April 27, 2012

On April 12, 2012, the Court of Appeals of Indiana filed its decision in a medical malpractice case in which the plaintiff alleged that his gastroenterologist failed to timely diagnose his colon cancer. The Court of Appeals upheld the verdict in favor of the plaintiff in the amount of $1.25 million, which had been reduced fom the medical malpractice jury’s original verdict in the amount of $2.5 million pursuant to Indiana’s Medical Malpractice Act.

The Underlying Medical Malpractice Facts

The 35-year-old patient visited a gastroenterologist on April 26, 2004 (the same gastroenterologist who had treated his mother for colon cancer for eight years during the 1990s) with complaints including upper stomach pain, nausea, and occasional vomiting,  rectal bleeding, and diarrhea. The gastroenterologist examined the patient, including a digital rectal exam and a hemoccult test that checks for blood in the stools (which was negative), and had the patient undergo an endoscopy procedure known as an EGD (commonly called “an upper GI”) that showed severe gastritis of the stomach, duodenitis, and a gastric ulcer. However, neither a sigmoidoscopy nor a colonoscopy were ordered at that time.

Exactly one year later (on April 26, 2005), the patient visited the gastroenterologist again and obtained refills for his prescriptions in anticipation of his move to Arizona. The gastroenterologist claimed that no discussion was had at that time regarding the patient’s rectal bleeding.

After the patient’s move to Arizona, he came under the care of an Arizona gastroenterologist, who performed a colonoscopy on the patient on August 31, 2006, which revealed a sizable mass lesion in the sigmoid colon that was surgically removed. However, the patient’s diagnosis was that he had a very advanced Stage Four cancer.

The Defenses To The Medical Malpractice Claim

The Indiana gastroenterologist who was sued for medical malpractice alleged during the jury trial that the patient had failed to tell him about his family’s history of colon cancer. The patient testified during the trial that he told the gastroenterologist about his mother’s history of colon cancer during the initial visit in 2004 and that he had also requested a colonoscopy at that time; nonetheless, the gastroenterologist testified that his since his office notes did not state the family history of cancer, the patient had failed to tell him about his mother’s colon cancer, and without knowing the family history of colon cancer at that time, it was unnecessary to order either a sigmoidoscopy or colonoscopy in 2004.

The medical malpractice defendant further alleged that the patient was contributory negligent for failing to mention his rectal bleeding during the visit in 2005 (the patient testified during the medical malpractice trial that he told the gastroenterologist about his continuing rectal bleeding during the visit in 2005).

The Medical Malpractice Defendant’s Appeal

The Indiana Medical Malpractice Act requires that once a medical malpractice claim is filed, a medical review panel must be convened to consider the evidence to determine if the evidence supports that the medical malpractice defendant(s) failed to meet the applicable standard of care.

In this case, the medical review panel concluded that the evidence did not support that the defendant failed to meet the applicable standard of care. The review panel concluded that because the medical records from the defendant’s office did not state a family history of colon cancer, the patient had failed to tell the defendant about his family’s medical history in 2004 and therefore a sigmoidoscopy or colonoscopy at that time was not required.

The medical malpractice defendant sought to have physicians from the medical review panel testify during the medical malpractice trial as to their conclusions that the defendant did not fail to meet the applicable standard of care and that the patient was contributorily negligent because the patient failed to tell the defendant about his family’s medical history of colon cancer during the visit in 2004 and failed to tell the defendant about continuing rectal bleeding during the visit in 2005, based solely on the absence of such documentation in the defendant’s medical records.

The medical malpractice trial judge refused to permit the defendant’s experts from testifying as stated above because their testimony involved their opinions regarding the credibility (truthfulness) of the patient’s testimony, which is impermissble. The Court of Appeals of Indiana agreed with the trial judge’s decision in this regard, stating in its written opinion in this case, The “ultimate point” of the proffered testimony was that [the patient] was not truthful on the question of whether he had reported a family history of colon cancer and continued rectal bleeding in 2005. See Whedon, 900 N.E.2d at 506. That testimony was directed to [the patient’s] credibility as prohibited by Evidence Rule 704(b). Indeed, as our supreme court recently reiterated, “no witness, whether lay or expert, is competent to testify that another witness is or is not telling the truth.”


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