Opinion

Oct 15 2015, 9:08 am

ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEES

Brian J. Hurley C. Christopher Dubes

Timothy Krsak Barrett & McNagny, LLP

Douglas Koeppen & Hurley Fort Wayne, Indiana

Valparaiso, Indiana

Karl L. Mulvaney

Nana Quay-Smith

Jessica Whelan

Bingham Greenebaum Doll, LLP

Indianapolis, Indiana

Mark W. Baeverstad

Andrew L. Palmison

Rothberg Logan & Warsco

Fort Wayne, Indiana

IN THE

COURT OF APPEALS OF INDIANA

John A. Hill, III and Susan Hill, October 15, 2015

Appellants-Plaintiffs, Court of Appeals Case No.

02A03-1405-CT-146

v. Appeal from the Allen Superior

Court

Steven N. Rhinehart, M.D. and The Honorable Stanley A. Levine,

Judge

Fort Wayne Medical Oncology

and Hematology, Inc.; John F. Cause No. 02D01-0908-CT-318

Csicsko, M.D. and David P.

Lloyd, M.D., as Individuals and

Cardiovascular Associates of

Northeastern Indiana, LLC, a

Professional Corporation; and

Thomas P. Ryan, D.O.,

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Appellees-Defendants.

Riley, Judge.

STATEMENT OF THE CASE

[1] Appellants-Plaintiffs, John A. Hill (Hill) and Susan Hill, appeal the trial court’s

judgment in favor of Steven N. Rhinehart, M.D. (Dr. Rhinehart) and Fort

Wayne Medical Oncology and Hematology, Inc.; John F. Csicsko, M.D. (Dr.

Csicsko) and David P. Lloyd, M.D. (Dr. Lloyd), as individuals, and

Cardiovascular Associates of Northeastern Indiana, LLC, a professional

corporation; and Thomas P. Ryan, D.O. (Dr. Ryan).

[2] We affirm.

ISSUES

[3] Hill raises three issues on appeal, which we restate as follows:

(1) Whether the trial court properly granted judgment on the evidence in

favor of Dr. Lloyd and Dr. Csicsko;

(2) Whether Hill was prevented from pursuing a theory of joint and several

liability against all physicians by the entry of the judgment on the

evidence against two of the physicians; and

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(3) Whether the trial court abused its discretion in tendering Jury

Instruction No. 23 and instructing the jury that physicians are not liable

for an error in diagnosis or treatment when exercising reasonable care.

FACTS AND PROCEDURAL HISTORY

[4] On December 6, 1999, Hill was admitted to Parkview Memorial Hospital

(Parkview) for a cardiac catheterization related to angina pain. Dr. Ryan, a

board-certified cardiologist, performed the procedure, which revealed severe

coronary artery disease with multiple blockages of two main coronary arteries.

Because of the severity of the disease and Hill’s risk of death from sudden heart

attack, Dr. Ryan recommended immediate coronary artery bypass surgery for

the following day. On December 7, 1999, Dr. Lloyd, a board-certified vascular

surgeon, executed Hill’s coronary bypass surgery. Hill was given the standard

dose of 27,000 units of Heparin, “an anti-coagulant, used to thin the blood,”

which helped to “keep the blood flowing through the heart pump.” (Transcript

pp. 265, 292). He further received 5,000 units of Heparin subcutaneously twice

a day until December 9, 1999. The coronary bypass surgery was pronounced a

success and Hill was moved into the intensive care unit for recovery.

[5] As his recovery began, Hill manifested numerous complications. Immediately

following surgery, Hill experienced a “natural drop in platelets 1 as a result of

1

Platelets are cell-based mechanisms that “recognize that there’s been an injury and will aggregate at that site

of injury” and form clots. (Tr. p. 266).

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the surgery” because the “heart/lung bypass machine [used during surgery]

simply ‘chews up’ platelets.” (Tr. pp. 636, 683). Over the following day, Dr.

Ryan did not see the rebound from the low platelet count that he was expecting

and, as a result, on December 9, 1999, he entered an order to “[s]top all

subcutaneous Heparin.” (Tr. p. 637). At that point, Dr. Ryan suspected Hill to

be suffering from Heparin-Induced Thrombocytopenia (HIT), which is a rare

“immune mediated response to the presence of the Heparin antigen in the

body.” (Tr. p. 639). Usually, HIT manifests itself “about five to ten days after

exposure to the Heparin.” (Tr. p. 278). It “is an uncommon problem” and

“mimics many other disease processes. It’s very, very difficult to diagnose.”

(Tr. p. 1468). 2 By discontinuing all Heparin—which was the recommended

standard of care for treatment of HIT in 1999—Dr. Ryan expected to see “a

slow rise in the platelet count back to its normal levels within three to five

days.” (Tr. p. 640). Hill was not administered a non-Heparin anticoagulant as

a replacement medicine, even though a non-Heparin option, Refludan, was

available at Parkview. However, unbeknownst to Dr. Ryan, Hill continued to

receive a minimal dose of Heparin because of Parkview’s protocol that

prescribed “Heparin flushes” of the IV lines. (Tr. pp. 649-50).

