Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE: WILLIAM W. DRUMMY ROCCO A. MARRESE, M.D. HOLLY A. REEDY Law Office of Rocco A. Marrese, M.D. Wilkinson, Goeller, Modesitt, Evansville, Indiana Wilkinson & Drummy, LLP Terre Haute, Indiana DOUGLAS V. JESSEN Statham Allega & Jessen, LLP FILED Dec 31 2012, 11:31 am Evansville, Indiana
CLERK of the supreme court, court of appeals and
IN THE tax court
COURT OF APPEALS OF INDIANA
FRANCIS MCDONNELL, M.D., ) ) Appellant-Defendant, ) ) vs. ) No. 82A04-1202-CT-56 ) STACY WISSEL, AS TRUSTEE OF THE ) BANKRUPTCY ESTATE OF ROY L. HARRIS ) AND ANITA K. HARRIS, ) ) Appellee-Plaintiff. )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT The Honorable Wayne S. Trockman, Judge Cause No. 82D03-0801-CT-424
December 31, 2012 MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge Roy L. Harris (“Roy”) and Anita K. Harris (“Anita”) (collectively “the Harrises”)
brought a claim for medical malpractice against Dr. Francis McDonnell (“Dr.
McDonnell”), Dr. Peter Stevenson (“Dr. Stevenson”), and Deaconess Hospital
(“Deaconess”). Stacy Wissel (“Wissel”),1 the trustee of the bankruptcy estate of the
Harrises, was subsequently substituted as the named plaintiff for purposes of pursuing the
claims against the defendants. The Vanderburgh Superior Court found in favor of the
Harrises with regard to their claim against Dr. McDonnell but in favor of Stevenson and
Deaconess with regard to the claim against them. Dr. McDonnell appeals and presents
six issues for our consideration, which we consolidate and restate as:
I. Whether the trial court applied an incorrect legal standard and placed the burden of proof on Dr. McDonnell;
II. Whether the trial court’s judgment is clearly erroneous in that it is unsupported by findings that Dr. McDonnell’s failure to meet the applicable standard of care was the proximate cause of Anita’s injuries;
III. Whether the trial court’s judgment is clearly erroneous in that it is unsupported by findings to support the trial court’s award of damages;
IV. Whether the trial court abused its discretion in awarding pre-judgment interest.
We affirm the trial court’s determination of liability and damages, but reverse the award
of prejudgment interest.
Facts and Procedural History
On August 4, 2000, Anita was working as a salesman for a life insurance company
and was making a call at a customer’s home when she was bitten by the homeowner’s
1 The Harrises filed for Chapter 11 Bankruptcy relief on May 14, 2003. And on May 25, 2010, by agreement of the parties, the complaint in this case was amended to show Wissel as the plaintiff. Thus, by the time of the judgment against Dr. McDonnell, Wissel was the plaintiff and is the current appellee. 2 dog. As a result, Anita suffered a serious wound on her left arm and later suffered from
complications, including a severe infection. This later led to Anita developing reflex
sympathetic dystrophy, causing her to have numerous maladies, including: difficulty with
her short-term memory, sleeplessness, dizziness, blurred vision, neck pain, headaches,
change of color on parts of her left hand and arm, and numbness and pain spreading to
her entire right upper extremity. Because of her continuing pain, Anita was referred to
the Cleveland Clinic. There, a physician recommended that Anita receive continuing
treatment for her pain, including a “tunneled epidural catheter” that could infuse pain
medication. Tr. p. 127.
Subsequently, Anita was referred to Dr. McDonnell, who worked at the Pain
Clinic at the University of Kentucky Medical Center in Lexington, Kentucky. Dr.
McDonnell placed an epidural catheter in Anita that remained in place for twelve weeks.
This treatment resulted in significant relief for Anita for approximately one month, but
her pain gradually returned. On August 18, 2001, Dr. McDonnell placed a cervical
epidural catheter in Anita for continuous infusion of pain medication.
Six days later, Anita was exiting her car when the external end of the catheter was
accidentally pulled from the infusion pump. Roy telephoned Dr. McDonnell, and
McDonnell gave Roy instructions on how to reconnect the catheter to the pump. Roy did
so, but the next day Anita went to a pain clinic at Deaconess Hospital in Evansville,
Indiana, where a nurse disconnected, cleaned, trimmed, and reconnected the catheter tube
to the infusion pump. Per Dr. McDonnell’s instructions, the nurse also doubled the
infusion rate.
