bottom of the scrotum.

(Appellant's App. p. 988). The cause of death was listed as “vascular collapse undetermined cause.” (Appellant's App. p. 986).

On March 25, 2003, at Guerrero's request, pathologist James Bryant, M.D. (Dr. Bryant) performed a second autopsy on I.A.'s body. During the autopsy, Dr. Bryant focused his attention on the incision and surgical site of I.A.'s groin area. He found that the left spermatic cord was dislocated at a 90–degree angle, causing an L-shaped “kink” in the cord, and which resulted in a loss of blood supply in I.A.'s left spermadic cord, tip of his penis, left testicle and scrotum leading the surrounding tissue to become necrotic. (Tr. p. 419). In light of I.A.'s surgery immediately prior to his death, Dr. Bryant opined that this kink could only have resulted from the placement of a suture by Dr. Alsheik at the time of surgery. He stated that “the left testicle died before [I.A.] actually died.” (Tr. p. 426). Dr. Bryant concluded that I.A.'s cause of death was vascular collapse due to sepsis resulting from the infarction of the left spermadic cord, tip of I.A.'s penis, left testicle and scrotum. Dr. Bryant documented his findings in his report, took photographs during the autopsy, and took tissue specimens from both testicles.

On May 28, 2002, prior to the second autopsy performed by Dr. Bryant, Guerrero initiated a medical malpractice claim against Dr. Alsheik by filing her proposed complaint with the Indiana Department of Insurance. On November 30, 2005, the medical review panel unanimously concluded that

[t]he evidence does not support the conclusion that [Dr. Alsheik] failed to meet the applicable standard of care as charged in the complaint regarding his surgery on the patient; however, there is a material issue of fact, not requiring expert opinion, hearing on liability for consideration by the court or jury as it related to the phone conversation between [Guerrero] and the office of [Dr. Alsheik] on September 6, 2000.

(Appellant's App. p. 1001).

On February 8, 2006, Guerrero filed her Complaint of medical malpractice against Dr. Alsheik and Community Hospital.² Thereafter, on August 6, 2010, Dr. Alsheik filed a motion to dismiss, or in the alternative, to exclude the testimony of Dr. Bryant. In addition, he filed a motion to bar the admission of evidence resulting from the autopsy performed by Dr. Bryant as well as to exclude the admission of autopsy photographs. On September 3, 2010, Guerrero filed her response to Dr. Alsheik's motions. On September 9, 2010, after hearing oral argument on the motions, the trial court issued its order, denying Dr. Alsheik's motions. Prior to trial, Dr. Alsheik renewed his objections to the testimony of Dr. Bryant and the admission of autopsy photographs by filing a motion in limine. Again, the trial court denied his motions.

On September 27 through October 6, 2010, a jury trial was conducted. At the close of the evidence, the jury returned a verdict in favor of Guerrero in the amount of $1,165,000. On October 7, 2010, Guerrero filed her request for pre-judgment interest, to which Dr. Alsheik responded on October 14, 2010. On November 17, 2010, after a hearing, the trial court denied Guerrero's request for pre-judgment interest.

Dr. Alsheik now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION APPEAL

I. Second Autopsy

I.A. died on June 7, 2000. The coroner's autopsy took place on June 8, 2000, listing I.A.'s cause of death as “vascular collapse undetermined cause.” (Appellant's App. p. 986). Almost two years later, on May 28, 2002, Guerrero filed her proposed Complaint with the Indiana Department of Insurance. On March 25, 2003, while awaiting the findings of the medical review panel, Guerrero exhumed I.A.'s body and had a second autopsy conducted by her expert pathologist, Dr. Bryant, at which only Dr. Bryant and Guerrero's counsel were present. Four months later, on August 20, 2003, during the deposition of Dr. Alsheik, Guerrero “ambush[ed]” Dr. Alsheik with Dr. Bryant's report, concluding that I.A.'s death was the result of vascular collapse due to sepsis resulting from the infarction of the left spermadic cord, tip of I.A.'s penis, left testicle and scrotum. (Appellant's App. p. 530).

In his motion to dismiss prior to trial and numerous times throughout the trial proceedings, Dr. Alsheik unsuccessfully objected to the admission of evidence relating to the second autopsy. The overarching theme in Dr. Alsheik's objections centers on the claim that Dr. Bryant, with the aid of Guerrero, engaged in the intentional destruction of evidence when he performed his pathological examination and dissection of I.A.'s groin area and then intentionally concealed the results. He maintains that Guerrero's failure to notify him of the destructive testing “was not neglect or oversight; it was done intentionally to gain a tactical advantage.” (Appellant's Br. p. 22). In essence, Dr. Alsheik's argument conflates two separate issues: (1) whether Guerrero was mandated to notify Dr. Alsheik prior to undertaking the second autopsy and (2) whether Dr. Bryant's autopsy amounted to spoliation of the evidence, requiring sanctions. We will analyze each contention in turn.

A. Notice

The discovery rules are designed to allow a liberal discovery process, the purposes of which are to provide parties with information essential to litigation of the issues, to eliminate surprise, and to promote settlement. Rivers v....