FOR PUBLICATION


ATTORNEYS FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

JAMES L. HOUGH                                 DAVID J. CUTSHAW
AMI ANDERSON NOREN                             GABRIEL A. HAWKINS
Merrillville, Indiana                          KELLEY J. JOHNSON
                                               Indianapolis, Indiana

                                               BARRY D. ROOTH
                                               HOLLY S.C. WOJCIK
                                               Merrillville, Indiana
                                                                         FILED
                                                                       Jan 31 2013, 9:02 am


                                                                              CLERK
                                                                            of the supreme court,


                              IN THE
                                                                            court of appeals and
                                                                                   tax court




                    COURT OF APPEALS OF INDIANA

MARK S. WEINBERGER, M.D., et al.,              )
                                               )
      Appellant-Defendants,                    )
                                               )
              vs.                              )       No. 45A05-1203-CT-107
                                               )
GLORIA GILL,                                   )
                                               )
      Appellee-Plaintiff.                      )


                     APPEAL FROM THE LAKE SUPERIOR COURT
                         The Honorable William E. Davis, Judge
                            Cause No. 45D05-1007-CT-127


                                    January 31, 2013

                              OPINION – FOR PUBLICATION

PYLE, Judge
                             STATEMENT OF THE CASE

       Mark S. Weinberger, (“Weinberger”) M.D.; Mark Weinberger, M.D., P.C.;

Merrillville Center for Advanced Surgery, LLC; and Nose and Sinus Center, LLC,

(collectively, “the Weinberger Entities”), appeal the jury’s award of damages in the

amount of $150,000 to Gloria Gill (“Gill”) following Gill’s medical malpractice action.

       We affirm.

                                         ISSUES

       1.     Whether the trial court erred by denying the Weinberger Entities’
              motion for judgment on the evidence.

       2.     Whether the trial court erred in admitting evidence.


                                         FACTS

       In December 2003, forty-seven-year-old Gill sought treatment from Weinberger

for migraines and “congestion.”      (Tr. 1406).    Weinberger ordered a CT scan and

informed Gill that polyps in her sinuses were causing her discomfort. Weinberger told

Gill that sinus surgery would solve her problems. Three weeks later, on December 27,

2003, Weinberger performed surgery on Gill.         The operative report indicated that

Weinberger performed nearly every type of procedure within the field of sinus and nose

surgery in the single surgery, including the following seven procedures: 1) bilateral total

endoscopic ethmoidectomy with stereotactic guidance; 2) bilateral endoscopic maxillary

antrostomy with stereotactic guidance; 3) bilateral endoscopic sphenoidotomy with

stereotactic guidance; 4) radiofrequency palate reduction; 5) bilateral radiofrequency

                                                2
turbinate reduction; 6) image-guided endoscopic sinus surgery with Stryker navigation

system; and 7) septoplasty. Immediately after surgery, Weinberger told Gill’s husband

that the surgery was a success but that a second surgery might be necessary.

       Following surgery, Gill was in considerable pain and her sinuses bled for several

days. During her first post-operative appointment with Weinberger in January 2004, Gill

explained that she was feeling worse than she did before the surgery and that she had

shooting pains through her face. Weinberger inserted a scope up both sides of Gill’s nose

without using numbing spray, which caused Gill a great deal of pain. His medical notes

state that it was a “routine postop visit,” and that Gill was “healing well.” (Tr. 1426).

       During subsequent visits, Gill continued to complain that she was not feeling any

better and that she had sharp pains shooting through her face and cheekbones.

Weinberger, however, rarely responded to Gill’s concerns.               According to Gill,

“Weinberger didn’t say . . . five words to [her] after [her] surgery.” (Tr. 1434). Five

months after surgery, with Weinberger failing to address her concerns or even speak to

her, Gill decided to stop attending her follow-up appointments. Her last appointment

with Weinberger was on April 7, 2004.

       During the nine months following the surgery, Gill was unable to ride her

motorcycle because the wind “getting up into [her] nose and [her] head” was too painful.

(Tr. 1437). She began snoring so loudly that she and her husband could no longer sleep

in the same bed or room together. Further, Gill’s congestion, pressure, and headaches

were all much worse than before she had surgery.

