ATTORNEYS FOR APPELLANT
Thomas C. Doehrman
Courtney E. McGovern
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Todd J. Kaiser
Peter H. Pogue
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
JAMES H. SMITH, )
)
Appellant (Plaintiff Below), ) Indiana Supreme Court
) Cause No. 49S04-0009-CV-512
v. )
) Indiana Court of Appeals
WILBERT WASHINGTON, M.D. ) Cause No. 49A04-9808-CV-398
)
Appellee (Defendant Below). )
__________________________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Kenneth H. Johnson, Judge
Cause No. 49D02-9503-CT-0459
__________________________________________________________________
ON PETITION TO TRANSFER
__________________________________________________________________
September 1, 2000
Boehm, Justice.
This appeal presents the issue of the measure of damages for
an act of negligence that increased the risk of an injury that was
at least equally likely to occur in the absence of negligence. We
grant transfer and hold, as we did in
Cahoon v. Cummings, ___ N.E.2d
___ (Ind. 2000), that damages under these circumstances are to be in proportion
to the increased risk attributable to the defendant’s negligence. We affirm the
trial court.
Factual and Procedural Background
James Smith was involved in a car accident in May of 1990, and
soon sought the care of an ophthalmologist for his right eye, which was
red, itchy, runny, and painful. Dr. Wilbert Washington was recommended to Smith
by his family physician. Washington treated Smith from July 10, 1990, until
at least June 13, 1992. Washington diagnosed Smith as suffering from glaucoma.
Washington prescribed eye drops and performed two laser surgeries in an effort
to reduce the intraocular pressure to Smith’s optic nerve. He also prescribed
Motrin to relieve Smith’s pain. By the end of this treatment, however,
Smith “had no light perception in his right eye and he would never
regain any useful vision in that eye.”
Smith subsequently changed jobs and switched health insurance plans. Through his new
primary physician he was referred to another ophthalmologist, who noted that Smith was
still suffering from increased intraocular pressure. Not long after consulting with this
ophthalmologist, Smith agreed to the removal of his right eye and was fitted
with a prosthetic eye.
Pursuant to the Medical Malpractice Act, Smith submitted a proposed complaint on October
14, 1993. The Medical Review Panel issued an opinion on March 20,
1995, unanimously concluding that Washington had breached the standard of care in treating
Smith, but that it could not be determined whether Washington’s breach was or
was a not a factor in Smith’s injuries. Smith subsequently filed suit
in Marion Superior Court, alleging that Washington had breached the standard of care,
and that “as a direct and proximate result,” Smith had permanently lost vision
in his right eye, suffered undue pain and discomfort, disfigurement, and lost earnings,
and had incurred and would continue to incur medical expenses related to treatment
of the eye.
Washington belatedly asserted his right to a jury trial, which the trial court
denied. A bench trial was held on October 15 and 16, 1997,
December 1, 1997, and April 13, 1998. At trial, Dr. Robert Boeglin,
a Panel member, testified that Washington had breached the standard of care by
failing (1) to maintain adequate record-keeping; (2) to establish, or take appropriate steps
toward establishing, a specific diagnosis of Smith’s type of glaucoma; (3) to monitor
the condition of Smith’s optic nerve with appropriate testing; (4) to gain control
of Smith’s glaucoma within a reasonable time frame, or, alternatively, refer Smith to
another ophthalmologist; and (5) either to document advising Smith to have further surgery
or to advise Smith of the risks and benefits of surgery. Washington
argued that he had not breached the standard of care and that he
had caused no injuries to Smith. He also maintained that Smith was
contributorily negligent in failing to take the recommended medications and refusing to undergo
further surgery. Finally, he contended that his last contact with Smith was
September 28, 1991, so Smith’s October 29, 1993 proposed complaint was untimely.
The trial court issued findings of fact and conclusions of law on July
2, 1998, substantially adopting the testimony of Boeglin and concluding that Washington’s negligence
was a substantial factor in Mr. Smith’s damages. The trial court also
determined that Smith was not contributorily negligent, and that his complaint was timely.
The trial court then determined that Smith’s damages were $364,037.84, but, drawing
on another doctor’s testimony, reduced this figure by fifty percent, which was found
to be the probability that Smith would have lost his vision even in
the absence of Washington’s malpractice.
