*1 SIBBING, Eric P. Appellant-
Defendant, CAVE, Amanda Individually N. and as the Mother and Mercy Guardian of M.
Cave, a Child, Minor Appellee-Plain tiff.
No. 49A02-0802-CV-165. Court of Appeals of Indiana.
March
William H. Kelley, Brown, Darla S. Kel- ley, Belcher & Brown, Bloomington, IN, Attorneys for Appellant. Mellowitz,
James A. Robert W. York & Associates, IN, Indianapolis, Attorney for Appellees.
OPINION Judge.
MATHIAS, Eric P. Sibbing ("Sibbing") appeals the judgment of the Superior Marion Court in *2 crushed; frame and the bumper was ("Cave"), the indi- N. Cave Amanda favor well,. to An estimate as damaged of was guardian and the mother as vidually and $6,258, to which truck amounted the repair negli- in Cave's ("Mercy"), M. Cave Mercy Sibbing's the truck. the value stemming exceeded against action gence towed had to be and "totaled" appeal, On car was also accident. an automobile from (1) p.Tr. 58. whether from the scene. issues: two Sibbing presents into evi- allowing in erred trial had caused impact Although regarding from Cave dence had and steering wheel hit the to elbows of her the cause and test results dashboard, she under her foot jammed (2) trial court erred and pain, that she officers police responding told the por- to strike motion granting in did Cave an ambulance. not need did Sibbing's expert testimony of of the tions headache, returned and aof complain witness. she When in bed. down lay to home later, pain had Cave three hours awoke affirm. We hospital, to the and went side right her History and Procedural Facts ribs in her pain complained she where driving 2005 Cave On October knee, hip, and ankle. leg, right and in her on truck southbound Dodge pickup her Although fractures. revealed X-rays Her Indianapolis. Kentucky Avenue complained claims Cave Sibbing now old, was years nine Mercy, then daughter testi- Cave hospital, at the pain of no back Sibbing was front seat. in the passenger a ... had "they hospital, that at fied behind Cave car-lengths to two driving one top of like at the my hips, hands on their Pontige ahead the traffic As Sunbird. in a in with' kind of went and hips, rear her truck down, Cave slowed slowed of her in the they touched when fingers and their hour. per miles 10 to 15 approximately nearly came and I there sereamed center anywhere travelling Sibbing, who real, real bad was, bed, it it hurt off the hour, had been per miles 45 to 55 from Tr. 68-69. pp. in the center." there right did not car radio his with "playing" re- examination hospital Similarly, p. Tr. traffic. the slowed see "tenderness" that Cave showed vealed back of Cave's into the crashed bing's car at "SI," explained which was her face, off his eyeglasses truck, knocking being "sacroiliac Sheppard Ronald seat, under Cave's latches breaking the 255-56. p. Tr. of the back." or area joint off slightly truck lifting Cave's testified objection, Cave Over the se- described Sibbing later ground. she her that told personnel hospital on a scale a "7 or 8" erash as verity of the be- next week over the feel worse would not hear did p.Tr. 213. Cave to 10. of 1 are often car accidents from cause hit, and being before of tires any squealing hospital immediately apparent. the scene responding officers police for a prescription home with Cave sent from the road on marks no skid found rest and and instructions reliever pain able Although Cave Sibbing's car. another doctor. up to follow with accident, away truck her drive weeks, condi- few the next Over damaged by the severely truck was hips in her back Pain the truck bed tion worsened. shell crash. camper drive, which cab, damag- her to onto made it difficult forward pushed her courier to miss work bent; of the truck it; tailgate ing business job and at her as a delivery driv- suffers from pain, chronic and Dr. Shep- er. eventually sought pard determined that Cave had permanent from internist Dr. Muhammad at partial impairment rating of percent ten Priority 1 Medical. Cave complained of her person. whole claimed as a *3 pain severe in her back, foot and and of result of crash, she had incurred medi- pain neck, in elbow, her knee, hip, and cal expenses $16,000. of over further complained of headaches and an On August 14, 2006, Cave filed a com- inability to sleep. An examination re- plaint against Sibbing, alleging that she vealed that Cave had an improper gait injured as a result of Sibbing's negli- her inability to stand normally gence. Sibbing initially denied liability without pain, spasms muscle back, in her and further claimed that Cave had failed to and a limited range of motion. mitigate her damages. At point some pri-
