from the Whitley Circuit Court Trial Court Cause No.
92C01-1303-CC-112 The Honorable David J. Avery, Special Judge
Attorneys for Appellant Tina M. Bell Katherine A. Brown-Henry
Cline Farrell Christie & Lee, P.C. Indianapolis, Indiana
Attorney for Amicus Curiae Indiana Trial Lawyers Association
Jerry Garau Garau Germano, P.C. Indianapolis, Indiana
Attorneys for Appellee Karl L. Mulvaney Nana Quay-Smith
Jessica Whelan Bingham Greenebaum Doll LLP Indianapolis,
Indiana Mark W. Baeverstad Rothberg Logan & Warsco LLP
Fort Wayne, Indiana
of the Case
In this medical malpractice case, David Oaks appeals the
trial court's decision to exclude his cross-examination
of an adverse expert witness about the expert's personal
medical practices. He raises two issues on appeal, which we
restate as follows:
1. Whether the trial court abused its discretion when it
excluded the cross-examination of a medical expert about his
personal medical practices, which Oaks sought to elicit for
the purpose of impeaching the expert's testimony on the
standard of care.
2. Whether the exclusion of that testimony was harmless
We reverse and remand with instructions.
and Procedural History
On December 7, 2009, Oaks presented to the emergency room at
Whitley County Hospital with shortness of breath and a cough.
He was fifty-six years old at the time and had a history of
chronic obstructive pulmonary disease ("COPD"). By
December 9, Oaks had developed a low-grade fever and was
having gastrointestinal problems and abdominal pain. A CT
scan of Oaks' chest revealed several gallstones and a
dilated transverse colon, which measured around seven
centimeters in diameter.
On December 10, Dr. Timothy R. Chamberlain saw Oaks for a
consultation and noted that Oaks had moderate distention of
the abdomen, particularly in the upper-right quadrant, had
guarding of the upper-right quadrant, and complained of mild
bloating and upper abdominal discomfort. Dr. Chamberlain also
noted that Oaks had an elevated temperature and that CT and
ultrasound results showed he had gallstones. Dr. Chamberlain
noted the risk of surgery for a patient with Oaks'
medical history but stated in his plan that he wanted to
"recheck [Oaks'] abdominal films and consider the
possibility of a laparoscopic cholecystectomy."
Appellant's App. Vol. II at 211-12. On December 11, Dr.
Chamberlain ordered an x-ray of Oaks' abdomen. The
imaging report revealed that Oaks had a "gas distended
transverse colon, " consistent with Oaks' prior
chest CT scan, and that those "findings could represent
local ileus or low grade left hemicolon/proximal
descending colon obstruction." Id. at 224.
Based on the x-ray results and the entire clinical picture,
Dr. Chamberlain suspected that Oaks had an early infection in
his gallbladder. Dr. Chamberlain determined that gallbladder
removal surgery was the proper course of treatment and that
it would likely resolve the ileus in Oaks' colon, which
Dr. Chamberlain believed was secondary to the gallbladder
Dr. Chamberlain performed laparoscopic surgery to remove
Oaks' gallbladder on December 11. During surgery, Dr.
Chamberlain saw that Oaks' colon was swollen. After
surgery, Dr. Chamberlain carefully monitored Oaks'
condition, specifically, his swollen colon and continued
ileus. Following Oaks' surgery, he had no fever, his
right upper quadrant pain was "minimal, " and he
began ambulating. Tr. Vol. III at 245. In order to stimulate
the bowel and alleviate the ileus, Dr. Chamberlain reduced
the amount of narcotics Oaks was taking and ordered the drug
neostigmine. Subsequently, Oaks began passing gas on a
regular basis, had several bowel movements, and his abdomen
went from firm and distended to soft and not distended.
Because he believed the clinical picture showed marked
improvement, Dr. Chamberlain did not obtain x-ray images of
Oaks' abdomen in the days following surgery.
On the afternoon of December 15, Oaks' colon perforated,
allowing air and fecal matter to escape into his abdomen. The
perforation of the colon was due to a combination of
enlargement of, and a lack of blood supply to, the colon. Dr.
