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Sawlani v. Mills7/13/2005
ever objected to this instruction on the grounds that it did not inform the jury of the proper measure of damages in an increased risk of harm case. See, e.g., Estate of Hunt v. Board of Comm'rs of Henry County, 526 N.E.2d 1230, 1236 n.5 (Ind. Ct. App. 1988) (holding that a party waived an allegation that an instruction was erroneous where the party failed to object at trial to the instruction on those grounds), reh'g denied, trans. denied; see also Ind. Trial Rule 51(C) ("No party may claim as error the giving of an instruction unless he objects thereto . . . stating distinctly the matter to which he objects and the grounds of his objection.").
Notwithstanding Sawlani's failure to object to the trial court's instruction on these grounds, we will review whether the trial court erred by refusing to give Sawlani's proposed damages instruction. In reviewing a trial court's decision to give or refuse a tendered instruction, we consider whether the instruction: (1) correctly states the law; (2) is supported by the evidence in the record; and (3) is covered in substance by other instructions. Wal-Mart Stores, Inc. v. Wright, 774 N.E.2d 891, 893 (Ind. 2002), reh'g denied. The trial court has discretion in instructing the jury, and we will reverse on the last two issues only when the instructions amount to an abuse of discretion. Id. When the issue is whether the instruction is a correct statement of the law, however, appellate review of the ruling is de novo. Id. at 893-894. An analysis of this issue requires us to examine our supreme court's opinions regarding damages for Section 323 of the Restatement (Second) of Torts and the loss of chance doctrine to determine whether Sawlani's proposed instruction was a correct statement of the law, whether the proposed instruction was supported by the evidence, and whether the proposed instruction was covered in substance by other instructions.
1. Cahoon, Washington, & Restatement (Second) of Torts ยง 323 Damages
In Cahoon v. Cummings, 734 N.E.2d 535 (Ind. 2000), our supreme court considered a plaintiff's wrongful death action and applied Section 323 of the Restatement (Second) of Torts, as adopted in Mayhue, to the wrongful death context where a physician's negligence increased the patient's risk of harm and the increased risk was a substantial factor in the patient's death. In Cahoon, the trial court had instructed the jury that the defendant physicians "would be liable for full wrongful death damages if the jury determined that their actions were a substantial factor in [the patient's] death." Id. at 540. The supreme court disagreed with the instruction and concluded:
Holding the defendant liable for the full value of the wrongful death claim is inconsistent with the statutory requirement that the loss be caused by the defendant who only increased the risk of an already likely result. In effect, it would hold doctors liable not only for their own negligence, but also for their patients' illnesses, which are not the product of the doctors' actions.
Id. at 541. Again relying upon McKellips, 741 P.2d at 476-477, the court explained that " n order to determine proportional damages, after liability is established, statistical evidence is admissible to determine the 'net reduced figure.'" Id. at 540. The "net reduced figure" is "determined by subtracting the decedent's postnegligence chance of survival from the prenegligence chance of survival." Id. Then, " he amount of damages recoverable is equal to the percent of chance lost multiplied by the total amount of damages which are ordinarily allowed in a wrongful death action." Id. at 540-541.
On the same day that our supreme court issued Cahoon, it also decide
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