Zainab Abbas, M.D. v. Hetep Bilal Neter-Nu

FILED

Jun 26 2025, 11:46 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

IN THE

Indiana Supreme Court

Supreme Court Case No. 24S-CT-435

Zainab Abbas, M.D., Morgan Mittler, R.N., and

Methodist Hospital,

Appellants/Cross-Appellees (Defendants below)

–v–

Hetep Bilal Neter-Nu,

Appellee/Cross-Appellant (Plaintiff below)

Argued: January 23, 2025 | Decided: June 26, 2025

Appeal from the Lake Superior Court

No. 45D11-1809-CT-541

The Honorable Bruce D. Parent, Judge

On Petition to Transfer from the Indiana Court of Appeals

No. 23A-CT-438

Opinion by Justice Goff

Chief Justice Rush and Justices Massa, Slaughter, and Molter concur.

Goff, Justice.

Hetep Bilal “Franklyn” Neter-Nu stopped at Methodist Hospital

complaining of nausea and vomiting. He ended up with an amputated

foot three weeks later. Neter-Nu sued the hospital, Dr. Zainab Abbas, and

Nurse Morgan Mittler (collectively “Health Care Providers” or

“Providers”). A jury returned a verdict in favor of Neter-Nu. Providers

raise several claims related to certain evidentiary issues and jury

instructions, among others. We hold that the trial court erred when it

denied Methodist’s Trial Rule 50(A) motion for partial judgment on the

evidence and when it calculated prejudgment interest. But the trial court

did not abuse its discretion in declining to give Providers’ proposed jury

instructions and excluding certain evidence. Therefore, we affirm the jury

verdict but reverse and remand with instructions to grant Methodist’s

Rule 50(A) motion and recalculate prejudgment interest based on the

Providers’ statutory liability.

Facts and Procedural History

Franklyn Neter-Nu was a truck driver who checked into the emergency

room at Methodist Hospital in Gary, Indiana, on July 27, 2015,

complaining of nausea and vomiting. He was given fluids and

medications through an IV, but his attending nurse, Nurse Mittler, twice

found the IV detached from Neter-Nu’s arm. She then placed the IV in

Neter-Nu’s right foot, despite her lack of training and without a doctor’s

order for that placement. On July 28, Neter-Nu complained of pain in his

right foot, so Nurse Mittler paged Dr. Abbas. An x-ray ordered for his foot

showed no fracture or soft-tissue swelling. On July 29, a nurse examined

Neter-Nu’s right foot and saw signs of “IV infiltration,” and a nurse’s note

from the next day said there was slight bruising with no reports of

numbness. On July 30, Dr. Abbas discharged Neter-Nu. The discharge

note instructed Neter-Nu to return to the emergency room if symptoms

persisted or worsened.

Upon discharge, Neter-Nu took a bus for sixteen hours to Sioux City,

Iowa, where his employer had taken his truck. When he arrived, he

Indiana Supreme Court | Case No. 24S-CT-435 | June 26, 2025 Page 2 of 22

checked into a hotel for three days, never left his room, kept his foot

elevated, and avoided “putting weight on it.” Tr. Vol. 5, pp. 197–98. He

then checked into Mercy Medical Center emergency/urgent care with

black toes where treating physicians found no blood flow in several of his

right toes. Concluding that the foot was “unsalvageable,” ER doctors

referred Neter-Nu to the University of Nebraska Medical Center, where,

on August 19, he underwent a below-the-knee amputation of his right leg.

Ex. Vol. 11, p. 194.

Neter-Nu filed a proposed complaint with the Indiana Department of

Insurance. According to the medical-review panel, the evidence did not

support a finding that medical providers failed to meet the standard of

care. Neter-Nu then filed a complaint in the trial court against Dr. Abbas,

Nurse Mittler, and Methodist Hospital. His complaint alleged that Nurse

Mittler’s negligent placement of the IV in his foot resulted in his

amputation, that Dr. Abbas negligently failed to identify and treat the foot

after Nurse Mittler placed the IV, and that Methodist was vicariously

liable for the actions of its employees.

A two-week jury trial was held in October and November 2022. During

the presentation of evidence, Providers unsuccessfully sought to introduce

medical records suggesting that Neter-Nu had a habit of pulling out his

IVs. And during cross-examination of Neter-Nu’s expert, Dr. Eric Tripp,

the trial court denied Providers’ request to use certain emails to refresh

the expert’s recollection or impeach him for inconsistent methodologies.

At the close of Neter-Nu’s evidence, Methodist moved under Trial Rule

50(A) for judgment on the evidence, arguing that expert testimony

focused only on Dr. Abbas or Nurse Mittler and, thus, failed to prove

Methodist’s direct liability or vicarious liability for the negligence of its

other employees. The trial court denied this motion.

After both parties rested, Providers requested two final jury

instructions: one on superseding cause and one directing the jury to reach

its decision based not on “hindsight” but on conditions that “actually

existed” when Providers rendered care. Appellant’s App. Vol. 4, pp. 36,

45. In proposing the first of these instructions, Providers argued that

Neter-Nu’s delay in seeking follow-up care broke the chain of causation

Indiana Supreme Court | Case No. 24S-CT-435 | June 26, 2025 Page 3 of 22

between Nurse Mittler’s negligence and his injury. The trial court rejected

these proposed instructions. Instead, the trial court’s instructions allowed

the jury to find Methodist vicariously liable for the actions of its

employees other than Dr. Abbas and Nurse Mittler, exposing Methodist to

greater liability towards the damages award before the Patient’s

Compensation Fund pays the balance. See Ind. Code § 34-18-14-3(d)(1).

