ATTORNEYS FOR APPELLANTS
Kevin C. Schiferl
Robert W. Wright
Julia Blackwell Gelinas
Steven J. Cohen
Kathryn A. Elias
ATTORNEY FOR APPELLEE
Terry Kaiser Park
Indiana Trial Lawyer Association
Mary A. Findling
Defense Trial Counsel
Ross E. Rudolph
James D. Johnson
SUPREME COURT OF INDIANA
JEFFREY S. CAHOON, M.D. and )
SHARI A. KOHNE AND EDWARD )
L. KENNEDY, CO-EXECUTORS OF )
THE ESTATE OF ROBERT W. )
KOHNE, M.D., )
) Indiana Supreme Court
Appellants (Defendants Below), ) Cause No. 79S05-0009-CV-513
v. ) Indiana Court of Appeals
) Cause No. 79A05-9801-CV-026
GLESSIE JOANN CUMMINGS, )
wife of the deceased, William T. )
Appellee (Plaintiff Below). )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Donald C. Johnson, Judge
Cause No. 79D01-9502-CP-38
ON PETITION TO TRANSFER
September 1, 2000
Mayhue v. Sparkman, 653 N.E.2d 1384, 1388-89 (Ind. 1995), held that where a
patients likelihood of recovery was less than fifty percent, but negligent treatment increased
the risk of loss, a claim may be asserted for that increased risk.
We grant transfer and hold that damages for such a claim are
to be measured in proportion to the increased risk, and not by the
full extent of the ultimate injury.
Factual and Procedural Background
In December of 1991, William T. Cummings sought the treatment of his family
doctor, Dr. Robert W. Kohne, for heartburn-like symptoms. Kohne ordered x-rays of
Cummings esophagus, stomach, and small bowel. The x-rays were interpreted by Dr.
Jeffrey S. Cahoon, who diagnosed Cummings with a hiatal hernia and reflux esophagitis.
Cummings asked Kohne whether surgery would correct the problem, but Kohne told
him he could not have surgery at [his] weight. Instead, Kohne directed
Cummings to lose weight, refrain from eating greasy foods, and sleep sitting up.
In July 1992, after Cummings had lost about eighty pounds, he returned
to Kohne. Cummings insurance carrier had changed, so Kohne arranged for further
consultation and treatment at the V.A. hospital in Danville, Illinois. Before Cummings
could obtain treatment, however, he admitted himself to the emergency room of St.
Elizabeths Hospital in Lafayette, Indiana with a perforated esophagus that had hemorrhaged.
Cummings was then diagnosed as suffering from esophageal cancer. Surgery and subsequent
chemotherapy were tried, but the cancer had already spread to Cummings lymph nodes
and liver. He died in August of 1993.
Cummings filed a proposed complaint with the Indiana Department of Insurance in March
of 1993. The complaint as amended charged Kohne with negligent failure to
diagnose and Cahoon with negligent misdiagnosis of Cummings condition. The Medical Review
Panel concluded that the doctors had failed to follow the appropriate standard of
care, but that their conduct was not a factor of the resultant damages.
After Cummings death, his wife, Joann, brought suit alleging damages in the
form of medical expenses, lost income, loss of substantial chance of survival, death,
and loss of consortium.
Kohne died in March of 1996, prior to trial. Both he and
Cahoon admitted breach of his duty of care to Cummings, but each denied
that his breach proximately caused Cummings damages. After a three-day trial in
late September and early October of 1997, a jury found in favor of
Joann, and awarded her $194,000 from Kohnes estate and $75,000 from Cahoon.
Joann filed a post-trial motion for prejudgment interest, which was denied as to
Kohne, but granted as to Cahoon in the amount of $18,443.84.
All parties appealed. Joann challenged the trial courts denial of prejudgment interest
with respect to Kohne. The defendants challenged the trial courts jury instructions,
arguing that: (1) the jury was incorrectly instructed that causation should be evaluated
Mayhue standard; (2) the jury was incorrectly instructed that full damages
could be awarded if the defendants conduct was found to be a substantial
factor in bringing about Cummings death; (3) the trial court erroneously gave instructions
on both wrongful death and survival; and (4) the survival instruction contained an
incorrect statement of law in that it referenced loss of chance approvingly.
Kohne also contended that the trial court had erroneously admitted evidence that he
had altered Cummings medical records.
The Court of Appeals concluded that these jury instructions were proper in every
respect, save that the survival instruction erroneously recited loss of chance as the
law in Indiana.
