Sibbing v. Cave, 49S02-0906-CV-00275.

• Decision Date: 04 March 2010
• Docket Number: No. 49S02-0906-CV-00275.,49S02-0906-CV-00275.
• Citation: 922 N.E.2d 594
• Parties: Eric P. SIBBING, Appellant (Defendant below), v. Amanda N. CAVE, Individually, and as the Mother and Guardian of Mercy M. Cave, a Minor Child, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

922 N.E.2d 594 Eric P. SIBBING, Appellant (Defendant below),
v.
Amanda N. CAVE, Individually, and as the Mother and Guardian of Mercy M. Cave, a Minor Child, Appellee (Plaintiff below). No. 49S02-0906-CV-00275. Supreme Court of Indiana. March 4, 2010.

[922 N.E.2d 596]

William H. Kelley, Darla S. Brown, Kelley, Belcher & Brown, Bloomington, IN, Attorneys for Appellant.

James A. Mellowitz, Robert W. York & Associates, Indianapolis, IN, Attorney for Appellee.

Karl L. Mulvaney, Barry C. Cope, Briana L. Kovac, Bingham McHale LLP, Indianapolis, IN, Attorneys for Amicus Curiae Ins. Inst. of Ind.

On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-0802-CV-165

DICKSON, Justice.

Following a plaintiff's verdict in this automobile rear-end collision personal injury case, the defendant appealed, claiming trial court error in (a) permitting the plaintiff to testify about what she was told by her treating physician and her own beliefs about the cause of her pain, and (b) excluding medical necessity evidence from the defendant's expert witness. The Court of Appeals affirmed. Sibbing v. Cave, 901 N.E.2d 1155 (Ind.Ct.App.2009). We granted transfer and affirm, holding that some of the challenged medical testimony of the plaintiff was improperly admitted but that the resulting error does not require reversal, and that the defendant's evidence regarding medical necessity was properly excluded.

A brief summary of the factual and procedural background provides context for our discussion of the issues. This case arises from an Indianapolis motor vehicle collision on October 27, 2005, in which the defendant drove his automobile into the rear of the vehicle occupied by the plaintiff and her eleven-year-old daughter. The defendant was driving "around 45, 50 miles a[n] hour possibly a little over," Tr. at 219, preoccupied with adjusting his car radio, did not see the slowed traffic in front of him, and failed to apply his brakes or reduce his speed before the forceful impact. The resulting vehicular damage was substantial. The plaintiff experienced a sudden onset headache but was able to drive home after the collision. About three hours later, she drove herself to the St. Francis Hospital emergency room where she was examined, treated, and released. About two weeks later, beginning November 14, 2005, she sought and received medical care and treatment from Muhammad Saquib, M.D., and his associates at a medical clinic, Priority 1 Medical, consisting of fourteen or fifteen visits over the course of one month. Following procedural difficulties in arranging for treatment with Pain Management Services at Community Hospital East, she sought further care for relief of her continuing pain and disability at Castleton Chiropractic, where she received treatment, primarily from Ronald Sheppard, D.C., consisting of about forty visits from February through June, 2006.

The defendant did not contest liability at

922 N.E.2d 597

trial.¹ The plaintiff's evidence included various medical records and bills from St. Francis Hospital, Priority 1 Medical, and Castleton Chiropractic, and testimony from herself, her mother, her daughter, the defendant, the investigating police officer, and Dr. Sheppard. The defendant's witnesses included J. Paul Kern, M.D., by video deposition,² and the defendant's girlfriend, who arrived at the scene of the collision while the plaintiff was still present. The trial court entered judgment upon the jury's verdict awarding the plaintiff $71,675 and her daughter $325.

1. Admission of Plaintiff's Testimony

The defendant first challenges the trial court's decision in allowing the plaintiff, over defendant's objection, "to recite hearsay testimony at trial about what Dr. Saquib told her about her injuries." Appellant's Br. at 16. The defendant argues that "Dr. Saquib, Cave's internist, was not the one receiving medical diagnosis or treatment" and that the plaintiff's "testimony as to what Dr. Saquib allegedly told her about the results of diagnostic tests and the cause of her pain does not qualify as an exception to the hearsay rule under Evid. R. 803(4) since the statements at issue were made by Dr. Saquib to Cave and not by Cave to Dr. Saquib for purposes of receiving a diagnosis or treatment." Id. at 19.