The trial court also provided the jury with three general verdict forms to

choose from: one finding all Providers liable, one finding none liable, and

one finding some liable.

Ultimately, the jury returned an $11,000,000 verdict against all

Providers, which the trial court reduced to the $1,250,000 statutory cap.

See I.C. § 34-18-14-3(a)(3). The trial court also awarded Neter-Nu

$79,993.40 in prejudgment interest. Under the Medical Malpractice Act

(MMA), each Provider would be liable to pay $250,000 towards the

judgment with the remaining balance to be paid by the Patient’s

Compensation Fund. See I.C. §§ 34-18-14-3(b)(1), (c).

In a unanimous memorandum decision, the Court of Appeals reversed

the jury verdict and remanded for a new trial. Abbas v. Neter-Nu, No. 23A-

CT-438, 2024 WL 2933113, at *1 (Ind. Ct. App. June 11, 2024). The panel

held that the trial court erred in denying Methodist’s Rule 50(A) motion

because Neter-Nu presented no evidence of Methodist’s direct liability or

vicarious liability for an agent other than Dr. Abbas or Nurse Mittler. Id. at

*5. Similarly, the panel reasoned, the trial court should not have given

instructions allowing the jury to find Methodist liable on that basis. Id. at

*6. Next, the panel concluded that the trial court should have instructed

the jury on superseding cause because Neter-Nu’s delay in seeking

follow-up care could have broken the chain of causation between Nurse

Mittler’s initial negligence and the ultimate amputation. Id. at *8. The

panel also held that the trial court made several evidentiary errors when it

denied Providers’ request to use certain records intended to impeach

Neter-Nu’s testimony that he was a compliant patient and to refresh Dr.

Tripp’s recollection and impeach him with inconsistent statements. Id. at

*9–11. The panel concluded that these errors together were not harmless.

Id. at *11. Finally, the panel declined to address Neter-Nu’s cross-appeal

issue regarding the calculation of prejudgment interest. Id. at *11 n.6.

Indiana Supreme Court | Case No. 24S-CT-435 | June 26, 2025 Page 4 of 22

Neter-Nu petitioned for transfer, which we granted, vacating the Court

of Appeals’ decision. See Ind. Appellate Rule 58(A).

Standards of Review

This Court reviews the denial of a Rule 50(A) motion de novo. Cosme v.

Clark, 232 N.E.3d 1141, 1152 (Ind. 2024). And this Court reviews a trial

court’s jury instructions, decisions to admit or exclude evidence, and

rulings on prejudgment interest for an abuse of discretion. See Cavens v.

Zaberdac, 849 N.E.2d 526, 533 (Ind. 2006); Price v. State, 765 N.E.2d 1245,

1248 (Ind. 2002); Inman v. State Farm Mut. Auto. Ins. Co., 981 N.E.2d 1202,

1204 (Ind. 2012).

Discussion and Decision

In resolving this case, our opinion first addresses whether the trial court

erred in inviting the jury to find Methodist liable independent of its

vicarious liability for Dr. Abbas and Nurse Mittler. See infra Section I.A.

Though we conclude that it did, it does not require reversing the jury

verdict. See infra Section I.B. Next, we address whether the trial court

abused its discretion in refusing to give the Providers’ proposed

instructions on superseding cause and use of hindsight in evaluating the

standard of care. We hold that it did not because the instructions given

effectively covered these issues. See infra Sections II.A–B. We then address

whether the trial court abused its discretion by preventing the Providers

from using certain medical records from Neter-Nu’s prior hospitalizations

and by preventing them from using an email intended to refresh the

recollection of Neter-Nu’s expert. Because the medical records amounted

to impermissible character evidence, and because the Providers failed to

lay the necessary foundation for refreshing recollection, we hold that the

trial court did not abuse its discretion. See infra Sections III.A–B. Finally,

the trial court’s error in denying Methodist’s Rule 50(A) motion requires

recalculating prejudgment interest. See infra Section IV.

Indiana Supreme Court | Case No. 24S-CT-435 | June 26, 2025 Page 5 of 22

I. The trial court erred by inviting the jury to find

Methodist liable independent of its vicarious

liability for Dr. Abbas and Nurse Mittler, but

joint-and-several liability precludes the need for

reversal.

In malpractice cases, like other kinds of negligence actions, the plaintiff

must prove (1) the defendant owed the plaintiff a duty of care, (2) the

defendant breached its duty by allowing its conduct to fall below the

applicable standard of care, and (3) a compensable injury proximately

caused by the defendant’s breach of duty. Methodist Hosps., Inc. v. Johnson,

856 N.E.2d 718, 720–21 (Ind. Ct. App. 2006). Although hospitals do not

“practice” medicine, they can be directly liable to a plaintiff for negligent

supervision, training, or retention of personnel who do practice medicine

on their behalf. Cmty. Health Network, Inc., v. McKenzie, 185 N.E.3d 368, 375

(Ind. 2022). Hospitals may also face vicarious liability for the negligence of

their agents, such as the doctors and nurses they employ. See id. at 375,

379. In many cases, to establish the applicable standard of care for a

health-care provider and to prove that a health-care provider’s negligence

caused their injury, the plaintiff must provide expert opinion. Simmons v.

