                                                                  FILED
                                                             May 11 2017, 6:41 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Tina M. Bell                                            Karl L. Mulvaney
Katherine A. Brown-Henry                                Nana Quay-Smith
Cline Farrell Christie & Lee, P.C.                      Jessica Whelan
Indianapolis, Indiana                                   Bingham Greenebaum Doll LLP
                                                        Indianapolis, Indiana
ATTORNEY FOR AMICUS CURIAE
INDIANA TRIAL LAWYERS                                   Mark W. Baeverstad
ASSOCIATION                                             Rothberg Logan & Warsco LLP
                                                        Fort Wayne, Indiana
Jerry Garau
Garau Germano, P.C.
Indianapolis, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

David Oaks,                                             May 11, 2017
Appellant-Plaintiff,                                    Court of Appeals Case No.
                                                        92A04-1609-CC-2041
        v.                                              Appeal from the Whitley Circuit
                                                        Court
Timothy R. Chamberlain, M.D.,                           The Honorable David J. Avery,
Appellee-Defendant.                                     Special Judge
                                                        Trial Court Cause No.
                                                        92C01-1303-CC-112



Najam, Judge.



Court of Appeals of Indiana | Opinion 92A04-1609-CC-2041 | May 11, 2017               Page 1 of 21
                                       Statement of the Case
[1]   In this medical malpractice case, David Oaks appeals the trial court’s decision

      to exclude his cross-examination of an adverse expert witness about the expert’s

      personal medical practices. He raises two issues on appeal, which we restate as

      follows:

              1. Whether the trial court abused its discretion when it excluded
                 the cross-examination of a medical expert about his personal
                 medical practices, which Oaks sought to elicit for the purpose
                 of impeaching the expert’s testimony on the standard of care.


              2. Whether the exclusion of that testimony was harmless error.


[2]   We reverse and remand with instructions.


                                 Facts and Procedural History
[3]   On December 7, 2009, Oaks presented to the emergency room at Whitley

      County Hospital with shortness of breath and a cough. He was fifty-six years

      old at the time and had a history of chronic obstructive pulmonary disease

      (“COPD”). By December 9, Oaks had developed a low-grade fever and was

      having gastrointestinal problems and abdominal pain. A CT scan of Oaks’

      chest revealed several gallstones and a dilated transverse colon, which

      measured around seven centimeters in diameter.


[4]   On December 10, Dr. Timothy R. Chamberlain saw Oaks for a consultation

      and noted that Oaks had moderate distention of the abdomen, particularly in

      the upper-right quadrant, had guarding of the upper-right quadrant, and

      Court of Appeals of Indiana | Opinion 92A04-1609-CC-2041 | May 11, 2017   Page 2 of 21
      complained of mild bloating and upper abdominal discomfort. Dr.

      Chamberlain also noted that Oaks had an elevated temperature and that CT

      and ultrasound results showed he had gallstones. Dr. Chamberlain noted the

      risk of surgery for a patient with Oaks’ medical history but stated in his plan

      that he wanted to “recheck [Oaks’] abdominal films and consider the possibility

      of a laparoscopic cholecystectomy.” Appellant’s App. Vol. II at 211-12. On

      December 11, Dr. Chamberlain ordered an x-ray of Oaks’ abdomen. The

      imaging report revealed that Oaks had a “gas distended transverse colon,”

      consistent with Oaks’ prior chest CT scan, and that those “findings could

      represent local ileus[1] or low grade left hemicolon/proximal descending colon

      obstruction.” Id. at 224.


[5]   Based on the x-ray results and the entire clinical picture, Dr. Chamberlain

      suspected that Oaks had an early infection in his gallbladder. Dr. Chamberlain

      determined that gallbladder removal surgery was the proper course of treatment

      and that it would likely resolve the ileus in Oaks’ colon, which Dr.

      Chamberlain believed was secondary to the gallbladder infection.


