Brown v. Terre Haute Regional Hosp.

• Decision Date: 27 April 1989
• Docket Number: No. 61A04-8708-CV-258,61A04-8708-CV-258
• Court: Indiana Appellate Court
• Parties: Donald BROWN, Plaintiff-Appellant, v. TERRE HAUTE REGIONAL HOSPITAL, Defendant-Appellee.

Page 54

537 N.E.2d 54

Donald BROWN, Plaintiff-Appellant, v. TERRE HAUTE REGIONAL HOSPITAL, Defendant-Appellee.

No. 61A04-8708-CV-258.

Court of Appeals of Indiana,

Third District.

April 27, 1989.

Patrick J. Bennett, Bennett & Sheff, Indianapolis, for plaintiff-appellant.

John D. Nell, Andrew C. Charnstrom, Wooden McLaughlin & Sterner, Indianapolis, for defendant-appellee.

GARRARD, Presiding Judge.

Donald Brown appeals a jury verdict rendered in favor of Terre Haute Regional Hospital (hospital) in an action for damages which he allegedly sustained as a patient.

Brown was involved in a one-car accident in the early morning hours of April 16, 1981. He was admitted to the hospital shortly thereafter and could not move from the neck down.

After an initial examination in the emergency room, Brown was admitted into intensive care. He was diagnosed as having a possible cervical spine injury. X-rays taken later in the day revealed a displacement of the third cervical vertebrae (C-3) over the fourth cervical vertebrae (C-4). This caused Brown's spine to be out of normal alignment or subluxated. To treat the subluxation Brown was placed in cervical traction to which fifteen pounds of weight were applied.

As Brown's condition improved, his C-3 and C-4 vertebrae realigned and he began to regain movement and sensation in his extremities. Because of his improvement five of the fifteen pounds of traction were removed. An x-ray taken on April 23 showed his C-3 and C-4 vertebrae still aligned, and Brown continued to regain movement and sensation in his extremities.

On April 26 five more pounds of weight were removed from his traction. After the weight was removed Brown stated he complained to his nurses about a change in his condition. However, the nurses disagreed and testified that Brown did not complain nor did they observe a change.

An x-ray taken on April 27 revealed an anterior displacement of Brown's C-3 and C-4 vertebrae. This meant that his vertebrae were again out of alignment. Five pounds of weight were immediately added to Brown's traction.

On April 28 Brown's doctor noticed that his spinal column was unstable and requested a neurosurgeon to evaluate Brown's condition. It was determined that Brown's spine had again subluxated. Subsequently, the neurosurgeon performed fusion surgery on May 1 to remedy the recurrent subluxation.

After the surgery Brown developed other problems associated with his original injuries. He was not released from Terre Haute Regional Hospital until September 3, 1981. He was then transferred to Community Hospital in Indianapolis where he underwent additional surgeries and treatment. He was also treated at Methodist Hospital. Brown now lives at Autumn Care Nursing Home and continues to improve.

At trial Brown argued that the hospital's negligence caused the recurrent subluxation following his car accident. However, the jury disagreed and rendered a verdict for the hospital. Brown appeals and raises five issues for our review:

1. Whether the trial court erred when it excluded Dr. Worth's testimony concerning the effect of a delay in reporting a change in plaintiff's condition on plaintiff's overall recovery.

2. Whether the trial court erred when it allowed the hospital to introduce evidence in violation of the motion in limine granted by the trial court.

3. Whether the trial court erred when it withdrew from the jury certain contentions in Brown's preliminary jury instructions.

4. Whether the trial court erred when it overruled Brown's motion to amend the pleadings to conform to the evidence.

5. Whether the trial court erred when it tendered the jury instructions.

Issue One

Brown argues that the trial court erred when it excluded Dr. Worth's opinion testimony concerning the effect of a delay in reporting a change in his condition to his overall recovery. Dr. Worth's testimony was excluded by the trial court as a sanction pursuant to Indiana Rules of Procedure, Trial Rule 37(B)(2)(b) ¹.

To understand the reasons for the 37(B)(2)(b) sanction the discovery in this case must be put into perspective. At the inception of this action the hospital sent interrogatories to Brown requesting information regarding his expert witnesses and Brown responded that he had not retained such persons. Since that time Brown has not formally supplemented his answers pursuant to Trial Rule 26(E)(1). ² Brown eventually verbally informed the hospital of five expert witnesses, one of whom was Dr. Worth.