See Cahoon v. Cummings, 715 N.E.2d 1, 9 (Ind.
Ct. App. 1999). The Court of Appeals also concluded that the trial
court erred in admitting evidence that Kohne had altered Cummings medical records.
See id. at 17. With regard to prejudgment interest, the Court of
Appeals reversed the trial courts award of prejudgment interest with respect to Cahoon,
and affirmed its denial of prejudgment interest with respect to Kohne. See
id. at 17-18.
All parties seek transfer. We conclude: (1) the trial court correctly
applied the causation standard of
Mayhue in the wrongful death context; (2) it
was reversible error to instruct the jury that it should award full damages
if it found that defendants negligence was a substantial factor in Cummings death;
(3) the doctrine of election of remedies does not preclude Joann from pursuing
both a wrongful death and survivorship action; (4) the instruction regarding Cummings survival
action did not contain a misstatement of law requiring reversal; (5) the trial
court did not abuse its discretion in admitting evidence that Kohne had altered
Cummings medical records; and (6) the trial court erroneously concluded that Joann was
not entitled to prejudgment interest as against Kohne.
I. The Application of Mayhue to a Wrongful Death Suit
In Mayhue v. Sparkman, 653 N.E.2d 1384, 1388-89 (1995), this Court held that
a plaintiff is not precluded from bringing a medical malpractice claim against a
negligent doctor merely because the plaintiff is unable to prove by a preponderance
of the evidence that the doctors conduct was the proximate cause of the
resulting injury. We adopted Section 323 of the Restatement of Torts, which
One who undertakes, gratuitously or for consideration, to render services to another which
he should recognize as necessary for the protection of the others person or
things, is subject to liability to the other for physical harm resulting from
his failure to exercise reasonable care to perform his undertaking, if:
(a) his failure to exercise such care increases the risk of such harm,
(b) the harm is suffered because of the others reliance upon the undertaking.
This doctrine permits recovery from a defendant whose negligence significantly increases the probability
of the ultimate harm, even if the likelihood of incurring that injury was
greater than fifty percent in the absence of the defendants negligence. Here,
Mayhue, all experts agreed that Cummings would probably not have survived
even if he had been properly diagnosed and treated in December of 1991.
However, Cummings expert testified that Cummings would have had a statistically significant
chance, perhaps twenty-five to thirty percent, of surviving his esophageal cancer if it
had been diagnosed at Cummings first visit to Kohne. The defendants maintain
that the relaxed causation standard of Mayhue is inapplicable in a wrongful death
case because the wrongful death statute, by its terms, demands that the defendants
actions be the proximate cause of the death of the victim. The
relevant provision reads:
When the death of one is caused by the wrongful act or omission
of another, the personal representative of the former may maintain an action therefor
against the latter, if the former might have maintained an action had he
or she . . . lived, against the latter for an injury for
the same act or omission.
Ind. Code § 34-23-1-1 (1998).
The Court of Appeals held that the
causation standard of Mayhue applied in the context of the wrongful death action,
concluding that: [T]he intent of the wrongful death statute was to allow an
action to be brought by the decedents personal representative against a defendant who
may be held legally liable for the death, regardless of the mechanism of
liability. Cahoon, 715 N.E.2d at 7. We agree with the Court
of Appeals that the statute is consistent with the Mayhue standard of causation.
The wrongful death statute requires causation, but it does not spell out
what is meant by that term and does not specify that a plaintiff
must establish proximate causation. The trial court instructed the jury on the
causation standard of Mayhue as follows: In this case you must first
determine if the Defendants negligence increased the risk of harm to Ted Cummings,
and whether the increased risk was a substantial factor in his death on
August 15, 1993. This is an accurate recitation of the causation standard
of Mayhue. Mayhue identified the reasons to permit recovery in a loss
of consortium case for increased risk of the ultimate injuryin that case death.
Principally, to deny recovery is to encourage disregard for the proper care
of more seriously ill patients. Those with serious problems but also a
significant chance of recovery are entitled to the same level of care as
less threatened patients, and their caregivers should be held to the same standard.
Accordingly, this instruction was properly given.
Finally, the defendants note that
Mayhue presented a loss of consortium claim and
urge this Court to limit Mayhue to its facts. Although it is
true that Mayhue involved a loss of consortium claim, the policy underlying Mayhue
is equally compelling here. We see no basis to allow a relaxed
standard of causation in the loss of consortium context, but not the wrongful
death context. The wrongful death statute is intended to provide economic support
to survivors, and a loss of consortium claim compensates the plaintiff for loss
of companionship of the decedent. The issue addressed in Mayhue is the
level of causation required, not the type of claim brought. This is
the same because the event giving rise to each injurythe deathis the same.