On 30, 2005, November trial, underwent or to however, Sibbing admitted fault an MRI which revealed that she had a for crash, but still challenged Cave's bulging dise at her L5-S1 vertebrae. The claims of damages. Also prior trial, MRI report did not state that bulge Cave filed a motion to portions strike was causing any pressure on a nerve or on the testimony of Sibbing's expert medical Cave's spinal cord, but the location of witness, Kern, Paul physician who bulge was in the same area where Cave had performed his own examination of had reported pain and tenderness after the Cave. Specifically, Cave moved to strike accident. The MRI showed no sign of Dr. Kern's testimony that, in his opinion, degeneration or dise disease. Cave's ex- the nerve conduction performed studies on pert witness, Dr. Sheppard, testified that Cave at Priority 1 Medical were medically given age and history, the bulging unnecessary and that "passive" chiro- dise indicated to him that the injury practic care Cave received beyond one the result of trauma. Cave also under- month following the accident was also went a nerve study conduction which indi- medically unnecessary. The trial court cated that the nerves her legs were not granted Cave's motion. functioning properly. Cave received vari- On September 18, 11 through 2007, a ous treatments Priority 1 Medical until jury trial was held on the issue of dam- 14, 2005, December when she felt she was ages. requested jury award longer improving. $154,401 between $242,141 in dam-
Cave then sought treatment at Castleton ages. Sibbing argued that Cave should Chiropractic, where she was treated receive either no damages or at most Dr. Sheppard and his colleague Dr. $4,500. Peach- jury returned a verdict tree. problem Cave's main was still lower favor of Cave in $71,675 the amount of for back pain, but she also continued to have her damages and in damages for $325 pain neck, in her and right knee and ankle. daughter Mercy. 9, 2007, On October Cave was treated at Castleton Chiropractic bing filed a motion to correct error. On until 19, 2006, June but she still com- 5, 2007, November the trial court sched- plained of pain. Dr. Sheppard referred uled Sibbing's motion for a hearing to be pain Cave to a specialist, but Cave was held on January 2008, but later re- treated, unable to be apparently because of scheduled the hearing for February her lack of medical insurance. Cave still 2008. On 4, 2008, February days three At issue rule. general this ceptions denied trial hearing,
after contained exception following Sibbing here is error. to correct motion 803(4): Rule February Evidence appeal a notice filed then 22, 2008. excluded are not following though the declarant rule, even and Decision hearsay
Discussion a witness. is available Sibbing attacks appeal, On testimo certain admit decisions court's *o oh to exclude witnesses by Cave's ny expert testimony of Medical (4) Purposes Statements *4 of review standard Our witness. Statements Treatment. or Diagnosis We re settled. is well matters on such diagnosis of medical purposes made for admissibility concerning the decisions view his- describing medical or treatment discretion. abuse of an only for evidence pain, symptoms, present or tory, past or 287, 293 Gordon, N.E.2d 871 v. Armstrong gener- sensations, inception or or the Howev denied. trans. (Ind.Ct.App.2007), external cause or of the character al depends on issue that the er, to the extent reasonably per- insofar thereof source evidence, and rule of of a the construction diagnosis or to tinent any particular to application the rule's believed apparently novo. Cook trial court is de The facts, our review set within 277 to fell Whitsell-Sherman, N.E.2d Saquib's statements Dr. this claims that (Ind.2003). Sibbing exception. this made only to