Smith v. Washington, 49A04-9808-CV-398.

• Decision Date: 28 September 1999
• Docket Number: No. 49A04-9808-CV-398.,49A04-9808-CV-398.
• Citation: 716 N.E.2d 607
• Parties: James H. SMITH, Appellant/Cross-Appellee-Plaintiff, v. Wilbert WASHINGTON, M.D., Appellee/Cross-Appellant-Defendant.
• Court: Indiana Appellate Court

716 N.E.2d 607

James H. SMITH, Appellant/Cross-Appellee-Plaintiff, v. Wilbert WASHINGTON, M.D., Appellee/Cross-Appellant-Defendant.

No. 49A04-9808-CV-398.

Court of Appeals of Indiana.

September 28, 1999.

Thomas C. Doehrman, Conour Doehrman Starkey, Indianapolis, Indiana, Attorney for Appellant.

Todd J. Kaiser, Peter H. Pogue, Locke Reynolds Boyd & Weisell, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Plaintiff-Appellant, James Smith (Smith), appeals the trial court's conclusion that the damages awarded to him be reduced by fifty percent (50%). Defendant-Appellee-Cross-Appellant, Wilbert Washington, M.D., (Washington), cross-appeals from the trial court's judgment entered in favor of Smith.

We reverse in part and affirm in part.

ISSUES

Smith raises several issues for review, which we consolidate and restate as:

1. Whether the trial court properly applied § 323 of the Restatement (Second) of Torts to this action.

2. Whether the trial court properly reduced the damages awarded to Smith by fifty percent (50%).

In his cross-appeal, Washington raises several issues for review, which we consolidate and restate as:

3. Whether the applicable statute of limitations barred Smith's Complaint.

4. Whether the trial court erred when it denied Washington's request for jury trial.

5. Whether the trial court erred in determining that Smith was not contributorily negligent.

FACTS AND PROCEDURAL HISTORY

Washington is an ophthalmologist who maintained a practice in Indianapolis, Indiana. Smith first became a patient of Washington's on July 10, 1990, after being referred by his family physician. At that time, Smith suffered from glaucoma¹ in his right eye. In the course of his treatment of Smith, Washington failed to document a specific or working diagnosis of the type of glaucoma Smith had in his right eye. On July 18, 1990, and July 25, 1990, Washington performed laser surgery (an iridotomy) to reduce the intraocular pressure. These procedures only provided temporary relief of the intraocular pressure. Washington testified that on September 24, 1990, he advised Smith to have additional surgery, but Washington's records fail to show whether he advised Smith as to the type of surgery that was to be performed or the risks and benefits of the surgery. This failure prevented Smith from making an informed decision as to whether or not to proceed with surgery.

Throughout Washington's treatment of Smith, Smith's intraocular pressure in his right eye remained well above normal, and the pressure was sufficiently high to cause irreversible damage to the optic nerve. Washington never adequately brought Smith's right eye intraocular pressure under control. At the time Smith left Washington's care, he had no light perception in his right eye and never regained any useful vision in that eye.

Due to a change in health insurance coverage, Smith was referred by his new primary care physician to another ophthalmologist, Dr. Daniel Robinson (Robinson). Smith saw Robinson for the first time on January 29, 1993. On February 23, 1993, Robinson performed a molteno implant surgery to relieve the intraocular pressure in Smith's right eye. Although this procedure relieved the elevated intraocular pressure, it did not stop the continued deterioration of the right eye. Thus, on May 31, 1995, Smith had his right eye removed. Smith was fitted with an acrylic, prosthetic eye.

Smith filed his proposed Complaint against Washington with the Department of Insurance on October 14, 1993. On October 15th and 16th, 1997, December 1, 1997, and April 13, 1998, a bench trial was held in this case. On July 2, 1998, the trial court issued its Findings of Fact and Conclusions of Law, and entered Judgment in Smith's favor. The trial court found Washington negligent for: 1) failing to keep legible and complete medical records regarding Smith; 2) failing to perform the proper procedures and medical tests to diagnose the specific type of glaucoma which Smith had in his right eye; 3) failing to document the condition of the optic nerve in Smith's right eye; and 4) failing to reduce the elevated intraocular pressure in Smith's right eye within a reasonable amount of time or in the alternative, failing to refer Smith to another physician for that purpose.