                                                 3
      In September 2004, Gill saw Weinberger’s face “plastered up on the TV,” and

learned that while he was on vacation in the Mediterranean with his family, Weinberger

disappeared in the middle of the night. (Tr. 1439). Weinberger never notified his

patients that he was leaving his practice or referred them to another doctor. Shortly

thereafter, Gill, who was still suffering from congestion, pressure, and drainage,

scheduled an appointment with Dr. Dennis Han. The results of a CT scan revealed that

the only procedure Weinberger had performed during Gill’s surgery was drilling two

unnecessary holes in her sinuses. The holes resulted in chronic sinusitis caused by

recirculation issues. Specifically, Dr. Han explained the recirculation phenomenon as

follows:

      If you place a surgical opening further back along the natural drainage
      pathway of the maxillary sinus and the nose, the mucus just falls right back
      into the sinus. . . . So the mucus is normally secreted in the maxillary
      sinuses, it just keeps on recirculating into the nasal cavity and then falls
      back in the sinus and you get a mucus buildup and inflammation. And the
      main symptom for that would be inflammation that might cause initial
      congestion, but also patients have excessive drainage, post-nasal drip from
      this condition.

(Tr. 483-84).    Dr. Han recommended corrective surgery, which he performed in

December 2004.

      Shortly thereafter, Gill filed a proposed complaint for medical malpractice against

the Weinberger Entities with the Indiana Department of Insurance. Also in December

2009, Weinberger was apprehended in a tent in the Italian Alps. On December 17, 2009,

the medical review panel issued a unanimous opinion, finding that the Weinberger


                                              4
Entities had failed to comply with the appropriate standard of care. On March 12, 2010,

Gill filed her Complaint for medical malpractice against the Weinberger Entities. The

Complaint provides in relevant part as follows:

       1.     At all times relevant hereto, Gloria Gill, was a patient of
              Weinberger.

       2.     At all times relevant hereto, Weinberger was a physician duly
              licensed to practice medicine under the laws of the State of Indiana.

       3.     On October 3, 2003, Weinberger undertook the care and treatment of
              the plaintiff.

       4.     In caring for and treating the plaintiff, Weinberger failed to comply
              with the applicable standards of care.

       5.     As a direct and proximate result of said acts and omissions on the
              part of Weinberger, the plaintiff suffered severe and permanent
              physical injuries and disabilities which affect her ability to enjoy
              life, has suffered and will continue to suffer in the future, great pain,
              emotional distress and mental trauma, has incurred and will continue
              to incur in the future, reasonable medical and related expenses, and
              has lost and will continue to lose wages, profits and income.

(Appellant’s App. 24).

       At the outset of trial, which began on October 31, 2011, the trial court instructed

the jurors regarding the following seven separate and distinct acts of medical malpractice:

       In this lawsuit, Gloria Gill, claims that Dr. Mark Weinberger committed the
       following acts of malpractice and that Dr. Weinberger’s corporations are
       also responsible for these acts of malpractice:

       1.     Dr. Weinberger failed to recommend non-surgical treatment for Mrs.
              Gill’s symptoms, such as medicines or allergy testing, before
              recommending and performing sinus surgery on Mrs. Gill.



                                                  5
      2.        Dr. Weinberger misread Mrs. Gill’s X-rays as showing extensive
                sinus disease and problems, which Dr. Weinberger used as a basis
                for negligently recommending surgery even though Mrs. Gill had no
                disease in her sinuses.

      3.        Because Dr. Weinberger failed to tell Mrs. Gill what her actual
                medical problems were and what he was actually going to do during
                surgery, Dr. Weinberger failed to get Mrs. Gill’s informed consent to
                do surgery.

      4.        Because Mrs. Gill did not actually have sinus disease, there was no
                need to perform surgery on her and Dr. Weinberger performed
                unnecessary surgery under general anesthesia.

      5.        Dr. Weinberger failed to perform the surgeries he told Mrs. Gill he
                was going to do and billed her for these surgeries anyway.

      6.        Instead of doing a proper surgery to Mrs. Gill’s maxillary sinuses,
                Dr. Weinberger unnecessarily and improperly drilled two holes in
                Mrs. Gill’s sinuses where they are not supposed to be.

      7.        Dr. Weinberger abandoned Mrs. Gill when she needed treatment for
                complications caused by his surgery and left the country.