statements applies exception pa- made to not statements by patients, Evidence Admission A. tients. Sibbing claims Coffey, Coffey v. cites response, Cave evidence hearsay erroneously admitted (Ind.Ct.App.1995), 1074, 1078 N.E.2d regard testify to permitted it when that the held of this court panel wherein diag her about told Dr. ing what excluding a letter erred trial court pain.1 the cause tests and nostic addressed which physician the husband's "a state by rule as defined Hearsay is and treat- diagnosis physical husband's declar- by the ment, made than one other that the opined and further agenda ment hearing, the trial or testifying at ant while to his to due unable work husband truth of prove to offered evidence court concluded condition. physical Rule Evidence Ind. matter asserted." admitted have been should the letter 8Ol(c). rule, hearsay evi general aAs con- hearsay exception Evidence pursuant Ind. admissible. is not dence 803(4). thus Id. Cave ex However, are several in Rule there tained Rule 802. Kern, testified of whom both Dr. challenge Cave's testi- to his In addition her, often not accidents are injuries sustained physician told mony regarding what her can- error challenge Cave's testi- apparent. Reversible immediately appears to also errone- upon a trial court's predicated not be emergency room mony was told that she merely cu- that is evidence might ous admission extent of personnel that the already that has evidence of other mulative and that she immediately apparent not be Garrett, 887 admitted. Davis properly following been week feel worse over would de- (Ind.Ct.App.2008), trans. however, cu- testimony, This accident. Sheppard nied. mulative 808(4) claims that Rule properly applied nesses, particularly Cave's expert medical her testimony regarding what her physi- witness, Dr. Sheppard. regard With cian told her. Sibbing claims that Coffey Cave's testimony regarding her "bulging" is distinguishable from present dise, case the MRI report, which was admitted because, in Coffey, only the physician's let- objection, without states, "There is an an- ter admissible, was deemed not testimony nular disk bulging at LG-S1." Appellee's from the husband regarding phy- what his App. p. 310. Dr. Sheppard also testified sician us, had said. To this is a distinction without objection that the MRI revealed without difference. physician's out-of- that Cave had a bulging dise at LS5-S1. court statements would be hearsay regard- pp. Tr. 266-70. Similarly, Cave's testimo- less of whether they were admitted ny that she had no degenerative disease through the letter or by the testimony of a was repeated by Dr. Sheppard, who testi- witness. upon Based Coffey, it ap- would fied objection without that the MRI tests pear that the trial court did not err in showed that Cave had no degeneration admitting Cave's testimony. problems with her back. Tr. pp. 270-71. Likewise, Dr. Sheppard testified that a However, even if agree we were to with *5 bulging dise was consistent with Cave's Sibbing's interpretation 803(4), of Rule he complaints of pain, back and that the bulg- must still establish that the trial court's ing dise "causes the low back pain[.]" Tr. evidentiary decisions constituted reversible p. 267-68. error. From what we can gather,2 the testimony Sibbing now claims was improp Dr. Sheppard also that, testified as a erly admitted consists of Cave's state result of injuries Cave's she would be ments that Dr. Saquib, or the results of prone to a "reduced range of motion." Tr. performed tests by Dr. Saquib, in p. Also, 274. Dr. Sheppard testified that (1) formed her that: an MRI the records from Priority 1 Medical, which revealed a "bulging" dise at her (2) L5-S1 vertebrae, were also admitted without objection, she had degenerative (3) conditions, showed that Cave had a her range decreased pain was by caused disc, (4) "bulging" of motion. Appellee's App. p. 308. Other her strength range of motion was less test results from Priority 1 Medical indi- right side side, (5) than her left cated that Cave's range of motion was her spine was "off" because of "whiplash." reduced more on right side than See Appellant's Br. pp. 5-10 (quoting Tr. left. Appellee's App. p. 265. 89-90).
