Dughaish ex rel. Dughaish v. Cobb

Decision Date15 May 2000
Docket NumberNo. 82A04-9906-CV-271.,82A04-9906-CV-271.
Citation729 N.E.2d 159
PartiesSabria N. DUGHAISH, a minor by her Natural mother and next friend, Laura A. DUGHAISH and Laura A. Dughaish and Khalil I. Dughaish, Individually, Appellants-Plaintiffs, v. Donald COBB, M.D., Appellee-Defendant.
CourtIndiana Appellate Court

H. Wayne Turpin, Glenn A. Deig, Evansville, Indiana, Attorneys for Appellants.

Julia Blackwell Gelinas, Susan E. Cline, Locke, Reynolds, LLP, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

ROBB, Judge

Sabria N. Dughaish, a minor by her mother and next friend Laura A. Dughaish, and Laura A. Dughaish and Khalil Dughaish, individually, (referred collectively as the "plaintiffs") appeal the trial court's denial of their Motion to Correct Errors pursuant to Indiana Trial Rules 50 and 59. We affirm.

Issues

The plaintiffs raise the following consolidated and restated issues for our review:

1. Whether the trial court properly tendered modified Final Instruction No. 4 to the jury, an instruction which contained the traditional standard of causation in medical malpractice actions; and
2. Whether the trial court properly denied the plaintiffs' Motion to Correct Errors pursuant to Indiana Trial Rules 50 and 59.
Facts and Procedural History

The facts most favorable to the judgment reveal that in 1971, Laura gave birth to her first child which weighed eight pounds fourteen ounces.1 In 1986, Laura became pregnant for a second time with Sabria. Dr. Cobb was Laura's obstetrician and had been her gynecologist for a number of years prior to her becoming pregnant with Sabria. During the pregnancy, Dr. Cobb did not administer a glucose test to Laura in order to test her for gestational diabetes. However, Laura was tested for proteins and sugar via a urine dipstick upon every visit to Dr. Cobb's office. This test did not indicate that Laura had gestational diabetes.

On May 9, 1987, Laura was admitted to St. Mary's Hospital to give birth to Sabria. Laura was not in active labor when Dr. Cobb initially examined her at the hospital. Consequently, Dr. Cobb artificially ruptured Laura's membrane and started her on a Pitocin drip in an effort to expedite the labor process. When Laura was dilated enough to deliver Sabria, Dr. Cobb was paged to the delivery room. Upon arrival, Dr. Cobb noted that Sabria's head was visible during each of Laura's contractions. Because an additional dose of Pitocin did not cause the head to deliver, Dr. Cobb performed an episiotomy2 and used forceps to deliver the head.

During delivery, Sabria suffered a shoulder dystocia.3 Upon the shoulder being freed, Laura delivered Sabria. After delivery, Sabria's right arm was limp, her hands and feet were blue, and she needed oxygen. Moreover, Sabria weighed eleven pounds and thirteen ounces at birth, making her a macrosomic infant. As a result of incurring a shoulder dystocia, she suffered a brachial plexus palsy injury4-Erb's type,5 bruises, abrasions, a fractured collarbone, and a cephalhematoma.

Thereafter, pursuant to the Medical Malpractice Act,6 the plaintiffs filed a proposed complaint with the Indiana Department of Insurance. The Medical Review Panel issued its opinion on January 19, 1995, unanimously finding that:

The evidence supports the conclusion that the defendant Donald Cobb, M.D., failed to comply with the appropriate standard of care as charged in the complaint. It is not possible to determine whether the conduct complained of was or was not a factor of the resultant damages.

R. 917. Consequently, the plaintiffs filed a complaint in the Vanderburgh Superior Court against Dr. Cobb, alleging medical malpractice. Following a jury trial, the jury returned a verdict in favor of the Dr. Cobb.

