Arlton v. Schraut

• Decision Date: 09 November 2010
• Docket Number: No. 79A02-0906-CV-541.,79A02-0906-CV-541.
• Citation: 936 N.E.2d 831
• Parties: Paul ARLTON, Appellant-Plaintiff, v. Gary SCHRAUT, M.D., and Lafayette Retina Clinic, Appellees-Defendants.
• Court: Indiana Appellate Court

936 N.E.2d 831

Paul ARLTON, Appellant-Plaintiff,

v.Gary SCHRAUT, M.D., and Lafayette Retina Clinic, Appellees-Defendants.

No. 79A02-0906-CV-541.

Court of Appeals of Indiana.

Nov. 9, 2010.

Ronald W. Waicukauski, Carol Nemeth Joven, Price Waicukauski & Riley, LLC, Indianapolis, IN, Attorneys for Appellant.

Robert G. Weddle, Matthew W. Conner, Elizabeth A. Schuerman, Tabbert Hahn Earnest & Weddle, LLP, Indianapolis, IN, Attorneys for Appellees.

OPINION

MATHIAS, Judge.

Appellant-Plaintiff Paul Arlton ("Arlton") brought a medical malpractice action against Appellees-Defendants Gary Schraut, M.D. ("Dr. Schraut"), and the Lafayette Retina Clinic ("LRC") (collectively "the Medical Care Providers"), alleging that Arlton had suffered permanent injury to his eye as a result of laser eye surgery performed by Dr. Schraut. The jury returned a verdict in favor of the Medical Care Providers. Arlton appeals and presents three issues:

I. Whether the trial court abused its discretion when it sustained Schraut's objections to Arlton's proffer of printed, enlarged copies of angiograms depicting Arlton's retina;

II. Whether the trial court abused its discretion when it refused to provide the jury with access to digital evidence during deliberations; and

III. Whether the trial court abused its discretion in refusing Arlton's tendered instruction informing the jury that, if they so desired, they could review the digital evidence during deliberations.

We reverse and remand.

Statement of Facts

In the late 1980s, Arlton was diagnosed with choroidal neovascularization ("CNV") in his left eye. CNV is a condition which occurs when there is abnormal growth of blood vessels near the retina that, if left untreated, can cause significant loss of vision and, ultimately, blindness. Arlton's CNV was first treated in 1987 by means of "photocoagulation"—laser eye surgery which cauterizes and destroys the abnormal growth of blood vessels. These procedures left a dark scar in the retina of Arlton's left eye located outside the central area of vision, and the scar caused a corresponding blind spot in Arlton's peripheral vision.

Arlton was advised by his prior physician to monitor his blind spot for signs of recurrence of the CNV. He did so by periodically taping a piece of paper to the wall and drawing around the edges of the blind spot he perceived in his left eye using a pencil. By comparing these drawings, Arlton could see if there were any changes in the extent of his blind spot.

In 1989, through the use of this tracing procedure, Arlton noticed changes in his blind spot and again underwent laser photocoagulation surgery to treat the recurrence of his CNV. This surgery caused an increase in the size of the scar and corresponding blind spot in Arlton's vision. After this surgery, Arlton continued to monitor his blind spot, but noted no problems until 2002, when he noticed a flickering or flashing at the edge of his blind spot. At that time, he again traced his blind spot, and the tracing revealed a bulge in the scar. Arlton then went to the emergency room, where he was referred to Dr. Schraut.

Dr. Schraut examined Arlton's eye and observed that part of his retina near the scar was swollen. Dr. Schraut believedthis area to be a recurrence of the CNV, which would require further laser surgery. To confirm his diagnosis, Dr. Schraut ordered a fluorescein angiogram, a process in which a fluorescent dye was injected into Arlton's blood. An angiogram technician then took a series of photographs of Arlton's retina as the dye passed through the blood vessels in his retina. The results of the angiogram were recorded in a series of photos showing the amount of time that had passed since the dye was injected into the blood. The initial angiogram photos taken in September of 2002 revealed that Arlton's CNV was not recurring. However, subsequent angiogram photos taken in October 2002 did indicate that Arlton's CNV had recurred.

On November 5, 2002, Dr. Schraut performed laser photocoagulation surgery on Arlton's left eye to treat the recurrence of CNV. Arlton and Dr. Schraut agreed to take a conservative approach to the surgery by treating only the edge of the affected area and then scheduling a follow-up exam to determine if any further treatments would be necessary. Arlton understood that he could have unexplained vision loss following the laser treatment and did not have any questions for Dr. Schraut before the procedure began.

