Brief Fact Summary.
William Cummings suffered of feelings of heartburn. Dr. Kohne met with him in December 1991 and took X-rays, which Dr. Cahoon then examined. Cahoon gave a diagnosis of hiatal hernia and reflux esophagitis and informed Cummings that due to his weight surgery was not an option. Cummings lost weight and in July 1992 went back to Cahoon who directed him to the V.A. hospital due to issues with Cummings’ insurance. Before going to the V.A. Cummings went to the E.R. in Indiana due to a â€œperforated esophagus that had hemorrhagedâ€ and was diagnosed with cancer of the esophagus. The cancer spread to lymph nodes and liver and Cummings died in August 1993.
Synopsis of Rule of Law.
Mayhue v. Sparkman set forth the rule that a medical malpractice claim for a doctor’s negligence is not barred simply because a plaintiff cannot prove this negligence to be the proximate cause of the harm that resulted by a preponderance of the evidence. The circumstances in which a doctor will be subject to liability for a harm that results from â€œfailure to exercise reasonable care to perform his undertakingâ€ include: (1) if the failure to exercise reasonable care â€œincreases the risk of such harmâ€ and (2) â€œthe harm is suffered because of the other’s reliance upon the undertaking.â€
Plaintiff is spouse of William Cummings. Cummings had an appointment with family doctor, Robert Kohne, in December 1991 with complaints of feelings of heartburn. X-rays were taken of esophagus, stomach, and small bowel. Dr. Jeffrey Cahoon examined the X-rays and gave a diagnosis of hiatal hernia and reflux esophagitis. Cahoon informed Cummings surgery was not an option until he lost weight. About 7 months later after losing around 80 pounds, Cummings had another appointment with Kohne who directed him to the V.A. hospital due to issues with Cummings’ insurance. Prior to going to the V.A. hospital Cummings went to the E.R. at St. Elizabeth’s Hopsital due to a â€œperforated esophagus that had hemorrhagedâ€ and was diagnosed with cancer of the esophagus. The cancer had spread to lymph nodes and liver and the surgery and chemotherapy were therefore ineffective. March 1993 Cummings filed a complaint with the Indiana Department of Insurance as against both doctors â€“ as to Kohne, negligent failure to diagnose, and as to Cahoon, negligent misdiagnosis. Medical Review Panel did not find their failure to adhere to the proper standard of care was a factor of the damages Cummings suffered. Cummings died in August 1993. Plaintiff sued both doctors for her husband’s death, for his loss of chance, for medical expenses and lost income, and loss of consortium. Jury awarded Plaintiff $194,000 from Kohne’s estate and $75,000 from Cahoon. Plaintiff filed a motion for prejudgment interest. The court denied with regard to Kohne and granted $18,443.84 with regard to Cahoon. Plaintiff and Defendants appealed. Court of Appeals affirmed the prejudgment decision for Kohne and reversed the award as to Cahoon. Plaintiff and Defendants sought transfer. The transfer was granted by this Court.
Whether the Mayhue standard was proper in this case and whether full damages may be awarded if the negligence by the Defendants served as a substantial factor in the death of the patient that resulted.
The Mayhue standard was proper. The court erred, however, in its instruction to the jury to award full damages if the negligence by the Defendants served as a substantial factor in the death of the patient that resulted. Furthermore, Plaintiff was not barred from bringing a wrongful death claim and a survivorship claim by the doctrine of election of remedies. And the trial court erred in its finding that Plaintiff was not entitled to the prejudgment interest with regard to Kohne.
Judgment of trial court reversed and remanded. Opinion vacated.
Judgment of trial court reversed and remanded for new trial. Opinion vacated.
Shepard, C.J., Dickson, J., Sullivan, J., and Rucker, J. concur.
Regarding the error in instruction as to full damages, this Court agreed with the dissent of Judge Sullivan that the damages instead should be â€œproportional to the increased risk attributable to the defendant’s negligent act or omission.â€ Because, however, there were erroneous instructions with regard to the quantity of damages to be awarded, and because the jury did not specify which recovery theory was being assigned to each of the Defendants, a new trial is necessary.