Cain v. Back

• Decision Date: 21 July 2008
• Docket Number: No. 20A03-0705-CV-225.,20A03-0705-CV-225.
• Citation: 889 N.E.2d 1253
• Parties: Jeffrey L. CAIN, M.D., Appellant-Defendant, v. Richard BACK and Suzette Back, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

889 N.E.2d 1253

Jeffrey L. CAIN, M.D., Appellant-Defendant, v. Richard BACK and Suzette Back, Appellees-Plaintiffs.

No. 20A03-0705-CV-225.

Court of Appeals of Indiana.

July 21, 2008.

Michael E. O'Neill, Richard P. Girzadas, Hinshaw & Culbertson LLP, Schererville, IN, Attorneys for Appellant.

Mary A. Findling, Findling Garau Germano & Pennington, Laura J. Conyers, Mitchell Hurst Jacobs & Dick, LLP, Indianapolis, IN, Attorneys for Appellees.

OPINION

ROBB, Judge.

Case Summary and Issues

Following a jury trial, Dr. Jeffrey Cain, M.D., appeals the trial court's judgment awarding Richard and Suzette Back $800,000 in damages on their claim of medical malpractice relating to the stillbirth of their daughter, C.B. On appeal, Dr. Cain raises two issues, which we restate as 1) whether the trial court properly excluded opinion testimony from two treating physicians and 2) whether the trial court properly excluded letters that the Backs' counsel wrote to the same two treating physicians shortly before trial began. Concluding that the trial court did not abuse its discretion in excluding the opinion testimony or the letters, we affirm.¹

Facts and Procedural History

At approximately 9:00 p.m. on March 1, 2000, Suzette, who was twenty-nine and one-half weeks pregnant with C.B., was admitted to Elkhart General Hospital on complaints of abdominal cramping and decreased fetal movement. Dr. Martina McGowan, M.D., of Westside Obstetrics and Gynecology, P.C., was Suzette's physician, but Dr. Cain, also with Westside Obstetrics, was on call that evening. At approximately 10:00 p.m., Suzette was hooked up to a fetal heart rate monitor, and nurses began monitoring her condition and reporting their observations to Dr. Cain, who was at his home. At approximately 10:30 p.m., Dr. Cain instructed one of the nurses to request that Dr. Starla Graber, M.D., review the readings from the fetal heart monitor. Dr. Graber observed that C.B.'s heart rate was between 130 and 140 beats per minute, which was normal for a fetus of that age, and reported this observation to Dr. Cain.

Approximately one hour later, Dr. Cain instructed the attending nurses to admit Suzette for overnight observation. C.B.'s heart rate remained unchanged for the next two hours, but by approximately 1:30 a.m., the attending nurses reported to Dr. Cain that C.B.'s heart rate dropped to 110 to 120 beats per minute. Upon receiving this information, Dr. Cain went to Elkhart General and conducted an ultrasound at approximately 1:45 a.m. During the ultrasound, Dr. Cain observed chronic oligohydraminios (i.e. low amniotic fluid) and a possible defect in C.B.'s abdominal wall. Based on these observations and on C.B.'s premature gestational age, Dr. Cain decided to transfer Suzette and C.B. in utero to South Bend Memorial Hospital, which was approximately fifteen miles away, because its staff and facilities could provide better care for C.B.

At 2:08 a.m., Dr. Cain contacted Dr. Maria Evangelista, M.D., at South Bend Memorial and requested transfer of Suzette and C.B. for further evaluation, explaining that C.B. had a low fetal heart rate and a possible abdominal wall defect. Based on this explanation, Dr. Evangelista agreed to the transfer. At approximately 2:20 a.m., Dr. Cain conducted another ultrasound, this time with Dr. Graber's assistance. Dr. Graber also observed oligohydraminios, but was not convinced C.B. had a possible abdominal wall defect because the low level of amniotic fluid made it difficult to see the ultrasound images. Nevertheless, based on the ultrasound and on C.B.'s premature gestational age, Dr. Graber agreed with Dr. Cain's decision to transfer Suzette and C.B. in utero to South Bend Memorial. At 2:27 a.m., Dr. Cain ordered the transfer.

From approximately 1:30 a.m. to 3:00 a.m., the point at which Suzette was unhooked from the fetal heart monitor, C.B.'s heart rate mostly remained between 110 and 120 beats per minute, but occasionally dropped to 90 beats per minute. Suzette departed for South Bend Memorial at 3:14 a.m., and C.B.'s heart stopped at some point during the trip. Dr. Evangelista induced labor shortly after Suzette and C.B. arrived, and Suzette delivered C.B. stillborn at approximately 11:50 a.m. on March 3, 2000. An autopsy concluded that the cause of death was "[i]ntrauterine fetal demise" and that "the death may have been related to placental abruption." Defendant's Exhibit E at 6. This latter observation was consistent with Dr. Evangelista's observations during and after delivery of C.B.

