MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                       FILED
this Memorandum Decision shall not be                             Aug 11 2016, 8:31 am

regarded as precedent or cited before any                              CLERK
                                                                   Indiana Supreme Court
court except for the purpose of establishing                          Court of Appeals
                                                                        and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
John P. Young                                           Kelly J. Pitcher
Young & Young                                           Adam R. Doerr
Indianapolis, Indiana                                   Clendening Johnson & Bohrer,
                                                        P.C.
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Gerald Hause, as Administrator                          August 11, 2016
of the Estate of Jon Michael                            Court of Appeals Case No.
Hause, Deceased,                                        49A05-1511-CT-1946
                                                        Appeal from the Marion Superior
Appellant-Plaintiff,                                    Court
                                                        The Honorable Timothy W.
        v.                                              Oakes, Judge
                                                        Trial Court Cause No.
Indiana University Health, Inc.                         49D02-1111-CT-42819
f/k/a Clarian Health,
Appellee-Defendant.




Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CT-1946 | August 11, 2016     Page 1 of 6
                                       Statement of the Case
[1]   Gerald Hause (“Hause”), as Administrator of the Estate of Jon Michael Hause

      (“Jon”), Deceased, appeals the trial court’s denial of his motion for judgment

      on the evidence. Hause presents a single issue for our review, namely, whether

      the trial court erred when it denied his motion for judgment on the evidence.

      We affirm.


                                 Facts and Procedural History
[2]   On September 10, 2008, Jon sought medical treatment for nasal congestion and

      right ear pain and drainage. Dr. Randall Strate diagnosed Jon with an ear

      infection and prescribed an antibiotic and a medication to treat his cold

      symptoms. On September 15, Jon telephoned Dr. Strate’s office to report that

      he was still having symptoms of a head cold and was experiencing bloody

      mucous coming out of his nose and mouth. Dr. Strate considered changing

      Jon’s antibiotic but ultimately recommended giving the medicine a few more

      days to work.


[3]   During the early morning of September 21, Jon needed emergency medical

      assistance and called for an ambulance. Jon was transported to Methodist

      Hospital. Dr. Reagann McCreary examined Jon and noted that Jon: had had

      an earache for two weeks; had been taking amoxicillin and Rondec for one and

      one-half weeks; had surgery on his right ear ten years prior; had a fever, chills,

      headache, weakness, and sore throat; and had purulent drainage from his right

      ear. Dr. McCreary diagnosed Jon with an ear infection and prescribed a new


      Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CT-1946 | August 11, 2016   Page 2 of 6
      antibiotic by injection, antibiotic ear drops, and pain medication. The

      antibiotic Dr. McCreary prescribed provided “coverage for 24 hours[.]” 1 Tr. at

      365.


[4]   Dr. McCreary told Jon to follow up with his primary care physician the

      following day. Jon was given written discharge instructions, signed by Dr.

      McCreary, that included “Follow-Up Instructions” advising Jon to follow up

      with Dr. Strate in “5 to 7 days.” Appellant’s App. at 49. A “Comments”

      section advised Jon to “[f]ollow up with your primary doctor tomorrow. Take

      the hydrocodone for pain—do not drive while taking this medication. Return if

      you are not improving, you continue to have high fevers, or for any other

      concerns.” Id. At the bottom of the instruction sheet was a paragraph stating

      as follows:

              I, Jon Hause, understand that the treatment that I have received
              was rendered on an emergency basis only and is not meant to
              take the place of complete care from a personal physician or
              clinic. Furthermore I may have been released before all of my
              medical problems were apparent, diagnosed, or treated. If my
              condition worsens or I have new symptoms I have been
              instructed to call my primary care physician or return to
              Methodist Hospital Emergency Medicine and Trauma Center or
              the nearest emergency center. I have read and understand the




      1
        Dr. McCreary was a resident physician at the time of the examination. Accordingly, an attending
      physician reviewed Dr. McCreary’s notes and also examined Jon before he was discharged. The attending
      physician signed Jon’s chart without making any changes.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CT-1946 | August 11, 2016       Page 3 of 6
              above, received a copy of this form and applicable instruction
              sheets, and will arrange for follow-up care.