pp. 80-83, Lastly, although Dr. Sheppard did not Most of this information presented testify that Cave's were the result to the jury through other exhibits or wit- of "whiplash," he did testify that Cave's It has been difficult for precisely us to tell facts, ted. In his statement of Sibbing quotes portions which of testimony Cave's that Sib- large blocks of the transcript containing the bing now claims were improperly admitted. portions of testimony to which he now argument section of gen- his brief refers objects. Although we decline Cave's invita- erally to testimony regarding what Dr. tion to Sibbing conclude that has waived his diagnostic told the performed tests he argument entirely, in its we limit our discus- and the pain, cause of her but it does not refer sion to portions those of testimony any specific page transcript of the where Sibbing quotes which in his brief. the allegedly-improper testimony was admit- of striking those court erred Tr. "trauma.3 result
injuries were he stated which Dr. Kern's trauma any only evidence p. 271. of the that, opinion, some accident Cave experienced medical from her had received testified He also Sibbing. caused unnecessary. Specifically, the cur straightening x-rays showed "believe that he did Kern testified muscle a result neck as of Cave's vature and did received treatment Cave in" the p. 268-64. 'T'r. spasms. per test conduction the nerve not think diagnostic a valuable on Cave was formed hearsay alleged Therefore, Cave's Sibbing p. 78. App. Appellant's tool. claims Sibbing now testimony which seeking to Indiana, party that, in *6 merely is of evidence ous admission jury the case instructed in that court has al other evidence cumulative the for responsible the defendant Davis admitted. properly ready been injuries plaintiffs the aggravation (Ind.Ct.App. 942, Garrett, 947 N.E.2d 887 medi- negligent unnecessary or by caused trial if the Even 2008), court denied. the trans. appeal, Upon treatment. cal the relevant excluded have court should errone- jury instruction held that any error testimony, portions of (Second) Restatement ous, quoting in admis (any error id. See harmless. (1965): § 457 Torts where harmless report police sion of for anoth- is liable actor negligent If the cumula therein contained information subject also injury, he is bodily er's testimony). of witness's tive bodily harm any additional liability for of third efforts from normal
resulting oth- of Evidence rendering aid which Exclusion B. persons irrespec- reasonably requires, injury er's also claims Sibbing in a are done acts such tive whether motion granting erred court manner. negligent or a proper videotaped strike Carpenter, Suelzer 225; also see witness, Dr. Kern. Id. expert of his 467, 470-71 23, 32, N.E. Ind. trial claims that Sibbing Specifically, importantly, More qualifications. pard's Sheppard's testi- object to did appeal that the bing claim caused does not now problems were disc mony that Cave's objection. overruling his court erred degenerative conditions. by and not trauma Shep- However, objection on Dr. he based his (1915) (holding that, if plaintiff uses ordi- Id. The court ultimately held that an in- nary care in selecting surgeon, the sur- jured party may recover for injuries geon's aggravation of plaintiffs inju- caused the original tort-feasor's negli- ries unskillful treatment will not alone gent conduct and for any aggravation of preclude recovery by plaintiff of dam- those caused by physician's a im- ages for the aggravated as well as the proper diagnosis and unnecessary treat- original injury). The Whitaker court held ment or proper diagnosis and negligent that recovery permitted In order to recover under this aggravated injuries are a misdi- rule, the plaintiff only need show he exer- agnosis of the injury and a subsequent cised reasonable care in choosing phy- unnecessary operation byor a proper diag- sician. Id. nosis and a negligently performed neces- Sibbing argues that the Whitaker case sary operation. Id. at 226 (citing Restate- does not control because he is not (Second) arguing ment § of Torts a, comment that Cave's medical care providers aggra- 1). Mustration vated her injuries. He simply claims that The court noted that Indiana follows the the treatments they chose were unneces- general rule that a recovery may sary. We see little difference between this be reduced if he obey fails to his physi- case and Whitaker. justifications cian's instructions thereby exacerbates the rule in Whitaker apply equally wheth- aggravates injury. his Thus, Id. if the er the unnecessary aggravates adopted had the opposite position, plaintiffs injuries or is simply ineffec- then "the injured party would be placed in tive. Either way, plaintiff should not be the unenviable position of second-guessing put in position of second-guessing the physicians in order to determine treatment chosen by her medical pro- whether the doctor properly diagnosed the vider. injury and chose the correct treatment." Id. The court "place refused to innocent Sisler, Edwards v. parties who have been injured by another's 1254 (Ind.Ct.App.1998), court, in hold *7 negligence in such position." a Id. ing that the rule from Whitaker was not by altered Indiana's Comparative Fault only Not injured would the party be Act, noted that jurisdictions "other have