Consistent with other jurisdictions, we hold that Section 323 applies in the
wrongful death context.
See, e.g., McKellips v. Saint Francis Hosp., Inc., 741
P.2d 467, 469-70 (Okla. 1987); Perez v. Las Vegas Med. Ctr., 805 P.2d
589, 591 (Nev. 1991) (following McKellips).
The trial court instructed that the defendants would be liable for full wrongful
death damages if the jury determined that their actions were a substantial factor
in Cummings death. The Court of Appeals majority agreed, concluding that once
causation is established under Mayhue, full damages for the underlying injury follow.
The majority reasoned that this Court, citing McKellips v. Saint Francis Hospital, Inc.,
741 P.2d 467 (Okla. 1987), intended that full damages follow because a proportional
damages scheme would have required significant further discussion by this Court. The
Court of Appeals also concluded that Section 323, by its express language, provides
for liability for the harm, not for the portion of the risk which
was increased. Cahoon, 715 N.E.2d at 8. Judge Sullivan dissented as
to this issue. The Court of Appeals majority correctly pointed out that
Mayhue did not discuss the issue of damages. However, Mayhue relied on
McKellips, which viewed Section 323 as indistinguishable from loss of chance and awarded
damages in proportion to the increased risk attributable to the defendants actions.
See 741 P.2d at 475-76. In McKellips, the decedent was misdiagnosed in
the emergency room as suffering from gastritis. Although an expert testified that
the heart attack from which he subsequently died was probably well under way
by the time he checked into the emergency room, the Supreme Court of
Oklahoma nevertheless concluded that a relaxed causation standard should apply, and that proportional
damages should be awarded if a jury concluded that the defendants negligence contributed
to the patients death. In order to determine proportional damages, after liability
is established, statistical evidence is admissible to determine the net reduced figure.
McKellips, 741 P.2d at 476-77. This, the court explained, is determined by
subtracting the decedents postnegligence chance of survival from the prenegligence chance of survival.
Then, [t]he amount of damages recoverable is equal to the percent of
chance lost multiplied by the total amount of damages which are ordinarily allowed
in a wrongful death action. Id. McKellips is one of many
cases that award damages proportional to the defendants contribution to the underlying injury.
See Delaney v. Cade, 873 P.2d 175, 186 (Kan. 1994); Roberts v.
Ohio Permanente Med. Group, Inc., 668 N.E.2d 480, 484-85 (Ohio 1996); Gray v.
Ford Motor Co., 914 S.W.2d 464, 466-67 (Tenn. 1996) (applying comparative fault principles
to medical malpractice action); see also Soper v. Bopp, 990 S.W.2d 147, 150-51
(Mo. Ct. App. 1999) ([I]n the end, damages can only be expressed by
multiplying the value of a lost life or limb by the chance of
recovery lost.) (citations omitted).
Holding the defendant liable for the full value of the wrongful death claim
is inconsistent with the statutory requirement that the loss be caused by the
defendant who only increased the risk of an already likely result. In
effect, it would hold doctors liable not only for their own negligence, but
also for their patients illnesses which are not the product of the doctors
actions. To be sure, this rule might encourage doctors to be more
vigilant, but compensation for injuries caused, not deterrence of future actions, is the
basis of recovery the legislature has chosen for a wrongful death.
There is little support in other jurisdictions for the practice of awarding damages
measured by the full value of the injury in a Section 323 or
loss of chance case.
See Weymers v. Khera, 563 N.W.2d 647, 653
n.17 (Mich. 1997) (noting that only five states follow this extreme approach).
We conclude that the better approach is that followed in McKellips and other
proportional damages jurisdictions. See 741 P.2d at 476-77; see also Herskovits v.
Group Health Coop., 664 P.2d 474, 479 (Wash. 1983) (Causing reduction of the
opportunity to recover (loss of chance) by ones negligence, however, does not necessitate
a total recovery against the negligent party for all damages caused by the
victims death.). This rule is also consistent with the legislative policy underlying
Indiana law of apportionment of damages for tort liability generally. Under Indianas
comparative fault scheme, a defendant is liable only to the degree he or
she is responsible for the claimants injury or damages. See Ind. Code
§ 34-51-2-1 to 19 (1998).
