Fridono v. Chuman
| Decision Date | 03 May 2001 |
| Docket Number | No. 45A04-0002-CV-61.,45A04-0002-CV-61. |
| Citation | 747 N.E.2d 610 |
| Parties | Rocco FRIDONO, Appellant-Plaintiff, v. Charles M. CHUMAN, M.D., Appellee-Defendant. |
| Court | Indiana Appellate Court |
Priscilla A. Herochik, Merillville, IN, Attorney for Appellant.
Michael E. O'Neill, Louis W. Voelker, Eichhorn & Eichhorn, Hammond, IN, Attorneys for Appellee.
Appellant-plaintiff Rocco Fridono ("Fridono") appeals the jury verdict on his medical malpractice claim in favor of appellee-defendant Charles M. Chuman, M.D. ("Chuman"). We affirm.1
Fridono presents three issues for our review, which we consolidate and restate as follows:
I. whether a document identifying the restrictions placed on the staff privileges of Fridono's expert witness was privileged under the peer review statutes and therefore inadmissible for purposes of impeachment on cross-examination; and
II. whether the trial court erred in refusing to give Fridono's tendered jury instruction.
This case arises out of a cervical laminectomy2 performed by Chuman on Fridono on April 19, 1989. Fridono first injured his back in 1977. In 1979, Fridono experienced pain in his neck and upper extremities; he was treated by a chiropractor at that time. However, the pain worsened, and Fridono sought further treatment.
Fridono first visited Chuman in October 1985. Fridono had seen several physicians prior to meeting with Chuman. After reviewing the radiology films from several studies of Fridono's lumbar and cervical spine, Chuman diagnosed Fridono with polyradiculopathy, but did not consider him a surgical candidate at that time. Chuman recommended conservative treatment, including injections of cortisone and anesthetic. He also recommended a CT3 scan of the neck and lower back. Fridono received the injections but did not follow up on the radiological studies.
Fridono did not return to Chuman until August 1986. Meanwhile, Fridono consulted two other physicians about his lower back pain. One of the physicians recommended urological and psychological evaluations. In August 1986, at his second visit to Chuman, Fridono complained of pain and numbness in his legs, buttocks, and groin; burning in the pelvic area, lower bowel, and rectum; and pain in both arms. Chuman believed Fridono had stenosis4 of the spinal canal and recommended a myelogram5 to evaluate the problem.
In July 1987, Fridono consulted a psychiatrist who noted that Fridono's condition was probably prepsychotic, but that the physical evaluations would validate the organic nature of his back difficulties. Another psychiatrist concluded that Fridono suffered from depression, anxiety disorder, and multiple physical problems, but that he was competent to handle his affairs.
Fridono returned to Chuman on August 27, 1987, with the films from a myelogram. Fridono was experiencing the same problems as he had a year earlier, and Chuman concluded that he was "getting to be a surgical patient." Chuman recommended traction treatment, a form of physical therapy, for Fridono's cervical spine and referred Fridono to Dr. Shepherd ("Shepherd"), an orthopedic surgeon, for evaluation of his lumbar spine. Shepherd concluded that Fridono would most likely need a laminectomy and foraminotomy6 in the lumbar spine with possible fusion. In December 1987, Fridono saw Dr. Rajan Raj ("Raj"), a neurosurgeon, who recommended another myelogram. In March 1988, Raj performed an anterior cervical discectomy7 and fusion; he also referred Fridono to a pain clinic.
Fridono returned to Chuman in August 1988 with complaints of numbness in his hands and burning in his groin, genitals, and buttocks. Fridono indicated to Chuman that the cervical traction provided only temporary relief and that Raj had referred him to a pain clinic. Chuman planned to send Fridono to Shepherd for lumbar fusion surgery and to reevaluate the fusion three months later. In September 1988, Fridono returned to Chuman complaining of severe cervical pain and spasms in the shoulder as well as lower back, groin, and leg pain. Chuman believed Fridono had spinal cord compression. Chuman did not refer Fridono for physical therapy or pain clinic treatment, as Fridono had already received those treatments without relief.
Fridono continued to complain of pain in November 1988. At that time, Fridono underwent an MRI8 and a CT scan, which revealed degenerative changes in his lower back. On November 10, 1988, Chuman concluded that Fridono had spinal stenosis, but an MRI of the cervical spine did not reveal definitive evidence of either stenosis or cord compression. On November 28, 1988, Chuman referred Fridono to Dr. Larry Salberg ("Salberg"), director of the Northern Indiana Neurological Institute, for a neurological evaluation. Salberg urged that Fridono not undergo any surgical procedures until neurological and neuropsychological evaluations could be completed. Salberg indicated that he "strongly disapprove[d] of any further surgery being performed ..., until total evaluation [could] take place, and possibly even a trial of medical, psychological, and physical therapy, therapies [could] be tried in a multidisciplinary approach." In December 1988, Fridono underwent decompression laminectomy and discectomy performed by Dr. Gerald Kane, an orthopedic surgeon. Two months later, Fridono saw Dr. Ronald Pawl ("Pawl"), a neurosurgeon. Fridono indicated to Pawl that he did not want to consider a pain treatment clinic at that time.