Thereafter, on February 16, 1999, the plaintiffs filed a Motion to Correct Errors and Memorandum in Support of Plaintiff's Motion to Correct Errors with the trial court, requesting relief under Indiana Trial Rules 50 and 59. On April 9, 1999, Dr. Cobb filed a Trial Rule 59(D) Statement in Opposition to Motion to Correct Errors and Response to Motion for Judgment on the Evidence. After holding a hearing on the motion, the trial court denied the plaintiffs' Motion to Correct Errors on June 9, 1999. This appeal ensued.

Discussion and Decision
I. Jury Instructions

The plaintiffs contend that the trial court erred when it tendered modified Final Instruction No. 4 to the jury which contained the traditional standard of causation in medical malpractice actions instead of their Proposed Final Instruction No. 10 which instructed the jury on the lower "increased risk of harm" standard. We disagree.

A. Standard of Review for Jury Instructions

The giving of jury instructions is a duty entrusted to the discretion of the trial court, and its decision will not be disturbed unless there is an abuse of that discretion. Morris v. K-Mart, Inc., 621 N.E.2d 1147, 1148 (Ind.Ct.App.1993), trans. denied. A party is generally entitled to have a tendered instruction read to the jury. Id. On review, we will reverse the trial court's refusal to give a tendered instruction when: 1) the instruction is a correct statement of law; 2) it is supported by the evidence; 3) it does not repeat material adequately covered by other instructions; and 4) the substantial rights of the tendering party would be prejudiced by the failure to give the instruction. Underly v. Advance Mach. Co., 605 N.E.2d 1186, 1191 (Ind.Ct.App.1993), trans. denied.

B. Traditional Standard of Causation

The plaintiffs argue that the trial court erred in refusing to tender their Final Instruction No. 10 to the jury because they were entitled to a lower burden of proof with regard to causation, the "increased risk of harm" standard. Dr. Cobb argues that the plaintiffs are not entitled to a lower standard of causation because the plaintiffs do not fit within the class to which the "increased risk of harm" standard applies. In addition, Dr. Cobb argues that the traditional standard of causation applies to the plaintiffs' medical malpractice action, and therefore, the court's modified Final Instruction No. 4 was proper.

To establish a prima facie case of medical malpractice, a plaintiff must demonstrate: 1) the defendant's duty in relation to the plaintiff; 2) the defendant's failure to conform its conduct to the requisite standard of care required by the relationship forming the duty; and 3) an injury to the plaintiff resulting from that failure. Bunch v. Tiwari, M.D., 711 N.E.2d 844, 850 (Ind.Ct.App.1999). In malpractice cases, health care providers must exercise that degree of care, skill, and proficiency exercised by reasonably careful, skillful, and prudent practitioners in the same class acting under the same or similar circumstances. Vergara v. Doan, 593 N.E.2d 185, 187 (Ind.1992). To establish a prima facie case of medical malpractice, a plaintiff must provide expert testimony in order to show that the physician's performance fell below the applicable standard of care and that his negligence was the proximate cause of the plaintiff's injuries. Etienne v. Caputi, 679 N.E.2d 922, 924 (Ind.Ct.App.1997) (citing Bethke v. Gammon, 590 N.E.2d 573, 574-75 (Ind.Ct.App.1991)).

Generally, the traditional standard of proximate cause applies in medical malpractice actions in Indiana. See Bunch, 711 N.E.2d at 850

; see also Grzan v. Charter Hosp. of Northwest Indiana, 702 N.E.2d 786, 790 (Ind.Ct.App.1998); Etienne, 679 N.E.2d at 924. To determine whether an act is the proximate cause of another's injury under the traditional standard of causation, we consider whether the injury was a natural and probable consequence of the negligent act, which, in the light of the attending circumstances, could have been reasonably foreseen or anticipated. Goldsberry v. Grubbs, 672 N.E.2d 475, 479 (Ind.Ct.App.1996),