Chamberlain performed emergency surgery during which he
repaired and resected the bowel and performed an
anastomosis-a surgical procedure in which he reconnected the
two ends of the bowel after the resection. During the
surgery, Oaks' spleen was removed. Following the surgery,
Oaks had various complications-including another
perforation-and he required additional treatment and
surgeries by other medical providers and a stay in a
On November 30, 2011, Oaks filed a proposed complaint for
damages against Dr. Chamberlain with the Indiana Department
of Insurance. On November 19, 2012, a medical review panel
issued its opinion in favor of Dr. Chamberlain.
On February 27, 2013, Oaks filed a complaint against Dr.
Chamberlain with the trial court. The parties served their
expert witness disclosures and, on October 10, 2014, Dr.
Chamberlain filed a motion in limine seeking an
order precluding any testimony that a medical expert would
have treated a patient differently in the same situation as
that in which Dr. Chamberlain treated Oaks. Oaks filed a
response and, on October 28, the trial court held a hearing
on the motion in limine and denied it.
On July 27, 2015, the trial court conducted a telephonic
status conference during which Oaks agreed to submit a
written offer of proof regarding the testimony he would
elicit at trial from Dr. Chamberlain's experts, namely,
that they would have provided different medical treatment to
a patient in the same situation. Both parties filed briefs on
that issue. Oaks argued that the evidence of differing
treatment would not be elicited to establish the applicable
standard of care but only to impeach Dr. Chamberlain's
experts' opinions on the standard of care. Oaks noted
that one of Dr. Chamberlain's witnesses, Dr. Wayne Moore,
had testified at a deposition that his personal practices
differed from his opinion on the applicable standard of
care. Dr. Chamberlain renewed his motion in
limine on that issue. He argued that testimony regarding
differing treatment cannot be offered either to establish the
applicable standard of care or to impeach Dr. Moore's
testimony because it did not conflict with his standard of
The trial court conducted a five-day jury trial from August
15-19, 2016. Oaks offered the expert testimony of two general
surgeons, Dr. David Befeler and Dr. Jeffrey Freed, both of
whom testified that the standard of care for a general
surgeon under the circumstances of the case required serial
x-rays of Oaks' abdomen post-surgery and that Dr.
Chamberlain had breached that standard of care.
Dr. Chamberlain also offered the expert testimony of two
general surgeons, Dr. Wayne Moore and Dr. Alex Cocco. These
experts testified that, in their opinion, Dr. Chamberlain did
not violate the standard of care for a general surgeon in
treating Mr. Oaks. But Dr. Cocco did not testify about what
the standard of care was, only that Dr. Chamberlain did not
violate whatever Dr. Cocco thought the standard of care might
Dr. Moore, on the other hand, testified that the standard of
care required clinical monitoring of symptoms to determine
whether the patient was improving and that x-rays would only
be obtained if the patient was not showing "signs of
progress." Tr. Vol. IV at 104. Dr. Moore testified that
clinical monitoring of Oaks' post-operative symptoms
indicated that Oaks' condition was improving;
specifically, Oaks began having regular bowel sounds, bowel
movements, and passing of gas, his bowel distention was
slowly improving over time, and he reported that he felt
better. Therefore, Dr. Moore testified, the standard of care
did not require further x-rays.
Following Oaks' cross-examination of Dr. Moore and
outside the presence of the jury, Oaks made an offer of proof
and elicited testimony from Dr. Moore that showed that, if
Oaks had been permitted to question Dr. Moore about his own
personal medical practices, Dr. Moore would have testified
that he would have obtained an x-ray in a post-operative
situation like Oaks'. The trial court affirmed its prior
decision to exclude such testimony relating to Dr.
Moore's personal medical practices, stating in relevant
I don't disagree that there [are] instances where a
physician . . . who is giving an opinion on standard of care
. . . [can] have their opinion attacked by . . .
demonstrating [that] even though they say this is the
standard of care[, ] . . . they do contrary to . . . the
standard of care but they've testified what the standard
of care would be. I think the distinction in this
situation was[, ] you know[, ] what was represented to me in
argument, at least this afternoon, was that the doctor said
standard of care was this but in his own personal practice,
he practices above what he believes the standard of care to
be and that's why I did not permit that. If I can
see other instances where that may come into play, that
somebody says . . . this is the standard of care but then
learn from their practice that they don't - that's
not the practice that they would follow, so I think
that's the distinction.
Tr. Vol. IV at 169-70 (emphasis added).
On August 19, 2016, the jury returned a verdict in favor of
Dr. Chamberlain ...