APPEAL FROM THE VERMILLION CIRCUIT COURT, The Honorable Don R. Darnell, Judge, Cause No. C-84-237, 8411CIV-0237.
Young, J., Conover, J., Neal, J., Concur.
Janet Harris appeals a negative judgment in her medical malpractice case against Dr. Manuel Cacdac, a neurosurgeon. The issues preserved for review are:
(1) Did the trial court err in granting Cacdac's motion for judgment on the evidence on the issue of fraud?[Footnote 1]
(2) Did the the trial court err in giving instructions on the issue of contributory negligence?
We affirm in part and reverse in part.
Harris became a patient of Cacdac in 1980. Cacdac performed two scalenectomies and a lumbar disc excision on her during that year. On August 28, 1981, he performed a cervical disc excision on Harris, which Harris claims was unnecessary.
As a result of the last surgery, Harris filed a malpractice action against Cacdac alleging negligence and fraud. The trial court granted Cacdac's motion for judgment on the evidence on the fraud issue, and the jury returned a verdict in favor of Cacdac on the negligence issue.
Harris contends the trial court erred in granting judgment on the evidence on the fraud count. When reviewing a trial court's action on a judgment on the evidence, we consider only the evidence most favorable to the non-moving party. Lambert v. Yellowbird, Inc. (1986), Ind.App., 498 N.E.2d 80, 81 (citing Dettman v. Sumner (1985), Ind.App., 474 N.E.2d 100, 103.
To sustain an action for fraud it must be proven that a material representation of a past or existing fact was made which was untrue and known to be untrue by the party making it or else recklessly made and that another party did in fact rely on the representation and was induced thereby to act to his detriment.
Central National Bank of Greencastle v. Shoup ( 1986), Ind.App., 501 N.E.2d 1090, 1093 (quoting Peoples Trust & Savings Bank v. Humphrey (1983), Ind.App., 451 N.E.2d 1104, 1112).
Harris specifically contends Cacdac represented that the results of her August, 1981 myelogram were abnormal when in fact they were normal. She bases this argument on Cacdac's hospital discharge summary, which states in part:
She was advised that there is an abnormality on the EMG [electromyelogram] but we confirmed this with the myelogram so we probably would ...