[6]   Dr. Chamberlain performed laparoscopic surgery to remove Oaks’ gallbladder

      on December 11. During surgery, Dr. Chamberlain saw that Oaks’ colon was

      swollen. After surgery, Dr. Chamberlain carefully monitored Oaks’ condition,

      specifically, his swollen colon and continued ileus. Following Oaks’ surgery,



      1
        An ileus is a mild paralysis of the bowel in which the bowel becomes enlarged or dilated. Tr. Vol. III at
      243.

      Court of Appeals of Indiana | Opinion 92A04-1609-CC-2041 | May 11, 2017                           Page 3 of 21
      he had no fever, his right upper quadrant pain was “minimal,” and he began

      ambulating. Tr. Vol. III at 245. In order to stimulate the bowel and alleviate

      the ileus, Dr. Chamberlain reduced the amount of narcotics Oaks was taking

      and ordered the drug neostigmine. Subsequently, Oaks began passing gas on a

      regular basis, had several bowel movements, and his abdomen went from firm

      and distended to soft and not distended. Because he believed the clinical

      picture showed marked improvement, Dr. Chamberlain did not obtain x-ray

      images of Oaks’ abdomen in the days following surgery.


[7]   On the afternoon of December 15, Oaks’ colon perforated, allowing air and

      fecal matter to escape into his abdomen. The perforation of the colon was due

      to a combination of enlargement of, and a lack of blood supply to, the colon.

      Dr. Chamberlain performed emergency surgery during which he repaired and

      resected the bowel and performed an anastomosis—a surgical procedure in

      which he reconnected the two ends of the bowel after the resection. During the

      surgery, Oaks’ spleen was removed. Following the surgery, Oaks had various

      complications—including another perforation—and he required additional

      treatment and surgeries by other medical providers and a stay in a rehabilitation

      facility.


[8]   On November 30, 2011, Oaks filed a proposed complaint for damages against

      Dr. Chamberlain with the Indiana Department of Insurance. On November 19,

      2012, a medical review panel issued its opinion in favor of Dr. Chamberlain.




      Court of Appeals of Indiana | Opinion 92A04-1609-CC-2041 | May 11, 2017   Page 4 of 21
[9]    On February 27, 2013, Oaks filed a complaint against Dr. Chamberlain with

       the trial court. The parties served their expert witness disclosures and, on

       October 10, 2014, Dr. Chamberlain filed a motion in limine seeking an order

       precluding any testimony that a medical expert would have treated a patient

       differently in the same situation as that in which Dr. Chamberlain treated Oaks.

       Oaks filed a response and, on October 28, the trial court held a hearing on the

       motion in limine and denied it.


[10]   On July 27, 2015, the trial court conducted a telephonic status conference

       during which Oaks agreed to submit a written offer of proof regarding the

       testimony he would elicit at trial from Dr. Chamberlain’s experts, namely, that

       they would have provided different medical treatment to a patient in the same

       situation. Both parties filed briefs on that issue. Oaks argued that the evidence

       of differing treatment would not be elicited to establish the applicable standard

       of care but only to impeach Dr. Chamberlain’s experts’ opinions on the

       standard of care. Oaks noted that one of Dr. Chamberlain’s witnesses, Dr.

       Wayne Moore, had testified at a deposition that his personal practices differed

       from his opinion on the applicable standard of care. 2 Dr. Chamberlain renewed



       2
           Dr. Moore’s relevant deposition testimony was as follows:

                 Oaks’ Counsel:    [W]ould you want to get an x-ray at this point [the afternoon of August 14, 2009]?
                 Dr. Moore:        Are you asking me what I most likely would have done?
                 Oaks’ Counsel:    Yes.
                 Dr. Moore:        I probably would have gotten an x-ray.
                 Oaks’ Counsel:    And why would you probably have gotten an x-ray at this point?



       Court of Appeals of Indiana | Opinion 92A04-1609-CC-2041 | May 11, 2017                           Page 5 of 21
       his motion in limine on that issue. He argued that testimony regarding differing

       treatment cannot be offered either to establish the applicable standard of care or

       to impeach Dr. Moore’s testimony because it did not conflict with his standard

       of care testimony.