Egwu, 662 N.E.2d 657, 658 (Ind. Ct. App. 1996), trans. denied; Harris v. Jones,

143 N.E.3d 1012, 1017 (Ind. Ct. App. 2020).

A. The trial court erred when it denied Methodist’s Trial

Rule 50(A) motion and gave instructions inviting the

jury to find Methodist liable independent of its

vicarious liability for Dr. Abbas and Nurse Mittler.

At trial, Methodist moved unsuccessfully for judgment on the evidence

on the limited issue of its direct liability or vicarious liability for an agent

other than Dr. Abbas and Nurse Mittler. Similarly, Methodist objected to

the court’s instructions inviting the jury to find Methodist liable for the

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liability of “any other” agent of Methodist. 1 Appellant’s App. Vol. 4, pp.

88, 96; Tr. Vol. 9, pp. 195, 196. Methodist argues that, while evidence

established its vicarious liability for Dr. Abbas and Nurse Mittler, Neter-

Nu presented no evidence showing Methodist’s direct liability or

vicarious liability for another agent. We agree.

Under Indiana Trial Rule 50(A), a movant may seek judgment on the

evidence (directed verdict) at the close of a plaintiff’s case if all or some of

the issues are “not supported by sufficient evidence.” Cosme, 232 N.E.3d at

1148 (quoting Ind. Trial Rule 50(A)). If the movant succeeds in making this

showing, the court “shall withdraw such issues from the jury” and enter

judgment “notwithstanding a verdict.” Ind. T.R. 50(A). A court should not

direct a verdict unless “there is a total absence of evidence or legitimate

inference in favor of the plaintiff upon an essential issue; or where the

evidence is without conflict and is susceptible of but one inference.”

Whitaker v. Borntrager, 122 N.E.2d 734, 734–35 (Ind. 1954). “[T]he court will

not weigh the conflicting evidence or inferences but will consider only the

evidence and inferences that are most favorable to the [nonmovant].”

Id. at 735. Likewise, if the trial court denies a Trial Rule 50(A) motion and

instructs the jury on the issue, the instruction must be supported by

evidence in the record. See Blocher v. DeBartolo Props. Mgmt., Inc., 760

N.E.2d 229, 235 (Ind. Ct. App. 2001), trans. denied.

Neter-Nu argues that Methodist was directly negligent for failing to

train and supervise Nurse Mittler on IV policy. But a separate cause of

action for negligent supervision accrues when an employee “steps beyond

the recognized scope of his employment to commit a tortious injury upon

1 Methodist objected to instructions 10, 18, and 8. Instruction 10 provided that, “Defendant

Methodist Hospital concedes that Nurse Morgan Mittler, Dr. Zainab Abbas and any other

doctors, nurses, or medical providers who treated Mr. Neter-Nu” were Methodist’s agents.

Appellant’s App. Vol. 4, p. 88 (emphasis added). Instruction 18, in turn, directed the jury as

follows: “If you decide that Zainab Abbas, M.D., Morgan Mittler, R.N., or any other Methodist

Hospital employee or agent” were negligent and caused Neter-Nu’s injury, then they are jointly

liable regardless of their degree of negligence. Id. at 96 (emphasis added). Finally, Instruction

8 instructed the jury that Neter-Nu must prove “Zainab Abbas, M.D., Morgan Mittler, R.N.,

and/or Methodist Hospital” failed to exercise reasonable care and caused his injuries. Id. at 86

(emphasis added).

Indiana Supreme Court | Case No. 24S-CT-435 | June 26, 2025 Page 7 of 22

a third party” and therefore does not apply where “an employer has

stipulated that his employee was within the scope of his employment.”

Bd. of Sch. Comm’rs of City of Indianapolis v. Pettigrew, 851 N.E.2d 326, 332

(Ind. Ct. App. 2006) (quoting Tindall v. Enderle, 320 N.E.2d 764, 768–69

(Ind. Ct. App. 1974)), trans. denied. And here, because Methodist stipulated

that Nurse Mittler acted within the scope of employment, it cannot be

liable for negligent supervision. See Appellant’s App. Vol. 4, p. 88; Oral

Argument at 05:51–05:56 (hospital conceding that it is vicariously liable

for negligence of Nurse Mittler).

Neter-Nu also argues Methodist is vicariously liable for the negligent

acts of other agents besides Dr. Abbas and Nurse Mittler. Neter-Nu

presented evidence of conflicting entries in Methodist’s records by non-

party nurses, and evidence that non-party employee and hospitalist Dr.

Clive Alonzo approved the placement of the IV in Neter-Nu’s foot. But

Neter-Nu provided no expert testimony on how these specific actions fell

below the applicable standard of care. See Tr. Vol. 3, pp. 88–89, 118, 197

(Nurse Lisa Stringer testifying only about how inconsistent

documentation by Nurse Mittler breached the standard of care); Tr. Vol. 4,

pp. 164, 168 (Dr. Ahmet Gurbuz declining to opine on chart entries and

limiting his expert opinion to Dr. Abbas only); Tr. Vol. 5, pp. 15–16, 76 (Dr.

Tripp testifying to the standard of care required of Dr. Abbas “or any of

the Methodist hospitalists” but then clarifying that his opinion relates only

to Dr. Abbas). Unless the physician’s conduct is so obviously substandard

that negligence is within the common knowledge of lay people, Syfu v.

Quinn, 826 N.E.2d 699, 703 (Ind. Ct. App. 2005), “[e]xpert opinion is

indispensable to an evaluation of a particular defendant’s conduct within

the framework of the duty imposed by law,” Bonnes v. Feldner, 642 N.E.2d

217, 220 n.1 (Ind. 1994) (quoting Stumph v. Foster, 524 N.E.2d 812, 814 (Ind.

