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FOR PUBLICATION

ATTORNEYS FOR APPELLANTS: DAVID J. BEACH MICHELE SULLIVAN Eichhorn & Eichhorn Hammond, Indiana

ATTORNEYS FOR APPELLEE: GEORGE CLYDE GRAY DANIEL L. ROBINSON Gray Robinson Ryan & Fox Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
RICHARD FOSTER, M.D. and THE NEW CASTLE CLINIC, INC., Appellants-Defendants, vs. FORREST OWENS, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) )

No. 33A01-0507-CV-329

APPEAL FROM THE HENRY CIRCUIT COURT The Honorable Mary G. Willis, Judge Cause No. 33C01-0312-CT-32

March 24, 2006

OPINION - FOR PUBLICATION

BAILEY, Judge

Case Summary Richard Foster, M.D. and The New Castle Clinic, Inc. (collectively, "Dr. Foster") appeal a judgment entered upon a jury verdict awarding damages to Forrest Owens ("Forrest") upon his complaint for the death of his wife, Mary Owens ("Mary"), arising from medical malpractice. We affirm. Issues Dr. Foster raises two issues: I. Whether he was entitled to a jury instruction on contributory negligence; and Whether the trial court abused its discretion by allowing a rebuttal argument that was not supported by the evidence. Facts and Procedural History The facts most favorable to the judgment follow. During March of 1997, Dr. Foster, an internist, began to treat Mary for gallstones and pancreatitis. During April of 1997, Mary underwent gall bladder surgery at Henry County Hospital. The surgeon observed cirrhosis of the liver, and performed a liver biopsy. Henry County Hospital records provided to Dr. Foster indicated that Mary had been diagnosed with cirrhosis of the liver and Hepatitis C. Mary was aged seventy-two, her liver was shrunken, and her blood clotting ability was compromised by liver disease. Nevertheless, Dr. Foster performed a second diagnostic liver biopsy upon Mary at Henry County Hospital on January 28, 1998. During the surgery, an artery in Mary's gallbladder bed was lacerated. Mary began to bleed from the laceration, and the blood pooled in her lungs.

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As of January 29th, Mary had lost four to five units of blood, approximately one-third of her blood volume. Her hemoglobin level fell to 8.8 (from a preoperative level of 12.7). On January 30th, Mary received multiple units of blood and her hemoglobin level rose to 9.3. She improved over the next few days, but apparently suffered a re-bleed on February 3rd. On February 4th, after Mary received additional transfusions of blood, her hemoglobin level was 8.8. Mary was also given oxygen. On February 5th, Dr. Foster advised Mary that she had a fluid build-up in her right lung, which would need to be removed via a thoracentesis. After Dr. Foster left the hospital room, a nurse explained to Mary and Forrest the procedure, which involves placing a needle or tube in between the lungs and draining fluid. On February 6th, Mary was discharged from Henry County Hospital with instructions to return to Dr. Foster's office in one week. Mary was also instructed to call if she experienced "worsening shortness of breath or signs of bleeding." (Tr. 619.) 1 Mary returned home, but experienced constant pain, shortness of breath, and an inability to keep food down. On February 7th, Mary was admitted to Hancock County Hospital. She had apparently suffered another re-bleed, and her hemoglobin level had dropped to 7.9. Hancock County Hospital requested Mary's medical records from Henry County Hospital. Among the items received from Henry County Hospital was a "History and Physical Examination" composed by Gary Stouder, M.D., disclosing in pertinent part: "[Mary] continued to have bleeding and had some elevation of her protime and was given

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According to Forrest, Mary expected to have the thoracentesis in a few days. According to Dr. Foster, Mary refused the thoracentesis.

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some blood and sent home for a few days for her bleeding time to get to normal before a thoracentesis was done since she had a right pleural effusion." (Tr. 644.) On February 8th, Mary was transferred to Methodist Hospital in Indianapolis. There, Mary had a tubal thoracotomy to drain fluid from her chest. On February 9th, Mary underwent thoracic surgery. It was determined that Mary had "massive blood loss" due to "persistent bleeding from the gallbladder fossa." (Tr. 647,

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