[11]   The trial court conducted a five-day jury trial from August 15-19, 2016. Oaks

       offered the expert testimony of two general surgeons, Dr. David Befeler and Dr.

       Jeffrey Freed, both of whom testified that the standard of care for a general

       surgeon under the circumstances of the case required serial x-rays of Oaks’

       abdomen post-surgery and that Dr. Chamberlain had breached that standard of

       care.


[12]   Dr. Chamberlain also offered the expert testimony of two general surgeons, Dr.

       Wayne Moore and Dr. Alex Cocco. These experts testified that, in their

       opinion, Dr. Chamberlain did not violate the standard of care for a general

       surgeon in treating Mr. Oaks. But Dr. Cocco did not testify about what the




                Chamberlain’s Counsel:     Objection, relevancy.
                Dr. Moore:        To help me confirm what’s going on with the patient.
                Oaks’ Counsel:    . . . When you say, “what’s going on,” what do you fear might be going on? . . .
                Dr. Moore:        I would use the x-ray to help look at the NG [tube] placement if he still had an
                                  NG [tube] at the time. I would use it to help me get an idea are the intestines
                                  backing up more, like more of an ileus, or are they backing up less. If I had
                                  thought of an ileus from the beginning as opposed to Ogilvie’s, I wouldn’t have
                                  necessarily been thinking, oh, I need to check a film for Ogilvie’s, because at this
                                  point the clinical picture is ileus.
       Appellant’s App. Vol. II at 159.

       Court of Appeals of Indiana | Opinion 92A04-1609-CC-2041 | May 11, 2017                             Page 6 of 21
       standard of care was, only that Dr. Chamberlain did not violate whatever Dr.

       Cocco thought the standard of care might be.


[13]   Dr. Moore, on the other hand, testified that the standard of care required

       clinical monitoring of symptoms to determine whether the patient was

       improving and that x-rays would only be obtained if the patient was not

       showing “signs of progress.” Tr. Vol. IV at 104. Dr. Moore testified that

       clinical monitoring of Oaks’ post-operative symptoms indicated that Oaks’

       condition was improving; specifically, Oaks began having regular bowel

       sounds, bowel movements, and passing of gas, his bowel distention was slowly

       improving over time, and he reported that he felt better. Therefore, Dr. Moore

       testified, the standard of care did not require further x-rays.3


[14]   Following Oaks’ cross-examination of Dr. Moore and outside the presence of

       the jury, Oaks made an offer of proof and elicited testimony from Dr. Moore

       that showed that, if Oaks had been permitted to question Dr. Moore about his

       own personal medical practices, Dr. Moore would have testified that he would

       have obtained an x-ray in a post-operative situation like Oaks’.4 The trial court




       3
         Dr. Chamberlain is incorrect when he asserts that Dr. Moore testified that both clinical monitoring and x-
       rays were accepted treatment options within the standard of care in Oaks’ situation. Dr. Chamberlain’s
       counsel asked Dr. Moore on direct examination, “Do you believe that the standard of care require[d] Dr.
       Chamberlain to order serial x-rays of Mr. Oaks after his surgery?” Cite. Dr. Moore responded, “No, it does
       not.” Tr. Vol. IV at 104.
       4
         Specifically, after incorporating by reference his previously filed brief regarding his offer of proof, which
       included relevant parts of Dr. Moore’s deposition testimony, Oaks’ counsel asked Dr. Moore: “[I]s it in fact
       true that you would have gotten an x-ray in this situation?” Tr. Vol. IV at 168. Dr. Moore replied: “Yes.” Id.



       Court of Appeals of Indiana | Opinion 92A04-1609-CC-2041 | May 11, 2017                           Page 7 of 21
       affirmed its prior decision5 to exclude such testimony relating to Dr. Moore’s

       personal medical practices, stating in relevant part:


                I don’t disagree that there [are] instances where a
                physician . . . who is giving an opinion on standard of
                care . . . [can] have their opinion attacked by . . . demonstrating
                [that] even though they say this is the standard of
                care[,] . . . they do contrary to . . . the standard of care but
                they’ve testified what the standard of care would be. I think the
                distinction in this situation was[,] you know[,] what was represented to
                me in argument, at least this afternoon, was that the doctor said standard
                of care was this but in his own personal practice, he practices above what
                he believes the standard of care to be and that’s why I did not permit that.
                If I can see other instances where that may come into play, that
                somebody says . . . this is the standard of care but then learn
                from their practice that they don’t — that’s not the practice that
                they would follow, so I think that’s the distinction.