Both Smith and Washington appealed. Smith contested the amount of the damages
award, arguing that because the trial court had determined that he had a
fifty percent chance of maintaining useful vision and avoiding removal, he had proved
proximate causation and should have been awarded full damages. Washington argued that
the trial court had erred in finding Smith’s claim timely and determining that
Smith was not contributorily negligent. Washington also appealed the trial court’s denial
of his request for a jury trial. The Court of Appeals, citing
Cahoon v. Cummings, 715 N.E.2d 1 (Ind. Ct. App. 1999), reversed the trial
court on the issue of damages and remanded with instructions to award damages
in the full amount of $364,037.84. See Smith v. Washington, 716 N.E.2d
607, 613-14 (Ind. Ct. App. 1999).
On petition to transfer to this Court, Washington again raises the issues of
contributory negligence, his denial of a jury trial, and the award of damages.
Smith counters that, even if this Court determines that his damages award
must be reduced to reflect the percentage fault of Washington in bringing about
his injuries, past pain and suffering should be excepted from this reduction.
Standard of Review
Where, as here, a trial court has made special findings pursuant to a
party’s request under Indiana Trial Rule 52(A), the reviewing court may affirm the
judgment on any legal theory supported by the findings. Mitchell v. Mitchell,
695 N.E.2d 920, 923-24 (Ind. 1998). “[T]he court on appeal shall not
set aside the findings or judgment unless clearly erroneous, and due regard shall
be given to the opportunity of the trial court to judge the credibility
of the witnesses.” T.R. 52(A). When the specific issue on review
relates to the award of damages, a damage award should not be reversed
if within the scope of the evidence before the trial court. Dunn
v. Cadiente, 516 N.E.2d 52, 54 (Ind. 1987).
Damages
Smith contends that he should be awarded damages in the amount of the
full value of the loss of his eye. He argues that the
trial court erred in applying the causation standard of Section 323 of the
Restatement of Torts, which this Court endorsed in Mayhue v. Sparkman, 653 N.E.2d
1384, 1388-89 (Ind. 1995). In Mayhue, the plaintiff was unable to prove
that the physician’s negligence proximately caused his wife’s death because she had less
than a fifty percent chance of survival before the negligent treatment. See
653 N.E.2d at 1386. Nevertheless, because the physician’s negligence had precluded any
chance of recovery from a fatal cancer, Section 323 provides for recovery for
the increased risk of harm attributable to the defendant’s conduct. See id.
at 1388-89.
The trial court determined that Smith had a fifty percent chance of retaining
vision in his right eye before the negligent acts of Washington. Based
on this fact- finding, Smith argues that the trial court should have awarded
full damages because it essentially determined that Washington’s actions had proximately caused Smith’s
injuries. It is not apparent that application of Section 323 turns on
the degree of initial risk that is aggravated. However, like the Court
of Appeals, we need not resolve this issue. The Court of Appeals
ruled that Smith could not contend on appeal that Section 323 was inapplicable
when he had argued in the trial court for its application. We
agree that Section 323 governs this case.
The trial court found that the defendant’s negligence increased the risk of incurring
an already likely injury from 50% to 100%. In Cahoon, we held
that once causation is established under Mayhue, the plaintiff is to receive the
proportion of damages traceable to the defendant’s negligent act or omission. Specifically,
we adopted the standard for measuring damages under Section 323 of the Restatement
of Torts as set forth in McKellips v. Saint Francis Hospital, Inc., 741
P.2d 467 (Okla. 1987). In McKellips, the court held that statistical evidence
should be admitted to determine the “lost chance” by subtracting the decedent’s postnegligence
chance of survival from decedent’s prenegligence chance of survival. Id. at 476-77.
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.
Here, after determining that defendant was liable, the trial court found that Washington’s
negligence reduced Smith’s chance of retaining vision in his right eye by fifty
percent. The trial court meticulously outlined Smith’s damages, but awarded fifty percent
of the total damages as the amount traceable to Washington’s conduct. In
so doing, the trial court relied on the formula set out in
McKellips.
Judge Johnson thus predicted with precision the measure of damages this
Court ultimately adopted in Cahoon.
Finally, Smith argues that his past pain and suffering damages, which the trial
court calculated at $125,000, should be awarded in full. Smith argues that
because the trial court entered the factual finding that Smith endured pain and
suffering throughout Washington’s treatment, the trial court erred in reducing this element of
his damages award. However, the trial court did not find that this
pain and suffering would have been wholly avoided if Smith had received proper
treatment. Rather, the evidence permitted the inference that only a portion of
Smith’s past pain and suffering was due to Washington’s negligence. Thus, the
trial court was free to apply proportionate causation to damages on past pain
and suffering. The trial court’s award of damages is affirmed.
Conclusion
We affirm the trial court and its award of damages in the amount
of $182,018.92. We summarily affirm the Court of Appeals with respect to
the issues of contributory negligence, the denial of a jury trial to Washington,
and the statute of limitations.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.