forced to second-guess his physician, he question treated the similarly." Id. (citing would be caught in a vice which offers Cartmell, Ponder v. 409, 301 Ark. 784 correct choice of action. On the one 758, (1990)) S.W.2d 760-61 hand, (citing Whit his damages could be reduced if aker in holding plaintiff that he may submitted to recover physician's the treat- for unnecessary procedures ment and it an attempt was argued later that the to cure original physician injury); see chose a also course of Hanson action that v. Am. Co., Fam. Mut. inappropriate Ins. and 294 Wis.2d unnecessary. On 149, the other 716 hand, (2006) (hold if N.W.2d patient the 871-72 refused to ing follow the that physician's motorist advice, injured in the tort- automobile feasor could argue that accident injured the par- entitled to medical expenses ty's damages regardless should be of reduced physician because per he failed to physician's follow his in- formed unnecessary surgery where the Thus, structions. injured the party is motorist used ordinary care in selecting placed in a no win situation. physician and surgery arose from the inju- not state did Furthermore, Dr. Kern accident); Spangler the
ry caused for Cave's charges the thought he that Inc., Stores, So.2d Wal-Mart is There excessive. were treatments tort-feasor (noting that (La.Ct.App.1996) the challenging between difference notable over- treatment unnecessary for liable challeng- expenses medical can show tort-feasor the unless treatment chosen treatment of course specific the ing treatment underwent plaintiff that providers. care medical plaintiffs by the faith). in bad not Sibbing could that means holding Our permit not if he is that treatment Sibbing claims course specific challenge the necessity doctors, Cave's not it does challenge the but to ted chosen ex- challenge the impossible be not treatment, could it would he mean that medical a result incurred reasonableness that challenge the were penses to him as excessive. treatments expenses, these medical of her necessity proving. burden bore which Cave negligence Here, first 277. We Cook, at See Moreover, is no there injuries. that testify Kern did Dr. observe in her negligent that Cave suggestion unnecessary because treatment There- providers. medical care choice the treat or because uninjured she was chal- able to not be fore, Sibbing should to unrelated symptoms addressed ment treatment course particular lenge the Certainly Sib- accident. the automobile to providers care by Cave's chosen pres to permitted been have bing should negli- resulting from treat were physicians that Cave's ent evidence innocent- foree so would To do genee. unrelated condition for a treating her second-guess plaintiff injured ly Sib- for which condition accident-a her medical chosen treatment choice of proxi not be would negligence bing's say Therefore, cannot we providers. care not what this is But cause. mate discretion abused its Kern's Dr. portions stricken Kern's video- of Dr. excluding portions Instead, in the stricken stated. testimony. taped opin in his issue, Kern stated Conclusion by her chosen ion, permitting not err he court did ineffective physician testify as what treatment.4 in" the not "believe did added). relevant (emphasis "did not Kern Id. that Dr. rect." indicates dissent 4. The not whether present case is question in in the treatment believe he did not state *8 type in" generally "believed Dr. Kern (emphasis add- Op. at 1163 question{.]" in received; question Cave treatment said might not have ed). Although Dr. Kern allowed have been Pr. Kern should whether care in chiropractic in believe he did not in" the "believe did not testify that he t0 on by Cave's counsel when asked general, medical Cave received be Cave should cross-examination Further, had no if Dr. Kern providers. care care rely on her able "passive" treatment quarrel with to treat her how and advice "direction following the weeks four in the first received said, certainly ... She "No. Kern pain," re- crash, "passive" treatment then De- right to do that." certainly has the question. she in is not during that time ceived A, then counsel p. 109. Cave's Ex. received care Cave question fendant's What was weeks, ... asked, agree with their it is clear just don't first four "You after treat- thought such opinion, Dr. Kern Dr. Kern judgment?" Id. in his with the unnecessary. ineffective ment to be treatment, cor- believe in "I don't replied, told her about diagnostic tests and the Statements of charges for medical, hos- cause of pain. Even if this testimony pital or other health care expenses for did not fall within the hearsay exception diagnosis or treatment occasioned by an contained in Evidence Rule 8038(4),its ad- injury are admissible into evidence. mission is harmless because it was cumula- Such statements shall constitute prima tive of other evidence, the admissibility of facie evidence that the charges are rea- which is unchallenged on appeal. Further, sonable. Sibbing may not seek to reduce his liability In essence, the above provides rule by challenging specific course of treat- simpler method of proving the medical ex- ment chosen by Cave's medical pro- penses when there is no substantial issue
viders to treat caused by Sib- that they are reasonable and caused by the bing's negligence. Therefore, tort. Burge, 808 N.E.2d at However, court did not err in striking those this court has also determined that if there of Dr. Kern's testimony in which opined he is a dispute, the party opposing the medi- that certain treatments chosen cal expenses may offer evidence to the medical care providers was unnecessary. contrary, including expert opinion. Id.
