 Pursuant to Ind. Appellate Rule 65(D), this
 Memorandum Decision shall not be
 regarded as precedent or cited before any                     FILED
                                                            Jul 24 2012, 9:19 am
 court except for the purpose of establishing
 the defense of res judicata, collateral
 estoppel, or the law of the case.                                  CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
                                                                         tax court




ATTORNEYS FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

TINA M. BELL                                        EDWARD J. LIPTAK
DAVID W. STEWART                                    JEREMY M. DILTS
Stewart & Stewart                                   Carson Boxberger LLP
Carmel, Indiana                                     Bloomington, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

LARRY EDWARD RUBLE, JR.,                            )
Individually and as Administrator of                )
the ESTATE OF NATASHA RUBLE,                        )
Deceased,                                           )
                                                    )
       Appellant-Plaintiff,                         )
                                                    )
               vs.                                  )     No. 53A05-1109-CT-488
                                                    )
LORI THOMPSON, M.D.,                                )
                                                    )
       Appellee-Defendant.                          )


                      APPEAL FROM THE MONROE CIRCUIT COURT
                           The Honorable Frances G. Hill, Judge
                             Cause No. 53C06-0407-CT-1271



                                           July 24 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge
       Larry Edward Ruble, Jr. (“Larry”), individually, and as the administrator of the Estate

of his deceased wife, Natasha Ruble (“Natasha”) (collectively “the Estate”), appeals from the

trial court’s judgment on a defense verdict in a medical malpractice action against Lori

Thompson, M.D. (“Dr. Thompson”), alleging a failure to make a timely diagnosis of liver

cancer and failure to maintain medical records. The Estate presents the following restated

issues for our review:

       I.     Whether the trial court abused its discretion by limiting the scope of
              questions during Dr. Thompson’s deposition; and

       II.    Whether the trial court abused its discretion by refusing the Estate’s
              tendered instructions on medical record keeping and increased risk of
              harm.

       We affirm.

                         FACTS AND PROCEDURAL HISTORY

       In September of 1998, Natasha, who was then fifteen years old, began seeing a family

practice physician Dr. Thompson. Natasha’s mother had been concerned that Natasha’s

former doctor was not providing adequate answers about the cause of Natasha’s abdominal

pain and discomfort and chose to change physicians. Natasha first saw Dr. Thompson on

Thompson’s first day in private practice after finishing her residency. Natasha was one of

Dr. Thompson’s three or five patients at that time.

       In July of 2002, after twenty office visits in the course of approximately forty-six

months, it was discovered that Natasha suffered from a slower growing form of liver cancer.

A physician’s assistant in Dr. Thompson’s office requested a CT scan, which led to the

discovery of Natasha’s cancer. When the cancer was diagnosed, the cancerous lesion found


                                              2
in her liver was approximately 18 centimeters in size. Lesions such as the one found in

Natasha’s liver can be discovered by use of a CT, MRI, and ultrasound when the lesion is as

small as one centimeter. Dr. Kelly Wright, a liver surgeon, testified at trial that if the cancer

had been diagnosed even one year earlier, Natasha would have had a greater than 50%

chance of survival, because the cancer would not yet have metastasized. Dr. Dale Rouch

testified that by November of 2001, Natasha’s chance of survival had fallen to 5%.

        Natasha married Larry on March 15, 2003. On April 30, 2004, Natasha died as a

result of hepatocellular carcinoma, or liver cancer. The Estate filed a proposed complaint

with the Department of Insurance alleging malpractice against Dr. Thompson on July 7,

2004.1 The next day, the Estate filed its state court complaint against Dr. Thompson. The

complaints alleged that during the time Dr. Thompson provided medical care and treatment

to Natasha, Dr. Thompson failed to treat her in compliance with reasonable and accepted

standards of medical care. The Estate deposed Dr. Thompson for more than five hours on

August 26, 2008. On January 15, 2010, the medical review panel (“MRP”) unanimously

found that Dr. Thompson had failed to comply with the appropriate standard of care.

        After the MRP issued its opinion, the complaint against Dr. Thompson proceeded in

state court. On August 11, 2010, the trial court scheduled the matter for a five-day trial,

which began on August 29, 2011. On July 22, 2011, the Estate requested a second deposition

of Dr. Thompson, and the notice of deposition requested that it take place on July 28, 2011.




        1
         The proposed complaint named other physician defendants, but the medical review panel
unanimously found that none of the other physicians had failed to comply with the appropriate standard of
care. Those physician-defendants were subsequently dismissed from the state court complaint.