2

In fact, during the early days of the disease in the 1980s, “many clinicians did not believe that HIT existed

or HITT.” (Tr. p. 1458). It was not until the late ‘90s and early 2000s, that the medical community “started

to formulate both diagnostic criteria that everybody accepted as reasonable and therapeutic modalities that

were reasonable.” (Tr. p. 1459).

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[6] Dr. Ryan’s anticipated bounce in platelet counts never occurred. Instead, Hill

developed life-threatening complications, including Adult Respiratory Distress

Syndrome (ARDS), Thrombocytopenia, 3 failure to wean from the ventilator,

Moraxella infection in his lungs, high fevers, sepsis, and extreme swelling

throughout his body. Based on this “constellation of symptoms” on December

13, 1999, Dr. Ryan believed Hill to be suffering from Disseminated

Intravascular Coagulopathy (DIC), which is “an extremely serious condition

manifested by formation of clots in blood vessels coupled at the same time with

the fall in the patient’s platelet count.” (Tr. pp. 701, 685). However, due to the

eighty percent drop in platelet count combined with a significant swelling of

Hill’s left arm, Hill’s medical expert, Harry Jacob, M.D. (Dr. Jacob), testified

that, at this point Hill’s HIT had developed a Thrombosis component (HITT) 4

and Refludan, the non-Heparin anticoagulant, should have been prescribed. In

1999, Refludan was a newly approved drug which was “not strongly supported

by the medical community” as it could cause severe “bleeding into the brain

tissue” and no reversal agent existed. (Tr. pp. 1479, 1480). “Refludan was

[later] taken off the market because its safety profile did not match what current

FDA standards would require.” (Tr. p. 1481).

3

Thrombocytopenia indicates a low platelet count. When a patient’s platelet count drops too low, he is at

great risk of bleeding to death. (See Tr. pp. 1497-98).

4

In HITT patients, Heparin, which is given to prevent clotting, has the opposite effect: it activates the

platelets’ clotting factor, causing the platelets to aggregate in clumps in the blood vessels. As a result, HITT

decreases the patient’s blood platelet levels while simultaneously causing potentially fatal thrombosis. (See

Tr. pp. 266-69).

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[7] Throughout the day on December 13, 1999, Hill continued to experience a

decrease in his platelet count and the swelling in his left arm worsened, with his

hand becoming “cool and blue.” (Tr. p. 310). Dr. Lloyd ordered an ultrasound

Doppler study for the following morning to auditorily evaluate the flow of

blood in Hill’s arm. On December 14, 1999, Dr. Csicsko, a board-certified

cardiovascular surgeon, discovered that Hill had continued to receive Heparin

through the flushing of his IV lines and discontinued the protocol. He ordered

saline to be used instead.

[8] On December 15, 1999, at 1:00 a.m., the nursing notes indicated that Hill’s

“[r]ight foot is mottled and capillary refill is greater than three seconds. Both

feet are cold to touch. . . . Left toes are cyanotic and blue appearing.” (Tr. p.

313). At 1:30 a.m., the notes reflected that Hill’s “[r]ight leg is swollen and firm

from the ankle to the groin.” (Tr. p. 315). At 8:30 a.m., the notes warned that

Hill’s left arm is swollen and blue. Dr. Jacob testified that all these symptoms

reflect a worsening HITT. Later that day, Dr. Ryan consulted with Dr. David

Goertzen (Dr. Goertzen), an orthopaedic surgeon, about the “extreme swelling

in [Hill’s] limbs” and his concern that “the swelling may compromise his

arterial system.” (Tr. p. 697). After the consultation, Dr. Goertzen performed

a “fasciotomy,” which is “a cutting of the skin to release the pressure on the

skin and therefore allow the blood vessels not to be compromised by the

swelling around it.” (Tr. p. 697).

[9] On December 16, 1999, Hill’s clinical assessment remained essentially

unchanged and was considered to be “very critical” because “his limbs were

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necrosing.” (Def.’s Exh. H, p. 40). A consult with Dr. Rhinehart, a

hematologist, was sought that morning. Dr. Rhinehart’s “differential diagnosis

was Acute Respiratory Distress Syndrome, sepsis, DIC.” (Def.’s Exh. H, p.

38). To combat the presumed diagnosis of DIC, Dr. Rhinehart immediately

ordered a 5,000 unit bolus of Heparin, to be administered intravenously, with

an intravenous infusion of approximately 1,000 cc’s of Heparin per hour for

sixteen to seventeen hours thereafter. At certain times throughout the day, Dr.

Rhinehart ordered the administration of additional platelets to control Hill’s

bleeding following his fasciotomy.

[10] On December 17, 1999, with Hill’s condition unchanged, Dr. Rhinehart

discontinued all Heparin and platelet infusions and requested “a Heparin

induced antibody titer,” a specific test to “measure the antibody” and a

confirmatory diagnosis of whether a patient suffers from HIT or HITT. (Tr. p.