      8.        The Defendants deny that they committed any acts of medical
                malpractice.

(Tr. 350-51).

      During the trial, Gill’s expert witness, Dr. Victor Mokarry, testified that based

upon his review of the CT scans of Gill’s sinuses that were taken and read by Weinberger

before Gill’s sinus surgery, Gill did not have sinus disease. Specifically, the scans did

not show what Weinberger said that they did, and Gill’s sinus surgery was unnecessary.

Dr. Mokarry further testified that Weinberg’s recommendation for surgery based on these

scans, his failure to make any effort to recommend treatment other than surgery on the


                                                 6
first day he met with Gill, and his recommendation of unnecessary surgery were all

violations of the applicable standards of care.     Also at trial, Gill testified, without

objection, that she felt angry and humiliated when she learned that Weinberger had

disappeared in the middle of the night. She felt this way because Weinberger was her

doctor, and she had trusted him.

       In addition, Janet Gadacz, Weinberger’s former patient liaison, testified by video

deposition that in the summer of 2004, Weinberger received thirty to forty packages that

included tents, camping equipment, and tarps.       She further testified that one day a

limousine pulled up and six to eight businessmen that carried briefcases and did not speak

English well were taken to a conference room to meet with Weinberger. The limousine

driver apparently told Weinberger’s staff that the men possibly had diamonds in their

briefcases. Also during that time, several banks called Weinberger to confirm unusual

activity on his credit cards as well as large withdrawals from ATM’s. Lastly, Gadacz

testified that during this time, medical malpractice lawsuits began arriving at the office.

Weinberger seemed very anxious, and, although he was generally a very meticulous

clean-cut man, he began walking around the office partially clothed with stubble on his

face. Concerned about what was going on in the office, Gadacz gave a two-week notice

and resigned her position.

       Weinberger’s former wife, Michelle Kramer, testified by video deposition that

after Weinberger disappeared in the Mediterranean, she realized that bookkeeping

practices had changed in his office and that Weinberger had “planned to leave.” (Tr.

                                                7
1283). Kramer concluded that Weinberger had disappeared because the “lawsuits” were

threatening him. (Tr. 1290).

      In addition, Robert Handler, the receiver appointed to manage Weinberger’s

medical practice after he left the country, testified by video deposition that Weinberger

abandoned his practice a few weeks before Handler was appointed to be the receiver.

Handler also explained that Weinberger had sent a large package of camping supplies to

Paris before he left for the Mediterranean. Handler was able to recover the package from

FedEx in Paris before Weinberger picked it up. The package contained hiking gloves,

hiking socks, a portable hammock, electric foreign language translators, tent poles,

sleeping bags, travel guides, and money hidden in one of the guides. Handler also

testified that there was a lot of camping equipment found in Weinberger’s office.

      At the close of Gill’s case-in-chief, the Weinberger Entities moved for judgment

on the evidence with respect to Weinberger’s abandonment of Gill, which the trial court

denied.   The Weinberger Entities renewed their motion after their presentation of

evidence. At the close of the evidence, the trial court re-instructed the jury about the

seven alleged acts of medical malpractice. A jury awarded Gill damages in the amount of

$150,000, and the Weinberger Entities appeal.

                                       DECISION

1.    Judgment on the Evidence

      The standard of review for a challenge to a ruling on a motion for judgment on the

evidence is the same as the standard governing the trial court in making its decision.

                                                8
Newland Resources, LLC v. Branham Corp., 918 N.E.2d 763, 770 (Ind. Ct. App. 2009).

Judgment on the evidence is proper only where all or some of the issues are not supported

by sufficient evidence. Id. The court looks only to the evidence and the reasonable

inferences drawn most favorable to the nonmoving party, and the motion should be

granted only where there is no substantial evidence supporting an essential issue in the

case. Id.

       The Weinberger Entities argue that the trial court erred in denying their motion for

judgment on the evidence regarding Gill’s claim of patient abandonment. We addressed

this same issue in Weinberger v. Boyer, 956 N.E.2d 1095 (Ind. Ct. App. 2011), trans.

denied. In that case, Boyer, like Gill, sought treatment from Weinberger for recurring

problems with nasal congestion. Thirty minutes after Boyer walked into Weinberger’s

office without an appointment and agreed to a CT scan, Weinberger told Boyer that

Boyer had sinus polyps and needed sinus surgery as soon as possible. Boyer had surgery

in January 2004. Like Gill, he subsequently had more congestion problems than he did

before surgery. After several months of placing rods in Boyer’s nose to allegedly remove

scarring, Weinberger suggested a second surgery. However, before the surgery was

scheduled, Weinberger disappeared. Boyer, like Gill, filed a medical malpractice action

against the Weinberger Entities. A jury subsequently awarded Boyer $300,000.

