Judy Harper, Estate of Terry D. Harper, II, ex rel. Judy Harper v. Bruce Harley, M.D. (mem. dec.)
71A03-1611-CT-2528
| Ind. Ct. App. | Sep 8, 2017Background
- Terry Harper, on anticoagulant therapy for atrial fibrillation, had prior intra-abdominal bleeds in 2008 and 2010 treated with fresh frozen plasma (FFP) and survived; in January 2012 he presented with an abdominal bleed, was treated in the ER by Dr. Bruce Harley, was not given FFP there, was admitted to a nonemergency floor, and died hours later.
- A medical review panel unanimously found Harley breached the standard of care and that the breach contributed to a lost chance of survival.
- Plaintiff Judy Harper obtained partial summary judgment on duty, breach, and loss-of-chance causation; the sole triable issue was damages (quantifying chance of survival before and after the breach).
- At trial plaintiff elected (or acquiesced) to proceed on traditional proximate-cause wrongful-death theories rather than loss-of-chance damages; defenses moved to exclude evidence about the 2008 bleed.
- The trial court excluded 2008-bleed evidence (medical records and expert causal opinion tied to 2008) as a discovery sanction and because no expert had testified that FFP was more likely than not the reason for survival in 2008; 2010-bleed evidence was admitted.
- The jury returned a verdict for Harley; on appeal the court affirmed, holding plaintiff waived certain objections and any error in excluding 2008 evidence was harmless, and that denial of directed verdict on cause of death was proper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of 2008-bleed evidence | Excluding 2008 records and expert causation testimony was erroneous; the 2008 evidence was relevant and probative of causation in 2012 | Evidence was properly excluded as a discovery sanction and/or irrelevant absent expert proof that FFP was probably the cause of survival in 2008 | Affirmed: plaintiff waived contemporaneous objection to the trial court’s standard; exclusion was at most harmless because admitted evidence allowed the same timing/rate arguments and 2008 evidence was weakly probative of 2012 outcome |
| Standard for admissibility (preponderance of causation as predicate) | Trial court applied wrong legal standard requiring proof of causation by preponderance before admitting prior-bleed evidence | Same as above; urged exclusion for lack of disclosed causation opinion and risk of juror speculation | Affirmed: plaintiff failed to preserve the argument below; contemporaneous objection required; even on merits any error was harmless |
| Directed verdict on cause of death | Plaintiff sought directed verdict that abdominal bleed was cause of death | Defendant presented conflicting expert theories (bleed combined with cardiac events/MI/medication effects) | Affirmed: reasonable jury could find multiple possible causes; evidence conflicted so directed verdict not warranted |
| Scope of appeal vs. summary-judgment ruling | Plaintiff sought reversal or new trial relying on loss-of-chance framework established at summary judgment | Defendant cross-appealed summary judgment grant | Court reviewed the case as tried (traditional proximate-cause wrongful-death); summary-judgment cross-appeal rendered moot by affirmance on plaintiff’s appeal |
Key Cases Cited
- Reck v. Knight, 993 N.E.2d 627 (Ind. Ct. App. 2013) (procedural requirement to submit malpractice complaint to medical review panel)
- Ind. Dep’t of Ins. v. Everhart, 960 N.E.2d 129 (Ind. 2012) (measure of loss-of-chance damages)
- Alexander v. Scheid, 726 N.E.2d 272 (Ind. 2000) (application of loss-of-chance doctrine and proximate-cause analysis)
- Mayhue v. Sparkman, 653 N.E.2d 1384 (Ind. 1995) (causation analysis distinctions in medical-malpractice cases)
- O’Banion v. Ford Motor Co., 43 N.E.3d 635 (Ind. Ct. App. 2015) (exclusion of undisclosed expert opinion as remedy for late disclosure)
- Trinity Homes, L.L.C. v. Fang, 848 N.E.2d 1065 (Ind. 2006) (standard for prima facie error review)
- Linton v. Davis, 887 N.E.2d 960 (Ind. Ct. App. 2008) (abuse-of-discretion standard for evidentiary exclusions)
- Kimbrough v. Anderson, 55 N.E.3d 325 (Ind. Ct. App. 2016) (harmless-error test for erroneous evidentiary rulings)
- Perez v. Bakel, 862 N.E.2d 289 (Ind. Ct. App. 2007) (contemporaneous objection requirement to preserve evidentiary issues)
- Hill v. Rhinehart, 45 N.E.3d 427 (Ind. Ct. App. 2015) (standard for reviewing directed-verdict motions)