Dorothy L. Whitaker appeals a jury verdict in favor of George Kruse and Progressive Construction and Engineering Co., Inc. Whitaker raises four issues on appeal. We address only the following issue since it is dispositive:
Was it reversible error for the trial court to give defendants' tendered jury instruction number 4 which states:
I instruct you, members of the jury, that plaintiffs seek recovery for medical expense, care and treatment which they contend was necessitated by the accident of April 4, 1978. In order for plaintiffs to reсover for such medical expense, care and treatment, it is incumbent upon them to prove that such medical care and treatment was reasonable and necessary as a direct and proximate result of the injury sustained by plaintiff Dorothy L. Whitaker, on April 4, 1978. If you find that any or all of the medical expense, care and treatment for which plaintiffs seek compensation was not reasonable or necessary as a result of the collision in this case, then I instruct you that you may not award damages for any medical expense, care and treatment which was unreasonable or unnecessary.
We conclude it was error and reverse and remand for a new trial.
Whitaker was a passenger in a vehicle that was rear-ended by a truck driven by Kruse. Shortly after the accident, Whitaker became ill and began experiencing pain in her back, neck and head. She was taken to a hospital emergency room, treated and advised to see a bone speciаlist.
Whitaker was subsequently treated by two physicians. The first was an orthopedic surgeon who attempted to alleviate Whitaker's pain through conservative treatment. When this failed, he recommended that Whitaker see a neurosurgeon. Based on diаgnostic testing and Whitaker's continuing clinical symptoms, neck surgery *225 was performed and a damaged dise removed. Although Whitaker continued to experience pain in her neck and head, it was not as severe as before the surgery, and other prоblems, such as numbness in her left arm and muscle spasms, ceased.
Whitaker, however, continued to suffer back pain which became progressively worse. Again conservative treatment was tried without relief for the patient. Following additional diagnostiс testing, it was determined that Whitaker had a herniated dise. Back surgery was performed and a degenerated dise removed. Following surgery, Whitaker continued to suffer pain in her hip and leg. Finally, a second back surgery was performed and another herniаted dise removed. Whitaker continued to suffer some pain in her right hip and leg but was able to stop taking pain medication and begin doing some housework.
At trial, Kruse and Progressive admitted negligence but denied that Whitaker was entitled to recover for both the original injuries and any aggravation of those injuries that resulted from medical care. They did not argue that Whitaker improperly sought medical care or unreasonably chose her physicians. Rather, they argued that the operations werе not necessary and only exacerbated Whitaker's injuries. The case was submitted to the jury and a verdict returned for Kruse and Progressive. Whitaker appeals on the basis that the jury was improperly instructed as to the applicable law.
A jury instruction which misstates the law will serve as grounds for reversal where the jury's verdict could have been based on the erroneous instruction. In determining whether the jury was misled, we examine the evidence and record to see if a different verdict could have been rеached with a proper instruction. We will assume that the erroneous instruction influenced the jury verdict unless our review of the record indicates that the verdict could not have differed even with a proper instruction. Zimmerman v. Moore (1982), Ind.App.,
The basic rule of liability for harm resulting from the treatment of injuries caused by an actor's negligent conduct is stated in Restatement (Second) of Torts § 457 (1965):
If the negligent actor is liable for another's bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third persons in rendering aid which the other's injury reasonably requires, irrespective of whether such acts are done in a proper or a negligent manner.
The Indiana Supreme Court has adopted this general rule stating:
It is undoubtedly true that one suffering a bodily injury by reason of another's negligence must use ordinary diligence and care in securing surgical aid, and, failing in such duty, cannot recover for ailments or diseases caused by such neglect ... But, where ordinary care has been exercised in sеlecting a surgeon, the latter's unskillful treatment causing aggravation of the injury will not alone preclude a recovery by the plaintiff from the tort-feasor of damages for the aggravated as well as the original injury ... [The tortfeasor] created the nеcessity for a surgeon's services, and [the injured party], without negligence, obtained the necessary surgical attendance. The risks incident to such service were incurred because of [the tort-feasor's] fault, and the aggravation of the original injury, if any, by unskillful surgery, must be held the proximate result of [the tort-feasor's] negligence.
Suelzer v. Carpenter (1915),
The rationale for permitting recovery under this rule is that the tort-feasor
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created the necessity for medical care in the first instance. So long as the individual seeking medical care makes a reasonable choice of physicians, he is entitled to recover for all damages resulting from any aggravation of his original injury caused by a physician's misdiagnosis or mistreatment. Sеe Suelzer v. Carpenter, supra,
Indiana also follows the general rule that a plaintiff's recovery for damages may be reduced if he fails to obey his physician's instructions and thereby exacerbates or aggravates his injury. See Oliver v. Morrison (1982), Ind.App.,
Other courts have applied the rule that the injured party is entitled to recover from the original wrongdoer for aggravated injuries caused by either a physician's improper diagnosis and performance of an unnecessary operation or proper diagnosis and performance of a necessary operation in а negligent manner. See Carter v. Shirley (1986),
*227 In the present case, Kruse and Progressive admitted liability for the accident giving rise to this action. The evidence was undisputed that Whitaker had suffered some injury tо her neck and back as a result of the accident, although the extent of that injury was disputed. The only issue raised by Kruse and Progressive through their expert witnesses was whether Whit aker's physicians had chosen the correct course of action in treating her neck and back injuries. Kruse and Progressive's expert witnesses did not dispute that Whitaker had suffered back and neck injuries from the automobile accident or that Whitaker had selected qualified physicians to treat her injuries. There was no evidence that the course of treatment chosen by the physicians was experimental; rather it was merely alleged that given the options available, Kruse and Progressive's expert witnesses would have elected to continue conservative trеatments rather than perform surgery.
There was no evidence that Whitaker's initial decision to seek medical care was inappropriate or unnecessary. Rather, she took actions to have her injuries treated and followed her рhysicians' advice. Kruse and Progressive's jury instruction, which was given by the trial court, instructed the jury that Whitaker could not recover for her injuries if the evidence indicated that the operation performed was unnecessary or, in essence, that Whitaker's physicians had misdiagnosed and mistreated her injuries. This instruction is clearly erroneous and necessitates the reversal of this action. Given the admission of negligence and the undisputed evidence that Whitaker suffered back and neck injuries in the accident for which she properly sought treatment, it was clear that Whitaker had suffered some damages for which she was entitled to recover.
It was foreseeable that the rear-end collision could cause injury to passengers in the impacted vеhicle. It was also foreseeable that the victim would have to seek medical treatment and that her physicians might misdiagnose and mistreat or properly diagnose and negligently treat her injuries. Under these circumstances:
The blameless tort victim shоuld not bear the expense of litigating with his doctor and should certainly not bear the risk of having to pay the tort-caused charges the tort-feasor escapes, since neither item is attributable to the victim's fault.
Hillebrandt v. Holsum Bakeries, Inc. (1972), La.Ct.App.,
Because the trial court gave an instruction to the jury which was clearly a misstatement of the law, and a review of the evidence indicates that the verdict could certainly have differed if correct instructions were given, we reverse and remand this action to the trial court for a new trial on the damages issue.
Reversed and remanded.