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Smith v. Washington9/1/2000
ON PETITION TO TRANSFER
This appeal presents the issue of the measure of damages for an act of negligence that increased the risk of an injury that was at least equally likely to occur in the absence of negligence. We grant transfer and hold, as we did in Cahoon v. Cummings, ___ N.E.2d ___ (Ind. 2000), that damages under these circumstances are to be in proportion to the increased risk attributable to the defendant's negligence. We affirm the trial court.
Factual and Procedural Background
James Smith was involved in a car accident in May of 1990, and soon sought the care of an ophthalmologist for his right eye, which was red, itchy, runny, and painful. Dr. Wilbert Washington was recommended to Smith by his family physician. Washington treated Smith from July 10, 1990, until at least June 13, 1992. Washington diagnosed Smith as suffering from glaucoma. Washington prescribed eye drops and performed two laser surgeries in an effort to reduce the intraocular pressure to Smith's optic nerve. He also prescribed Motrin to relieve Smith's pain. By the end of this treatment, however, Smith "had no light perception in his right eye and he would never regain any useful vision in that eye."
Smith subsequently changed jobs and switched health insurance plans. Through his new primary physician he was referred to another ophthalmologist, who noted that Smith was still suffering from increased intraocular pressure. Not long after consulting with this ophthalmologist, Smith agreed to the removal of his right eye and was fitted with a prosthetic eye.
Pursuant to the Medical Malpractice Act, Smith submitted a proposed complaint on October 14, 1993. The Medical Review Panel issued an opinion on March 20, 1995, unanimously concluding that Washington had breached the standard of care in treating Smith, but that it could not be determined whether Washington's breach was or was a not a factor in Smith's injuries. Smith subsequently filed suit in Marion Superior Court, alleging that Washington had breached the standard of care, and that "as a direct and proximate result," Smith had permanently lost vision in his right eye, suffered undue pain and discomfort, disfigurement, and lost earnings, and had incurred and would continue to incur medical expenses related to treatment of the eye.
Washington belatedly asserted his right to a jury trial, which the trial court denied. A bench trial was held on October 15 and 16, 1997, December 1, 1997, and April 13, 1998. At trial, Dr. Robert Boeglin, a Panel member, testified that Washington had breached the standard of care by failing (1) to maintain adequate record-keeping; (2) to establish, or take appropriate steps toward establishing, a specific diagnosis of Smith's type of glaucoma; (3) to monitor the condition of Smith's optic nerve with appropriate testing; (4) to gain control of Smith's glaucoma within a reasonable time frame, or, alternatively, refer Smith to another ophthalmologist; and (5) either to document advising Smith to have further surgery or to advise Smith of the risks and benefits of surgery. Washington argued that he had not breached the standard of care and that he had caused no injuries to Smith. He also maintained that Smith was contributorily negligent in failing to take the recommended medications and refusing to undergo further surgery. Finally, he contended that his last contact with Smith was September 28, 1991, so Smith's October 29, 1993 proposed complaint was untimely.
The trial court issued findings of fact and conclusions of law on July 2, 1998, substantially adopting the testimony of Boeglin and concluding that Washington's negligence was a substantial factor in Mr. Smith's d
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