In sum, we agree with Judge Sullivans dissent, and hold that upon a
showing of causation under
Mayhue, damages are proportional to the increased risk attributable
to the defendants negligent act or omission. The jury was properly instructed
that damages could not be awarded under both the survival and wrongful death
claims. However, the jury did not identify the theory of recovery under
which damages were awarded against either defendant. As a result, we cannot
assign the award to either the wrongful death claim or the survivor count.
And because the jury was instructed to award full wrongful death damages
if a defendants conduct was a substantial factor in Cummings death, the degree
of increased risk was not quantified and we have no basis to conclude
that any specific dollar award is proper under that theory. In sum,
the amount of any award for wrongful death is unknowable and it is
equally unknowable whether the survivor theory supported the jurys award. As a
result, remand for a new trial is required.
III. Election of Remedies
The defendants assert that it was error for the trial judge to allow
jury instructions as to both wrongful death and survival actions. They argue
that a plaintiff must elect between a survival action and a wrongful death
action prior to trial because they are inconsistent and mutually exclusive theories of
recovery. According to defendants, it is prejudicial to them to allow evidence
of Cummings pain and suffering under the survival claim because this evidence could
inflate a damage award on the wrongful death action. They argue that
the trial courts jury instruction informing jurors that they could not award damages
for both wrongful death and a survival action was insufficient to cure the
harm resulting from allowing pain and suffering evidence. The Court of Appeals
concluded, in a thoughtful analysis of the doctrine of election of remedies, that
Joann was not required to elect a remedy prior to trial. We
The election of remedies doctrine requires that a party who has two co-existing
but inconsistent remedies and elects to pursue one remedy to a conclusion may
not sue on the other remedy.
Hoover v. Hearth & Home Design
Ctr., Inc., 654 N.E.2d 744, 745 (Ind. 1995). The doctrine ordinarily applies
only when a party has elected to pursue one remedy to its conclusion
and then attempts to pursue a subsequent claim on a second inconsistent theory.
See Parke v. First Natl Bank, 571 N.E.2d 1317, 1319 (Ind. Ct.
Trial Rule 8(E)(2) allows a party to plead alternative and even inconsistent theories
of recovery: A pleading may . . . state as many separate claims
or defenses as the pleader has regardless of consistency and whether based on
legal or equitable grounds. Under this Rule, a party is not required
to adopt a theory of the case at the outset.
v. Kline, 566 N.E.2d 573, 576 (Ind. Ct. App. 1991). Rather, it
is sufficient to plead the operative facts of the case so the defendant
is put on notice as to the evidence that will be presented at
trial. See id. Thus, although defendants must receive notice as to
what evidence will be presented against them, there is no procedural bar to
pursuing both a wrongful death and survival action.
Cf. Olympia Hotels Corp.
v. Johnson Wax Dev. Corp., 908 F.2d 1363, 1371 (7th Cir. 1990) (concluding
that, in contract case, the adoption of Rule 8(E) has abolished the requirement
for election of remedies at the pleading stage in the federal courts).
Defendants nevertheless urge that a plaintiff should in some instances be required to
elect a remedy before trial to avoid prejudice to the defendant. Although
this Court is mindful of the practical difficulties of defending on two separate
theories, there is scant precedential support for the proposition that it may not
be attempted. The Court of Appeals has held that, under some circumstances,
concurrent pursuit of two or more remedies may be barred.
City of Hammond v. Beiriger, 164 Ind. Ct. App. 275, 280, 328 N.E.2d
466, 469 (1975) ([W]hen the remedies available to a prospective litigant are inconsistent
or mutually exclusive . . . the election of one remedy will operate
as a bar to concurrent or subsequent remedies.). None of the cited
cases had occasion to address the issue of concurrent remedies in light of
Rule 8(E), and defendants point to no case in which a party has
been forced to elect a remedy prior to trial to avoid prejudice to
the defendants in having to defend against inconsistent theories of recovery.
Defendants rely heavily on
American International Adjustment Co. v. Galvin, 86 F.3d 1455,
1458 (7th Cir. 1996), in which the Seventh Circuit noted that the admission
of a tape of the last moments of the decedents lifeadmissible as evidence
of pain and suffering for the survival actionhad likely inflated the wrongful death
award. Galvin, however, does not hold that a plaintiff may not concurrently
pursue both a survival cause of action and a wrongful death claim.