Affirmed. In case, this Dr. Kern testified during
his deposition that the passive care Cave BROWN, received-including traction, J., manipulation, concurs. and heat and ice therapy-was not reason- BAKER, C.J., concurs in result in part able or medically necessary beyond four part dissents in opinion. with weeks after the accident because Cave's
MRI seans of the low neck and back were BAKER, Chief Judge, concurring in re- normal. Appellant's App. p. 68-69, 73-74, sult in part and dissenting in part. 76. Additionally, Dr. Kern did not state that he did not believe the treatment agree I with the majority's conclusion question or that the treatments themselves that the trial court properly allowed Cave were inappropriate or ineffective, and he to testify as to what Dr. Saquib told her did not criticize chiropractic care in gener- about the diagnostic tests and the cause of al. fact, Dr. Kern made it clear that her pain. However, I part ways with the passive care is not inappropriate in and of determination that the trial court did not itself, opining that after four to six weeks abuse its discretion in granting Cave's mo- after injury, such care would be redun- tion to strike Dr. Kern's videotaped testi- dant. Id. at 81-82. Dr. Kern testified mony regarding the reasonableness and there was no documentation in the necessity of passive treatment and records that nerve conduction studies were nerve conduction study that Dr. Saquib indicated because Cave had weakness, ordered. reflex, loss of or severe sensation changes To recover damages for medical ex and because nerve conduction tests are not penses, the plaintiff must prove that the valuable for diagnosing. Appellant's App. expenses were both reasonable and neces p. Indeed, 67-68. Dr. Kern was rendering *9 sary. Burge Teter, v. 132 his opinion, based upon his review (Ind.Ct.App.2004). This burden has been Cave's records and his own experience traditionally met through the admission of medicine, practicing that passive treatment expert testimony. Id. As set forth in given more than a month after an accident : Indiana EvidenceRule413 was not helpful. Dr. Sibbing-through that apparent It is Joseph J. REISWERG an seeking testimony-was export
Kern's Glazier, & for his Garelick a foundation Cohen lay opportunity treatment Appellants-Defendants, of Cave's some argument necessary. In other or reasonable challenge sought words, the evidence chosen treatment course particular STATOM, Appellee-Plaintiff. Pam treat providers care by Cave's from 49A02-0801-CV-49. that resulted No. majori- Thus, contrary to negligence. of Indiana. Appeals Court this court's view, not believe I do ty's Kruse, 495 N.E.2d in Whitaker holding 5, 2009. March a defen- precludes (Ind.Ct.App.1986), expert witness an calling from dant all of as to whether opinion an
render reasonable treatment cireumstances. necessary under that because note I would Finally, motion to strike granted effec- Sibbing was testimony, Dr. Kern's rea- challenging the tively precluded necessity of some sonableness Moreover, because that Cave's arguing is not bing any way aggravated majority's agree with I cannot injuries, Dr. the admission proposition " 'in place Cave testimony would Kern's second-guessing position unenviable to determine in order physicians diagnosed properly the doctor treatment." correct injury and chose Whitaker, 495 N.E.2d (quoting Op. at 1161 226). short, that Evidence I not believe do Dr. the admission precluded Rule 413 phys- testimony that Cave's opinion Kern's passive not warrant findings did ical study that conduction and nerve these rea- For had ordered. court erred sons, I believe motion to strike. granting notes cumulative admitted improperly prove must expenses recover objection. without admitted evidence other reasonable both were expenses argue length goes to some at 277. Cook, 796 N.E.2d necessary. See cumulative, its ad is if this evidence even imper testimony was that this claims It is error. well not harmless mission was missible, citing Whitaker Kruse any error however, established, (Ind.Ct.App.1986). N.E.2d evidence admission by the other evi cumulative if it is harmless Whitaker, admitted the defendants Linton admitted. appropriately dence reduce their sought to but negligence their (Ind.Ct.App. 960, 977 Davis, inju- that the by arguing liability cannot error 2008). Therefore, reversible unnecessary and aggravated ries were errone a trial court's upon predicated be The trial negligent