       Tr. Vol. IV at 169-70 (emphasis added).


[15]   On August 19, 2016, the jury returned a verdict in favor of Dr. Chamberlain

       and against Oaks. This appeal ensued.


                                         Discussion and Review
                                                Standard of Review

[16]   Oaks contends that the trial court abused its discretion when it excluded Dr.

       Moore’s expert medical testimony about his personal medical practices. The



       5
        Although both parties state that the trial court had previously ruled to exclude testimony relating to Dr.
       Moore’s personal medical practices, no such ruling appears in the record. Oaks states that the ruling was
       made off the record, and Dr. Chamberlain does not suggest otherwise. Appellant’s Br. at 10.

       Court of Appeals of Indiana | Opinion 92A04-1609-CC-2041 | May 11, 2017                           Page 8 of 21
       decision to admit or exclude evidence and the scope and extent of cross-

       examination all lie within the sound discretion of the trial court, and we will

       not disturb the trial court’s decision absent a showing of an abuse of that

       discretion. See Jacobs v. State, 22 N.E.3d 1286, 1288 (Ind. 2015). An abuse of

       discretion occurs when the trial court’s decision is against the logic and effect of

       the facts and circumstances before the court or if the court has misinterpreted

       the law. See Kosarko v. Padula, 979 N.E.2d 144, 146 (Ind. 2012).


                     Issue One: Testimony Concerning the Personal Practices
                                  of a Medical Expert Witness

                                                     Waiver


[17]   Before we reach the merits of Oaks’ appeal with respect to the exclusion of Dr.

       Moore’s testimony, we must address Dr. Chamberlain’s assertion that Oaks

       waived the issue because he failed to object to Jury Instruction 15. See, e.g.,

       Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004) (holding that, generally, a

       party waives an argument or issue on appeal if he did not raise it before the trial

       court). Jury Instruction 15, to which no one objected, stated:

               A general surgeon is allowed broad discretion in selecting
               treatment methods and is not limited to those most generally
               used.


               When more than one method of treatment is available, a general
               surgeon must use sound judgment in choosing which method to
               use.




       Court of Appeals of Indiana | Opinion 92A04-1609-CC-2041 | May 11, 2017    Page 9 of 21
                If a general surgeon uses sound judgment in selecting from a
                variety of accepted treatments, and uses reasonable care and skill
                in treating a patient, then the general surgeon is not responsible if
                the treatment does not succeed.


                The fact that other methods existed, or that another general surgeon
                would have used a different method, does not establish medical
                negligence.


       Appellee’s App. at 17 (emphasis added).


[18]   Dr. Chamberlain contends that Jury Instruction 15 means that, in Indiana,

       personal medical practices of an expert witness are “irrelevant to the standard of

       care.” Appellee Br. at 26. However, as Oaks points out, that is not what the

       instruction says. Rather, the instruction correctly notes that, when the standard

       of care allows for two or more different methods of treatment, a physician

       cannot be held liable simply for choosing one accepted method over another.6

       Fridono v. Chuman, 747 N.E.2d 610, 622 (Ind. Ct. App. 2001), trans. denied.


[19]   But that is not the question presented in this case. Dr. Moore testified that the

       standard of care did not require x-rays for a patient in Oaks’ post-operative

       condition but that, nevertheless, he would have ordered an x-ray in the same




       6
         In fact, the last section of the jury instruction actually contemplates that medical malpractice cases will
       include testimony of “other methods” used by other surgeons and it simply instructs that such testimony
       cannot establish negligence. Of course, this section of the instruction would not be necessary if testimony about
       other physicians’ personal practices were inadmissible to begin with.