352). In 1999, the closest testing center was located in Milwaukee. On the

same day, Dr. Rhinehart also ordered the administration of Refludan, “to

prevent further clotting from occurring.” (Tr. pp. 354-55). Once Refludan was

administered, Hill’s platelet count began to rebound.

[11] On December 20, 1999, the necrosis gangrene 5 and swelling in Hill’s right leg

and left arm were too extensive and Dr. Goertzen amputated the left arm just

below the elbow and the right leg above the knee. Hill continued to experience

5

Gangrene indicates the presence of dead tissue, which, in turn, attracts infection. “If you don’t get rid of

the dead tissue, you’re going to die of infection.” (Tr. p. 308).

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swelling problems in his left leg and, on December 28, 1999, Dr. Goertzen

amputated Hill’s left leg above the knee. Hill remained in critical care at

Parkview until December 31, 1999, when he was transferred to I.U. Medical

Center for six weeks. In mid-February, 2000, Hill was released to the

Rehabilitation Institute of Chicago where he received in-patient physical

therapy before returning home in early April 2000.

[12] On March 26, 2001, Parkview entered into a Settlement Agreement

(Agreement) with Hill regarding all claims related to the health care provided

by Parkview. Pursuant to the agreement, Hill released Parkview from liability

in exchange for $250,000. On December 5, 2001, Hill filed a proposed

Complaint for medical malpractice with the Indiana Department of Insurance

pursuant to Ind. Code § 34-18-1-1. The Complaint alleged that Dr. Ryan, Drs.

Lloyd and Csicsko, and Dr. Rhinehart violated their respective standards of

care in providing Hill post-surgical care, resulting in the loss of three limbs. The

medical review panel unanimously determined that the evidence did not

support the conclusion that the doctors failed to comply with the appropriate

standard of care.

[13] On December 21, 2001, Hill entered into a Settlement Agreement and Release

(Release) with the Indiana Patient’s Compensation Fund (the Fund), which was

later approved by the trial court. Pursuant to the Release, Hill released the

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Indiana Department of Insurance from all claims arising from Hill’s care and

treatment while at Parkview in exchange for one million dollars. 6

[14] In 2004, the physicians filed a joint Petition for Preliminary Determination,

alleging the following: (1) Hill’s Release with the Fund released all claims

against the physicians; and (2) Hill had obtained the maximum amount of

compensation permitted by the Indiana Medical Malpractice Act. The trial

court subsequently denied the joint Petition. The physicians sought and were

granted certification of the trial court’s preliminary determination and

declaratory judgment for interlocutory appeal, and this court accepted

jurisdiction. In Csicsko v. Hill, 808 N.E.2d 80, 83 (Ind. Ct. App. 2004) trans.

denied, we determined that the Release, when read as a whole, establishes that

Hill and the Fund intended to release only the Fund from further liability

arising out of the negligence settled by Parkview, not the physicians. In

addressing the physicians’ argument that Hill had already received the

maximum amount allowed under the Act, we relied on Miller v. Memorial Hosp.

of South Bend, Inc., 679 N.E.2d 1329, 1331-32 (Ind. 1997), where our supreme

court stated

[The Medical Malpractice Act] authorizes only one recovery in those

cases where a single injury exists, irrespective of the number of acts

causing the injury. Conversely, there is no dispute that, if there are

two separate and distinct injuries caused by two separate occurrences

6

Under the Indiana Medical Malpractice Act, the total amount recoverable for a patient’s injury or death

cannot exceed $1.25 million. I.C. § 34-18-14-3(a)(3). Hill received an aggregate sum of $1.25 million from his

settlements with Parkview and the Fund.

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of malpractice, the statute does not preclude two separate recoveries

(each separately limited in accordance with the Act).

Accordingly, in line with the dictates of Miller, we affirmed the trial court’s

decision because “a genuine issue of material fact exists as to whether the

injuries Hill suffered, including the loss of many limbs, the failure of multiple

organs, and the necessity of having to undergo several surgeries, constituted

separate injuries from separate acts of malpractice under the Medical

Malpractice Act.” Csicsko, 808 N.E.2d at 84.

[15] In June 2011, Hill sought summary judgment to prevent the doctors’ use of a

$8.1 million settlement reached between Hill and pharmaceutical drug

manufacturers as a setoff because the doctors failed to name the pharmaceutical

companies as non-parties under I.C. §§ 34-51-2-17 & -18. In turn, the

physicians requested summary judgment on the setoff, based on the common

law principle that a plaintiff may only recover one full satisfaction irrespective

of how many defendants are jointly liable. In December 2011, the trial court

granted summary judgment in favor of Hill and against the doctors, concluding

that the doctors could not setoff Hill’s prior settlements against any malpractice

verdict.

[16] On January 30, 2013, the physicians filed their second motion for summary

judgment seeking a determination that because Hill had already received the

maximum amount of recovery under the Medical Malpractice Act, Hill could

not pursue his current malpractice claims unless he produced evidence

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establishing separate and distinct injuries from the doctors’ acts of malpractice.

