Preview:

FOR PUBLICATION
ATTORNEY FOR APPELLANT: MICHAEL E. O'NEILL Hinshaw & Culbertson LLP Schererville, Indiana ATTORNEYS FOR APPELLEE: TIMOTHY J. KENNEDY Montross Miller Muller Mendelson & Kennedy Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
RAY A. HAAS, M.D., Appellant-Defendant, vs. DONALD H. BUSH, Personal Representative of the Estate of ELAINE M. BUSH Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) )

FILED
Sep 29 2008, 9:25 am
of the supreme court, court of appeals and tax court

CLERK

No. 30A01-0706-CV-257

APPEAL FROM THE HANCOCK SUPERIOR COURT The Honorable Terry K. Snow, Judge Cause No. 30D01-0507-CT-526

September 29, 2008

OPINION - FOR PUBLICATION

FRIEDLANDER, Judge

Ray A. Haas, M.D. appeals a wrongful death judgment entered in favor of Donald H. Bush, as personal representative of the estate of his deceased wife, Elaine M. Bush (the Estate). Dr. Haas presents the following consolidated and restated issues for review: 1. Did the Indiana Supreme Court exceed its authority under the Indiana Constitution when it adopted Section 323 of the Restatement (Second) of Torts? Did the trial court erroneously admit the written opinion of the medical review panel into evidence?

2.

We affirm. 1 On January 16, 2002, Elaine was admitted to the hospital with complaints of nausea, vomiting, blood in her stool, and abdominal pain. Elaine's family physician, Dr. Haas, did not see her on the day of her admission. The following morning, Dr. Gary C. Sharp, who routinely covered patient care for Dr. Haas, saw Elaine and, among other things, ordered a CT scan of her chest for complaints that were believed to be related to pneumonia and to rule out cancer. The chest CT, which was performed that day, revealed "an irregularly outlined soft tissue mass involving the posterolateral portion of the right lower lung field". Appellant's Appendix at 195. The radiologist's report provided the following impression: Findings described are compatible with a segmental pneumonia involving the right lower lobe. The radiographic appearance is that of a consolidated bronchopulmonary segment. Underlying malignancy in this area cannot be excluded, however, and for this reason a followup study in 6 or 8 weeks is recommended. Id. at 195-96 (emphasis supplied).

We held oral argument in Indianapolis on September 3, 2008. We commend counsel for their candor and the quality of their briefs and arguments.

1

2

Dr. Haas evaluated Elaine on the morning of January 18, and discharged her later that day. Dr. Haas did not discuss the results of the CT scan with Elaine either during her hospitalization or at her follow-up appointment with him in his office on February 1. Other than reading and initialing the January 17, 2002 chest CT scan report, Dr. Haas apparently did nothing in response to it and did not order a follow-up CT scan. On March 17, 2003, Elaine went to Dr. Nadya Ajanee, an Indianapolis internist, complaining of left arm numbness and decreased fine motor skills. Dr. Ajanee sent Elaine to the emergency room where tests revealed that Elaine had a large malignant mass in the lower lobe of her right lung, the same location as the mass indicated on the CT scan fourteen months earlier. The lung cancer had now metastasized to her brain. Despite two courses of aggressive treatment, Elaine died on July 26, 2003. In January 2002, Elaine's tumor was four to five centimeters. There was no lymph node involvement or metastasis to other organs, and the mass in her lung could have been surgically removed. This translates to stage 1B lung cancer. If diagnosed and treated at that stage, Elaine would have had a 40 to 50% chance of survival. By March 2003, however, her lung cancer had metastasized to her brain and progressed to stage 4 with a 1 to 2% chance of survival. On December 22, 2003, pursuant to the Indiana Medical Malpractice Act, the Estate filed a proposed complaint for damages before the Indiana Department of Insurance. A medical review panel (MRP) was formed, consisting of three family practice physicians. With respect to Dr. Haas, the MRP issued the following unanimous opinion on July 5, 2005: "The evidence supports the conclusion that the defendant RAY HAAS, M.D. failed to
3

comply with the appropriate standard of care as charged in the complaint. The conduct complained of caused the plaintiff a loss of chance of treatment/survival." Id. at 113-15. On July 19, 2005, the Estate filed its complaint against Dr. Haas, claiming his malpractice increased the risk of Elaine's death. At trial, Dr. Haas stipulated that he breached the standard of care by failing to advise Elaine about the findings from her January 17, 2002 CT scan. Dr. Haas, however, argued the Estate could not establish that his breach was the proximate cause of Elaine's death. At the close of the Estate's evidence, Dr. Haas moved for a judgment on the evidence "on the ground that [the Estate] has failed to present evidence, pursuant to the requirements of the Wrongful Death Act, that Dr. Haas caused the death of [Elaine]." Id. at 139. After hearing argument, the trial court denied Dr. Haas's motion. On March 19, 2007, the jury returned a verdict in favor of the Estate, awarding damages in the amount of $980,000. Dr. Haas now appeals. 1. In Mayhue v. Sparkman, 653 N.E.2d 1384 (1995), our Supreme Court held that a plaintiff is not precluded from bringing a medical malpractice claim against a negligent doctor merely because the plaintiff is unable to prove by a preponderance of the evidence that the doctor's conduct was the proximate cause of the resulting injury. In so holding, the Court adopted Section 323 of the Restatement (Second) of Torts, which provides: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if: (a) his failure to exercise such care increases the risk of such
4

harm, or; (b) the harm is suffered because of the other's reliance upon the undertaking. "This doctrine permits recovery from a defendant whose negligence significantly increases the probability of the ultimate harm, even if the likelihood of incurring that injury was greater than fifty percent in the absence of the defendant's negligence." Cahoon v. Cummings, 734 N.E.2d 535, 539 (Ind. 2000). In the instant case, the evidence established Elaine was more likely than not to die from her lung cancer even if it had been diagnosed and treated in January 2002. The Estate was clearly unable to establish that Dr. Haas's negligence proximately caused Elaine's death. Therefore, relying on Mayhue and the line of cases following, the Estate proceeded under the theory that the doctor's negligence increased her risk of death. On appeal, Dr. Haas reasserts the argument he made to the trial court that the relaxed causation standard of Mayhue is inapplicable in a wrongful death case because the wrongful death statute, by its terms, demands that the defendant's actions be the proximate cause of the death of the victim. Thus, he claims the "Supreme Court's action in permitting a lesser burden of proof, in the face of legislation to the contrary, violates Article 3 and Article 4 of the Indiana Constitution, regarding separation of powers and legislative and policy making functions in government." Appellant's Brief at 10. Dr. Haas urges us to reconsider and abrogate the doctrine adopted by our Supreme Court in Mayhue and addressed by the Court three times since. 2 We reject this invitation, as our Supreme Court has unambiguously spoken on the matter. Specifically, in Cahoon, the

5

Court addressed the defendants'/appellants' claim that Mayhue is inapplicable in the wrongful death context because the plain language of the wrongful death statute requires a plaintiff to establish proximate causation. The Court disagreed, explaining: The relevant provision [of the wrongful death statute] reads: When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, if the former might have maintained an action had he or she ... lived, against the latter for an injury for the same act or omission. Ind. Code

Download Ray A. Haas, M.D. v. Donald H. Bush, Rep. of the Estate of Elaine M. Bush.pdf

Indiana Law