Ct. App. 1988)). Absent such testimony, the trial court should have

granted Methodist’s Rule 50(A) motion and should not have instructed

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the jury inviting them to find Methodist liable independent of its vicarious

liability for Dr. Abbas and Nurse Mittler.2

B. There is no need to reverse the jury verdict given the

application of joint-and-several liability.

To the extent the trial court erred by denying Methodist’s Rule 50(A)

motion and inviting the jury in its instructions to find Methodist liable

independent of its vicarious liability for Dr. Abbas and Nurse Mittler, the

errors do not require reversal. Joint-and-several liability applies to

negligent defendants in medical-malpractice suits. Ind. Dep’t of Ins. v.

Everhart, 960 N.E.2d 129, 138 (Ind. 2012). Under joint-and-several liability,

each defendant is liable for the entire damages award, regardless of the

degree of the defendant’s negligence. See id. at 137. The trial court

instructed the jury that, “regardless of [a defendant’s] degree of

negligence, they are jointly liable for the entire amount of Franklyn Neter-

Nu’s damages,” and that the jury “must return a verdict against all

negligent defendants in a single amount for the total damages” without

considering “the amount that any individual defendant will pay toward

[the] verdict.” Appellant’s App. Vol. 4, p. 96. Because joint-and-several

liability applies in medical-malpractice cases, the jury did not award

damages based on each liable defendant’s individual degree of

negligence. Instead, it awarded damages based on Neter-Nu’s injury.

Therefore, the error in inviting the jury to find Methodist negligent for the

2 Methodist also objected to the verdict forms. The trial court tendered three verdict forms for

the jury to choose from: one finding all the Providers liable, one finding none liable, and one

where the jury could select some of the Providers liable. The jury chose the form finding all

Providers liable. Methodist argues that the jury-verdict form improperly invited the jury to

find Methodist liable independent of its vicarious liability for Dr. Abbas and Nurse Mittler.

We disagree. The jury was instructed on vicarious liability and that a hospital is liable for the

negligent acts of its employees and agents acting within the scope of their employment.

Appellant’s App. Vol. 4, p. 88. The trial court also instructed the jury that Methodist conceded

that Dr. Abbas and Nurse Mittler were its employees and agents. Id. The jury was allowed to

conclude that Dr. Abbas and Nurse Mittler were liable and that Methodist was vicariously

liable, and the verdict form accurately reflected this conclusion when it said the jury found

against all three Providers. Therefore, there was no error in the verdict form.

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actions of agents besides Dr. Abbas and Nurse Mittler did not impact the

damages amount. Instead, the error impacts who pays the damages before

the Patient’s Compensation Fund pays the balance.

The MMA places limits on a patient’s recovery. Under Indiana Code

section 34-18-14-3(d), if a health-care provider “is adjudicated liable solely”

based on the conduct of its agent or employee while “acting in the course

and scope of employment,” then “the total amount” payable to the

claimant on behalf of the agent or employee “and the health care provider”

is $250,000. I.C. § 34-18-14-3(d)(1) (emphases added) (for malpractice

occurring after June 30, 1999, and before July 1, 2017). Responsibility for

paying the balance of the adjudicated amount to which the claimant is

entitled falls on other liable health-care providers, the Patient’s

Compensation Fund, or both. I.C. § 34-18-14-3(d). Since Methodist is solely

liable by reason of Dr. Abbas’s and Nurse Mittler’s negligence, then Neter-

Nu can recover a total of $500,000—$250,000 on behalf of Dr. Abbas and

Methodist and $250,000 on behalf of Nurse Mittler and Methodist—before

the Patient’s Compensation Fund pays the balance.

II. The trial court did not abuse its discretion in

refusing to give the Providers’ proposed jury

instructions.

When evaluating a jury instruction, this Court considers “1) whether

the instruction correctly states the law, 2) whether there is evidence in the

record supporting the instruction, and 3) whether the substance of the

instruction is covered by other instructions.” Blocher, 760 N.E.2d at 235. A

trial court must give a proposed instruction “only if it covers an essential

element of the case supported by evidence, correctly states the law

material to the case and when no other instruction covers that area of the

law.” State v. Bouras, 423 N.E.2d 741, 744 (Ind. Ct. App. 1981).

Here, Providers fault the trial court for refusing to give two of their

proposed jury instructions—one on superseding cause, allowing the jury

to conclude that Neter-Nu’s delay in obtaining follow-up care broke the

chain of causation between Nurse Mittler’s initial negligence and his

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ultimate injury; and one that would have prohibited the jury from using

hindsight to evaluate the applicable standard of care. For the reasons

below, we find no abuse of discretion.

A. Even if Providers’ proposed instruction on superseding

cause were proper, the trial court’s instructions on

causation covered the issue.

In medical-malpractice claims, like other negligence claims, the plaintiff

must prove that the defendant’s breach of duty proximately caused the

plaintiff’s injury. Methodist Hosps., 856 N.E.2d at 721. But an “intervening

cause” can break the chain of causation between the defendant’s original

negligence and the plaintiff’s injury, thus superseding the defendant’s

breach of duty. Wilson v. Lawless, 64 N.E.3d 838, 848 (Ind. Ct. App. 2016),

trans. denied. The “key to determining whether an intervening agency has

broken the original chain of causation is to determine whether, under the

circumstances, it was reasonably foreseeable that the agency would

intervene in such a way as to cause the resulting injury.” Id. (quoting Scott

v. Retz, 916 N.E.2d 252, 257 (Ind. Ct. App. 2009)). To determine whether an

intervening cause is unforeseeable and therefore superseding, courts

consider factors such as (1) whether the intervening actor is independent

from the alleged tortfeasor; (2) whether the instrumentality of harm is

under the complete control of the intervening actor; and (3) whether the

intervening actor, rather than the original tortfeasor, is in the better

position to prevent the harm. Id. at 849.