3 The following morning, however, Anita began to have pain in her neck. Roy
called the hospital and was told to take his wife to the emergency room. At the
emergency room, Anita complained of pain in her back and upper neck; she described her
pain to the nurse as feeling as if “her brain [was] going to explode,” and further stated
that it was different than the pain she was being treated for with the catheter and pump.
Tr. p. 228. The nurse noted that the right side of Anita’s neck was tender to touch. Anita
was eventually seen by Dr. Stevenson. Dr. Stevenson noted that Anita had been
prescribed an antibiotic by Dr. McDonnell, but she had been unable to fill the
prescription because Dr. McDonnell was not licensed to practice in Indiana. Dr.
Stevenson also noted that Anita complained of extreme pain in her face and neck, but
concluded that she did not have meningitis because there was no stiffness in her neck.
Dr. Stevenson then consulted with Dr. McDonnell over the telephone, and Dr.
McDonnell concluded that there was nothing wrong with the catheter and that Anita’s
neck pain was caused by irritation to her lesser occipital nerve and that her pain should be
treated by continuing the use of the infusion pump in addition to over-the-counter non-
steroidal anti-inflammatory medications (“NSAIDs”), muscle relaxers, and heat. Dr.
Stevenson gave Anita a prescription for an antibiotic that could be filled, and discharged
her at approximately 2:00 p.m. Anita was given Dr. McDonnell’s telephone number and
told to call him if she had any problems.
Later that evening, Anita began to run a fever of 101.5 degrees Fahrenheit, but
Roy did not call Dr. McDonnell until approximately 2:00 a.m. the following morning,
when Anita’s fever had reached 102.6 degrees Fahrenheit. By this time, Anita had
4 become unresponsive, was unable to walk, and was moaning loudly. When Roy relayed
this information to Dr. McDonnell, he was instructed to remove the catheter, give her a
dose of antibiotics, and take her to the emergency room. Still, Roy did not take Anita to
the emergency room immediately. Anita began to vomit at 4:00 a.m., and then became
delirious and unresponsive to verbal commands. Later that morning, Roy called for an
ambulance, and Anita arrived at the hospital at approximately 11:20 a.m.
At the hospital, the intake nurse listed Anita’s main afflictions as fever,
disorientation, and headache. An emergency room physician, Dr. Michael Peters (“Dr.
Peters”) saw Anita and listed her symptoms as confusion, fever, headache, and neck
stiffness that began during the night. Dr. Peters and other physicians at the hospital noted
these as symptoms of meningitis. A lumbar puncture returned cloudy spinal fluid, and
Anita was admitted to the hospital with a diagnosis of bacterial meningitis. Anita
testified that during this stay at the hospital, Dr. McDonnell came into her room and
stated, “There’s the girl I gave meningitis to.” Tr. p. 794. After being treated with
several antibiotics, Anita was finally discharged on August 26, 2001.2 In the discharge
summary, Dr. Mathias Kolleck II (“Dr. Kolleck”) noted that Anita had been admitted to
the emergency room with “classic meningeal signs.” Exhibit Vol. III, p. 73.
As a result of her meningitis, Anita had to undergo speech therapy, and suffered
from hearing loss. She also suffers from mental impairment, and was initially even
unable to recognize her own children. She has problems with math skills and
2 On August 29, 2001, Anita was readmitted to the hospital to be treated for gastroenteritis caused by an internal clostridium difficile infection, which resulted from her being treated with antibiotics. 5 remembering dates, and even has difficulty finding her way home while driving. A
report prepared by a psychiatric social worker indicated that Anita is now seriously
mentally impaired. Even though Anita had hoped to return to work, she had to apply for
disability benefits.
On January 25, 2008, the Harrises filed their complaint alleging medical
malpractice against Dr. McDonnell, Dr. Stevenson, and Deaconess. As neither party
requested a jury trial, a bench trial was held on May 3 through May 14, 2010, at which
time the trial was continued to September 8, 2010.3 This date was later continued to
January 18, 2011, and the trial was completed on January 27, 2011. After the parties
submitted their proposed findings and conclusions, the trial court entered its findings of
fact and conclusions of law on October 27, 2011. The trial court found in favor of Dr.
Stevenson and Deaconess, but found that Dr. McDonnell had been negligent. The trial
court determined that Anita’s damages totaled $456,288.79 and that Roy’s damages were
$75,000, for a total of $531,288.79, plus pre-judgment interest in the amount of 8% from
January 25, 2008, and court costs. Dr. McDonnell now appeals.