                                                   3
On July 25, 2011, counsel for Dr. Thompson filed a motion for protective order and a motion

to quash the notice. On July 28, 2011, a hearing was held and the trial court ruled that the

deposition of Dr. Thompson could go forward, but the questions would be limited to the list

of topics provided to the trial court and previously disclosed to Dr. Thompson’s counsel.

That deposition took place on August 18, 2011. During the deposition, the Estate attempted

to ask questions that were beyond the list of topics that had been provided to counsel for Dr.

Thompson and the trial court. Dr. Thompson’s counsel instructed her not to answer those

questions, and she did as instructed.

       Also at the July 28, 2011 hearing, the Estate requested sanctions against Dr.

Thompson as a result of her failure to produce during discovery a portion of the medical

records applicable to her care and treatment of Natasha. The Estate asked for a default

judgment or, in the alternative, that the burden of proof be shifted to Dr. Thompson as

sanctions for the alleged discovery violation. An additional hearing was held on August 15,

2011, on the Estate’s request for sanctions. Those requests were denied in the trial court’s

August 22, 2011 final pre-trial conference order.

       On August 23, 2011, the Estate filed a motion to compel the answers to the deposition

questions not answered by Dr. Thompson and to be relieved from the limitation on the right

to depose her. That motion was denied on August 26, 2011. At the conclusion of the jury

trial, the jury returned a defense verdict in favor of Dr. Thompson. The Estate moved for a

judgment notwithstanding the verdict, which was denied by the trial court. The Estate now

appeals. Additional facts will be supplied as necessary.



                                              4
                              DISCUSSION AND DECISION

                                 I. Deposition Limitations

       The Estate claims that the trial court abused its discretion by limiting the topics that

could be covered in Dr. Thompson’s August 18, 2011 deposition, and by denying the motion

to compel the answers to the deposition questions not answered by Dr. Thompson and for

relief from the limitation on the right to depose her. Dr. Thompson had been deposed when

the proposed complaint was before the MRP. The Estate argued that because of the differing

nature of the proceedings, questions which would be relevant in the state court proceedings

were not asked in the previous deposition. The Estate contends that the trial court erred by

failing to compel Dr. Thompson to answer questions that were not on the list of topics or that

were derivative of the topics listed.

       A trial court is accorded broad discretion when ruling on discovery issues, and we will

interfere only when a party establishes that the trial court has abused that discretion. Allstate

Ins. Co. v. Scroghan, 851 N.E.2d 317, 321 (Ind. Ct. App. 2006). We will find that a trial

court abuses its discretion when it reaches a conclusion that is against the logic and the

natural inferences that can be drawn from the facts and circumstances before it. Old Ind.

Ltd. Liab. Co. v. Montano ex rel. Montano, 732 N.E.2d 179, 183 (Ind. Ct. App. 2000).

Additionally, an abuse of discretion will be found when the trial court misinterprets or

misapplies the law. Id. Because discovery matters are fact sensitive, the trial court’s ruling

is clothed with a presumption of correctness on appeal. Wright v. Mount-Auburn Day Care,

831 N.E.2d 158, 162 (Ind. Ct. App. 2005).



                                               5
       “[P]arties may obtain discovery regarding any matter relevant to the subject matter

involved in the pending action, or which appears reasonably calculated to lead to the

discovery of admissible evidence.” Jacob v. Chaplin, 639 N.E.2d 1010, 1012 (Ind. 1994)

(citing Ind. Tr. Rule 26(B)). However, Trial Rule 26(B) also allows a trial court to limit the

use of discovery methods if, for instance, “the discovery is unreasonably cumulative or

duplicative. . . .” The trial court may impose the limitation sua sponte or pursuant to a

motion under Trial Rule 26(C). After receiving the notice of deposition, Dr. Thompson filed

a motion for protective order pursuant to Trial Rule 26(C).

       Indiana Trial Rule 26(C) provides as follows:

       (C) Protective orders. Upon motion by any party or by the person from
       whom discovery is sought, and for good cause shown, the court in which the
       action is pending or alternatively, on matters relating to a deposition, the court
       in the county where the deposition is being taken, may make any order which
       justice requires to protect a party or person from annoyance, embarrassment,
       oppression, or undue burden or expense, including one or more of the
       following:

       ....

       (4) that certain matters not be inquired into, or that the scope of discovery be
       limited to certain matters;

       ....

Thus, there is no question whether the trial court had the discretion to enter a protective

order; the question is whether the trial court abused its discretion in limiting the second

deposition in the ways that it did.