A year later, and thirteen days before trial, Brown filed a witness list identifying a new expert witness who was deposed by the hospital four days before trial. The day after this deposition Brown identified yet another expert witness. Because of the late addition of these two experts, the hospital filed a motion to exclude their opinion testimony. In the alternative, the hospital asked for a continuance of trial. The hospital also requested that Brown disclose whether any other previously deposed expert witness had developed additional opinions of which the hospital had not been advised, referring again to TR 26(E)(1).

After first reserving its ruling, the court denied the hospital's motion to exclude testimony but granted a one week continuance of trial. The court's order states in part:

Court now denies Defendant's Motion to exclude opinion testimony from said doctors and vocational expert and in alternative Court continues the trial of said cause until Monday the 20th day of April, 1987. Counsel directed to advise opposing counsel of any expert witnesses on said witness list who are now going to give opinion testimony or any witness who formerly had no opinion who now are going to give opinion testimony. Counsel ordered to depose all expert witnesses that they desire to and complete depositions prior to April 20, 1987.

During the continuance period the hospital deposed the newly identified expert witnesses and redeposed Dr. Worth because Brown had notified the hospital that Dr. Worth may have new opinions concerning Brown's phrenic nerve.

At the second deposition, Dr. Worth did have new opinion testimony. He testified that in his opinion Brown had sustained a residual injury as the result of the care received at the hospital. He further testified as to the reduced chance of recovery due to the recurrent subluxation. He did not, however, voice any opinion concerning the effect or existence of delay between the occurrence and treatment of any change in Brown's condition. At the end of his deposition Dr. Worth affirmed twice that he had disclosed all of his opinions.

After the second deposition of Dr. Worth the hospital filed another motion to exclude opinion testimony. The hospital argued that Worth's opinion concerning the reduced chance of recovery presented "significant new factual and legal issues." However, the trial court overruled the hospital's motion.

The trial began on April 20, 1987. At trial Dr. Worth testified that in his opinion the recurrent subluxation reduced Brown's chances of functional recovery. Then Brown attempted to elicit from Dr. Worth his opinion as to the effect the passage of time would have on a patient's prognosis after he complains about a change in his condition. The hospital objected to this line of questioning and moved to exclude this testimony. The court sustained the motion and Brown argues this was in error. ³

The sanctions available to the trial court when a party fails to comply with a discretionary order are within its sound discretion. Chuck Callahan Ford v. Watson (1982), Ind.App., 443 N.E.2d 79. In reviewing discretionary orders, we will affirm if there is any rational basis for the trial court's actions. Drexel Burnham Lambert, Inc. v. Merchants Investment Counseling, Inc. (1983), Ind.App., 451 N.E.2d 346.

Brown acknowledges that the court has discretion to impose sanctions for failure to comply with discovery orders. However, he argues he did not disobey the trial court's discovery order. Brown explains that discovery in this case was conducted rather informally and although Brown did not supplement his answers to interrogatories pursuant to 26(E)(1) he did verbally inform the hospital about his experts. He also claims that he came forward with information concerning Dr. Worth's opinion which led to Worth's second deposition. Brown contends this shows he was trying to provide discovery.

Although Brown did not formally supplement his answers to interrogatories pursuant to 26(E)(1) he did verbally inform the hospital of his witnesses. If this was Brown's only error his argument might have some merit. However, it was not. After announcing two expert witnesses only days before trial, the trial court allowed a continuance of trial to depose these witnesses and specifically ordered the parties to inform opposing counsel of any experts who had no opinion before but now are going to give opinion testimony. The purpose of the order was clearly to allow the deposing of these witnesses to discover their new opinion testimony. The opinion testimony of an expert is discoverable pursuant to Indiana Rules of Procedure, Trial Rule 26(B)(4).

At his second deposition, Dr. Worth did have new opinions but did not mention the opinion which was ultimately disallowed by the trial court.

Brown contends that even if he failed to comply with the court order, it is at most a technical failure to comply, and the testimony should not be excluded because the gravity of such a sanction under the circumstances is too harsh. He urges that because of the informal nature of discovery in this case and because there has been no showing of bad faith, this court should go beyond the trial rules and apply principles of equity. It is true that if parties voluntarily adopt informal methods of discovery, the trial rules should not be read to discourage such methods. Evans v. Huss (1981), Ind.App., 415 N.E.2d 783. However, the court was within its province in determining Brown...