I. Improper Burden of Proof
Dr. McDonnell first claims that the trial court improperly placed upon him the
burden of disproving the plaintiffs’ claims. Specifically, Dr. McDonnell takes issue with
the following portion of the trial court’s conclusions of law:
3 On May 24, 2010, the defendants filed a motion to dismiss the complaint on grounds that it was not being prosecuted by the real party in interest, Wissel, the Trustee of the Bankruptcy Estate of the Harrises. As noted above, the complaint was subsequently amended to show Wissel as the plaintiff. 6 2. The defendant, Francis McDonnell, M.D., failed to comply with the applicable standard of care in his care and treatment of Anita Harris. Specifically, Dr. McDonnell has failed to show that he exercised the reasonable, careful, skillful, and prudent degree of skill as required by law in that Dr. McDonnell: (a) has failed to show that the applicable standard of care was met by not having Mr. Harris drive no more than an additional 15-20 minutes to the hospital to have the catheter initially either removed or reconnected by a medical professional . . . .
Appellant’s App. pp. 10-11 (emphases added). Dr. McDonnell claims that this
establishes that the trial court placed upon him the burden of disproving his negligence,
when the burden of proof was properly on the plaintiffs.
To be sure, the burden of proving a claim of negligence rests with the plaintiff. It
is well settled that, “[i]n a medical malpractice action based on ordinary negligence, the
plaintiff must establish (1) a duty on the part of the defendant physician in relation to the
plaintiff, (2) failure of the physician to meet the requisite standard of care, and (3) an
injury to the plaintiff resulting from that failure.” Spar v. Cha, 907 N.E.2d 974, 979 (Ind.
2009) (emphasis added) (citing Bader v. Johnson, 732 N.E.2d 1212, 1216-17 (Ind. 2000);
Oelling v. Rao, 593 N.E.2d 189, 190 (Ind. 1992)). However, we do not take the language
of the trial court’s order to mean that the trial court did not apply this burden of proof.
We presume that trial courts know the law and apply it correctly. Holtzleiter v.
Holtzleiter, 944 N.E.2d 502, 506 (Ind. Ct. App. 2011). It is quite basic law indeed that
the plaintiff bears the burden of proof. Although the trial court may have used imperfect
language in its findings of fact and conclusions of law, its less-than-perfect choice of
words is insufficient to overcome the presumption that the court knew that the burden of
proof rested with the plaintiffs. Indeed, the extensive findings of fact entered by the court 7 support this conclusion. It is more likely that the trial court was simply noting that the
plaintiffs had established their prima facie case and that Dr. McDonnell’s defense had
failed to overcome this. In short, we are not persuaded that the trial court improperly
placed the burden of proof on the defendant.
II. Clearly Erroneous Judgment
Dr. McDonnell next claims that the trial court’s judgment in favor of the plaintiffs
is clearly erroneous because it is not supported by any findings of fact that Dr.
McDonnell’s failure to act with the proper standard of care was the cause of any injuries
to Anita. Dr. McDonnell claims that there is nothing in the trial court’s findings of fact
and conclusions of law indicating that Anita developed meningitis based upon any act or
omission on the part of Dr. McDonnell. We disagree.
Here, the trial court’s findings and conclusions were extensive, and clearly set
forth what the trial court determined to be Dr. McDonnell’s failure to follow the requisite
standard of care, i.e. directing Roy to reconnect the catheter tube himself instead of
instructing him to take Anita to a nearby hospital where the reconnection could be
properly performed and failing to recognize that Anita was suffering from meningitis as a
result of the non-sterile reconnection of the catheter. The trial court then found that Anita
had sustained damages, and listed the damages it found. Although the trial court’s
findings and conclusions do not explicitly state that Anita’s damages were the result of
Dr. McDonnell’s negligence, it is clear from a reading of the findings and conclusions as
a whole that the trial court concluded that Anita’s damages were caused by Dr.
McDonnell’s negligence. Moreover, the plaintiffs note, and Dr. McDonnell does not
8 deny, that there was ample evidence from which the trial court could have concluded that
Anita’s damages were caused by Dr. McDonnell’s negligence.
III. Damages
Dr. McDonnell also claims that the trial court’s judgment is clearly erroneous
because it contains no findings to support the trial court’s award of damages. Dr.
McDonnell argues that the trial court’s findings of fact and conclusions of law are “silent
as to the amount of any medical expenses or any lost wages or the nature and extent of
any mental or physical impairment incurred by Anita Harris as a result of her meningitis
that is attributable in whole or in part to any failure of Dr. McDonnell to render
appropriate care.” Appellant’s Br. p. 26. Again, we disagree.