trans. denied. Thus, to be considered a proximate cause, the negligent act must have set in motion a chain of circumstances which in natural and continuous sequence lead to the resulting injury. City of Portage v. Lindbloom, 655 N.E.2d 84, 86 (Ind.Ct.App. 1995),

trans. denied. The policy underlying proximate cause is that we, as a society, only assign legal responsibility to those actors whose acts are closely connected to the resulting injuries, such that imposition of liability is justified. Adams Township of Hamilton County v. Sturdevant, 570 N.E.2d 87, 90 (Ind.Ct.App.1991),

trans. denied. Stated another way, proximate cause sets the parameters within which an actor "can expect the law to provide by way of protection to his activity." Galbreath v. Engineering Constr. Corp., 149 Ind.App. 347, 356, 273 N.E.2d 121, 127 (1971).

In the present case, the trial court tendered a modified version of Dr. Cobb's Proposed Final Instruction No. 4 to the jury. The tendered instruction, as modified, provides in pertinent part that:

Plaintiffs have the burden of proving the following propositions by a preponderance of the evidence:
1) That Dr. Cobb's care and treatment of Laura Dughaish and Sabria Dughaish deviated from the applicable standard of care;
2) That the plaintiffs were damaged;
3) That Dr. Cobb's deviation proximately caused the damages to the plaintiffs.
As I have stated the plaintiffs must prove these propositions by a preponderance of the evidence; the defendant has no burden of disproving them.

R. 2229. Thus, the trial court's tendered instruction incorporates the traditional standard of causation in medical malpractice actions in Indiana.

C. "Increased Risk of Harm" Standard of Causation

The plaintiffs argue that modified Final Instruction No. 4 was an incorrect statement of the law, and that the facts and the evidence submitted at trial required the trial court to tender their instruction regarding causation to the jury. The plaintiffs' Proposed Final Instruction No. 10, provides in pertinent part that:

If you find that the plaintiffs have proved by a preponderance of the evidence:
1. Th
...

To continue reading

Request your trial
45 cases
  • Singh v. Lyday, No. 84A05-0709-CV-538.
    • United States
    • Indiana Appellate Court
    • June 27, 2008
    ...(Ind.Ct.App.1994), trans. denied; see also Topp v. Leffers, 838 N.E.2d 1027, 1033 (Ind.Ct.App.2005), trans. denied; Dughaish v. Cobb, 729 N.E.2d 159, 164 (Ind.Ct.App.2000), trans. denied; Schaffer v. Roberts, 650 N.E.2d 341, 342 (Ind.Ct. App.1995) ("It is well settled that in a medical negl......
  • In re Reyes
    • United States
    • U.S. District Court — Northern District of Indiana
    • January 13, 2015
    ...foreseen or anticipated." Carey v. Indiana Physical Therapy, Inc., 926 N.E.2d 1126, 1128 (Ind. Ct. App. 2010) (citing Dughaish ex rel. Dughaish v. Cobb, 729 N.E.2d 159,1 64 (Ind. Ct. App. 2000), trans. denied 753 N.E.2d 2 (Ind. 2001)). At a minimum, proximate cause requires that the harm wo......
  • AC v. Estate of Crabtree
    • United States
    • Indiana Appellate Court
    • June 2, 2004
    ...trial court has wide discretion to correct errors, and we will reverse only for an abuse of that discretion. Dughaish ex rel. Dughaish v. Cobb, 729 N.E.2d 159, 167 (Ind.Ct.App.2000),reh'g denied, trans. denied. An abuse of discretion occurs when the trial court's action is against the logic......
  • Cavens v. Zaberdac
    • United States
    • Indiana Appellate Court
    • January 20, 2005
    ...the same standard of review as the trial court in determining the propriety of a judgment on the evidence. Dughaish ex rel. Dughaish v. Cobb, 729 N.E.2d 159, 167 (Ind.Ct.App.2000), trans. denied."When the trial court considers a motion for judgment on the evidence, it must view the evidence......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT