Miller v. Ryan

• Decision Date: 25 February 1999
• Docket Number: No. 29A02-9612-CV-818,29A02-9612-CV-818
• Citation: 706 N.E.2d 244
• Parties: Anthony E. MILLER, D.P.M., Appellant-Defendant, v. Georgia K. RYAN and Woodrow Ryan, Jr., Appellees-Plaintiffs.
• Court: Indiana Appellate Court

Page 244

706 N.E.2d 244

Anthony E. MILLER, D.P.M., Appellant-Defendant, v. Georgia K. RYAN and Woodrow Ryan, Jr., Appellees-Plaintiffs.

No. 29A02-9612-CV-818.

Court of Appeals of Indiana.

Feb. 25, 1999.

Joseph M. Scodro, Nana Quay-Smith, Karl L. Mulvaney, Candace L. Sage ,Bingham Summers Welsh & Spilman,Indianapolis, Indiana, Attorneys for Appellant:

Robert W. York, Cynthia A. Marcus, York Schrager Baxter James & Rose Indianapolis, Indiana, Attorneys for Appellee:

OPINION

MATTINGLY, Judge

In this medical malpractice action, Anthony E. Miller, D.P.M. (Dr. Miller) appeals a jury verdict in favor of Georgia K. Ryan (Ryan) and Woodrow Ryan, Jr. (collectively, the Ryans). We restate the issues he raises as follows:

1. Whether the trial court erred when it refused to give an instruction that the law does not require that a physician guarantee that he will cure the patient or even that he will obtain a good result;

2. Whether the trial court erred when it instructed the jury that a podiatrist may not avoid responsibility during surgery by delegating part of that surgery to another podiatrist;

3. Whether the trial court erred when it instructed the jury that evidence of Dr. Miller's counsel's actions towards a member of the first medical review panel could be considered substantive evidence, as the conduct of an attorney is imputed to the client; and

4. Whether prejudicial evidentiary harpoons injected into the case by the Ryans' counsel, when viewed in conjunction with the improper instructions, require a new trial.

We affirm.

FACTS AND PROCEDURAL HISTORY

In December of 1982, Ryan sought treatment with Dr. Thatcher, who practiced podiatry with Dr. Miller at the Burlington Clinic in Kokomo. Ryan, an insulin-dependent diabetic, complained of pain in her left foot. Dr. Thatcher diagnosed Ryan as suffering from, among other things, diabetic neuropathy, ¹ and a dropped fourth metatarsal bone. He treated her by trimming a callous on the ball of her left foot, ordering x-rays, and prescribing some cream and shoe inserts. The record does not indicate that Ryan had complaints of any pain in her right foot. Ryan returned to Dr. Thatcher a week later and was fitted with the shoe inserts.

On March 24, 1983, Ryan returned to the Burlington Clinic, this time seeing Dr. Miller. Dr. Miller diagnosed that Ryan had problems, including bunions, with both her feet and recommended that she undergo bilateral foot surgery. Dr. Miller claimed that Ryan told him that she was experiencing pain in both feet. Ryan denied that she ever suffered from pain in her right foot. Dr. Miller testified that he informed Ryan of the risks of surgery, in addition to telling her that the pain from her diabetic neuropathy could not be addressed surgically. Ryan denied that she was advised of alternatives to or risks of surgery so that she could give an informed consent.

Ryan underwent bilateral foot surgery in April of 1983. Dr. Miller, designated as the surgeon, performed various surgical procedures on Ryan's left foot. Simultaneously, Dr. Thatcher, designated as the assisting surgeon, performed the same surgical procedures on Ryan's right foot. Since these surgeries, Ryan suffers pain in both feet. She has undergone corrective surgery on the right foot to repair a nerve cut during the first surgery and is expected to undergo the same surgery on her left foot.

The Ryans filed Proposed Complaints for medical malpractice against various defendants, including Dr. Miller, an anesthesiologist, and Ryan's internist. A medical review panel was formed consisting of Dr. Malament, a podiatrist and Drs. Losasso and Clark, neither of whom were podiatrists. After discovery and the submission of evidence to the medical review panel, the panel chairman convened the panel. During that panel meeting, Drs. Malament, Losasso and Clark agreed to issue a finding that the internist and the anesthesiologist had met the applicable standard of care but that Dr. Miller had not. ²

Subsequent to the panel meeting but before the panel chairman had circulated a written opinion for signature, Dr. Miller's counsel, Frederick LaCava (LaCava), contacted the panel chairman. After inquiring as to whether the panel required any additional information, LaCava was told by the panel chairman that the panel had already decided in favor of the anesthesiologist and the internist but had found that Dr. Miller breached the applicable standard of care.