Rather, in Galvin, the court noted that defense counsels motion in limine seeking
to require election of remedies, which had been denied, ran counter to the
abolition of the theory pleading requirement. 86 F.3d at 1460. What
Galvin does suggest is that evidence as to damages on a theory unsupported
by the evidence is inadmissible. See id. at 1458-59. This is
simply another way of saying that irrelevant evidence is inadmissible, regardless of how
the claim is pleaded. Thus, if it is clear that the decedents
death was caused by the defendants actions, only damages for wrongful death, and
not those for a survival action, could be shown. Here, however, there
was evidence to support both theories. Galvin also observes that under Indiana
law damages cannot be awarded for both a wrongful death claim and a
survival claim. See id. at 1457-58. In Galvin, however, unlike here,
there was no jury instruction given to that effect.
The defendants also rely on
Osborne v. Wenger, 572 N.E.2d 1343, 1346 (Ind.
Ct. App. 1991), in which the Court of Appeals held that the trial
court had not erred in requiring the plaintiff to choose between pursuing treble
damages and punitive damages. The recovery of both treble damages and punitive
damages is prohibited by statute in a civil action by a crime victim.
See Ind. Code 34-24-3-3 (1998).
Osborne made no mention of Rule
8(E). Whether or not it was correct to affirm the trial courts
requirement that the plaintiff specify the remedy sought for a single wrong, it
is not reversible error to permit the plaintiff to proceed on alternative inconsistent
theories under instructions that preclude recovery on both.
In sum, Trial Rule 8(E) is designed to avoid the problem that a
plaintiff may recover nothing on a valid claim if forced to speculate as
to which theory a jury will ultimately find credible. What remains of
the election of remedies doctrine after the adoption of Trial Rule 8(E) is
substantive law that acts as a bar to double recovery. See Olympia
Hotels, 908 F.2d at 1371 (In its substantive aspect, however, the doctrine of
election of remedies is not affected by the federal rules of procedure. .
. . It seeks to prevent double recovery.). The wrongful death statute
requires proof that the defendant caused the death of the plaintiff. Under
the survival statute, [W]hen a person receives personal injuries caused by the wrongful
act or omission of another and subsequently dies from causes other than those
personal injuries, the personal representative . . . may maintain an action.
Ind. Code § 34-9-3-4 (1998).
If there is no dispute regarding the
cause of the decedents death, it is obvious that only one theory of
recovery may be pursued. Here, in contrast, defendants admitted that they had
breached a duty to Cummings, and causation was the primary issue for the
jury. The trial courts instruction informing the jury that it could not
grant damages on both theories was sufficient to ensure that double recovery would
be avoided. The trial court was correct to allow Joann to pursue
both theories to verdict.
IV. Survival Instruction
Defendants assert that the trial court instruction regarding survival actions misstated the law.
The instruction read:
If you determine that the Defendants negligence was not a substantial factor in
Mr. Cummings death, but the Defendants negligence increased the risk of harm to
Mr. Cummings by reducing his opportunity for a better result, and that increased
risk was a substantial factor in that harm, then you should award such
damages as will fairly compensate the Plaintiff for the harm sustained. Harm
may be the loss of opportunity for cure, decreased short-term survival, or unnecessary
physical pain and mental suffering. [Joann] Cummings is also entitled to be
compensated for her loss of consortium . . . .
The most striking aspect of this jury instruction is its inclusion of damages
for loss of chance in the survival action. Plaintiffs counsel argued, over
the objection of defense counsel, that the loss of chance itself was compensable,
and the trial court allowed the instruction.
This Court recently had occasion to address the loss of chance, or increased
risk of harm doctrine, in
Alexander v. Scheid, 726 N.E.2d 272 (Ind. 2000).
Scheid involved a plaintiff whose chances of long-term survival were allegedly substantially
decreased by the defendants negligence, but whose cancer was in remission at the
time of suit. In Scheid, this Court reviewed the loss of chance
doctrine as it has been applied in other jurisdictions and concluded that a
plaintiff may recover in Indiana for the increased risk of harm caused by
the defendants act or omission in certain circumstances. We distinguished between Section
323, which was adopted in Mayhue to deal with claims for increased risk
for an injury that has been incurred, and the situation presented in Scheid,
where, although the risk had been increased, the plaintiffs ultimate injury was uncertain.
In the face of that uncertainty, we held that the plaintiff may
recover for her decreased chance of long-term survival, and is not required to
wait until the ultimate injury comes to pass. See id. at 277-78.
