John Green v. Stephen Robertson, Commissioner, Indiana Department of Insurance
2016 Ind. App. LEXIS 219
| Ind. Ct. App. | 2016Background
- On March 29, 2008 John Green presented to Wishard Memorial Hospital with vomiting, weakness, and (according to his family) left-sided numbness, facial droop, slurred speech, and inability to walk; Wishard discharged him the same day diagnosed with nausea/vomiting.
- The next day Green was admitted to St. Vincent Hospital, where imaging showed an acute left cerebellar stroke and a right occipital stroke; he suffered permanent injuries including corneal scarring and balance/vision deficits.
- Green settled his malpractice claim against Wishard/EMG for a $250,000 structured settlement, then petitioned the Indiana Patient’s Compensation Fund (PCF) for excess damages of $1,000,000 alleging failure to diagnose/treat (including failure to administer tPA) during the ‘‘golden window.’'
- At bench trial the PCF introduced evidence of Green’s preexisting micro-strokes and vascular disease; Green argued he had a TIA at Wishard and timely tPA could have prevented the worse stroke.
- The trial court found Wishard’s records failed to document neurologic signs, credited Green and his children over Wishard charts, but credited expert evidence that (1) Green likely had an acute stroke at Wishard, (2) prior micro-strokes and basilar artery disease made full recovery unlikely even with tPA, and (3) tPA would have had limited benefit for basilar-artery injury; the court awarded an additional $300,000 from the PCF after reducing certain items based on the probability of recovery with tPA.
- Green appealed, arguing the court erred in applying increased-risk (Mayhue/Cahoon) principles and in reducing damages; the Court of Appeals affirmed, holding findings and judgment were not clearly erroneous.
Issues
| Issue | Green's Argument | PCF/Wishard's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in crediting testimony and medical evidence about timing/severity of stroke | Green: He had a TIA at Wishard and symptoms resolved; records not showing neuro deficits prove TIA, not stroke | PCF: Imaging and testimony show stroke occurred and prior micro-strokes reduced chance of full recovery | Court: Trial court properly weighed credibility and evidence; findings that stroke (not TIA) was present and prior micro-strokes limited recovery are supported |
| Whether damages should be reduced based on increased risk of harm / preexisting condition | Green: Settlement was traditional negligence; he is entitled to full damages (statutory maximum) and court should not apply Mayhue/Cahoon proportional-recovery rule | PCF: Evidence of preexisting strokes/low baseline recovery probability is admissible to quantify damages after settlement | Court: Where plaintiff had <50% chance of recovery pre-negligence, damages are proportional to increased risk; reduction was appropriate and supported by evidence |
| Admissibility and weight of expert statistical/probabilistic testimony on tPA effectiveness | Green: Dr. Puzio’s probabilistic testimony was speculative and should not underpin reductions | PCF: Expert testimony on tPA efficacy and prognosis is admissible under Evid. R. 702 and relevant to damages | Court: Admissibility unchallenged; credibility and weight for trier of fact — court reasonably relied on the expert's probabilistic opinions |
| Whether award amount ($300,000 excess) was clearly erroneous | Green: Award too low; trial court misapplied law and should have awarded more | PCF: Award within scope of evidence and proper after reductions | Court: Award is within scope of evidence; findings and proportional reductions are not clearly erroneous; affirmed |
Key Cases Cited
- Mayhue v. Sparkman, 653 N.E.2d 1384 (Ind. 1995) (recognizes ‘‘increased risk of harm’’ theory where preexisting probability of death/recovery affects causation; permits liability when negligence increases risk)
- Cahoon v. Cummings, 734 N.E.2d 535 (Ind. 2000) (damages in Mayhue-type cases must be measured proportionally to the increased risk attributable to the defendant)
- Herbst v. ? (discussed as Herbst), 902 N.E.2d 220 (Ind. 2009) (PCF may introduce evidence of a patient’s underlying risk of harm to assess damages after a settlement when increased-risk principles apply)
- Robertson v. B.O., 977 N.E.2d 341 (Ind. 2012) (clarifies Herbst is limited to Mayhue increased-risk claims; PCF cannot relitigate liability in ordinary personal-injury malpractice cases settled before trial)