LaCava then telephoned Dr. Malament and discussed the panel's findings with him. Unbeknownst to the parties and the other panel members, LaCava represented Dr. Malament in at least one unrelated medical malpractice case. Subsequent to that telephone conversation, Dr. Malament contacted the panel chairman and advised that he had changed his mind with regard to Dr. Miller. Dr. Malament told the panel chairman that he felt the evidence did not support the conclusion that Dr. Miller had failed to meet the applicable standard of care. Dr. Malament refused to sign the panel opinion. As a result, Drs. Losasso and Clark also refused to sign the opinion, as they had relied upon Dr. Malament's expertise as a podiatrist in forming their own opinions. The panel ultimately signed an opinion that found the anesthesiologist and the internist met the appropriate standard of care, but rendered no opinion as to Dr. Miller, noting that the issues involving Dr. Miller were to be submitted to another medical review panel.

A second medical review panel was convened and unanimously found that the:

evidence does not support the conclusion that [Dr. Miller] failed to meet the applicable standard of care as charged in the Complaint except that it finds a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court or jury, as to the limited issue of whether Dr. Miller adequately informed the patient that surgery might not alleviate all of her pain.

Supplemental R. at 190.

A disciplinary action was instituted against LaCava as a result of his actions toward Dr. Malament and the medical review panel. See In re LaCava, 615 N.E.2d 93 (Ind.1993).

The Ryans subsequently filed suit against Dr. Miller and the internist. ³ After a trial, a jury returned a verdict in favor of the Ryans for $325,000. The verdict included compensatory damages to Ryan of $290,000 and loss of consortium damages to her husband of $35,000.

DECISION AND DISCUSSION

1. Guarantee Instruction

Dr. Miller submitted the following instruction (the "guarantee instruction"):

The law does not require that a physician guarantee that he will cure his patient or even that he will obtain a good result. The law does require that a physician possess and use that degree of skill and learning which is ordinarily possessed by physicians under the same or similar circumstances at the time of the treatment or service.

Accordingly, a physician will not be negligent if he exercises such reasonable care and ordinary skill even though he mistakes a diagnosis, makes an error in judgment or fails to appreciate the seriousness of the patient's problems.

R. at 610. This instruction was refused by the trial court.

We use a three-part inquiry with respect to refusal of a tendered instruction: 1) whether the tendered instruction is a correct statement of the law; 2) whether there is evidence in the record to support the instruction; and 3) whether the substance of the instruction is covered by other instructions given by the court. Compton v. Pletch, 561 N.E.2d 803, 805 (Ind.Ct.App.1990), opinion adopted, 580 N.E.2d 664 (Ind.1991). Further, an instruction which would tend to mislead or confuse the jury is properly rejected. Shane v. State, 615 N.E.2d 425, 428 (Ind.1993).

Even if the instruction is a correct statement of the law, is supported by the evidence, and is not covered by the other instructions, we will not reverse unless the failure to give the instruction substantially and adversely affects the rights of the complaining party so as to quite likely have affected the result. Id. Because we find that the guarantee instruction was not supported by the evidence, that it could have had the effect of misleading or confusing the jury, and that Dr. Miller was not prejudiced by the refusal of the instruction, we need not address whether the instruction was a correct statement of the law or whether its substance was covered by other instructions which were given. ⁴

A. Instruction Unsupported by the Evidence/Confusion of the Jury

It is error to refuse an instruction if there is evidence in the record to support the theory set forth in the instruction. K Mart Corp. v. Beall, 620 N.E.2d 700, 703 (Ind.Ct.App.1993). However, the trial court has considerable discretion in determining which issues have been raised by the trial evidence and in determining the form in which instructions will be given. Webb v. Angell, 155 Ill.App.3d 848, 108 Ill.Dec. 347, 508 N.E.2d 508, 514 (1987).

In Brook v. St. John's Hickey Mem'l Hosp., 269 Ind. 270, 277, 380 N.E.2d 72, 76 (1978), our supreme court determined that refusal of a jury instruction was not error where the instruction "emphasized one aspect of a physician's duties which had not been supported by the evidence in the case." In that case, the defendant radiologist had chosen an injection site which was not recommended by the medical community. The plaintiff tendered an instruction which stated that a radiologist is not authorized to try "untested experiments" on patients. Id. at 274, 380 N.E.2d at 75. The supreme court determined that because the record showed the radiologist had "several compelling, professional reasons" for choosing the unusual injection site, the instruction about untested experiments was properly refused because it was unsupported by the evidence. Id. The court noted that "[t]oo often courts have confused judgmental decisions and experimentation[,]" and concluded that the instruction would have been misleading...