The survival statute precludes recovery on both a wrongful death claim and a
See Ind. Code § 34-9-3-4 (1998) (the Survival of Cause
of Action statute applies only if the person receives personal injuries caused by
the wrongful act or omission of another and . . . subsequently dies
from causes other than those personal injuries). Accordingly, a plaintiff cannot recover
on both a wrongful death claim and a claim of an increased risk
of harm caused by the same wrong. If the alleged
result of the defendants acts that increase the risk of harm is death
itself, this converts the patients claim into a wrongful death or related action,
as in Mayhue. That is the circumstance here. It is possible,
however, for a representative to bring a survival action on an increased risk
of harm claim even where the plaintiff has died, if the death resulted
from another cause. In the case before us, assuming the jury found
that the defendants negligence was not a substantial factor in bringing about Cummings
death, for example, because that risk was already 100%, the jury might still
conclude that the delay in the diagnosis resulted in an accelerated death, or
a decreased life expectancy. Whether that claim is of sufficient value to
pursue is a decision for the plaintiff. A valuation of this injury
as outlined in Scheid would then be appropriate. See 726 N.E.2d at
282-83. Thus, the instruction on the survival action, albeit unclear, did
not contain an erroneous statement of law. On remand, if the theory
remains in the case, the parties should attempt to clarify this instruction sufficiently
for the jury.
V. Alteration of Medical Records
After arguments from both parties concerning the admissibility of evidence that Kohne altered
Cummings medical records, the trial court determined that evidence of spoliation was admissible
against Kohne on the issue of proximate causation. According to the trial court,
because Dr. Kohne was a medical doctor with knowledge of the stages of
cancer and the increased risks to the patient when cancer is not timely
diagnosed and treated. A reasonable inference is that Dr. Kohne was conscious
that he increased the risk of harm to Mr. Cummings giving rise to
falsification of his testimony and his records. The Court of Appeals concluded
that the spoliation rule, as it exists in Indiana, does not apply where
the evidence has not been destroyed and no jury instruction is required to
cure its unavailability. See Cahoon, 715 N.E.2d at 16. Under normal
relevancy restrictions, the court further concluded, the trial court had abused its discretion
in admitting this evidence because, once Kohne had conceded breach of duty, this
evidence was no longer relevant. See id. at 16-17.
Spoliation consists of [t]he intentional destruction, mutilation, alteration, or concealment of evidence, usually
a document. If proved, spoliation may be used to establish that the
evidence was unfavorable to the party responsible.
Blacks Law Dictionary 1409 (7th
ed. 1999). In Indiana, the exclusive possession of facts or evidence by
a party, coupled with the suppression of the facts or evidence by that
party, may result in an inference that the production of the evidence would
be against the interest of the party which suppresses it. Porter v.
Irvins Interstate Brick & Block Co., 691 N.E.2d 1363, 1364-65 (Ind. Ct. App.
1998); see also Great Am. Tea Co. v. Van Buren, 218 Ind. 462,
467, 33 N.E.2d 580, 581 (1941) (While this rule will not be carried
to the extent of relieving a party of the burden of proving the
case, it may be considered as a circumstance in drawing reasonable inferences from
the facts established.). Spoliation evidence arises more commonly in the criminal context,
but is also relevant in civil cases. 12 Robert Lowell Miller, Jr.,
Indiana Practice § 401.112 (2d ed. 1995). Spoliation evidence is ordinarily admissible
not as to a single issue only, but rather bears on the strength
of the case in general and the defendants consciousness of guilt. See
2 John Henry Wigmore, Evidence in Trials at Common Law § 278 (1979),
revised by James H. Chadbourn.
The primary alteration alleged here is the addition of the words Cline scope
to Cummings December 1991 x-ray report. Kohne originally maintained that he had
recommended to Cummings that he have an endoscopy, but that Cummings had not
done so. Cline was a doctor to whom Kohne would have referred
Cummings had Kohne recommended an endoscopy. The endoscopy, in turn, would have
likely revealed esophageal cancer. Copies of medical records sent to plaintiffs counsel
before litigation was commenced did not bear this notation.
Although it is true that the few Indiana cases on point have involved
situations in which evidence has been destroyed or is made unavailable,
Porter, 691 N.E.2d at 1363, we see no reason to restrict the application
of this rule to that context. Spoliation, according to its dictionary definition,
includes the alteration of documentary evidence as well as its destruction. Thus,
we hold that the evidence of the addition of Cline scope to Cummings
x-ray report qualifies under the spoliation rule in Indiana.