The trial court denied the summary judgment motion.

[17] On January 17 through 31, 2014, the trial court conducted a jury trial on Hill’s

claim of medical malpractice against the doctors. At the conclusion of Hill’s

case in chief, all four physicians moved for judgment on the evidence, asserting

that Hill had failed to present any evidence establishing that the doctors had

caused a separate and distinct injury from the injuries already compensated by

Parkview and the Fund. The trial court entered judgment for Drs. Lloyd and

Csicsko, but denied the motion with respect to Drs. Ryan and Rhinehart. At

the close of the evidence, Drs. Ryan and Rhinehart renewed their motion,

which was again denied. After submitting the cause to the jury, the jury

returned a verdict in favor of Drs. Ryan and Rhinehart.

[18] Hill now appeals the judgment on the evidence in favor of Drs. Lloyd and

Csicsko and the jury’s verdict for Drs. Ryan and Rhinehart. Additional facts

will be provided as necessary.

DISCUSSION AND DECISION

I. Judgment on the Evidence

[19] Hill’s main contention focuses on the trial court’s directed verdict in favor of

Drs. Lloyd and Csicsko. Pointing to four specific breaches in his care and

treatment, Hill contends that the evidence supports that his “loss of limbs was

proximately caused by the failure to properly treat [his] HIT which then turned

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into HITT.” (Appellant’s Br. p. 28). Therefore, Hill maintains that his “case

should have gone to the jury as to all defendants.” (Appellant’s Br. p. 32)

[20] The purpose of a motion for judgment on the evidence is to test the sufficiency

of the evidence. Levee v. Beeching, 729 N.E.2d 215, 223 (Ind. 2000). The grant

or denial of a motion for judgment on the evidence is within the broad

discretion of the trial court and will be reversed only for an abuse of that

discretion. Id. Indiana Trial Rule 50 reads in pertinent part:

Where all or some of the issues in a case tried before a jury or an

advisory jury are not supported by sufficient evidence or a verdict

thereon is clearly erroneous as contrary to the evidence because the

evidence is insufficient to support it, the court shall withdraw such

issues from the jury and enter judgment thereon or shall enter

judgment thereon notwithstanding a verdict.

[21] Upon review of the trial court’s ruling on a motion for judgment on the

evidence, we apply the same standard as the trial court, considering only the

evidence and reasonable inferences most favorable to the nonmoving party.

Levee, 729 N.E.2d at 223. Judgment may be entered only if there is no

substantial evidence or reasonable inferences to be drawn therefrom to support

an essential element of the claim. Id. A judgment on the evidence is proper

only when there is a total absence of evidence in favor of the plaintiff, that is,

when the evidence is without conflict and is susceptible of only one inference

and that inference is in favor of the defendant. Id. Likewise, judgment on the

evidence is proper if the inference intended to be proven by the evidence cannot

logically be drawn from the proffered evidence without undue speculation. Id.

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[22] Because Hill had already received the total amount recoverable for an act of

medical malpractice after entering into the Agreement with Parkview and the

Release with the Fund, he can only obtain a “multiple cap recovery” by

establishing that “there are two separate and distinct injuries caused by two

separate occurrences of malpractice.” See I.C. § 34-18-14-3; Miller, 679 N.E.2d

1332. Even if a patient suffers multiple acts of malpractice but manifests a

single injury, the patient can pursue only one recovery under the Medical

Malpractice Act. See St. Anthony Med. Ctr. Inc. v. Smith, 592 N.E.2d 732, 734-

735, 739 (Ind. Ct. App. 1992) (only one recovery permitted when hospital

performed a test which caused patient to suffer a stroke, and after being

admitted to the hospital, the patient received an overdose of medication, dying

two weeks later), trans. denied; compare Miller, 679 N.E.2d at 1329 (two

recoveries permitted when physician caused prenatal brain damage to one part

of the infant’s brain, and hospital failed to properly treat the infant for zero

blood glucose, causing a separate and distinct injury to a different part of the

brain).

[23] Relying on Indiana’s case law prohibiting a multiple cap recovery, the

physicians moved for judgment on the evidence at the close of Hill’s case in

chief on the basis that Hill’s injuries had been fully satisfied by Parkview and

the Fund and the absence of evidence that the injuries allegedly caused by the

doctors were separate and distinct from the injuries compensated by this

Agreement and Release. During the hearing on the motion outside the

presence of the jury, the trial court carefully delineated the evidence that had

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been presented to the jury and that which had been received by the trial court

outside the jurors’ presence. Evaluating the evidence, the trial court held with

respect to Dr. Lloyd:

The question of Dr. Lloyd is a little more troubling than Dr. Csicsko.

There’s some evidence from Dr. Jacob that giving platelets contributed

to the injuries but the second part of that is there’s no evidence as to

what injuries that caused. Even if the jury would believe only Dr.

