Whitaker v. Kruse
| Citation | 495 N.E.2d 223 |
| Decision Date | 16 July 1986 |
| Docket Number | No. 4-383A93,4-383A93 |
| Parties | Dorothy L. WHITAKER, Appellant (Plaintiff Below), v. George Timothy KRUSE and Progressive Construction and Engineering Co., Inc., Appellees (Defendants Below). |
| Court | Court of Appeals of Indiana |
Gerald H. McGlone, Richard J. Cronin, Terre Haute, for appellant.
Eric A. Frey, Terre Haute, for appellees.
Dorothy L. Whitaker appeals a jury verdict in favor of George Kruse and Progressive Construction and Engineering Co., Inc. Whitaker raises four issues on appeal. We address only the following issue since it is dispositive:
Was it reversible error for the trial court to give defendants' tendered jury instruction number 4 which states:
I instruct you, members of the jury, that plaintiffs seek recovery for medical expense, care and treatment which they contend was necessitated by the accident of April 4, 1978. In order for plaintiffs to recover for such medical expense, care and treatment, it is incumbent upon them to prove that such medical care and treatment was reasonable and necessary as a direct and proximate result of the injury sustained by plaintiff Dorothy L. Whitaker, on April 4, 1978. If you find that any or all of the medical expense, care and treatment for which plaintiffs seek compensation was not reasonable or necessary as a result of the collision in this case, then I instruct you that you may not award damages for any medical expense, care and treatment which was unreasonable or unnecessary.
We conclude it was error and reverse and remand for a new trial.
Whitaker was a passenger in a vehicle that was rear-ended by a truck driven by Kruse. Shortly after the accident, Whitaker became ill and began experiencing pain in her back, neck and head. She was taken to a hospital emergency room, treated and advised to see a bone specialist.
Whitaker was subsequently treated by two physicians. The first was an orthopedic surgeon who attempted to alleviate Whitaker's pain through conservative treatment. When this failed, he recommended that Whitaker see a neurosurgeon. Based on diagnostic testing and Whitaker's continuing clinical symptoms, neck surgery was performed and a damaged disc removed. Although Whitaker continued to experience pain in her neck and head, it was not as severe as before the surgery, and other problems, such as numbness in her left arm and muscle spasms, ceased.
Whitaker, however, continued to suffer back pain which became progressively worse. Again conservative treatment was tried without relief for the patient. Following additional diagnostic testing, it was determined that Whitaker had a herniated disc. Back surgery was performed and a degenerated disc removed. Following surgery, Whitaker continued to suffer pain in her hip and leg. Finally, a second back surgery was performed and another herniated disc removed. Whitaker continued to suffer some pain in her right hip and leg but was able to stop taking pain medication and begin doing some housework.
At trial, Kruse and Progressive admitted negligence but denied that Whitaker was entitled to recover for both the original injuries and any aggravation of those injuries that resulted from medical care. They did not argue that Whitaker improperly sought medical care or unreasonably chose her physicians. Rather, they argued that the operations were not necessary and only exacerbated Whitaker's injuries. The case was submitted to the jury and a verdict returned for Kruse and Progressive. Whitaker appeals on the basis that the jury was improperly instructed as to the applicable law.
A jury instruction which misstates the law will serve as grounds for reversal where the jury's verdict could have been based on the erroneous instruction. In determining whether the jury was misled, we examine the evidence and record to see if a different verdict could have been reached with a proper instruction. We will assume that the erroneous instruction influenced the jury verdict unless our review of the record indicates that the verdict could not have differed even with a proper instruction. Zimmerman v. Moore (1982), Ind.App., 441 N.E.2d 690, 693.
The basic rule of liability for harm resulting from the treatment of injuries caused by an actor's negligent conduct is stated in Restatement (Second) of Torts Sec. 457 (1965):
If the negligent actor is liable for another's bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third persons in rendering aid which the other's injury reasonably requires, irrespective of whether such acts are done in a proper or a negligent manner.
The Indiana Supreme Court has adopted this general rule stating:
It is undoubtedly true that one suffering a bodily injury by reason of another's negligence must use ordinary diligence and care in securing surgical aid, and, failing in such duty, cannot recover for ailments or diseases caused by such neglect ... But, where ordinary care has been exercised in selecting a surgeon, the latter's unskillful treatment causing aggravation of the injury will not alone preclude a recovery by the plaintiff from the tort-feasor of damages for the aggravated as well as the original injury ...
[The tort-feasor] created the necessity for a surgeon's services, and [the injured party], without negligence, obtained the necessary surgical attendance. The risks incident to such service were incurred because of [the tort-feasor's] fault, and the aggravation of the original injury, if any, by unskillful surgery, must be held the proximate result of [the tort-feasor's] negligence.
Suelzer v. Carpenter (1915), 183 Ind. 23, 107 N.E. 467, 470-471. See also City of Goshen v. England (1889), 119 Ind. 368, 21 N.E. 977, 979; Joseph E. Seagram and Sons, Inc. v. Willis (1980), Ind.App., 401 N.E.2d 87, 89-92 ().
The rationale for permitting recovery under this rule is that the tort-feasor created the necessity for medical care in the first instance. So long as the individual seeking medical care makes a reasonable choice of physicians, he is entitled to recover for all damages resulting from any aggravation of his original injury caused by a...
To continue reading
Request your trial
-
Brownell v. Figel
...is liable for subsequent injuries arising from medical treatment required as a result of the original misconduct. Whitaker v. Kruse, 495 N.E.2d 223, 225-26 (Ind.Ct.App.1986). Here, Brownell's voluntary intoxication was the proximate cause of his ultimate injury. Moreover, as the original to......
-
Selbe v. U.S.
...physician, although the original tortfeasor may also have a claim for indemnity against the subsequent one); Whitaker v. Kruse, 495 N.E.2d 223, 225-26 (Ind.Ct.App.1986) (original tortfeasor liable for subsequent injuries arising from medical treatment required as a result of the original mi......
-
Sibbing v. Cave, 49S02-0906-CV-00275.
...trans. not sought. The plaintiff asserts that the testimony was properly excluded because it was contrary to Whitaker v. Kruse, 495 N.E.2d 223 (Ind.Ct.App.1986), trans. not sought, which she contends prevents a defendant tortfeasor from seeking to reduce his liability by questioning the jud......
-
Holden v. Balko
...or reduce the tortfeasor's own liability, at least so long as the victim used reasonable care in selecting a doctor. Whitaker v. Kruse, 495 N.E.2d 223, 226 (Ind.App.1986); accord, Suelzer v. Carpenter, 183 Ind. 23, 107 N.E. 467, 470-71 (1915); Restatement (Second) of Torts § 457 (1965). Ind......