       The Weinberger Entities appealed and argued that the trial court erred in denying

its motion for judgment on the evidence regarding Boyer’s claim of patient abandonment.

This Court concluded that where only a claim for medical malpractice was made and no

                                                9
separate tort claim for patient abandonment was raised, the Weinberger Entities’ motion

for judgment on the evidence was not directed at a critical or essential element of the

medical malpractice claim but rather at an underlying issue with respect to the standard of

care. We therefore affirmed the trial court’s denial of the Weinberger Entities’ motion.

       Here, as in Boyer, Gill made only a claim for medical malpractice and no separate

tort claim for patient abandonment was raised. Therefore, as in Boyer, the Weinberger

Entities’ motion for judgment on the evidence was not directed at a critical or essential

element of the medical malpractice claim but rather at an underlying issue with respect to

the standard of care, and the trial court did not err in denying the Weinberger Entities’

motion.

2.     Admission of Evidence

       The Weinberger Entities next argue that the trial court erred in admitting evidence.

Specifically, they contend that the trial court erred in admitting evidence of (1)

Weinberger’s preparation for and subsequent flight; and (2) Gill’s humiliation and anger

when she learned about Weinberger’s disappearance.            We address each of their

contentions in turn.

       The standard of review for admissibility of evidence is abuse of discretion.

Blocher v. DeBartolo Properties Management Inc., 760 N.E.2d 229, 233 (Ind. Ct. App.

2001), trans. denied. The trial court abuses its discretion only when its action is clearly

erroneous and against the logic and effect of the facts and circumstances before the court.



                                               10
Id. Even if the trial court errs in its ruling on the admissibility of evidence, this Court

will reverse only if the error is inconsistent with substantial justice. Id.

       The Weinberger Entities first claim that the trial court erred in admitting evidence

of Weinberger’s preparation for and subsequent flight because there was no evidence that

Weinberger’s departure was related to any care or treatment rendered to Gill. We also

addressed this same issue in Boyer. There, we noted that Boyer introduced evidence of

Weinberger’s behavior prior to his flight mainly through the testimony of Gadacz, his

patient liaison.    Specifically, Gadacz testified that a month before Weinberger

disappeared, up to thirty to forty packages came into the office containing camping

equipment. She also told the jury that six to eight visitors who did not speak English well

met with Weinberger. In addition, she testified that banks were calling the office to

inquire about unusual activity in Weinberger’s accounts.             We noted that through

Gadacz’s testimony, Boyer established that Weinberger was collecting the necessary cash

and materials to flee the country, thereby abandoning Boyer.

       We pointed out that we have previously held that a sudden trip can be

characterized as flight and, although standing alone does not raise a presumption of guilt,

it is competent to show consciousness of guilt. Boyer, 956 N.E.2d t 1114 (citing Gash v.

Kohm, 476 N.E.2d 910, 915 (Ind. Ct. App. 1985), trans. denied. We also cited two other

cases where we analogized a defendant’s disposition of property to flight and allowed a

similar inference of consciousness of guilt. See Harrod v. Bisson, 48 Ind.App. 549, 93

N.E. 1093 (1911) (evidence of physician transferring assets after a malpractice claim was

                                                  11
filed against him); Myers v. Moore, 3 Ind. App. 226, 28 N.E. 724 (1891). We therefore

concluded that the testimony concerning Weinberger’s odd behavior preceding his flight

was relevant evidence because it established an inference of consciousness of guilt.

Boyer, 956 N.E.2d at 1107. We found no error in the admission of this evidence. Id. at

1114.