       Dr. Thompson had argued that the timing of the second deposition would constitute an

undue burden on her personally and professionally and that her attorneys would have to shift


                                               6
from trial preparation to deposition preparation. To the extent that the trial court’s ruling was

based on Dr. Thompson’s objection to the deposition because it was requested on the eve of

trial, the trial court abused its discretion. The deposition request was within the agreed upon

discovery period. A defendant cannot agree to a discovery time table and then object on the

basis of timing when the timing is within the agreed upon parameters. Patel v. Barker, 742

N.E.2d 28, 33 (Ind. Ct. App. 2001) (invited error is not reversible error).

       The Estate also argues that the trial court abused its discretion by limiting the topics

that could be covered in Dr. Thompson’s August 18, 2011 deposition, and by denying the

motion to compel the answers to the deposition questions not answered by Dr. Thompson.

       In support of the Estate’s motion to compel Dr. Thompson’s second deposition,

counsel for the Estate included an email exchange between counsel for the two parties in

which counsel for the Estate set forth “the primary area of focus” for the second deposition.

Appellant’s App. at 147. Counsel for the Estate prepared the list after reviewing the first

deposition “to assure that [her] questions were not duplicative.” Id. The trial court’s order

compelling the second deposition concluded “with the caveat that [the Estate] is limited to

the area of questioning as stated in [its] pleading.” Id. at 289-90.

       During the second deposition, Dr. Thompson answered the questions posed that

addressed the topics set forth in the email to counsel and presented to the trial court. When

counsel for the Estate asked questions that were not related to the topics or that were

derivative of the topics listed, Dr. Thompson complied with her counsel’s instructions not to

answer. Dr. Thompson did not answer approximately 250 questions on the basis that they

were not related to the list of topics that were the primary area of focus. Nearly 248

                                               7
questions were certified to the trial court. The trial court then reviewed the questions and

concluded that most of the questions were objected to on the basis that they were beyond the

scope of the list of topics. At the subsequent hearing, The Estate did not support its argument

that any of the questions were secondary or related to the listed topics for deposition.

Instead, counsel for the Estate argued that she was not prohibited by the court order from

asking questions that went beyond the primary area topics.

       In its order denying the Estate’s motion to compel, the trial court explained that the

limitations imposed on deposition questioning were designed to provide the Estate with the

opportunity to depose Dr. Thompson beyond the questioning done in the MRP phase of the

proceedings, and to afford Dr. Thompson some protection at that stage of the litigation.

Counsel for the Estate was permitted to ask questions of Dr. Thompson on the topics that

were requested in the email exchange between counsel for the parties. Dr. Thompson

complied and answered those questions. The trial court did not abuse its discretion by

limiting the deposition questioning in the ways that it did.

                                   II. Instruction Errors

       The Estate argues that the trial court erred by refusing to give two tendered

instructions. When determining whether error resulted from the giving of an instruction, we

use the following three-part test: (1) whether the tendered instruction is a correct statement

of the law; (2) whether there is evidence in the record to support giving the instruction; and

(3) whether the substance of the instruction is covered by other instructions which are given.

Wade v. Terex-Telelect, Inc., 966 N.E.2d 186, 192 (Ind. Ct. App. 2012). The decision to give

a particular instruction rests within the trial court’s sound discretion. Id. We review this

                                              8
decision only for an abuse of that discretion. Id. The giving of instructions will be reversed

only if the instructions given, as a whole, failed to advise the jury of the applicable law or

misled the jury. Id. We note that a trial court may be justified in giving an instruction if

there is any evidence to support the instruction. Id.

                          A. Medical Record Keeping Instruction

       The Estate claimed that Dr. Thompson was negligent in her care and treatment of

Natasha and was negligent by failing to retain Natasha’s medical records. The Estate had

sought dictation and first-encounter notes from Dr. Thompson’s records pertaining to

Natasha’s care and treatment. The Estate proposed instructing the jury on Indiana Code

section 16-39-7-1. This statute states that providers, including a physician, “shall maintain

the original health records or microfilms of the records for at least seven (7) years.”

Ind.Code § 16-39-7-1. After setting forth the statutory language, the Estate’s proposed

instruction provided in pertinent part as follows:

       If you decide from the greater weight of the evidence that Dr. Thompson
       violated the above Indiana Statute and that the violation was not excused, then
       you must decide that Dr. Thompson was negligent.

Appellant’s App. at 46.

       The trial court refused to give the Estate’s tendered instruction and ruled as follows:

       1. 327-Violation of Statutory Duty as Fault or Negligence. Defendant objects
       to this instruction as not supported by the evidence, akin to a first-party
       spoliation claim which Indiana does not recognize, and counter to the recent
       ruling of the Indiana Supreme Court in Gordon. Objection overruled. Given
       as modified: IC[ § 16]-39-7-1(d) is removed from the instruction, along with
       the final sentence of the instruction reading “If you decide from the greater
       weight of the evidence that Dr. Thompson violated the above Indiana Statute
       and the violation was not excused, then you must decide that Dr. Thompson
       was negligent.” Plaintiff objects to the modification.

