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ATTORNEY FOR APPELLANT
Robert D. Brown Spangler, Jennings & Dougherty, P.C. Merrillville, Indiana

ATTORNEYS FOR APPELLEE
Arend J. Abel Cohen & Malad, LLP Indianapolis, Indiana Thomas A. Clancy Jeanine L. Stevens Clancy & Stevens Chicago, Illinois

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 45S03-0505-CV-239

ROBERT CAVENS, M.D., Appellant (Defendant below),
V.

TIM ZABERDAC, Appellee (Plaintiff below). _________________________________ Appeal from the Lake Superior Court, No. 45D04-9807-CP-534 The Honorable Gerald N. Svetanoff, Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 45A03-0312-CV-516 _________________________________ June 22, 2006 Dickson, Justice.

The primary appellate issue in this medical malpractice case is whether the trial court erred by prohibiting the physician from asserting the patient's conduct prior to the alleged malpractice as a contributory negligence defense. We affirm the judgment of the trial court.

Following the death of his wife, Peggy Miller, Tim Zaberdac, individually and as admin-

istrator of her estate, commenced this medical malpractice action against Robert Cavens, M.D., and others. The case proceeded to trial only against the doctor, who asserted his patient's contributory negligence as an affirmative defense. At the conclusion of the evidence, the trial court granted the plaintiff's motion for judgment on the evidence, which sought to prevent the doctor from asserting the defense of contributory negligence. The trial court also ordered that defense counsel could not argue that the patient's conduct was the proximate cause of her death. This appeal follows a jury verdict for the plaintiff in the sum of $1,570,000, which the court reduced to $750,000 pursuant to the maximum allowed by the Indiana Medical Malpractice Act. 1

The defendant challenges the trial court's actions (1) foreclosing his defense of contributory negligence; (2) precluding the doctor from arguing that his patient's conduct proximately caused her death; and (3) rejecting his tendered instruction to the effect that, if his patient would have died regardless of the doctor's error, the verdict should be in his favor.

The parties do not dispute that there was evidence to support the following facts. Peggy Miller had suffered severe and persistent asthma, for which she was regularly treated by Dr. Mary E. Strek, M.D., a pulmonologist, who had specifically instructed Peggy regarding the use of medicine and the need for emergency room care in the event of significant asthma symptoms. She had been treated for asthma attacks in the hospital or emergency room on at least eight different occasions. On July 21, 1996, Peggy began experiencing profound shortness of breath around 7:00 a.m. Over the course of the morning, Peggy took several doses of medication, with limited success, and finally called a friend for help. The friend arrived quickly, and they called an ambulance at 11:29 a.m. The ambulance took Peggy to a hospital emergency room, where Dr. Cavens, the emergency room physician gave her medications and arranged for her to receive an EKG test. But Peggy went into cardiac arrest and died at approximately 11:45 p.m.

Expert medical witnesses disagreed at trial regarding whether Dr. Cavens complied with the applicable standard of care and whether her death resulted from any failure to comply. Physicians testifying on behalf of Dr. Cavens expressed the opinion that Peggy improperly used her
See Ind. Code

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Indiana Law