The trial court did not abuse its discretion in admitting the evidence as
probative of Kohnes belief on the issue of proximate causation. As we
have already noted, spoliation evidence is admissible to show the defendants consciousness of
guilt and the strength of his or her case generally. Here, Kohne
conceded that he breached his duty to Cummings. By trial, the only
remaining issue for the jury to resolve was causation. Therefore, the trial
court concluded that this evidence was admissible as to the only remaining issueproximate
The Court of Appeals concluded that instructing the jury regarding the defendants perspective
on causation had the effect of converting Kohne into an expert witness.
The instruction read: [I]f you find that there are unexplained or intentional alterations
of medical records by Dr. Kohne, you can presume that the evidence would
have been unfavorable to Dr. Kohne on the issue of proximate causation.
Allowing evidence to be presented as to Kohnes perspective regarding proximate cause was
proper to demonstrate that Kohne himself believed his inaction to have been significant
in the treatment of Cummings. A jury could easily find this evidence
significant as to both duty and proximate cause, necessary elements of a tort
claim. Thus, it was not error to instruct the jury that they
could infer from the alteration of Cummings records that Kohne believed he had
caused harm to Cummings.
VI. Prejudgment Interest
The trial court awarded prejudgment interest in the amount of $18,443.84 against Cahoon,
but not against the Kohne estate, reasoning that the then $100,000 cap on
medical malpractice liability of a health care provider limited Kohnes liability on the
$194,000 jury verdict against his estate, but that prejudgment interest could be awarded
on the $75,000 verdict against Cahoon. The Court of Appeals took the
view that the offers of settlement Joann made did not qualify under the
prejudgment statute, so prejudgment interest could not be awarded against either defendant.
This ruling rendered moot the question whether the health care providers liability applied
to prejudgment interest.
The threshold question is whether prejudgment interest is awardable at all under the
prejudgment interest statute. That statute permits the trial court to award prejudgment
interest, but includes several disqualifying circumstances. Because the defendants made no offer
to settle, the only provision relevant here is found in Indiana Code §
34-51-4-6, which requires that the plaintiff have made a written offer to the
party or parties against whom the claim is filed to settle for an
amount that turns out to be more than seventy-five percent of the judgment
Subsection 6(2) of that section provides that the terms of
the offer must provide for payment of the settlement offer within sixty (60)
days after the offer is accepted.
In July 1994, and a few times thereafter, Joanns counsel sent to counsel
for the common insurer of both Cahoon and Kohne a letter that stated
Joann was offering to settle this claim now for $75,001. The
Court of Appeals held that the offer did not meet the requirement of
subsection 6(2) because the offer did not provide that the defendants must pay
the $75,001 within sixty days. At the time the offer was made,
in order for a plaintiff to access the Patients Compensation Fund and thereby
recover more than the $100,000 available from the health care provider, the Medical
Malpractice Act required a current settlement payment of at least $75,000 or a
structured settlement meeting the requirements of the statute.
See Ind. Code §
34-18-14-4 (1998) (version effective until July 1, 1999).
In that context, we
think an offer to settle this claim now for $75,001 clearly conveys a
demand for a lump sum payable forthwith, and that there was no doubt
in the defendants insurers mind that the case could be disposed of as
to both doctors for that amount immediately. The requirement of sixty days
in the cited provision parallels the same language found in section 5(2) and
5(3) of the Prejudgment Interest Act that permits a defendant to avoid the
act by making an offer that turns out to be at least two-thirds
of the ultimate judgment. See Ind. Code § 34-51-4-5 (1998).
It seems obvious that this language is intended to deal with the point
that an offer to settle on some structured basis by periodic or long
distant lump payments is worth less in present dollars. The whole point
of the statute is to address the cost of delay in payment.
Accordingly, an offer to settle now is an offer to settle by payment
within sixty days. The delay is solely for the benefit of the
defendants, and the defendants had the power to accept Joanns offer immediately.
Cahoon argues that the offer was unclear as to how much was attributable
to which defendant. That may be correct, but the statute requires only that
the offer be made to the party or parties who have been sued.
Either defendant, by ponying up the full $75,000 could have terminated the
case as to himself and the other doctor. Each ended up with
a judgment that was independently sufficient to trigger prejudgment interest even if the
other had been found not liable. Under those circumstances, there is
no reason why both should not compensate the plaintiff for the use of
her funds over the time it took to resolve this dispute for more
than the plaintiff would have accepted in 1994.