Jacob and none of the other experts, there’s still no evidence to show

that[,] so as to Dr. Lloyd, the Motion is GRANTED.

(Tr. pp. 2196-97). Next, regarding Dr. Csicsko, the trial court found:

That’s a different story. . . . Dr. Csicsko’s negligence supposedly is that

he didn’t stop all Heparin. Perhaps it could be said that he should

have done it on the 9th but he wasn’t there. His first time was the 13th.

So, I can’t, joint and several all of that argument he made

notwithstanding, I can’t – the only thing [Hill] raised is that it’s

possible that the jury could find that he should have stopped all

Heparin on the 13th. Again, the second part of that is if that’s the case,

what are the separate and distinct injuries that attributed to that act of

negligence even if they believe only Dr. Jacob. There’s no evidence of

that so the Motion as to Dr. Csicsko is GRANTED as well.

(Tr. pp. 2197-98).

[24] After viewing the totality of the evidence presented to the jury and the evidence

read into the record by the trial court 7 at the close of Hill’s case in chief, we

cannot conclude that the trial court abused its discretion in granting a directed

7

The trial court read the relevant parts of the Release with the Fund and the Agreement with Parkview into

the record. Even though the settlements were not admitted as evidence or presented to the jury, they were

considered by the trial court in making its determination on the doctors’ motion because, as part of the

motion, the Release and Agreement were “certainly before [the trial court] . . . ” (Tr. p. 2183).

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verdict in favor of Drs. Lloyd and Csicsko. Without having to analyze whether

Hill satisfied the first prong of his burden of proof—whether the physicians

performed a separate and distinct malpractice—we will address the second

prong, i.e., whether Hill incurred a separate and distinct injury from the one

already satisfied by the Agreement entered into with Parkview and the Release

with the Fund.

[25] With respect to the Agreement with Parkview, the trial court read

Claimants, John Hill, III and Susan Hill, . . . Paragraph C says, . . .,

“The Claimants allege that John Hill suffered at least two (2), and

perhaps three (3) discrete injuries.” I can only assume from that it’s

two (2) limbs or three (3) limbs and if I’m wrong, somebody will tell

me. It goes on to say, “from discrete acts of medical malpractice. This

is a disputed fact, resolution of which is not relevant to the Settlement

Agreement between Claimants and Respondents, and it is recited in

the Settlement Agreement for the sole purpose of articulating

Claimants’ position that they intend to pursue other remedies from

other parties relating to the health care provided to John Hill in

December 1999.” . . . Paragraph D, the next paragraph [] says, “The

parties desire to enter into this Settlement Agreement to provide,

among other things, for certain payments in the aggregate sum of

$250,000.00 in full settlement and discharge of all claims and actions

of Claimants for damages due to, arising out of, or related to the

above-referenced health care provided by [Parkview] on the terms and

conditions set forth herein, with the following exceptions.”

(Tr. pp. 2184-85). Regarding the Release with the Fund, the trial court noted as

follows:

In consideration of the payment set forth in Paragraph 1, Plaintiffs

fully release, and forever discharge the Commissioner, the Indiana

Department of Insurance, the [Fund], and their agents, employees,

representatives, attorneys, officials from any and all past, present or

future claims, demands, or cause of action, to recover monetary

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damages, whether derivative or otherwise, whether based on tort,

contract, or other theory of recovery, in which now exists or which

may exist in the future on account of or in any way related to any and

all known or unknown, foreseen or unforeseen, bodily and/or personal

injuries suffered by Plaintiff as a result of the negligence settled by

[Parkview] and described by Plaintiffs’ counsel in his letter of March

22, 2001, which is attached as Exhibit A. This Release applies only to

claims based upon the negligence of [Parkview].

***

[Exhibit A reads] Mr. Hill suffered the loss of both legs above the knee,

the loss of the left arm immediately below the elbow, and multiple

organ failure and surgeries, all as a result of negligent care and

treatment while at [Parkview] until his release to the I.U. Medical

Center at the end of December, 1999.

(Tr. pp. 2186-87). In other words, by entering into the Agreement with

Parkview and the Release with the Fund, Hill received a settlement for the

amputations of his three limbs as a result of negligent care and treatment.

Therefore, to receive a multi-cap recovery under the Medical Malpractice Act,

Hill was required to establish that Drs. Lloyd and Csicsko’s breach of the

standard of care resulted in injuries separate and distinct from these three

amputations.