The trial court found that with proper medical treatment of the glaucoma, Smith had at least a 50% chance of retaining vision in his right eye. The trial court further found that Washington's negligence was a substantial factor in causing Smith: 1) to lose all vision in his right eye; 2) to suffer continuing pain and discomfort in his right eye for over two (2) years, and 3) to suffer the eventual enucleation² of his right eye. The trial court determined that Smith sustained damages totaling $364,037.84. However, the trial court reduced Smith's damage award by fifty percent (50%) equaling the percentage of chance that he had of maintaining vision in his right eye with proper medical care. Thus, the trial court entered a judgment in Smith's favor in the amount of $182,018.92. Thereafter, this appeal ensued.

DISCUSSION AND DECISION

Standard of Review

When a trial court issues findings of fact and conclusions of law, we must first determine whether the evidence supports the trial court's findings and then determine whether the findings support the judgment. City of Muncie v. Lowe, 705 N.E.2d 528, 530 (Ind.Ct.App.1999) trans. denied. The reviewing court may affirm the judgment on any legal theory supported by the findings and the judgment will only be reversed when it is clearly erroneous. Id. "Findings of fact are clearly erroneous when the record lacks any reasonable inferences from the evidence to support them." Id. To determine whether the findings or conclusions are clearly erroneous we will not reweigh the evidence or assess the credibility of the witnesses, and we consider only the evidence favorable to the judgment and all reasonable inferences therefrom. Id. All issues raised by the parties herein will be considered within the constraints of this standard of review.

1. Restatement (Second) of Torts, § 323

Smith first argues that the trial court improperly applied § 323 of the Restatement (Second) of Torts to this case. In 1995, our Supreme Court adopted the "increased risk of harm" standard set forth in § 323 as a method of determining "causation" in medical malpractice cases. Mayhue v. Sparkman, 653 N.E.2d 1384, 1388 (Ind.1995). The issue that confronted the Mayhue Court was whether a health care provider was liable for the increased risk of harm caused to a patient, where the patient, as a result of injury or illness, already had a less than fifty percent (50%) chance of recovery, and the health care provider's negligence caused that patient to suffer an increased risk of injury or death. Id. at 1387. Our Supreme Court noted that a traditional proximate cause analysis would result in the following conclusion:

Where a patient's illness or injury already results in a probability of dying greater than 50 percent, an obvious problem appears. No matter how negligent the doctor's performance, it can never be the proximate cause of the patient's death. Since the evidence establishes that it is more likely than not that the medical problem will kill the patient, the disease or injury would always be the cause-in-fact. The plaintiff must ordinarily prove that proper diagnosis and treatment would have prevented the patient's injury or death. In cases such as this one, it appears that a defendant would always be entitled to summary judgment.

Id.

However, with the adoption of § 323 by the Mayhue court, plaintiffs with a less than fifty percent (50%) chance of recovery, who have suffered a decreased chance of recovery from illness or injury due to the negligence of a health care provider, are provided with a means of recovery. Restatement (Second) of Torts § 323 (1965) states as follows:

One who undertakes, gratuitously or for consideration, to render services which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of harm...

Thus, to prove the health care provider's liability under a § 323 analysis, a plaintiff must demonstrate that the defendant was negligent, the negligent act increased the risk of harm, and that the increased risk was a substantial factor in causing the harm suffered to plaintiff. Cahoon v. Cummings, 715 N.E.2d 1, 7 (Ind.Ct.App. 1999) (citing Mayhue, 653 N.E.2d at 1388).

Here, the trial court, relying on Mayhue, 653 N.E.2d 1384, applied a § 323 analysis and concluded that Smith proved by a preponderance of the evidence that Washington's negligent act or omission increased the risk of harm to Smith, that Smith was harmed, and that Washington's negligence was a substantial factor in causing the harm to Smith.

Smith argues that the trial court should not have applied § 323 of the Restatement (Second) of Torts to this case because the trial court determined that with proper medical treatment, he had at least a 50% chance of retaining useful vision in his right eye and avoiding the enucleation of that eye. Smith contends that in cases where a plaintiff proves he has a fifty percent (50%) or more chance of recovery or survival, it is unnecessary to employ a § 323 analysis, and instead a traditional proximate cause analysis should be used. In response, Washington contends that Smith has waived this argument because Smith argued for the application of § 323 in the trial court. In his post-trial brief, Smith presented this case as an "increased risk of harm" case pursuant to Mayhue, 653 N.E.2d 1384.

We agree with Washington that Smith has waived this argument. Smith cannot invite error and then request relief...