Providers argue that their proposed instruction on superseding cause

was necessary because there was “80-plus hours of darkness” in between

Neter-Nu’s discharge from Methodist and the time he presented to Urgent

Care in Iowa. Appellant’s Br. at 36. In that time, Providers insist, he could

have kicked something, tripped, fallen, or taken some other actions that

led to his injuries. Providers also argue that Neter-Nu’s delay in getting

follow-up care could have caused his injuries.

We reject these arguments. Rather than point to record evidence to

support the proposed instruction, Providers’ arguments—about what

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could have caused the injury—amount to nothing more than speculation.

Methodist’s expert testified that acute limb ischemia, the condition Neter-

Nu likely suffered from, manifests within six to eight hours, and Neter-

Nu’s expert, Dr. Ahmet Gurbuz, testified, “time is tissue,” meaning tissue

destruction does not stop until blood flow is reestablished. Tr. Vol. 4, p. 5.

Although this testimony explains when acute limb ischemia would have

manifested, and that the injury worsens with time when there’s no

treatment, it does not lead to a conclusion that Neter-Nu’s foot would

have been salvaged had he gotten follow-up care sooner. Therefore, the

trial court did not abuse its discretion in declining to give the proposed

instruction.

Even if Neter-Nu should have sought follow-up care sooner than he

did, his failure to do so doesn’t necessarily support a superseding-cause

affirmative defense. The Restatement of Torts (Second) defines a

superseding cause as “an act of a third person or other force which by its

intervention prevents the actor from being liable for harm to another

which his antecedent negligence is a substantial factor in bringing about.”

Restatement (Second) of Torts § 440, at 465 (Am. L. Inst. 1965) (emphasis

added); Wilson, 64 N.E.3d at 848 (stressing that “a chain of causation may

be broken if an independent agency intervenes between the defendant’s

negligence and the resulting injury”) (emphasis added) (internal quotation

marks and citation omitted). Here, especially, Neter-Nu was prescribed

narcotics and had no medical training, suggesting that he might not have

realized the extent of his injuries and making it foreseeable that he would

have delayed seeking follow-up care. 3

Finally, even if the proposed instruction were proper, the trial court’s

model instruction on causation essentially covered the issue of

3 Instead, the Providers’ proposed instructions on superseding cause appear to be an attempt

to revive their failure-to-mitigate defense which they withdrew at trial. See Tr. Vol. 9, pp. 120–

21, 130–31, 133. See, e.g., Foster v. Owens, 844 N.E.2d 216, 222 (Ind. Ct. App. 2006) (holding that

a patient’s refusal to get a follow-up procedure after physician’s medical malpractice would

be failure to mitigate her already inflicted damages, rather than contributory negligence),

trans. denied.

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superseding cause. See Bouras, 423 N.E.2d at 744 (concluding the trial court

is not required to give an instruction when another “instruction covers

that area of the law”). In Control Techniques, Inc. v. Johnson, this Court held

that refusing to instruct the jury on superseding cause was not reversible

error because the doctrines of causation and foreseeability—set forth in

separate instructions—impose the same limitations on liability as the

superseding-cause doctrine. 762 N.E.2d 104, 108 (Ind. 2002). We reasoned

that causation limits a defendant’s liability to foreseeable consequences,

but a superseding cause is, by definition, one that is not foreseeable. Id. So,

the superseding-cause “doctrine in today’s world adds nothing to the

requirement of foreseeability that is not already inherent in the

requirement of causation.” Id.

Here, the trial court instructed the jury that “[a] health care provider’s

conduct is legally responsible for causing an injury if: (1) the injury would

not have occurred without the conduct, and (2) the injury was a natural,

probable, and foreseeable result of the conduct.” Appellant’s App. Vol. 4, p.

90 (emphasis added). Because the instruction limits a defendant’s liability

to a foreseeable result and a superseding cause would make the result

unforeseeable, the trial court need not have instructed the jury on

superseding cause. To be sure, as Providers point out, Control Techniques

involved comparative fault whereas the MMA applies contributory

negligence. Appellant’s/Cross-Appellee’s Reply Br. at 28–29. Under a

contributory-negligence scheme, any fault attributable to the claimant

may bar recovery if the fault proximately caused the claimant’s damages.

Sawlani v. Mills, 830 N.E.2d 932, 941–42 (Ind. Ct. App. 2005), trans. denied.

Under a comparative-fault scheme, by contrast, any fault attributable to

the claimant diminishes the damages award proportionately. Hopper v.

Carey, 716 N.E.2d 566, 575 (Ind. Ct. App. 1999), trans. denied. But whether

contributory negligence or comparative fault applies, the party raising

these defenses must still prove that the contributory negligence or

comparative fault proximately caused the injury. See Sawlani, 830 N.E.2d

at 942; City of Gary ex rel. King v. Smith & Wesson Corp., 801 N.E.2d 1222,

1243–45 (Ind. 2003). Because Control Techniques applies here, we conclude

that the trial court did not abuse its discretion in failing to provide a

superseding-cause instruction.