                                              9
Id. at 298-99. The trial court read the following instructions to the jury:

       Number eleven, when the events in this case happened, I.C. sixteen thirty-nine
       seven one, maintenance of health care records by providers, violations,
       provided in part as follows, section one, as used in this section, provider means
       the following, one, a physician. B, a provider shall maintain the original health
       records or microfilms of the records for at least seven years. Number twelve,
       if Doctor Thompson fails to produce documents under her exclusive control,
       you may conclude that the documents Doctor Thompson could have produced
       would have been unfavorable to her case.

Tr. at 1590.

       The Estate argues that the trial court erred by failing to include the portion of the

statute that explained when civil liability attached for failing to maintain health records for at

least seven years, and invited the jury to disregard the MRP’s finding that Dr. Thompson had

deviated from the standard of care by failing to maintain records.

       In Howard Regional Health System v. Gordon, 952 N.E.2d 182, 188 (Ind. 2011), our

Supreme Court, specifically dealing with the civil liability language from Indiana Code

section 16-39-7-1(d), found that the statute did not confer a private remedy for the plaintiff.

Indeed, the Supreme Court held that “the structure of Section 1(d) reads largely as a grant of

immunity to hospitals that lose records due to natural disasters.” Id. Section 1(d) does not

provide a private remedy for a party to litigation. Id. First-party spoliation, as is claimed

here, refers to spoliation of evidence by a party to the principal litigation. Id. “[I]ntentional

first-party spoliation of evidence may be used to establish an inference that the spoliated

evidence was unfavorable to the party responsible.” Gribben v. Wal-Mart Stores, Inc., 824

N.E.2d 349, 351 (Ind. 2005). “Indiana law does not recognize a claim for ‘first-party’

negligent or intentional spoliation of evidence.” Id. at 355.

                                               10
       Thus, we agree with the trial court’s modification of the proposed instruction on the

subject of a physician’s duty to maintain medical records. Instruction 11 was a correct

statement of the law and coupled with Instruction 12, covering the inference to be drawn

from missing records, correctly informed the jury about how they should treat the issue of

missing medical records as it pertained to the medical malpractice action against Dr.

Thompson. We find no abuse of discretion here.

                         B. Increased Risk of Harm Instruction

       The Estate acknowledges that the trial court’s instruction regarding increased risk of

harm was a correct statement of the law. The Estate contends, however, that the trial court’s

instruction on the topic was incomplete because it did not instruct the jury how to compute

damages if they found an increased risk of harm. “[U]nder the § 323 ‘increased risk of harm’

standard of causation, ‘plaintiffs with a less than fifty percent chance of recovery, who have

suffered a decreased chance of recovery from illness or injury due to the negligence of a

health care provider, are provided with a means of recovery.” Wolfe v. Estate of Custer ex

rel. Custer, 867 N.E.2d 589, 597 (Ind. Ct. App. 2007) (quoting Dughaish ex rel Dughaish v.

Cobb, 729 N.E.2d 159, 166 (Ind. Ct. App. 2000)). Using the section 323 analysis, a plaintiff

must show that the doctor was negligent, the negligent act increased the risk of harm to the

patient, and the negligence was a substantial factor causing the plaintiff’s harm. Id.

       The trial court instructed the jury in the present case as follows:

       A health care provider is subject to liability to the patient for harm resulting
       from her failure to exercise reasonable care, if the failure to exercise such care
       increased the risk of harm to the patient.



                                              11
Appellant’s App. at 123. The Estate tendered an instruction, which the trial court refused to

give, that would have explained to the jury how to compute damages if they found an

increased risk of harm. The Estate argues that the trial court abused its discretion because the

tendered instruction was a correct statement of the law, and the failure to give it left the jury

with no guidance as to how to calculate the damages.

       We agree with the Estate that the trial court abused its discretion by failing to give the

tendered instruction. However, we agree with Dr. Thompson that the error was harmless. In

this case the jury returned a verdict in favor of Dr. Thompson on the issue of liability. As

such, the jury did not reach the issue of damages. Therefore, given our standard of review

we conclude that the lack of an instruction on damages did not adversely affect the Estate’s

substantial rights such that it likely affected the result. See Miller v. Ryan, 706 N.E.2d 244,

248 (Ind. Ct. App. 2000) (no reversible error if failure to give instruction did not substantially

and adversely affect rights of complaining party such that result was affected).

       Affirmed.

BAKER, J., and BROWN, J., concur.




                                               12
