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Cahoon v. Cummings9/1/2000
ON PETITION TO TRANSFER
Mayhue v. Sparkman, 653 N.E.2d 1384, 1388-89 (Ind. 1995), held that where a patient's likelihood of recovery was less than fifty percent, but negligent treatment increased the risk of loss, a claim may be asserted for that increased risk. We grant transfer and hold that damages for such a claim are to be measured in proportion to the increased risk, and not by the full extent of the ultimate injury.
Factual and Procedural Background
In December of 1991, William T. Cummings sought the treatment of his family doctor, Dr. Robert W. Kohne, for heartburn-like symptoms. Kohne ordered x-rays of Cummings' esophagus, stomach, and small bowel. The x-rays were interpreted by Dr. Jeffrey S. Cahoon, who diagnosed Cummings with a hiatal hernia and reflux esophagitis. Cummings asked Kohne whether surgery would correct the problem, but Kohne told him he could not have surgery "at weight." Instead, Kohne directed Cummings to lose weight, refrain from eating greasy foods, and sleep sitting up. In July 1992, after Cummings had lost about eighty pounds, he returned to Kohne. Cummings' insurance carrier had changed, so Kohne arranged for further consultation and treatment at the V.A. hospital in Danville, Illinois . Before Cummings could obtain treatment, however, he admitted himself to the emergency room of St. Elizabeth's Hospital in Lafayette, Indiana with a perforated esophagus that had hemorrhaged. Cummings was then diagnosed as suffering from esophageal cancer. Surgery and subsequent chemotherapy were tried, but the cancer had already spread to Cummings' lymph nodes and liver. He died in August of 1993.
Cummings filed a proposed complaint with the Indiana Department of Insurance in March of 1993. The complaint as amended charged Kohne with negligent failure to diagnose and Cahoon with negligent misdiagnosis of Cummings' condition. The Medical Review Panel concluded that the doctors had failed to follow the appropriate standard of care, but that their conduct "was not a factor of the resultant damages." After Cummings' death, his wife, Joann, brought suit alleging damages in the form of medical expenses, lost income, loss of substantial chance of survival, death, and loss of consortium.
Kohne died in March of 1996, prior to trial. Both he and Cahoon admitted breach of his duty of care to Cummings, but each denied that his breach proximately caused Cummings' damages. After a three-day trial in late September and early October of 1997, a jury found in favor of Joann, and awarded her $194,000 from Kohne's estate and $75,000 from Cahoon. Joann filed a post-trial motion for prejudgment interest, which was denied as to Kohne, but granted as to Cahoon in the amount of $18,443.84.
All parties appealed. Joann challenged the trial court's denial of prejudgment interest with respect to Kohne. The defendants challenged the trial court's jury instructions, arguing that: (1) the jury was incorrectly instructed that causation should be evaluated under the Mayhue standard; (2) the jury was incorrectly instructed that full damages could be awarded if the defendants' conduct was found to be a substantial factor in bringing about Cummings' death; (3) the trial court erroneously gave instructions on both wrongful death and survival; and (4) the survival instruction contained an incorrect statement of law in that it referenced "loss of chance" approvingly. Kohne also contended that the trial court had erroneously admitted evidence that he had altered Cummings' medical records.
The Court of Appeals concluded that these jury instructions were proper in every respect, save that the survival instruction erroneously recited "loss of chance"
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