       Court of Appeals of Indiana | Opinion 92A04-1609-CC-2041 | May 11, 2017                            Page 10 of 21
       situation.7 Thus, Dr. Moore’s testimony was not that he would personally

       prefer one accepted treatment (x-rays) over another (clinical monitoring), but

       that he would have ordered a procedure that he testified was not included in the

       standard of care at all (x-rays). Dr. Moore’s testimony did not address other

       methods of accepted treatment. Thus, Jury Instruction 15 does not apply, and

       Oaks did not waive his appeal by failing to object to it.

                                 Admissibility of the Expert’s Personal Practices


[20]   In medical malpractice cases, the parties usually must present medical expert

       testimony to establish the standard of care and whether particular acts or

       omissions by the health care provider met the standard of care. Perry v.

       Anonymous Physician 1, 25 N.E.3d 103, 107 (Ind. Ct. App. 2014), trans. denied.

       Here, Oaks’ experts opined that the standard of care in Oaks’ post-operative

       situation required serial x-rays, which Dr. Chamberlain did not order. But Dr.

       Chamberlain’s expert, Dr. Moore, opined that the standard of care did not

       require x-rays. Thus, the jury had before it conflicting evidence on the standard

       of care. Oaks wished to use Dr. Moore’s testimony that Dr. Moore would have

       ordered an x-ray in Oaks’ situation to impeach Dr. Moore’s testimony that the

       standard of care did not require x-rays. The trial court ruled that such




       7
         Dr. Chamberlain periodically asserts that Dr. Moore’s excluded testimony was that he only “probably”
       would have ordered an x-ray. While that was Dr. Moore’s deposition testimony, Appellant’s App. Vol. II at
       159, his trial testimony during the offer of proof was that he would have ordered an x-ray, Tr. Vol. IV at 168.

       Court of Appeals of Indiana | Opinion 92A04-1609-CC-2041 | May 11, 2017                           Page 11 of 21
       impeachment testimony was inadmissible. We hold that the trial court’s

       exclusion of this impeachment evidence was an abuse of discretion.


[21]   Under Indiana Rule of Evidence 607, a witness’s credibility may be attacked by

       any party, Ingram v. State, 715 N.E.2d 405, 407 (Ind. 1999), including through

       cross-examination, Turner v. State, 953 N.E.2d 1039, 1050-51 (Ind. 2011).

       “Cross-examination is permissible as to the subject matter covered on direct

       examination, including any matter which tends to elucidate, modify, explain,

       contradict or rebut testimony given during direct examination by the witness.”

       Hicks v. State, 510 N.E.2d 676, 679 (Ind. 1987). Thus, in Walker v. Cuppett, 808

       N.E.2d 85, 95 (Ind. Ct. App. 2004), we held that “[d]octors and other expert

       witnesses are not oracles whose opinions, once stated, cannot be questioned or

       refuted by other evidence, even if that evidence does not come in the form of

       another expert’s testimony.” And, as the United States Supreme Court has

       noted, “the time-honored process of cross-examination [is] the device best

       suited to determine the trustworthiness of testimonial evidence.” Watkins v.

       Sowders, 449 U.S. 341, 349 n.4 (1981) (quoting with approval 5 J. Wigmore,

       Evidence § 1367 (Chadbourn rev. 1974) (“[cross-examination] is beyond any

       doubt the greatest legal engine ever invented for the discovery of truth.”)).


[22]   As the parties note, the specific question in this case is whether cross-

       examination of an adversary’s medical expert on his or her personal practices

       can be used to impeach the expert’s credibility regarding his or her opinion on

       the standard of care. There are no Indiana cases that directly address this issue.

       Some Indiana cases hold, in contexts other than medical malpractice, that

       Court of Appeals of Indiana | Opinion 92A04-1609-CC-2041 | May 11, 2017     Page 12 of 21
       industry custom and practice is not admissible to establish the standard of care

       in the first instance but may be relevant to the standard of care once that

       standard has been established by other means. See, e.g., Hagerman Constr., Inc. v.