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In sum, given the lack of evidence that getting follow-up care sooner

would have saved Neter-Nu’s foot, the trial court did not abuse its

discretion in declining to give the Providers’ proffered jury instruction on

superseding cause. And the jury instructions essentially covered

superseding cause when the trial court properly instructed the jury on

proximate cause.

B. Providers’ proposed instruction on avoiding hindsight

as a basis for its standard-of-care determination was

effectively covered by other jury instructions.

The Providers also contend that the trial court erred by refusing to

instruct the jury that its “determination should not be based on hindsight”

when determining “whether [the Providers] exercised reasonable care” in

treating Neter-Nu. Appellant’s App. Vol. 4, p. 45. In support, the

Providers cite cases where courts found similar instructions appropriate.

See Dahlberg v. Ogle, 373 N.E.2d 159, 164 (Ind. 1978) (instructing the jury

“not to utilize retrospection or hindsight” when determining whether

defendant physicians were negligent) (emphasis omitted); Blevins v. Clark,

740 N.E.2d 1235, 1241 (Ind. Ct. App. 2000) (instructing the jury “to

evaluate the care rendered in this case solely based upon the conditions

known or that should have been known to [the defendant physician] at

the time, and not on the basis of hindsight”), trans. denied.

But a trial court is not required to give a jury instruction where another

instruction covers that area of law. See Bouras, 423 N.E.2d at 744. In Carter

v. Robinson, the Court of Appeals held that when a trial court instructed a

jury that a practitioner must use the degree of care a reasonable

practitioner would use “under the same or similar circumstances,” there was

no need for an instruction that a “determination should not be based on

hindsight.” 977 N.E.2d 448, 457, 458 (Ind. Ct. App. 2012), trans. denied.

Here, the trial court provided a similar instruction stating that, when

determining whether the Providers exercised reasonable care, the jury

should consider “the degree of care and skill that a reasonably careful,

skillful, and prudent physician and/or nurse would use under the same or

similar circumstances.” Appellant’s App. Vol. 4, p. 89 (emphasis added). By

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instructing the jury to evaluate the Providers based on what a reasonable

provider would do in those same circumstances, the trial court effectively

instructed the jury not to use hindsight. Therefore, there was no error in

failing to provide the instruction against using hindsight.

III. The trial court did not abuse its discretion by

precluding Providers from using certain medical

records and emails.

A trial court has “broad discretion to admit or exclude evidence.”

Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014). This Court will only disturb

a trial court’s ruling “if it amounts to an abuse of discretion, meaning the

court’s decision is clearly against the logic and effect of the facts and

circumstances or it is a misinterpretation of the law.” Id. If an error has

occurred, we determine if the error is prejudicial by “assess[ing] the

probable impact the evidence had upon the jury in light of all of the other

evidence that was properly presented.” Id. A trial court’s evidentiary

ruling can be affirmed on any basis apparent in the record, regardless of

whether that was the rationale upon which the trial court relied. Reeves v.

State, 953 N.E.2d 665, 670 (Ind. Ct. App. 2011), trans. denied.

Here, Providers argue that the trial court improperly excluded (A)

medical records documenting Neter-Nu’s disruptive behavior during

prior hospitalizations and (B) certain emails from Neter-Nu’s expert

witness.

A. The trial court properly excluded records of Neter-Nu’s

medical history.

The trial court admitted into evidence certain medical records

documenting Neter-Nu’s disruptive behavior and attempts at pulling out

his IVs during prior hospitalizations at other hospitals. Later, the trial

court prohibited Providers from using these records when examining

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witnesses and in closing argument. 4 Providers primarily wanted to

introduce this evidence to show that Nurse Mittler did not act below the

applicable standard of care by placing an IV in Neter-Nu’s foot after it

came out of his arm. Providers insist the trial court erred when it did not

allow them to use this evidence to (1) prove Neter-Nu had a habit of

pulling out his IVs, (2) explain the basis of expert-opinion testimony, and

(3) impeach Neter-Nu’s testimony that he is a “compliant patient.”

Appellant’s Br. at 49 (quoting Tr. Vol. 6, pp. 48–49). We address these

arguments in turn.

The Providers first argue that these records constitute admissible habit

evidence. Indiana Evidence Rule 406 provides that “[e]vidence of a

person’s habit or an organization’s routine practice may be admitted to

prove that on a particular occasion the person or organization acted in

accordance with the habit or routine practice.” Habit is “evidence of one’s

regular response to a repeated specific situation.” Lewis v. State, 34 N.E.3d

240, 247 (Ind. 2015) (quoting Carlson v. Warren, 878 N.E.2d 844, 850 (Ind.

Ct. App. 2007)). To admit evidence of habit, “the offering party must

establish the degree of specificity and frequency of uniform response that

ensures more than a mere ‘tendency’ to act in a given manner.” Id. at 248

(quoting Thompson v. Boggs, 33 F.3d 847, 854 (7th Cir. 1994)). In essence,

the offering party must show the conduct is “‘semi-automatic’ in nature.”

Id. (quoting Thompson, 33 F.3d at 854). Here, the Providers produced

evidence showing that Neter-Nu removed his IVs seven times over the

course of four hospitalizations. But Providers failed to identify the

denominator—the total number of times Neter-Nu had received an IV.

Therefore, the Providers did not show that Neter-Nu’s conduct was a

semi-automatic reaction nearly every time he has an IV. See Thompson, 33

F.3d at 855 (concluding that an officer’s use of excessive force in five

incidents did not constitute evidence of habit).