Indiana Evidence Rule 803(4) operates as an exception to the general rule that hearsay is inadmissible evidence at trial. The rule states:

Statements for Purpose of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

The plaintiff points to Coffey v. Coffey, 649 N.E.2d 1074 (Ind.Ct.App.1995), trans. not sought, as authority for allowing statements made by a health care provider to a patient to be admitted under the 803(4) hearsay exception. Coffey involved the distribution of marital assets in a dissolution proceeding. To show available assets, the husband attempted to admit a letter from his doctor describing his medical condition and diagnosis, arguably a relevant factor when determining property division. Id. at 1078. The trial court excluded the letter, and in his appeal, the husband argued the letter should have been admitted under 803(4). Id. The Court of Appeals agreed, reversed, and remanded, apparently concluding that the letter's information regarding physical diagnosis, treatment agenda, and resulting inability to work fell within rule 803(4)'s language, which does not explicitly state whose statements fall within the exception.

922 N.E.2d 598

We disagree with and disapprove of this holding in Coffey. The rationale for the 803(4) hearsay exception is that a declarant has a personal interest in obtaining a medical diagnosis and treatment, and this interest motivates the patient to provide truthful information. See McClain v. State, 675 N.E.2d 329, 331 (Ind.1996). Stated another way, a patient's personal interest in receiving medical treatment supplies significant indicia of reliability that the patient's statements are true, thus reducing the need for exclusion of hearsay evidence not subject to cross-examination. Declarations made by a physician or other health care provider to a patient do not share this enhanced indicia of reliability. Furthermore, because of the substantial likelihood that a typical patient may fail to fully or accurately comprehend or understand the physician's report, to admit into evidence a patient's personal perception of the physician's statement would not only foster the possibility of misreporting but also eliminate the opportunity for clarifying cross-examination of the physician. While Rule 803(4) does not expressly identify which declarants' medical statements are intended to be treated as a hearsay rule exception, we hold that the Rule is intended and should apply only to statements made by persons who are seeking medical diagnosis or treatment.

For this reason, the plaintiff's testimony reporting Dr. Saquib's statements about the results of diagnostic tests and the cause of her pain does not qualify as an exception to the hearsay rule under Rule 803(4). On the other hand, "errors in the admission of evidence are to be disregarded as harmless error unless they affect the substantial rights of a party." McClain, 675 N.E.2d at 331. Likewise, reversible error cannot be predicated upon the erroneous admission of evidence that is merely cumulative of other evidence that has already been properly admitted. Davis v. Garrett, 887 N.E.2d 942, 947 (Ind. Ct.App.2008), trans. denied. To determine whether the admission of evidence affected a party's substantial rights, we assess the probable impact of the evidence upon the jury. McClain, 675 N.E.2d at 331.

Anticipating the application of the harmless error doctrine, the defendant argues that the objectionable evidence is not merely cumulative of other evidence and that "[i]t cannot be said that the addition of the `medical testimony' from the absent Dr. Saquib could not have affected the jury's decision and hence the outcome of the trial." Appellant's Br. at 21.

The defendant principally challenges the plaintiff's testimony reporting Dr. Saquib's statements to her regarding the probable degree and duration of discomfort, the frequency that similar traffic accidents result in injuries not immediately evident, that "the curve of my spine was off based on like whiplash," that her MRI "showed a bulging disc between L5 and S2 spine bones," and that the location of the bulging disc was "in the same spot" that the plaintiff initially identified in the emergency room. Appellant's Br. at 7-9. The defendant identifies the plaintiff's statement, "I knew the pain in my lower back was because of the bulging disc," id. at 10, and argues that it was improperly admitted over his objection for lack of foundation, showing no medical expertise, id. at 19-20.

We find that substantially all of this evidence was also presented to the jury through other exhibits, including Plaintiff's Exhibit 11, fifty-five pages of the plaintiff's medical treatment records from Priority 1 Medical, where she was under the care of Dr. Saquib, and through the testimony of the plaintiff's medical witness, Dr. Sheppard. The Priority 1 Medical records, including the plaintiff's MRI test results,

922 N.E.2d 599

were admitted without objection. Among the other evidence admitted, for example, was the written report of radiologist Ronald I. Landau, M.D., expressing his MRI impression of "Annular disc bulging at L5-S1." Plaintiff's Exhibit 12, Appellee's App'x at 309-10. In addition, Dr. Sheppard testified without objection that the MRI showed that the plaintiff was suffering from a bulging disc at L5-S1, that this was consistent with her complaints of back pain, and that her injuries were the...