There remains the question of the interplay between the Prejudgment Interest Act and
the Medical Malpractice Act. The legislature has spoken on that point.
Section 2 of the Prejudgment Interest Act provides that the Act does not
apply to a claim against the patients compensation fund. Ind. Code §
34-51-4-2 (1998). As we noted in
Poehlman v. Feferman, 717 N.E.2d 578,
582 (Ind. 1999), there is no comparable provision immunizing health care providers generally
from prejudgment interest. In Emergency Physicians v. Pettit, 718 N.E.2d 753, 755
(Ind. 1999), this Court held that a qualified health care provider is subject
to the provisions of the pre-judgment interest statute. Thus, the trial court
correctly concluded that prejudgment interest was awardable as to Cahoon, whose judgment was
under the cap, even after adding the interest.
Kohnes estate presents the question whether the cap operates to limit the health
care providers exposure to all items, including prejudgment interest. This was the
precise issue addressed in
Pettit, where we held that a qualified health care
provider is responsible for the payment of the collateral litigation expense of pre-judgment
interest even if that brings the providers total liability over the cap.
718 N.E.2d at 757. However, each judgment debtor is responsible only for
the interest attributable to [the providers] individual liability, i.e., interest on $100,000.
Prejudgment interest addresses the same problem as postjudgment interest. If a defendant
has the option to terminate the dispute at a known dollar cost, and
chooses not to do so, that defendant and not the plaintiff should bear
the cost of the time value of money in the intervening period if
the ultimate result is within the parameters set by the legislature. Accordingly,
we have held that prejudgment interest is recoverable from a health care provider
on the amount of the judgment against that provider. Because that judgment
amount is subject to the statutory cap, and prejudgment interest is not available
from the fund, this will not provide the plaintiff with full relief, but
it is the balance we conclude the legislature has struck between the competing
interests of fairness and encouragement to settle reflected in the prejudgment interest statute
and the Medical Malpractice Acts concern for health care cost containment.
We reverse the judgment of the trial court and remand for a new
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
This section was formerly codified at Indiana Code § 34-1-1-2.
The Court of Appeals also discussed whether Joann could maintain a
separate cause of action for loss of consortium in addition to a wrongful
death claim. See Cahoon, 715 N.E.2d at 10. Neither party addressed
this issue, so we do not.
We note that neither the complaint nor the three amended versions
of the complaint contain more than the loosest reference to a survival action,
and no reference to damages for pain and suffering, an element commonly sought
in survival actions. We do not address whether Joann might have been
barred from pursuing a remedy not reflected in her complaint because this issue
has not been briefed by either party. Although the defendants objected to
the jury instruction referencing a survival action, they did not do so on
the basis that this theory was not articulated in the complaint.
This section was formerly codified at Indiana Code § 34-4-30-2.
Rule 8(E) became effective as of September 16, 1987. Osborne concerned
an accident occurring on January 27, 1987. It is not clear whether
Trial Rule 8(E) was in force at the time the complaint was filed,
or whether the parties and the trial court were aware of it.
This section was formerly codified at Indiana Code § 34-1-1-1.
There were two other notations on Cummings records not present on
the initial records sent to plaintiffs counsel: Axid samples and Gene Reiss.
Kohne claimed that he had prescribed Axid samples for Cummings. Gene Reiss
was a name of an insurance agent Kohne knew; Kohne claimed he had
made this notation after finding out that litigation was pending against him.
Kohne also argues that, if the admission of evidence of the
alteration of Cummings medical records is sustained, the trial court was required to
take judicial notice of its order granting summary judgment in favor of Kohne
on Joanns punitive damages claim. The punitive damages claim was based on
the alteration of Cummings medical records. Kohne observes that Indiana Evidence Rule
201(d) provides that a court must take judicial notice if requested by a
party and supplied with the necessary information. Records in the same case,
including the courts own rulings, fall within the purview of judicial notice.
See Miller, Indiana Practice § 201.105, at 150, 150 n.1. That is
not the only consideration, however. Judicial notice presumes relevance and the balancing
required by Rule 403. The trial court was well within its discretion
in concluding that instructing on its ruling on a motion for partial summary
judgment as to a claim for punitive damages would be more confusing than
enlightening to the jury.
This is hopefully a more easily understood description of the statutes
mathematically equivalent disqualification of a plaintiff whose offer exceeds one and one-third (1
1/3) of the amount of the judgment awarded. Ind. Code § 34-51-4-6
The statute is the same today except the dollar amount was
changed to $187,000 effective July 1, 1999.