4The Providers protest that the trial court would not allow them to use admitted medical

records. But a “trial court’s control and discretion to change its own rulings is firmly

established in common law” and is reviewed for “abuse of discretion.” In re Est. of Hammar,

847 N.E.2d 960, 962 (Ind. 2006).

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Instead, the trial court properly excluded the medical records as

impermissible evidence of other acts to prove character. Indiana Evidence

Rule 404(b)(1) prohibits evidence of other acts “to prove a person’s

character in order to show that on a particular occasion the person acted

in accordance with the character.” The rule is designed to prevent the jury

from assessing a party “on the basis of his past propensities, the so called

‘forbidden inference.’” Hicks v. State, 690 N.E.2d 215, 218–19 (Ind. 1997).

Here, the trial court prevented the Providers from referring to the records

so that the jury would not judge Neter-Nu based on what happened in

different hospitals in different instances. The trial court properly excluded

the evidence because the jury might impermissibly use the records

showing Neter-Nu pulled out his IVs during previous hospitalizations to

infer that he pulled out his IVs in this instance.

Second, the Providers argue they could use the medical records as the

basis of an expert’s opinion testimony under Indiana Evidence Rule 703.

Specifically, they argue that the experts could have referenced those

records as the basis of their opinions on whether Nurse Mittler met the

applicable standard of care when placing the IV in Neter-Nu’s foot.

Appellant’s Br. at 47. We disagree. Rule 703 provides that “[e]xperts may

testify to opinions based on inadmissible evidence, provided that it is of

the type reasonably relied upon by experts in the field.” Nothing in the

rule explicitly allows the expert to mention the fact that they relied on the

records when forming their opinion. See Barrix v. Jackson, 973 N.E.2d 22,

26–27 (Ind. Ct. App. 2012) (concluding that an unauthenticated medical

record was inadmissible even though the expert’s opinion was rendered

from the record), trans. denied. In any case, Nurse Mittler testified that “it

seemed to be that perhaps just because [Neter-Nu] wasn’t feeling well and

wasn’t super alert that he was turning in a way that was removing the IVs from

his arms.” Tr. Vol. 6, p. 230 (emphasis added). Providers were able to

present evidence that Nurse Mittler thought the IVs kept coming out of

Neter-Nu’s arms, making it appropriate for her to place the IV in Neter-

Nu’s foot. And Nurse Mittler was unaware of Neter-Nu’s history of

pulling IVs at the time, so the medical records did not affect Nurse

Mittler’s decision to place the IV in his foot. Therefore, any error in

preventing Providers from referring to the medical records was harmless.

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Finally, the Providers argue that the evidence of Neter-Nu’s history of

removing his IVs and failing to take blood-pressure medication could be

used to impeach Neter-Nu’s testimony that he’s a “compliant patient.”

Appellant’s Br. at 49 (quoting Tr. Vol. 6, pp. 48–49). But the Providers

didn’t raise this argument at trial, effectively waiving it for appellate

review. See Pearman v. Stewart Title Guar. Co., 108 N.E.3d 342, 350 (Ind. Ct.

App. 2018), trans. denied. Waiver aside, the Providers still had other

opportunities to impeach Neter-Nu when he claimed to be a “compliant”

patient. For example, Providers cross-examined Neter-Nu about his

refusal to obtain other treatment, unrelated to his foot, while he was at

Methodist. See Tr. Vol. 6, pp. 74, 82–83, 131–32; Tr. Vol. 7, p. 189. So, any

error in not allowing the Providers to impeach Neter-Nu with the medical

records is harmless.

B. The trial court properly excluded emails from Neter-

Nu’s expert witness.

After Neter-Nu’s expert, Dr. Tripp, testified at trial to Neter-Nu’s injury

and symptoms, Providers on cross-examination sought to use a previous

email Dr. Tripp sent to Neter-Nu’s counsel to (1) refresh Dr. Tripp’s

recollection, and (2) impeach him. Though the trial court excluded this

evidence on hearsay and relevance grounds, we find no abuse of

discretion.

When Providers asked Dr. Tripp if he recalled an email he sent to

Neter-Nu’s counsel about Neter-Nu’s injury, he responded, “Yeah, it’s

been a while though.” Tr. Vol. 5, p. 96. Based on this response, Providers

attempted to use the email to refresh Dr. Tripp’s recollection. Neter-Nu

objected on hearsay and relevance grounds, which the trial court

sustained. Dr. Tripp then testified that Neter-Nu’s symptoms included

severe pain, numbness, and an inability to move his toes. Dr. Tripp also

testified that the evidence would not have been more damaging for the

Providers had Neter-Nu’s discoloration been in the furthest part of the

foot involving his toes that eventually lost blood flow. After Dr. Tripp was

excused, and while outside the jury’s presence, the Providers made an

offer of proof by producing the email in question. The email stated that

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Neter-Nu had no signs of severe injury other than severe pain, and that

the evidence would have been more damaging for Providers if

discoloration had been in the furthest part of the foot involving the toes

that eventually lost blood flow.

Indiana Evidence Rule 612 allows the use of a writing to refresh a

witness’s recollection. To refresh a witness’s recollection, “[t]he witness

must first state that he does not recall the information sought by the

questioner.” Thompson v. State, 728 N.E.2d 155, 160 (Ind. 2000) (quoting 13

Robert Lowell Miller, Jr., Indiana Practice § 612.201, at 226 (2d ed. 1995)).

After that occurs, the “witness should be directed to examine the writing,

and be asked whether that examination has refreshed his memory.” Id.