       Copeland, 697 N.E.2d 948, 958 (Ind. Ct. App. 1998) (construction industry),

       opinion amended on reh’g, trans. denied; Van Duyn v. Cook-Teague P’ship, 694

       N.E.2d 779, 782 (Ind. Ct. App. 1998) (laundromat industry), trans. denied. And

       our Supreme Court has held in the context of a medical malpractice case that a

       medical expert’s affidavit that stated only what the expert would have done

       (and not what the standard of care was) was insufficient to establish the

       standard of care in the first instance. Oelling v. Rao, 593 N.E.2d 189, 190 (Ind.

       1992). However, Oelling did not address the specific issue here: whether

       personal practices testimony would be relevant and admissible to impeach the

       credibility of the expert’s standard of care testimony. Id.


[23]   Oaks argues that we should allow evidence of personal medical practices to

       attack the testimony of a medical expert who has testified about the standard of

       care.8 In support, both Oaks and amicus curiae Indiana Trial Lawyers

       Association note that the majority of other states to address this issue have held

       that an expert can be impeached with his personal practices when those

       practices differ from the expert’s opinion about what is required under the

       standard of care.




       8
         Oaks does not assert that he wishes to use the excluded testimony as evidence of the standard of care itself
       but, rather, only to question Moore’s credibility with respect to his testimony about the standard of care.

       Court of Appeals of Indiana | Opinion 92A04-1609-CC-2041 | May 11, 2017                          Page 13 of 21
[24]   For example, in Jaynes v. McConnell, 358 P.3d 632, 638 (Ariz. Ct. App. 2015),

       the court held that, where the personal practices of the medical expert went

       above and beyond the minimum standard of care the expert had described at

       trial, testimony about such personal practices was “relevant to assist the jury in

       its factually intensive determination of the relevant standard of care,” and the

       testimony was also pertinent to the expert’s “credibility as an expert witness by

       suggesting that his personal practices differ from the standard of care he

       espoused.” See also Smethers v. Campion, 108 P.3d 946, 955 (Ariz. Ct. App.

       2005); Wallbank v. Rothenburg, 74 P.3d 413, 416-17 (Colo. Ct. App. 2003);

       Condra v. Atlanta Orthopaedic Group, P.C., 681 S.E.2d 152 (Ga. 2009). Similarly,

       other courts have held that, although the standard of care cannot be established

       solely through an expert’s personal practices testimony, such testimony is

       nevertheless relevant to the expert’s credibility and the persuasive value of his

       opinion on the standard of care. See Jones v. Rallos, 890 N.E.2d 1190, 1208 (Ill.

       Ct. App. 2008) (citing Schmitz v. Binette, 857 N.E.2d 846, 856-57 (Ill. Ct. App.

       2006)).


[25]   As Dr. Chamberlain notes, there is one case from Missouri in which that state’s

       intermediate appellate court upheld the exclusion of an expert’s personal

       practices testimony either as evidence of the standard of care or to impeach the

       expert’s opinion on the standard of care. Vititoe v. Cox Med. Ctrs., 27 S.W.3d




       Court of Appeals of Indiana | Opinion 92A04-1609-CC-2041 | May 11, 2017   Page 14 of 21
       812, 819-820 (Mo. Ct. App. 2000).9 However, the majority of states to address

       this issue have allowed expert testimony of personal medical practices, at least

       for the purpose of impeaching the expert’s opinion on the standard of care.

       Given the prevailing view in other states, Indiana’s long-standing rule that a

       witness’ credibility may be attacked by any party, and the essential role of cross-

       examination in determining the trustworthiness of testimonial evidence, we join

       the abundant authority from other states and hold that the admission of an

       expert’s testimony about his or her personal practices in medical malpractice

       cases is permissible for the purpose of impeaching that expert’s testimony about

       the standard of care. However, we need not address the separate issue of

       whether an expert’s testimony about personal medical practices is relevant to

       what the standard of care might be since Oaks does not raise that issue for our

       review.


