The Indiana Court of Appeals recently affirmed a $1.25 million verdict obtained by the Indiana medical malpractice lawyers at Garau Germano Hanley & Pennington, P.C.
The decision was handed down in the case of John Morse, M.D. v. Jeffrey Wayne Davis. In April of 2004, Jeff Davis went to Dr. Morse, a gastroenterologist in Terre Haute, Indiana, with complaints of rectal bleeding. Dr. Morse chose not to order a colonoscopy or sigmoidoscopy to ascertain the cause of Davis's rectal bleeding. A colonoscopy was finally performed more than two years later and revealed Stage IV colon cancer.
At trial, Davis alleged that Dr. Morse's decision not to perform a colonoscopy was negligent and that the decision allowed Davis's cancer to progress to the point where it was incurable. The jury in Vigo County agreed, handing down a $2.5 million verdict. The verdict was later reduced by the trial court to $1.25 million, the maximum allowed under the terms of Indiana's Medical Malpractice Act.
Dr. Morse appealed the jury's verdict, arguing that the trial court had erroneously excluded evidence which Dr. Morse attempted to introduce at trial. One of Dr. Morse's primary arguments was that members of the medical review panel (which had unanimously found no negligence on the part of Dr. Morse) should have been allowed to testify that they did not believe that Davis had reported a family history of colon cancer to Dr. Morse, despite Davis's sworn testimony that he had done so. The medical review panel members and Dr. Morse's hired expert for trial claimed that Dr. Morse was only required to perform a sigmoidoscopy or colonoscopy if he was aware of a family history of colon cancer. (At trial, Davis presented a wealth of medical literature which unanimously indicated that a colonoscopy or sigmoidoscopy was required for patients such as Davis regardless of the presence or absence of a family history of colon cancer.)
The court of appeals rejected Dr. Morse's argument that the testimony he sought to elicit was not an attack on Davis's credibility, finding that, "[t]he 'ultimate point' of the proffered testimony was that Davis was not truthful on the question of whether he had reported a family history of colon cancer and continued rectal bleeding in 2005." The court held that such testimony was prohibited by Rule 704(b) of the Indiana Rules of Evidence.
The court of appeals' opinion highlights a problem frequently encountered in medical malpractice cases in Indiana. Every medical malpractice case in Indiana is required to go before a medical review panel comprised of three Indiana physicians before the case can be pursued in state court. The function of the panel is to provide an expert opinion based upon the evidence before it. However, if there is a conflict in the evidence, the panel is not empowered to resolve the conflict by making credibility determinations. Far too often, medical review panels ignore this limit on their power. Predictably, when the physicians on the medical review panel overstep their bounds by resolving conflicts in the evidence, they almost always resolve them in favor of their fellow physicians.
The decision in Morse v. Davis gives Indiana medical malpractice lawyers a new tool to use in combating panel doctors who try to invade the jury's province by resolving disputes in the evidence.
If you or a loved one has been injured as a result of medical care which you believe may have been negligent, review of the case by an experienced medical malpractice attorney may be helpful. Contact the lawyers at Garau Germano Hanley & Pennington, P.C. for a free consultation.