The trial court, after concluding that Dr. McDonnell had failed to meet the
requisite standard of care, then delineated what it concluded were Anita’s damages,
which included $48,459.41 in medical expenses, $207,829.38 in lost wages, and
$200,000 for mental and physical impairment, for a total of $456,288.79. The trial court
found in favor of the other defendants and found that only Dr. McDonnell had acted in a
negligent manner. It was therefore unnecessary for the trial court to explicitly state
which portion of the damages were attributable to Dr. McDonnell; it is obvious from the
trial court’s judgment that the court found that all of the damages were attributable to Dr.
McDonnell’s negligence.4
Still, Dr. McDonnell claims that the trial court’s award of damages was improper
because it was based on Plaintiff’s Exhibit 16AA, to which McDonnell objected and now
4 The same is true for the $75,000 for loss of consortium damages awarded to Anita’s husband Roy. 9 claims was improper for the trial court to consider. On appeal, Dr. McDonnell states that,
“absent detailed bills and authentication by affidavit for all of the medial specials claimed
in Plaintiffs Exhibit 16AA and absent any agreement or stipulation as to their authenticity
and admissibility, Plaintiffs Exhibit 16AA as a whole is not admissible.” Appellant’s Br.
p. 27. In this regard, Dr. McDonnell is not so much attacking the validity of the trial
court’s findings regarding damages as he is attacking the admissibility of Plaintiff’s
Exhibit 16AA. However, he sets forth no standard of review for the admissibility of
evidence, cites no evidentiary rules or case law regarding hearsay, nor does he explain
precisely why and which parts of Plaintiffs Exhibit 16AA are inadmissible hearsay. We
therefore consider this evidentiary argument waived. See In re Estate of Carnes, 866
N.E.2d 260, 265 (Ind. Ct. App. 2007) (noting that failure to cite case law or statutory
authority in support of argument results in waiver of that argument) (citing Ind. Appellate
Rule 46(A)(8)(a)); see also Kentucky Nat. Ins. Co. v. Empire Fire & Marine Ins. Co., 919
N.E.2d 565, 586 (Ind. Ct. App. 2010) (holding argument waived for failure to cite
authority or provide cogent argument).
Dr. McDonnell also claims that the trial court’s damages award was improper
because it was not based on any findings of fact regarding the amount of damages, citing
Gabriel v. Windsor, Inc., 843 N.E.2d 29 (Ind. Ct. App. 2006). In that case, we agreed
with the appellant’s argument that the trial court’s judgment was not supported by the
findings because the trial court made no findings on the issue of the damages it awarded.
Id. at 49. However, in Gabriel, the trial court’s judgment stated simply that the appellee
was to recover judgment against Gabriel in the amount of $2,383.41 without explanation.
10 In contrast, the trial court’s judgment awarded Anita $48,459.41 in medical expenses,
$207,829.38 in lost wages, and $200,000 for mental and physical impairment. Had the
trial court delineated these numbers as “findings,” the result would be the same. We
therefore cannot say that the trial court’s award of damages was clearly erroneous.
IV. Prejudgment Interest
Dr. McDonnell also claims that the trial court abused its discretion in awarding
prejudgment interest in its judgment against him. Prejudgment interest represents an
element of complete compensation; it is not simply an award of interest on a judgment,
but rather is recoverable as additional damages to accomplish full compensation.
Johnson v. Eldridge, 799 N.E.2d 29, 32 (Ind. Ct. App. 2003), trans. denied. Pursuant to
Indiana Code section 34-51-4-7, a trial court “may award prejudgment interest as part of
a judgment.” However, the trial court may not award prejudgment interest if, within one
year after the claim is filed,5 the plaintiff fails to make a written offer of settlement to the
defendant(s). Ind. Code § 35-51-4-6(1).6
Here, Dr. McDonnell claims that the award of prejudgment interest was erroneous
because there was no proper offer to settle made by the actual plaintiff. That is, Dr.
McDonnell claims that the Harrises made an offer to settle, but that the Harrises were not
5 This period may be enlarged by the trial court if necessary and upon a showing of good cause. I.C. § 34-51-4-6(1). 6 In addition, the trial court may not award prejudgment interest under this statute if “the terms of the [plaintiff’s] offer fail to provide for payment of the settlement offer within sixty (60) days after the offer is accepted, and “the amount of the offer exceeds one and one-third (1⅓) of the amount of the judgment awarded.” I.C. § 35-51-4-6(2), (3). Similarly, the trial court may not award prejudgment interest if, within nine months after a claim is filed, one of the defendants makes a written offer of settlement to the plaintiff, the terms of the offer include payment within sixty days after the offer is accepted, and the amount of the offer is at least two-thirds (⅔) of the amount of the judgment award. Ind. Code § 34-51-4-5. 11 the proper plaintiffs, and that the Harrises therefore had no right to be able to make an
offer to settle.