[26]   Here, the trial court agreed that an expert’s personal practices are admissible for

       credibility purposes if the expert’s opinion on the standard of care is

       inconsistent with his personal practices. Nonetheless, the trial court concluded,

       and Dr. Chamberlain argues on appeal, that Dr. Moore’s personal practices

       testimony should have been excluded because it would only have shown that




       9
         The other cases cited by Dr. Chamberlain as support for the exclusion of Dr. Moore’s personal practices
       testimony are inapplicable. For example, in Carbonnell v. Bluhm, 318 N.W.2d 659, 663 (Mich. Ct. App.
       1982), the court upheld exclusion of expert testimony as irrelevant because the expert testified only on what
       he would have done and not on what the standard of care was. Similarly, in Curran v. Buser, 711 N.W.2d
       562, 570 (Neb. 2006), the court excluded personal practices testimony when it was offered as the only means
       to establish the standard of care in the first instance, which is not the case here.

       Court of Appeals of Indiana | Opinion 92A04-1609-CC-2041 | May 11, 2017                         Page 15 of 21
       Dr. Moore would go “above” the standard of care by taking an x-ray. Dr.

       Chamberlain maintains that, because that testimony did not conflict with Dr.

       Moore’s testimony about the standard of care but merely showed he would go

       “above” it, the testimony was correctly excluded as irrelevant.


[27]   However, the record contains no evidence that Dr. Moore would have ordered

       an x-ray simply to go “above” the standard of care. At trial, during the offer of

       proof, Dr. Moore only testified that he would have obtained an x-ray—he did

       not give the reason why he would have done so. And, in his deposition, Dr.

       Moore said he probably would have obtained an x-ray to “confirm what [was]

       going on” with the patient and, specifically, to “look at the NG placement” and

       “get an idea” whether the intestines were “backing up” more or less. App. Vol.

       II at 159. Although, in its ruling, the trial court indicated that it was

       “represented” to the court “in argument” that Dr. Moore “practices above what

       he believes the standard of care to be,” neither party directs us to any evidence

       of such a representation. Tr. Vol. IV at 169-70.


[28]   Dr. Moore’s testimony about his personal practices was in conflict with his

       testimony on the standard of care. Therefore, his personal practices testimony

       was relevant and admissible. E.g., Rallos, 890 N.E.2d at 1208. Moreover, even

       if Dr. Moore had testified that he would merely go “above” the standard of care

       by ordering an x-ray, his personal practices testimony would be relevant and

       admissible. As the Appellate Court of Illinois stated,

               although an expert who personally exceeds the standard that he
               testifies to is not as readily impeached as an expert who provides

       Court of Appeals of Indiana | Opinion 92A04-1609-CC-2041 | May 11, 2017     Page 16 of 21
               wholly different treatment than that which he contends is
               adequate, we cannot deny that such a disparity would,
               nevertheless, be quite relevant to a jury that is charged with
               determining which of two highly qualified experts should be
               believed.


       Schmitz, 857 N.E.2d at 856-57; see also Jaynes, 358 P.3d at 638. The disparity in

       Dr. Moore’s testimony was relevant for impeachment purposes.


[29]   Still, Dr. Chamberlain argues that, even if the personal practices testimony was

       relevant, it should have been excluded under Indiana Rule of Evidence 403

       because its probative value was substantially outweighed by its potential to

       cause unfair prejudice and confuse the jury. Dr. Chamberlain contends that the

       jury would confuse and conflate Dr. Moore’s testimony on the standard of care

       with his testimony on his personal practices. That is, he maintains that the

       personal practices testimony would invite the jury to believe that the evidence

       was offered to establish the standard of care and not just to impeach Dr.

       Moore’s credibility.


[30]   We cannot agree. A jury is capable of understanding that the standard of care

       and a witness’ credibility about the standard of care are not one and the same

       but present separate issues, especially when the jury is given clear instructions

       to that effect. As the Supreme Court of Georgia has noted,


               any potential confusion created by the admission of such
               evidence may be remedied through the use of careful jury
               instructions. Such instructions should, for example, clearly
               define the legal meaning of standard of care; enunciate the
               principle that a mere difference in views between physicians does

       Court of Appeals of Indiana | Opinion 92A04-1609-CC-2041 | May 11, 2017   Page 17 of 21
               not by itself prove malpractice . . . ; and clarify concepts such as
               burden of proof and credibility of witnesses. In addition, the
               party whose expert has been cross-examined will have the ability
               to elicit explanations for why the expert’s practices differ from
               what that expert attested to as the standard of care. Armed with
               complete information regarding the expert’s opinion and
               personal practices, jurors can make intelligent judgments about
               the reliability of the expert’s testimony.