[26] Viewing the evidence most favorable to Hill, Dr. Jacob, Hill’s expert, testified

that Hill “sustained a loss of three limbs as a result of his care and treatment in

this case.” (Tr. p. 453). Although Dr. Jacob was unable to say precisely how

much amputation would be required by the time the administration and flushes

of Heparin was discontinued, he could not affirm that the prompt use of

Refludan on December 14, 1999, could have “completely salvaged” Hill’s

limbs. (Tr. p. 454). Dr. Jacob also admitted to being “unable to define which

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doctor was associated with which limb amputation.” (Tr. p. 454). At no point

during his day-long testimony, did Dr. Jacob indicate that Drs. Lloyd and

Csicsko’s breach of the standard of care resulted in injuries distinct and separate

from the three limb amputations. In fact, nowhere in the record did Hill

establish that he incurred any injuries separate and distinct from the

amputations, which had already been compensated under the Agreement and

Release. As Hill failed to satisfy his burden of proof, the trial court properly

granted Drs. Csicsko and Lloyd’s motion for judgment on the evidence. 8

II. Joint and Several Liability

[27] Continuing his focus on the directed verdict, Hill next contends that the trial

court erred by granting Drs. Lloyd and Csicsko’s motion for judgment on the

evidence because it prejudiced Hill by preventing the jury from “evaluating the

liability of the doctors jointly and severally as a team.” (Appellant’s Br. p. 32).

Hill maintains that after the directed verdict, the jury was unable to consider the

actions of Drs. Lloyd and Csicsko, and consequently was prevented from

considering the doctors “as collaborators and it prevented the failures of one of

the doctors to be included with the failure of another.” (Appellant’s Br. p. 37).

8

Drs. Ryan and Rhinehart were denied a directed verdict because evidence was presented indicating that

their alleged breach of the standard of care possibly aggravated the degree of the amputation originally

needed. Whether an aggravation of an injury originally satisfied by an agreement can be considered as a

“separate and distinct injury” for purposes of the multi-cap recovery under the Medical Malpractice Act is

not before us today and is better left for a future time.

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Therefore, Hill requests this court to grant him a new trial as to all parties, “so

that all parties may be tried as joint tortfeasors.” (Appellant’s Br. p. 37).

[28] It is well established that in medical malpractice actions, the Indiana

Comparative Fault Act does not apply. Cavens v. Zaberdac, 849 N.E.2d 526, 529

(Ind. 2006). Accordingly, the common law defenses remain available to

defendants in cases alleging medical malpractice. Id. At common law, joint

tortfeasors are two or more persons jointly or severally liable in tort for the

same injury to person or property. Flagg v. McCann Corp., 498 N.E.2d 76, 78

(Ind. Ct. App. 1986), reh’g denied. Their actions unite to cause a single injury.

Marquez v. Mayer, 727 N.E.2d 768, 773-74 (Ind. Ct. App. 2000), trans. denied.

When more than one unite in the commission of a wrong, each is

responsible for the acts of all, and for the whole damage; also, where

separate and independent acts of negligence by different persons

concur in perpetrating a single injury, each is fully responsible for the

trespass. Courts will not undertake to apportion the damage in such

cases among the joint wrongdoers. The injured party has at his

election his remedy against all, or any number.

Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Hilligoss, 86 N.E. 485, 487

(Ind. 1908) (citation omitted).

[29] Thus, to impose joint and several liability on Drs. Lloyd and Csicsko, it is

imperative that these doctors contributed to the negligent actions which resulted

in Hill’s injury. In other words, joint and several liability does not impose

liability on a defendant who is otherwise not liable. The fact that Drs. Csicsko

and Lloyd contributed and collaborated with the two other doctors to jointly

provide treatment to Hill does not equate to a transfer of liability of one doctor

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to the non-liable physicians simply by virtue of their collaboration. As we

concluded that the directed verdicts in favor of Drs. Csiscko and Lloyd were

properly entered, Hill cannot now avail himself of the doctrine of joint and

several liability to transfer any perceived negligence of Drs. Ryan and

Rhinehart onto Drs. Lloyd and Csicsko.

[30] Moreover, the entry of the directed verdict did not prevent Hill from fully

presenting his case. The doctors’ motion for directed verdict was heard and

ruled upon after Hill rested his case-in-chief. Accordingly, there was no

prejudice to Hill in explaining the temporal relationship between the physicians

and their respective collaborative actions with respect to Hill’s care and

treatment. Therefore, we deny Hill’s request for a new trial. 9

III. Jury Instruction No. 23

9

In his Appellate Brief, Hill also appears to challenge the trial court’s refusal to tender his proposed

instruction on joint and several liability to the jury. Hill’s proposed instruction followed model instruction

nos. 323 and 1519, and addressed the allocation of damages among negligent defendants who jointly

contributed to the same injury. This proposed jury instruction instructed the jurors:

If you decide that Defendants, [Dr. Rhinehart, Dr. Csicsko, Dr. Lloyd, Dr. Ryan] were all

medically negligent and that their negligence contributed to the same injury, they are all

liable for the entire amount of [Hill’s] damages arising from that injury.

If you decide that any combination of Defendants [Dr. Rhinehart, Dr. Csicsko, Dr. Lloyd,

Dr. Ryan], were medically negligent, and that their combined negligence contributed to the

same injury, then the Defendants whose combined negligence contributed to the same

injury are all liable for the entire amount of [Hill’s] damages arising from that injury.

(Appellant’s App. p. 804). As the directed verdict in favor of Drs. Lloyd and Csicsko was properly

rendered, the trial court did not abuse its discretion by refusing Hill’s proposed jury instruction.