On March 9, 1989, Fridono returned to Chuman. Chuman evaluated Fridono's complaints and recommended another MRI, which was performed on March 27, 1989. Chuman tried to refer Fridono to Salberg, but Fridono declined. Chuman admitted Fridono for surgery in April 1989. He explained the medical findings of the tests indicating the reasons for doing the laminectomy, treatment alternatives to surgery, and the risks of surgery. Before performing the surgery, Chuman sought a psychiatric consult because Fridono had been verbally abusive to nursing staff at the hospital. Chuman performed the laminectomy on April 19, 1989.
Fridono initiated this medical malpractice action by filing a proposed complaint with the Indiana Department of Insurance in 1991. On May 5, 1993, two physicians on the medical review panel determined that Chuman breached the standard of care in his treatment of Fridono, while the third physician indicated that Chuman did not breach the standard of care. The three members unanimously agreed, however, that the medical care given by Chuman was not the proximate cause of any damages suffered by Fridono. In October 1993, after the medical panel review process, Fridono filed his complaint in the Lake Circuit Court. Fridono alleged that Chuman failed to comply with the applicable standards of care in performing the laminectomy. A jury trial commenced in November 1999.
At trial, Fridono presented the testimony of Dr. William Fischer ("Fischer") in support of his theory that the surgery performed by Chuman was unnecessary. Fischer's testimony was presented by a videotaped deposition. In qualifying Fischer as an expert witness, Fridono questioned Fischer about his qualifications and credentials at Northwestern University Medical School ("Northwestern"). On cross-examination, Chuman asked Fischer if his staff privileges at Northwestern had ever been restricted or modified. Fischer denied that his privileges had been restricted. At that point, Chuman presented a letter agreement between Fischer and Northwestern that imposed restrictions on his privileges as a result of a peer review process. References to the peer review committee and process were redacted, but not the specific restrictions placed on Fischer. Chuman had obtained the agreement through discovery in other judicial proceedings in Illinois. Chuman used the document to impeach Fischer and challenge his qualifications as an expert. Fridono objected to the use of the document, claiming that it was privileged under the peer review statutes. At trial, Fridono sought a motion in limine to preclude Chuman from using the document and to redact the testimony given by Fischer at the deposition relating to the document. The trial court denied the motion. The jury returned its verdict in favor of Chuman on November 12, 1999.
Fridono contends that the trial court erred in permitting Chuman to use a letter agreement to impeach Fischer. Specifically, Fridono argues that the letter agreement was part of a peer review process and was therefore inadmissible under both Indiana and Illinois law.9 Chuman responds that the letter agreement was related to a peer review process,10 but that the letter agreement and its use were limited to the result of the peer review process, namely, the restrictions placed on Fischer. Thus, Chuman argues, the document was admissible as impeachment evidence under both Illinois and Indiana law.
Ledbetter v. Ball Mem'l Hosp., 724 N.E.2d 1113, 1117 (Ind.Ct.App.2000), trans. denied.
Initially, we note that the parties analyze the peer review privilege under both Indiana and Illinois law. The letter agreement in question was created pursuant to a peer review committee proceeding in Illinois and under the Illinois Medical Studies Act. See 735 ILL. COMP. STAT. 5/8-2101 to -2105. Therefore, we must determine which law applies. "If the purposes and policies of two potential rules are the same, the forum should apply the forum law." Hartford Acc. & Indem. Co. v. Dana Corp., 690 N.E.2d 285, 291 (Ind.Ct. App. 1997), trans. denied (1998). Here, the purpose and policy of both the Indiana and...
To continue reading
Request your trial
-
Bonzani v. Goshen Health Sys., Inc.
...of the peer review committee may not be discovered or admitted in a judicial proceeding absent written waiver." Fridono v. Chuman , 747 N.E.2d 610, 617 (Ind. Ct. App. 2001). In addition, the privilege has its limitations. "Disclosure of the results or consequences of a proceeding (namely, t......
-
Neal v. DeKalb Cty. Div. of Fam. & Children
...intent to be that one statute must give way to another. Wright v. Gettinger, 428 N.E.2d 1212, 1219 (Ind.1981); Fridono v. Chuman, 747 N.E.2d 610, 617 (Ind.Ct.App.2001). In determining whether the legislature intended that one statute should prevail over another, some cases emphasize that th......
-
Neal v. Matter of the Termination of the Parent-Child Relationship of M.N.
...intent to be that one statute must give way to another. Wright v. Gettinger, 428 N.E.2d 1212, 1219 (Ind. 1981); Fridono v. Chuman, 747 N.E.2d 610, 617 (Ind. Ct. App. 2001). In determining whether the legislature intended that one statute should prevail over another, some cases emphasize tha......
-
Southtown Properties v. City of Fort Wayne
...any fact which tends to reflect upon the veracity of that testimony may be introduced to impeach the witness." Fridono v. Chuman, 747 N.E.2d 610, 620 n. 12 (Ind.Ct.App.2001), trans. denied. "In all cases, the party producing the witness may contradict the witness: (1) by other evidence; and......