Morse v. Davis
2012 Ind. App. LEXIS 170
| Ind. Ct. App. | 2012Background
- Davis sued Morse for medical malpractice for failure to diagnose colon cancer after a 2004–2005 GI workup.
- The trial court excluded certain evidence, including expert testimony, a medical history questionnaire (Exhibit H), and testimony from a treating physician and nurse.
- Moonlight: medical review panel concluded Morse did not fail to meet standard of care absent Davis' family history and did not require colonoscopy.
- Morse sought to elicit testimony from panel members and experts that Davis’ disclosures would have been written in charts, to support contributory negligence.
- Exhibits and witnesses were excluded; jury awarded $2.5 million, cap reduced to $1.25 million under the Medical Malpractice Act; Morse appeals.
- The appellate court upholds exclusion of the contested evidence and witnesses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court properly excluded expert testimony about Davis’ disclosures | Morse’s experts relied on records showing no family history; exclusion undermines defense | Rule 704(b) bars testimony about witness credibility; testimony was to support standard of care | Exclusion not error; credibility issue lies with jury |
| Whether Exhibit H (medical history questionnaire) was admissible | Exhibit H relevant to family history of cancer | Statement admissible under Rule 803(4) but potentially excluded under Rule 403 | Exclusion proper; cumulative and not reasonably pertinent |
| Whether Welch and Austin’s testimony was improperly excluded due to late supplement | Tests would illuminate contributory negligence issue | Failure to supplement under Rule 26(E) prejudicial; testimony cumulative | Exclusion not abuse of discretion |
| Whether the trial court erred by allowing or excluding medical review panel testimony about standard of care | Panel opinions support Davis’s claim of standard of care breach | Panel opinions rely on assumed facts and are not conclusive; credibility is for jury | No abuse; panel testimony properly framed and not conclusively binding |
Key Cases Cited
- Whedon v. State, 900 N.E.2d 498 (Ind.Ct.App. 2009) (credibility of witnesses not proper subject for expert testimony)
- Prewitt v. State, 819 N.E.2d 393 (Ind.Ct.App. 2004) (admissibility of expert testimony limited by context, not personal belief)
- Tudder v. Torres, 591 N.E.2d 656 (Ind.Ct.App. 1992) (panel opinions admissible under statute but not to resolve credibility matters)
- Dickey v. Long, 575 N.E.2d 339 (Ind.Ct.App. 1991) (panel opinions' authority discussed in informing trial procedure)
- Hoglund v. State, 962 N.E.2d 1230 (Ind. 2012) (no witness can testify to another witness’ truthfulness; credibility determinations reserved for jury)