        Here, as in Boyer, Gadacz testified that Weinberger received thirty to forty

packages with tents and camping equipment. She further testified about the arrival of the

men who did not speak English well and the telephone calls from several banks

confirming Weinberger’s unusual activity and large ATM withdrawals. She also testified

that medical malpractice lawsuits began arriving at the office, and Weinberger appeared

very anxious. In addition, Weinberger’s wife testified that after Weinberger disappeared,

she realized that he had planned to disappear. Lastly, receiver Handler testified that there

was a lot of camping equipment found in Weinberger’s office and that he was able to

recover a large FedEx package with more camping equipment that Weinberger sent to

Paris. Here, as in Boyer, we conclude that the testimony concerning Weinberger’s odd

behavior and subsequent flight was relevant admissible evidence because it established

an inference of consciousness of guilt.

        Nevertheless, the Weinberger Entities contend that Boyer is factually

distinguishable from this case because Boyer had additional treatment scheduled with

Weinberger when Weinberger left the country. The Weinberger Entities allege that Gill’s

relationship with Weinberger ended on her last visit on April 7, 2004, and that any

                                                12
actions on his part after that date are inadmissible. The Weinberger Entities further

allege that in order for flight to be evidence of consciousness of guilt, it must be shown

that the flight was caused by the incident at issue. According to the Weinberger Entities,

there is no evidence that his flight was “in any way related to the medical treatment

[Weinberger] rendered to [Gill].” Appellant’s Br. at 13.

       First, to the extent the Weinberger Entities argue that Weinberger no longer owed

a duty to Gill because her last office visit was on April 7, 2004, they are mistaken. The

Indiana Supreme Court has made clear that a physician’s duty to a patient does not

terminate upon the cessation of services if the physician is aware of the need for future

care. See Harris v. Raymond, 715 N.E.2d 388 (Ind. 1999) (holding that a physician or

oral surgeon who implants a medical device in a patient has a duty to warn both current

and former patients of safety issues raised by the manufacturer and/or the FDA because

in such a case, there is no bright line test for distinguishing between a current patient who

perhaps has not seen the provider for quite some time and a former patient who has

intentionally severed all ties with the provider). Here, Weinberger was aware that he put

two unnecessary holes in Gill’s sinuses and that she needed corrective surgery. Because

Weinberger was aware of Gill’s need for future care, his duty to her did not terminate on

her last visit to his office in April 2004.

       Further, our review of the evidence reveals that Gadacz testified that Weinberger

seemed very anxious when medical malpractice lawsuits began arriving at the office.

Specifically, the previously meticulous and clean-cut physician began walking around the

                                                13
office partially clothed with stubble on his face. Weinberger’s wife concluded that

Weinberger disappeared because the lawsuits were threatening him. We agree with Gill

that it is unlikely that any single lawsuit standing alone was the motivation for

Weinberger’s flight.       Rather, his motivation was his knowledge that many medical

malpractice claims had already been and would continue to be filed. Gill’s claim was one

of them. Under these circumstances, Gill, like Boyer, was permitted to use Weinberger’s

flight to establish consciousness of guilt.1 The trial court did not err in admitting the

evidence of Weinberger’s flight into evidence.

        The Weinberger Entities also allege that the trial court erred in allowing Gill to

testify that she felt humiliated and angry when she learned that Weinberger had

disappeared in the middle of the night. Specifically, the Weinberger Entities argue that

the “trial court committed additional error by allowing Ms. Gill to argue and recover

damages for her alleged emotional distress resulting from Dr. Weinberger’s departure

from the country because Indiana law precludes such a recovery in the absence of direct

physical impact.” Appellant’s Br. p. 17.

        The Weinberger Entities have waived appellate review of this issue because they

failed to object to Gill’s testimony at trial. See Myers v. State. 887 N.E.2d 170, 184 (Ind.



        1
         In a single sentence at the end of their argument, the Weinberger Entities claim that the flight
evidence “should have been excluded under Rule 403 of the Indiana Rules of Evidence as well.”
Appellant’s Br. at 17. Because the Weinberger Entities deem these allegations only worthy of a single
sentence and have not favored us with a cogent argument supported by legal authority and references to
the record, their claims are waived for our review. See Boyer, 956 N.E.2d at 1108, n. 2 (citing Ind.
Appellate Rule 46(A)(8)).
                                                       14
Ct. App. 2008), trans. denied, (stating that the failure to make a contemporaneous

objection to the admission of evidence at trial results in waiver of the issue on appeal).

       Affirmed.

ROBB, C.J., and MAY, J., concur.




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