983 N.E.2d 1158
Ind. Ct. App.2013Background
- Gill sued Weinberger Entities for medical malpractice arising from a December 2003 sinus surgery performed by Weinberger that included seven procedures.
- Postoperative course was painful; Gill alleged persistent symptoms and inadequate response from Weinberger over months, culminating in a corrective surgery by Dr. Han in December 2004.
- Evidence showed unintended holes drilled into Gill’s sinuses, leading to chronic sinusitis and need for further surgery; Gill alleged lack of informed consent and unnecessary/badly performed surgery.
- Weinberger disappeared in the Mediterranean in 2004; a medical review panel later found failure to meet standard of care; multiple witnesses testified to Weinberger’s flight and related conduct.
- Gill’s complaint sought medical malpractice damages; the jury awarded Gill $150,000; trial court denied motions for judgment on the evidence regarding abandonment and later admitted evidence about flight and Gill’s emotional distress.
- On appeal, court affirmed, addressing whether judgment on the evidence was appropriate and whether the disputed evidence was admissible.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether judgment on the evidence was improper | Gill argues the evidence supports abandonment element of malpractice claim | Weinberger Entities contend the issue targets standard of care, not abandonment | Judgment on evidence appropriate; no direct abandonment claim here |
| Whether admission of flight-related evidence was proper | Gill contends flight evidence shows consciousness of guilt relevant to standard of care | Weinberger Entities argue lack of causal link to Gill’s care; waiver on emotional-distress testimony | Flight evidence properly admitted; testimony on emotional distress later deemed waived |
Key Cases Cited
- Weinberger v. Boyer, 956 N.E.2d 1095 (Ind. Ct. App. 2011) (flight evidence admissible to show consciousness of guilt when related to medical malpractice context)
- Newland Resources, LLC v. Branham Corp., 918 N.E.2d 763 (Ind. Ct. App. 2009) (standard for judgment on the evidence; review tied to evidence supporting essential issues)
- Blocher v. DeBartolo Properties Management Inc., 760 N.E.2d 229 (Ind. Ct. App. 2001) (abuse of discretion standard for evidentiary rulings)
- Harris v. Raymond, 715 N.E.2d 388 (Ind. 1999) (physician duty to warn does not terminate with cessation of services when future care is needed)
- Gash v. Kohm, 476 N.E.2d 910 (Ind. Ct. App. 1985) (flight/consciousness evidence treated as relevant in some contexts)
- Harrod v. Bisson, 93 N.E.1093 (Ind. Ct. App. 1911) (evidence of disposition of property linked to consciousness of guilt)
- Myers v. Moore, 28 N.E.724 (Ind. Ct. App. 1891) (earlier authority acknowledging forms of conduct as evidence)
- Myers v. State, 887 N.E.2d 170 (Ind. Ct. App. 2008) (contemporaneous objection requirement for evidentiary review waiver)