CASE 10

Cahoon v. Cummings, 734 N.E.2d 535 (Ind. 2000)

Abstract

This was a wrongful death action, in which the plaintiff alleged that the defendant physicians negligently failed to diagnose and treat the decedent's esophageal cancer. A Medical Review Panel determined that the defendants "failed to follow the appropriate standard of care, but that their conduct ‘was not a factor of the resultant damages.’

After a jury trial, the trial judge instructed the jury that the plaintiff could recover wrongful death damages in full if the jury determined that the defendants' negligence was a "substantial factor" in causing the decedent's death. From a judgment on a jury verdict for the plaintiff for the full amount of damages, the defendants appealed.

Parties

Plaintiff Below (Appellee): Glessie Joann Cummings, wife of the deceased, William T. Cummings,

Defendants Below (Appellants) Jeffrey S. Cahoon, M.D. Shari A. Kohne and Edward L. Kennedy, Co-

Executors of the Estate of Robert W. Kohne, M.D.

Facts

William T. Cummings, the decedent Dr. Robert W. Khone, the decedent’s family

doctor who had died before the trail. In December of 1991,Cummings sought the

treatment of Khone for heartbum-like symptoms.

Kohne ordered x-rays of Cummings esophagus, stomach, and small bowel.

The x-rays were interpreted by Dr. Jeffrey S. Cahoon

Cahoon diagnosed Cummings with a hiatal hernia( 食管裂孔疝 ) and reflux esophagitis( 反流性食管炎 )

Kohne told Cummins that he could not have surgery “at [his] weight” and directed him to lose weight, refrain from eating greasy foods, and sleep sitting up.

In this time, Cummings had been to the emergency room at another hospital with a perforated esophagus that had hemorrhaged. ( 食道穿孔而导致的出血 )

In July 1992, after Cummings had lost about eighty pounds, he returned to Kohne.

Kohne arranged for further consultation and treatment and Cummings was then diagnosed as suffering from esophageal cancer( 食道癌） and died in August of 1993.

Basic rules

Mayhue rule, under which a medical malpractice plaintiff can satisfy the proximate cause requirement by proving that the physician's negligence increased the risk of harm and that this increased risk was a substantial factor in causing the harm suffered by the plaintiff applied to wrongful death action and the amount of damages are measured in proportion to increased risk attributable to physician's negligent act or omission, not by full extent of ultimate injury.

“Election of remedies doctrine,” which 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, 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.

A plaintiff cannot recover on both a wrongful death claim and a survival claim based on increased risk of harm if the same wrong caused both the death and increased risk of harm; if the alleged result of the defendant's acts that increase the risk of harm is death itself, the patient's survival claim is converted into a wrongful death or related action

Spoliation rule permits an adverse inference to be drawn against a party who destroys, suppresses, or alters evidence in his or her exclusive possession.

Prejudgment Interest: Physician who with no reasonable excuse rejected offer to settle medical malpractice action was responsible for payment of prejudgment interest

The disputes

I. The Application of Mayhue to a Wrongful Death Suit Arguments of defendants: the relaxed

causation standard of Mayhue is inapplicable in a wrongful death case because the wrongful death statute, by its terms, demands that the defendant's actions be the proximate cause of the death of the victim.

Conclusion of court

Disapprove. The wrongful death statute requires causation, but it does not specify that a plaintiff must establish proximate causation. So the Mayhue standard of causation is not inconsistent with the statute.

II. Damages Arguments of defendants: 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. Because when medical malpractice plaintiff establishes causation under Mayhue rule, the amount of damages are measured in proportion to increased risk attributable to physician's negligent act or omission, not by full extent of ultimate injury.

Conclusion of court

Approve. The instruction is inconsistent with the statutory

requirement that the loss be caused by the defendant who only increased the risk of an already likely result.

And the trail court did not specify which damages were awarded on two theories

.As a result, remand for a new trial is required.

III. Election of Remedies

Argument of defendant: it was error for the trial judge to allow jury instructions as to both wrongful death and survival actions. 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.

Conclusion of court Disapprove

Trial Rule 8(E)(2) has abolished the requirement for election of remedies at the pleading stage in the federal courts

It will avoid the problem that a plaintiff may recover from nothing on a valid claim if forced to elect only one theory

The Election of Remedies is designed to avoid double recovery not the pursuing of the two claim

Also, the trail court instructed the jury that plaintiff could not be awarded both damages, which already ensured avoiding double recovery

IV. Survival Instruction

The argument of defendants: the trial court instruction regarding survival actions misstated the law, which included damages for “loss of chance” (the increased risk of harm) in the survival action.

Conclusion of court

Disapprove There is a precedent that shows the “loss of

chance” is recoverable in survival action. Here the delay in diagnosis resulted in an

accelerated death, or decreased life expectancy. So the loss of chance caused by the wrongful act or omission is compensable.

V. Alteration of Medical Records

Argument of defendants: the medical record was recognized as the evidence of “spoliation”, then this kind of evidence was inadmissible

Conclusion of court

Disapprove Spoliation evidence is admissible to show the

defendant's consciousness of guilt and the strength of his or her case generally

And physician‘s additions to patient’s medical records warranted adverse inference ( 不利推定） to be drawn against physician on issue of proximate cause

VI. Prejudgment Interest Argument of defendants: there is two reasons why

the defendants did not compensate for plaintiff : 1,the terms of the offer to settle made

by plaintiff did not provide that the defendants must pay the all $75,001 by once within sixty days

2,the offer was unclear as to how much was attributable to which defendant.

Conclusion of court

Disapprove An offer to “settle this claim now for $75,001”(cited from

the plaintiff’s offer) clearly conveys a demand for a lump sum payable forthwith( 一次性支付）

An offer to settle “now” is an offer to settle by payment within sixty days (a legal time limit) according the Prejudgment Interest Act

The statute requires only that the offer be made to the “party or parties” who have been sued. Either defendant, by paying up the full $75,000 could have terminated the case as to himself and the other doctor.

Under those circumstances, there is no reason why both doctor 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

In sum

Reverse the judgment of trail court and remand a new trail.

Q&A