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Oaks v. Chamberlain

Court of Appeals of Indiana

May 11, 2017

David Oaks, Appellant-Plaintiff,
Timothy R. Chamberlain, M.D., Appellee-Defendant.

         Appeal 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

          Najam, Judge.

         Statement of the Case

         [¶1] 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 error.

         [¶2] We reverse and remand with instructions.

         Facts and Procedural History

         [¶3] 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.

         [¶4] 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[1] or low grade left hemicolon/proximal descending colon obstruction." Id. at 224.

         [¶5] 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 infection.

         [¶6] 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.

         [¶7] 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 rehabilitation facility.

         [¶8] 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.

         [¶9] 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.

         [¶10] 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.[2] 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 care testimony.

         [¶11] 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.

         [¶12] 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 be.

         [¶13] 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.[3]

         [¶14] 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'.[4] The trial court affirmed its prior decision[5] to exclude such testimony relating to Dr. Moore's personal medical practices, stating in relevant part:

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).

         [¶15] On August 19, 2016, the jury returned a verdict in favor of Dr. Chamberlain ...

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