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[31] Lastly, Hill challenges the trial court’s tender of Jury Instruction No. 23.

Instructions serve to inform the jury of the law applicable to the facts presented

at trial, enabling it to comprehend the case sufficiently to arrive at a just and

correct verdict. Blocher v. DeBartolo Properties Management, Inc., 760 N.E.2d 229,

235 (Ind. Ct. App. 2001), trans. denied. Jury instructions are committed to the

sound discretion of the trial court. Id. In evaluating the propriety of a given

instruction, we consider 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. Id.

However, if the instruction is challenged as an incorrect statement of the law,

the applicable standard of review is de novo and we will not defer to the trial

court’s interpretation of the law. Wal-Mart Stores, Inc., v. Wright, 774 N.E.2d

891, 893 (Ind. 2001) reh’g denied. An erroneous instruction warrants reversal

only if it could have formed the basis for the jury’s verdict. Canfield v. Sandock,

563 N.E.2d 1279, 1282 (Ind. 1990) (“We will assume that the erroneous

instruction influenced the jury’s verdict unless it appears from the evidence that

the verdict could not have differed even with a proper instruction.”) reh’g

denied.

[32] The disputed Jury Instruction No. 23, originally submitted to the trial court as

the doctors’ proposed jury instruction No. 4, was tendered to the jury as

follows:

The law does not require that a physician guarantee that he will cure

his patient or even that he will obtain a good result. The law does

require that a physician possess and use that degree of skill and

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learning which is ordinarily possessed and used by a physician under

the same or similar circumstances at the time of the treatment or

service.

Accordingly, a physician will not be negligent if he exercises such

reasonable care and ordinary skill, even though he mistakes a

diagnosis, makes an error during treatment, or fails to appreciate the

seriousness of the patient’s problem.

(Appellant’s App. p. 1147). Claiming that the second paragraph of the Jury

Instruction misstates the law, Hill maintains that “while the instruction states

that the physician will not be negligent if he exercises ordinary care, it then goes

on to say that specific types of error are not negligence.” (Appellant’s Br. p.

38). “Indeed, it appears that if the instruction is taken seriously by the jury,

nothing is left that could possibly lead to a finding of negligence.” (Appellant’s

Br. p. 38).

A. Waiver

[33] However, the doctors respond that we do not need to reach the merits of Hill’s

contention as Hill failed to properly preserve the error he now claims. Indiana

Trial Rule 51(C) proscribes that “[n]o party may claim as error the giving of an

instruction unless he objects thereto before the jury retires to consider its

verdict, stating distinctly the matter to which he objects and the grounds of his

objection.” The purpose of this trial rule is to protect the trial court’s

inadvertent error. Terre Haute Regional Hospital, Inc. v. El-Issa, 470 N.E.2d 1371,

1376 (Ind. Ct. App. 1984), reh’g denied, trans. denied. Thus, the objection to the

instruction must be sufficiently specific to make the trial court aware of the

alleged error before it reads the instruction to the jury. Id. Objections to

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instructions must state why the instruction is misleading, confusing,

incomplete, irrelevant, not supported by the evidence, or an incorrect statement

of the law. See Carrier Agency, Inc. v. Top Quality Bldg. Products, Inc., 519 N.E.2d

739, 744 (Ind. Ct. App. 1998), reh’g denied, trans. denied. An objection which is

not specific preserves no error on appeal. Johnson v. Naugle, 557 N.E.2d 1339,

1341 (Ind. Ct. App. 1990). A party claiming error in the giving of an

instruction is limited to his stated objection at trial. Weller v. Mack Trucks, Inc.,

570 N.E.2d 1341, 1343 (Ind. Ct. App. 1991).

[34] During the jury instruction conference, Hill objected to the tender of Jury

Instruction No. 23 because “it’s confusing to the jury. It essentially tells the

jurors that any mistake is not necessarily negligence[.]” (Tr. p. 2341). As the

trial court had “given this instruction before worded exactly like this,” it

tendered the Instruction to the jury over Hill’s objection. (Tr. p. 2342). After

the verdict, Hill filed a motion to correct error, challenging Jury Instruction No.

23 as it “presented the jury with an incorrect and/or misleading statement of

Indiana Law with regard to the applicable standard by which the jury was to

determine whether or not the defendants had committed medical negligence.”

(Appellant’s App. p. 1193).

[35] While we agree that “an objection which merely asserts that an instruction is

confusing or misleading is not specific enough to preserve error,” here, Hill

clarified his allegation. See Poor Sisters of St. Francis Seraph of Perpetual Adoration,

Inc. v. Catron, 435 N.E.2d 305, 309 (Ind. Ct. App. 1982). After he objected

during the conference and outside the presence of the jury that the proposed

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instruction was confusing, Hill explained his objection by adding “[i]t

essentially tells the jurors that any mistake is not necessarily negligence[.]” (Tr.

p. 2341). Although not very artfully worded, it is clear that Hill disputed Jury

Instruction No. 23 as a misstatement of the law of negligence. Therefore,

because Hill timely and sufficiently objected to the tender of the Jury

Instruction, we will now turn to the merits of Hill’s challenge.

