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Ross v. Olson4/20/2005
it rare, which could result even if the surgeon exercised due care. From the expert testimony presented, the jury could have drawn an inference that the defendant physicians were negligent or could have drawn a contrary conclusion that the physicians used the degree of care and skill ordinarily exercised by a reasonable practitioner under the same or similar circumstances. We cannot conclude, as a matter of law, that popliteal artery injury would not have occurred but for negligence.
The Rosses were not entitled to an instruction designed to create an evidentiary presumption of negligence from circumstantial evidence, because there was direct evidence of causation. Accordingly, the trial court did not abuse its discretion by refusing the proffered res ipsa loquitur instruction.
II. Testimony to Define "Iatrogenic Injury"
Next, the Rosses claim that the trial court erroneously restricted the testimony of their expert witness, Dr. Bryant Bloss ("Dr. Bloss"), concerning the term "iatrogenic." We review evidentiary rulings of the trial court for an abuse of discretion. Armstrong v. Cerestar USA, Inc., 775 N.E.2d 360, 365 (Ind. Ct. App. 2002), trans. denied. An abuse of discretion occurs where the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court. Dorsey v. State, 802 N.E.2d 991, 993 (Ind. Ct. App. 2004).
Dr. Shedd, who used the phrase "iatrogenic injury" in his surgical report, testified that he understood the term "iatrogenic" to mean "doctor caused as opposed to being hit by a car or shot with a bullet." (App. 16.) He denied that he intended to imply negligence or malpractice by utilizing the term. Dr. Shedd also read into evidence the definition of "iatrogenic" appearing in Tabor's Encyclopedic Medical Dictionary, as follows:
Iatrogenic disorder, any adverse medical, physical condition induced in a patient by effects of treatment by a physician or surgeon. Term implies that such effects could have been avoided by proper and judicious care on the part of the physician, surgeon or dentist.
(App. 17.) Thereafter, during the direct examination of Dr. Bloss, the Rosses attempted to determine whether or not Dr. Bloss recognized the term "iatrogenic" and whether he recognized Tabor's Encyclopedia Medical Dictionary as authoritative. The physicians objected that "this line of questioning" was irrelevant because Dr. Shedd, rather than Dr. Bloss, utilized the term and thus only Dr. Shedd could explain what he meant by using the term. The trial court sustained the objection.
Indiana Evidence Rule 103(a) provides in pertinent part as follows: (a)Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and . . .
(1)In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by a proper offer of proof, or was apparent from the context within which questions were asked.
The Rosses made no offer of proof. However, they assert that they did not waive their allegation of error, because the substance of the excluded evidence was apparent to the trial court. Assuming, from the questions propounded and their context, that Dr. Bloss would accept the medical dictionary definition of "iatrogenic," including the implication of lack of due care, the Rosses were nevertheless not substantially prejudiced by the exclusion of Dr. Bloss's answer. The jury had already heard the definition of "iatrogenic" as it appeared in Tabor's Encyclopedia Medical Dictionary. Moreover, inasmuch as Dr. Shedd composed the surgical report at issue, which incorporated the te
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