On August 1, 2001, the Backs filed a proposed complaint with the Indiana Department of Insurance against Dr. Cain, Westside Obstetrics, and Elkhart General, alleging they suffered damages as a result of C.B.'s wrongful death. On May 3, 2004, the medical review panel concluded that the evidence did not support a conclusion that Elkhart General failed to meet the appropriate standard of care, but did support such a conclusion with respect to Dr. Cain and Westside Obstetrics. The medical review panel also concluded that "[t]he conduct complained of in the complaint was a factor of the resultant damages." Appellant's Appendix at 109. On June 17, 2004, the Backs filed an amended complaint in Elkhart Circuit Court against Dr. Cain, Westside Obstetrics, and Elkhart General, alleging that Dr. Cain's malpractice resulted in C.B.'s death and that their damages included emotional distress and loss of C.B.'s love and companionship.

From April 9 to 13, 2007, the trial court presided over a jury trial. The Backs proceeded against Dr. Cain and Westside Obstetrics, having previously dismissed Elkhart General, but also dismissed Westside Obstetrics before closing arguments. The Backs' theory of the case was that, based on C.B.'s low heart rate and the low level of amniotic fluid, Dr. Cain should have decided to perform a cesarean section around 2:00 a.m. and that his failure to do so constituted a breach of the standard of care. To prove this breach, the Backs presented testimony from Dr. Stanley Berry, M.D., a hired expert, and Dr. Joseph Geyer, M.D., a member of the medical review panel, both of whom testified to the effect that a reasonably prudent physician under the same circumstances as Dr. Cain would have decided to perform a cesarean section around 2:00 a.m. The Backs' evidence also included testimony from Dr. Evangelista, who testified to some of the events described above.

During his case-in-chief, Dr. Cain presented testimony from Dr. Stephen Coats, M.D., a hired expert, and introduced the video deposition of Dr. Judson Brewer, M.D., another member of the medical review panel. Dr. Brewer had recanted his conclusion that Dr. Cain and Westside Obstetrics failed to meet the appropriate standard of care after reviewing the deposition testimony of Drs. Evangelista and Graber,² and both he and Dr. Coats testified to the effect that Dr. Cain's decision to transfer Suzette and C.B. in utero to South Bend Memorial was a reasonable decision under the circumstances. Dr. Cain also presented testimony from himself and from Dr. Graber, both of whom testified to some of the events described above.

On April 13, 2007, the jury returned a verdict in favor of the Backs and awarded damages in the amount of $800,000. On the same day, the trial court entered judgment on the verdict. Dr. Cain now appeals.

Discussion and Decision

I. Standard of Review

The decision to admit or exclude evidence is within the trial court's discretion, and this court reviews the trial court's decision for an abuse of discretion. Lachenman v. Stice, 838 N.E.2d 451, 464 (Ind.Ct.App.2005), trans. denied. An abuse of discretion occurs if the trial court's decision is clearly against the logic and effect of the facts and circumstances before it, or the reasonable, probable, and actual deductions to be drawn therefrom. Wallace v. Meadow Acres Mfrd. Hous., Inc., 730 N.E.2d 809, 812 (Ind.Ct.App. 2000), trans. denied. However, even if the trial court abused its discretion in excluding evidence, this court will not order a new trial unless the exclusion affects the party's substantial rights. Ind. Evidence Rule 103(a); Finucane v. Union Planters Bank, N.A., 732 N.E.2d 175, 178 (Ind.Ct. App.2000).

II. Exclusion of Opinion Testimony of Drs. Evangelista and Graber

Dr. Cain argues the trial court improperly excluded opinion testimony from Drs. Evangelista and Graber. Resolution of Dr. Cain's argument requires that we address the contours of Indiana Evidence Rules 701 and 702, which pertain to the admissibility of lay and expert opinion testimony, respectively.³ Indiana Evidence Rule 701 states:

If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue.

Indiana Evidence Rule 702(a) states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

There are two principal distinctions between lay opinion testimony under Rule 701 and expert opinion testimony under Rule 702. First, Rule 701 requires that the opinion testimony be based on the perception of the witness, while Rule 702 does not. See Ind. Evidence Rule 703 (explaining that expert opinion testimony under Rule 702 may be based on facts or data "perceived by or made known to the expert at or before the hearing"); 13 Robert Lowell Miller, Jr., Indiana Practice, Indiana Evidence § 703.101, at 548 (3d ed.2007) ("Rule 701 requires that opinion testimony be based on the witness's personal perception. Rule 703 eliminates the requirement of personal...