B. Merits

[36] Evaluating the merits of Hill’s contentions, we note that this is not the first time

Indiana courts have been called upon to review the language of Jury Instruction

No. 23. In Dahlberg v. Ogle, 373 N.E.2d 159, 163 (Ind. 1978), “[t]rial court gave

an instruction which in part informed the jury that the defendant [physician]

did not warrant or guarantee the success of his treatment.” Our supreme court

approved the instruction and advised that it was intended “to guide the jury

away from reaching its verdict upon the mistaken conclusion that a physician

warrants or guarantees the success of his treatment.” Id.

[37] More recently, in Fall v. White, 449 N.E.2d 628, 635 (Ind. Ct. App. 1983), reh’g

denied, we approved a virtually identical instruction, finding that it was a correct

statement of law and was properly given. Citing to Dahlberg and Edwards v.

Uland, 140 N.E. 546 (Ind. 1923), we stated:

Our supreme court found that the failure of a physician to realize the

actual seriousness of a condition is not negligence unless there are facts

to indicate a lack of skill or lack of care in making the examination and

diagnosis. Indiana has long recognized the principle that a physician’s

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mistaken diagnosis does not constitute negligence when the physician

has used reasonable skill and care in formulating such diagnosis.

Fall, 449 N.E.2d at 635 (internal references omitted). Two subsequent cases

have cited to Fall for the proposition that a physician’s conduct does not

constitute negligence when the physician has used reasonable skill and care in

formulating the diagnosis. See Schultheis v. Franke, 658 N.E.2d 932, 939 (Ind.

Ct. App. 1995), trans. denied; Farrar v. Nelson, 551 N.E.2d 862, 865 (Ind. Ct.

App. 1990), reh’g denied, trans. denied.

[38] Hill references LaPorte Cmty. School Corp. v. Rosales, 963 N.E.2d 520, 525 (Ind.

2012), to support his contention that the tendered Instruction No. 23 is an

incorrect statement of the law that left the jury in doubt as to the proper

standard for determining medical malpractice. In Rosales, the trial court read to

the jury a comprehensive elements instruction, which included a list of factual

scenarios. Id. at 523. Compared with the general negligence instruction, our

supreme court concluded:

While [the] Instruction [] may have been intended to explain to the

jury that the plaintiff had the burden of proving the elements of

negligence, proximate cause, and damages, the language and phrasing

of the instruction permitted the jury to infer that the factual allegations

set forth [] should be understood as factual circumstances identified by

the court, based on the facts of the case, that automatically constitute

negligence if proven by a preponderance of the evidence. Such an

interpretation effectively creates new duties not recognized by the

common law in Indiana.

Id. at 524. “Even if the plaintiff’s interpretation—that [the] Instruction set forth

only the plaintiff’s allegations of negligence and the parties’ burdens of proof—

is considered a reasonable alternative reading, the existence of competing

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interpretations renders the instruction ambiguous and confusing[.]” Id.

Accordingly, the Rosales court held the instruction to be an incorrect statement

of the law as it left the jury in doubt as to the law on a material issue of the case.

Id. at 525.

[39] Rosales is easily distinguishable from the situation before us. First, Rosales is not

a medical malpractice case, like Fall, Dahlberg, Schultheis, or Farrar. And

second, the Rosales instruction included a series of facts specific to the case that

our supreme court determined could have caused confusion vis-a-vis the general

negligence instruction, whereas Jury Instruction No. 23 did not include any

confusing factual recitations but rather amounted to a straightforward statement

which focused on the proper standard of care for finding medical negligence.

Reading all the jury instructions together, there was no risk of confusion as in

Rosales.

[40] In sum, Jury Instruction No. 23 reminds the jury that a poor outcome does not

constitute negligence if the physician exercises the requisite standard of care.

Dahlberg, 373 N.E.2d at 164. As doctors are not guarantors of medical

outcomes, no error is committed by instructing the jury that a doctor does not

commit medical negligence when he exercises the appropriate skill and

learning, but makes a mistake in diagnoses. See Fall, 449 N.E.2d at 635. Read

together with the other instructions, Jury Instruction No. 23 carefully

delineated the standard for determining whether medical malpractice had been

committed. Therefore, we conclude that Jury Instruction No. 23 was a correct

statement of the law and properly tendered to the jury.

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CONCLUSION

[41] Based on the foregoing, we conclude the trial court properly granted judgment

on the evidence in favor of Drs. Lloyd and Csicsko; Hill was not prejudiced by

the entry of the judgment on the evidence against two of the physicians; and the

trial court properly tendered Jury Instruction No. 23 which advised the jury that

physicians are not liable for an error in diagnosis or treatment when exercising

reasonable care.

[42] Affirmed.

[43] Brown, J. and Altice, J. concur

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