During the surgery, Dr. Schraut saw that the new growth of blood vessels in Arlton's eye was closer to the center of his vision than the previous scar. According to Arlton, during the procedure, a lens was placed against his eye, and he saw an intense light around his left eye. Arlton further explained that "in about two or three seconds that light went from the center of [his] vision toward the scar and then there was suddenly a click ... and a large flash." Tr. Vol. I, p. 128. A black, wedge-shaped spot then appeared in the center of Arlton's vision.

According to Dr. Schraut, when he made the first shot with the laser, Arlton jumped, and the shape of the first laser spot on Arlton's retina reflected that Arlton had moved. Arlton claims that Dr. Schraut told him that "something jumped—that spot jumped [a] thirty second of an inch," and "that doesn't matter[,] it's in the scar." Id. Although Dr. Schraut testified that 1/32 of an inch is "gigantic" in terms of retinal surgery, Tr. Vol. III, p. 127, Arlton claims Dr. Schraut told him at the time that it would not matter because the laser spot was in the area of the existing scar on Arlton's retina. Dr. Schraut, however, denies that he placed the laser spot within the existing scar and denies having ever admitted to such.

After the first laser spot had been made, Dr. Schraut asked Arlton if he wanted to continue with the surgery and also asked if he wanted him to take a photo of the first spot before continuing. Arlton told Dr. Schraut to continue the surgery. Dr. Schraut therefore proceeded to place forty-three laser spots to cauterize the area of abnormal growth of blood vessels.

The dark, wedge-shaped spot in Arlton's vision did not go away, and he returned to Dr. Schraut's office the day after surgery. Arlton claims that Dr. Schraut told him that the spot was probably caused by an area of swelling on his retina, and that he should call if it did not go away within a few days. Arlton returned to Dr. Schraut on November 27, 2002, at which time another fluorescein angiogram was taken of Arlton's retina. The angiogram indicated that Arlton's CNV had been treated and that the area of swelling had gone down, but the black spot in Arlton's central vision remained. Dr. Schraut referred Arlton to Dr. Thomas Caiulla, who determined that there were no stray laser spots that had caused Arlton's loss of vision. Another physician, Dr. Steven Virata, viewed Arlton'sangiogram and determined that there was no obvious explanation for Arlton's vision loss.

Eventually, Arlton was examined by Dr. Morton Goldberg ("Dr. Goldberg"), a professor of ophthalmology at the Johns Hopkins University who specializes in retinal and macular diseases and treatment. Dr. Goldberg ultimately concluded that the wedge-shaped blind spot in Arlton's central vision was caused by Dr. Schraut having placed a new laser burn spot within the area of Arlton's pre-existing scar. According to Dr. Goldberg, the scar tissue is darker and absorbs more heat from the laser and also is thinner than the other parts of the retina. Therefore, there is a higher likelihood of a laser spot in the existing scar tissue to burn nerve fibers that carry the visual information to the brain. In Dr. Goldberg's opinion, the wedge-shaped blind spot in Arlton's central vision was caused when the laser spot in the existing scar caused an "interruption of nerve fiber bundles" coming from the center of Arlton's vision. Tr. Vol. II, p. 306.

As a result of the new blind spot in his central vision, Arlton's vision was significantly decreased. Prior to the November 5 laser surgery, Arlton had 20/15 vision, albeit with a blind spot in his peripheral vision. After the surgery, his vision was reduced to 20/400. He also claimed continuing headaches and eye pain, in addition to double vision in his left eye. Arlton's vision was corrected to 20/20 with the use of a prism in his eyeglasses, but this significantly reduced his reading speed, which he claims impaired his ability to perform his duties as president and chief engineer of Lite Machines, a company that makes remote controlled unmanned helicopter vehicles.

Procedural History

On November 4, 2004, Arlton filed a proposed complaint against Dr. Schraut and the LRC with the Indiana Department of Insurance,¹ alleging malpractice against the Medical Care Providers. The Medical Review Panel issued its opinion on March 28, 2007, finding in favor of the Medical Care Providers. A jury trial was held on May 11-14, 2009. Dr. Schraut's medical records for Arlton, which were admitted by stipulation of the parties, contained the three angiograms performed on September 24, 2002, October 31, 2002, and November 27, 2002. For each of the angiograms, nine digital images were recorded. Each juror was provided with a color copy of all of the angiogram photos in an exhibit binder. The nine images from each angiogram were printed on a single sheet of 8 1/2? x 11? paper. Exhibits Vol. 1, Stipulated Ex. 1-A, p. 8, 10, 12.

Also admitted, without objection, were three CD-ROM discs containing digital images of the angiograms. Specifically, each disc contained nine digital images that comprised each of the angiograms. The images on the discs were the same as the images that were admitted as part of the stipulated medical records, but were digitally recorded as high-resolution TIFF images.² During the testimony from Dr. Schraut, Dr. Goldberg, and other witnesses, both parties showed the jury enlargedphotos of the angiograms using a projector and a...