      Id. Jon signed and dated that document.


[5]   Jon did not see a doctor the next day as instructed. A few days later, on

      September 24, Jon returned to work. But the following day, September 25, Jon

      left work early because of an earache and headache. Jon did not seek

      additional medical attention. On September 28, Jon was found dead at his

      residence. It was later determined that Jon died due to an infection that spread

      from his ear into his brain.


[6]   On November 7, 2011, Hause filed a complaint for damages with the trial court

      alleging that Indiana University Health, Inc., f/k/a Clarian Health (“IU”), Dr.

      McCreary’s employer, was negligent in causing Jon’s death.2 At trial, IU

      alleged that Jon’s complaint was barred by his contributory negligence. At the

      close of IU’s presentation of evidence, Hause moved for judgment on the

      evidence on IU’s affirmative defense, alleging that IU had failed to prove Jon’s

      contributory negligence with expert testimony to a reasonable degree of medical

      certainty. The trial court denied that motion. The jury then entered a general

      verdict in favor of IU. This appeal ensued.




      2
        Hause was required to file a proposed complaint for damages with the Indiana Department of Insurance
      under the Medical Malpractice Act. Hause has not provided us with a copy of that proposed complaint, so
      we do not know when it was filed. We note that a medical review panel was convened, and a majority of
      that panel concluded that IU was not negligent in providing medical care to Jon.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CT-1946 | August 11, 2016        Page 4 of 6
                                     Discussion and Decision
[7]   Hause contends that the trial court erred when it denied his motion for

      judgment on the evidence under Trial Rule 50. The applicable appellate

      standard of review is well-established:

              It is axiomatic that in reviewing the trial court’s ruling on a
              motion for judgment on the evidence the reviewing court must
              consider only the evidence and reasonable inferences most
              favorable to the nonmoving party. Judgment on the evidence in
              favor of the [the moving party] is proper when there is an absence
              of evidence or reasonable inferences in favor of the [nonmoving
              party] upon an issue in question. The evidence must support
              without conflict only one inference[,] which is in favor of [the
              moving party]. If there is any probative evidence or reasonable
              inference to be drawn from the evidence or if there is evidence
              allowing reasonable people to differ as to the result, judgment on
              the evidence is improper.


      Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048, 1051 (Ind. 2003) (emphasis

      and citations omitted).


[8]   On appeal, Hause contends, in effect, that he was entitled to judgment on the

      evidence because IU did not present sufficient evidence to prove that Jon was

      contributorily negligent in causing his own death. That argument assumes that

      the only basis for the jury verdict was Jon’s contributory negligence. However,

      the jury entered a general verdict, and it is well settled that a challenge to the

      sufficiency of the evidence must demonstrate inadequate evidence under every

      theory of liability, not merely one of many, before prejudice is established.

      Picadilly, Inc. v. Colvin, 519 N.E.2d 1217, 1221 (Ind. 1988). In short, a general

      Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CT-1946 | August 11, 2016   Page 5 of 6
       verdict will be sustained if the evidence is sufficient to sustain any theory of

       liability. Id.


[9]    Because Jon’s alleged contributory negligence was not the exclusive basis on

       which the jury’s verdict for IU might have been based—IU also argued and

       presented evidence that it was not negligent on the merits of Hause’s

       complaint—and because Jon does not challenge the sufficiency of the evidence

       upon the alternative general negligence theory, we hold that the trial court did

       not err when it denied Hause’s motion for judgment on the evidence.


[10]   Affirmed.


       Vaidik, C.J., and Baker, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CT-1946 | August 11, 2016   Page 6 of 6