(quoting Miller, Indiana Practice § 612.201, at 226). Here, Dr. Tripp testified

that he did recall the email. Accordingly, Providers failed to lay the

necessary foundation to refresh a witness’s recollection, and the trial court

committed no error.

Still, Providers insist that they could have used the email to impeach

Dr. Tripp because his testimony was not consistent with the emails. Under

Indiana Evidence Rule 613(b), “[e]xtrinsic evidence of a witness’s prior

inconsistent statement is admissible” for impeachment purposes “only if

the witness is given an opportunity to explain or deny the statement.”

When Providers first started asking Dr. Tripp about the email and Neter-

Nu objected, Providers argued “impeachment is one purpose” for the

email if Dr. Tripp made an inconsistent statement. Tr. Vol. 5, p. 98. But

because Dr. Tripp had not yet made a statement inconsistent with the

email, the email could not be admitted for impeachment. The Providers

needed to first confirm Dr. Tripp’s statement made at trial and then

impeach him with the inconsistent statements in the email.

As he continued his testimony, Dr. Tripp testified about Neter-Nu’s

symptoms that indicated severe injury such as nerve-function change,

possible muscle change, arterial-vascular injury, and decreased blood

flow. Providers then asked Dr. Tripp about his email which said that,

other than severe pain, Neter-Nu had inconsistent signs of severe injury.

When Neter-Nu objected, Providers did not argue they were using the

email for impeachment. Instead, they argued that the email went to

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methodology and then they informed the court they would make an offer

of proof. By failing to argue they were using the email for impeachment,

the Providers waived the issue for appellate review. See Pearman, 108

N.E.3d at 350.

IV. Though we affirm the jury verdict and damages

award, the trial court’s error in denying Providers’

Rule 50(A) motion still requires recalculation of

prejudgment interest.

The trial court awarded prejudgment interest to Neter-Nu in the

amount of 8% of $250,000 for 48 months. Neter-Nu argues that the trial

court should have awarded prejudgment interest in the amount of each

defendant’s liability. We agree.

The Prejudgment Interest Act permits courts to “award prejudgment

interest as part of a judgment.” I.C. § 34-51-4-7. The prejudgment interest

award is meant to “compensate the plaintiff for the lost time value of

money.” Gregory & Appel Ins. Agency v. Phila. Indem. Ins. Co., 835 N.E.2d

1053, 1063 (Ind. Ct. App. 2005) (quoting Johnson v. Eldridge, 799 N.E.2d 29,

33 (Ind. Ct. App. 2003)). This Court has held that a qualified health-care

provider is responsible for the payment of prejudgment interest as it is a

collateral-litigation expense, even if payment would cause the health-care

provider’s debt to exceed the amount recoverable under the MMA.

Emergency Physicians of Indianapolis v. Pettit, 718 N.E.2d 753, 757 (Ind.

1999). When more than one health-care provider is found liable, the trial

court apportions prejudgment interest to each liable defendant on the

damages award that they are responsible for paying. Id.; see also Poehlman

v. Feferman, 717 N.E.2d 578, 583 (Ind. 1999) (finding “each judgment

debtor is individually responsible for its collateral litigation expenses”);

Cahoon v. Cummings, 734 N.E.2d 535, 547–48 (Ind. 2000) (“[W]e have held

that prejudgment interest is recoverable from a health care provider on

the amount of the judgment against that provider.”).

Once the trial court exercised its discretion in awarding prejudgment

interest and selected an interest rate and appropriate term, it should have

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then calculated prejudgment interest based on the liability of each

defendant. The statutory liability of each Provider is $250,000. See I.C. §

34-18-14-3(d)(1). But when a provider is solely liable based on the conduct

of its agent, the total amount payable on behalf of both the provider and its

agent is $250,000. Id. Because Methodist was not directly liable or

vicariously liable for an agent other than Dr. Abbas or Nurse Mittler,

when the trial court used its discretion to award prejudgment interest, it

should have calculated prejudgment interest as 8% of $500,000 for 48

months—$250,000 for Dr. Abbas and Methodist and $250,000 for Nurse

Mittler and Methodist. We therefore remand to the trial court to

recalculate prejudgment interest based on the Providers’ statutory

liability.

Conclusion

Our courts promise litigants a fair trial, not necessarily a perfect one.

And Neter-Nu and the Providers received a fair trial here. We affirm the

jury verdict but reverse and remand for the trial court to enter Methodist’s

Rule 50(A) motion and recalculate prejudgment interest based on the

Providers’ statutory liability under the MMA.5

Rush, C.J., and Massa, Slaughter, and Molter, JJ., concur.

ATTORNEYS FOR APPELLANTS

Michael E. O’Neill

Julie M. Blair

Kathleen M. Erickson

Kelly K. McFadden

5We thank amicus curiae Indiana Trial Lawyers Association for its helpful brief and oral

argument.

Indiana Supreme Court | Case No. 24S-CT-435 | June 26, 2025 Page 21 of 22

O’Neill McFadden & Willett LLP

Schererville, Indiana

ATTORNEYS FOR APPELLEE

David J. Cutshaw

Gabriel A. Hawkins

Justin C. Kuhn

Edward B. Mulligan V

Cohen & Malad, LLP

Indianapolis, Indiana

Keith Michaels

Lewis Wagner, LLP

Indianapolis, Indiana

ATTORNEYS FOR AMICUS CURIAE—INDIANA TRIAL LAWYERS

ASSOCIATION

Sara A. Langer

Steven L. Langer

Langer & Langer

Valparaiso, Indiana

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