As noted above, the Harrises filed their claim on July 28, 2003, but had jointly
filed a petition for bankruptcy on May 14, 2003. The federal bankruptcy Judge granted
the plaintiffs a discharge under Chapter 7 of the federal bankruptcy code in June of 2003.
The parties agree that the Harrises’ claim against Dr. McDonnell was therefore an asset
of the bankruptcy estate and that Wissel, the trustee of the bankruptcy estate, was the
proper party to prosecute the action.
Indeed, after the trial had started, the defendants filed a motion to dismiss the
claims against them on the same grounds the Harrises were not the proper parties. As a
result, an amended complaint was filed on May 24, 2010, substituting Wissel as the
named plaintiff.7 The defendants, including Dr. McDonnell, agreed to this substitution.
But the Plaintiffs made their settlement offer on November 21, 2009, before the amended
complaint naming Wissel as the plaintiff had been filed. Dr. McDonnell therefore claims
that there had been no proper offer to settle because, at the time of the offer, the Harrises
had no authority to make such an offer. We are constrained to agree.
To be sure, it appears that Wissel had hired the Harrises’ counsel to pursue this
action on behalf of the bankruptcy estate. However, this does not alter the fact that, at the
time the settlement offer was made, the Harrises, not Wissel, were the named plaintiffs.
Thus, Wissel, the actual plaintiff, never made an offer to settle. Because the actual
7 On November 4, 2003, Wissel, the bankruptcy trustee, asked the bankruptcy court to hire the Harrises’ counsel to pursue their already-filed claim against Dr. McDonnell on behalf of the bankruptcy estate, and the bankruptcy court subsequently granted this request. 12 plaintiff never made an offer to settle, the trial court should not have awarded
prejudgment interest.8
Nor do we think believe this to be a mere technicality. By ensuring that the proper
plaintiff, i.e. the trustee of the bankruptcy estate, is the party making the settlement offer,
we ensure that creditors of the bankruptcy estate are aware of both the injury claim and
any settlement offer. This minimizes the possibility that an injured party could attempt to
settle an injury claim, which properly belongs to the bankruptcy estate, outside of
bankruptcy, precluding the bankruptcy trustee and the party’s creditors from
administering the injury claim and proceeds of any settlement as assets of the bankruptcy
estate.
Conclusion
We disagree with Dr. McDonnell’s claim that the trial court applied an improper
burden of proof. We further disagree with his claim that the trial court’s finding of
damages was improper. However, we agree with Dr. McDonnell that an award of
prejudgment interest was improper under the facts and circumstances of this case. We
8 Dr. McDonnell claims that prejudgment interest was also improper because the Harrises’ damages were not “readily ascertainable” and could not be “calculated by simple mathematical computation.” See Whited v. Whited, 859 N.E.2d 657, 665 (Ind. 2007). However, our supreme court recently held that the requirement that a plaintiff’s damages be “complete” and “ascertain[able] as of a particular time and in accordance with fixed rules of evidence and known standards of value,” is a common-law standard and is not applicable under the tort prejudgment interest statute at issue here. Kosarko v. Padula, No. 45S03- 1206-CT-310, ___ N.E.2d ___ (Ind., Dec. 12, 2012) (quoting N.Y., Chi. & St. Louis Ry. Co. v. Roper, 176 Ind. 497, 507, 96 N.E. 468, 472 (1911) (setting forth common-law standard)); see also Inman v. State Farm Mut. Auto. Ins. Co., No. 41S01-1108-CT-515, slip op. at 9 n.7, ___ N.E.2d ___ (Ind. Dec. 12, 2012) (noting that in cases involving the tort prejudgment interest statute, the common-law standard requiring damages to be complete and readily ascertainable in order for prejudgment interest to be awarded is “irrelevant to the trial court’s determination.”).
13 therefore affirm the trial court with regard to its findings of liability and damages, but
reverse the trial court’s award of prejudgment interest and remand with instructions that
the trial court modify its judgment to eliminate the award of prejudgment interest.
Affirmed in part, reversed in part, and remanded.
VAIDIK, J., and BARNES, J., concur.