       Condra, 681 S.E.2d at 155-56. Similarly, in Smethers, 108 P.3d at 955, the

       Arizona Court of Appeals stated:


               [T]he jury is entitled to fully evaluate the credibility of the
               testifying expert, and the fact that an expert testifies that the
               standard of care does not require what that expert personally
               does in a similar situation may be a critical piece of information
               for the jury’s consideration.


       We agree with those courts. Therefore, we hold that the trial court abused its

       discretion in excluding Dr. Moore’s testimony about his personal practices.


                                        Issue Two: Harmless Error

[31]   Finally, Dr. Chamberlain asserts that, even if it was error to exclude Dr.

       Moore’s testimony that he would have ordered an x-ray, the error was harmless

       because it did not “affect the substantial rights of the parties” and it was

       “cumulative.” Appellee’s Br. at 60 (citing Ind. Trial Rule 61). Dr.

       Chamberlain cites Rodgers v. State, 422 N.E.2d 1211, 1214 (Ind. 1981), for the

       proposition that it is harmless error to exclude impeachment evidence that

       involved a subject that “neither bore directly on an element of the offense or a


       Court of Appeals of Indiana | Opinion 92A04-1609-CC-2041 | May 11, 2017   Page 18 of 21
       matter at issue in the case” because such evidence did not affect Oaks’

       substantial rights.


[32]   Here, we cannot agree. Indiana Trial Rule 61 and Appellate Rule 66 require

       that we assess the probable impact of an error on the outcome of the case. The

       probable impact determination can be difficult because, in the final analysis, we

       do not usually know on appeal what went on in the mind or minds of the trier

       of fact. However, we face no such difficulty in this case because, here, the

       standard of care, and whether Dr. Chamberlain followed it, were the central

       questions. As noted above, Dr. Moore’s excluded testimony was relevant to

       whether he was credible when he testified that the standard of care did not

       require x-rays.10 And Dr. Moore was Dr. Chamberlain’s only witness on the

       central question of the standard of care. Given the lack of any other evidence

       that the standard of care did not require x-rays, we conclude that the exclusion

       of Dr. Moore’s personal practices testimony had a probable impact on Oaks’

       substantial rights.


[33]   Nor was the excluded testimony cumulative, as Dr. Chamberlain asserts.

       Although it is harmless error to exclude testimony that is merely repetitive of




       10
           Dr. Chamberlain also contends that the exclusion of the testimony was harmless error because Jury
       Instruction 15 would have required the jury to ignore Dr. Moore’s testimony that he would have chosen one
       of two acceptable treatments (i.e., x-rays and clinical monitoring). However, as already noted, Dr.
       Chamberlain mischaracterizes Dr. Moore’s excluded testimony. Dr. Moore never said that x-rays were one
       of the acceptable treatments within the standard of care; rather, he specifically said x-rays were not required
       by the standard of care in Oaks’ situation but that Dr. Moore would have obtained an x-ray anyway. Jury
       Instruction 15 would not have required the jury to ignore such relevant testimony.

       Court of Appeals of Indiana | Opinion 92A04-1609-CC-2041 | May 11, 2017                           Page 19 of 21
       other evidence, see, e.g., Spaulding v. Harris, 914 N.E.2d 820, 830 (Ind. Ct. App.

       2009), trans. denied, such is not the case here. Dr. Chamberlain asserts that Dr.

       Moore’s testimony that he would have ordered an x-ray is merely cumulative of

       Oaks’ own experts’ testimony that the standard of care required serial x-rays.

       This is a bold argument, and we reject it. First, Dr. Moore did not testify that

       he would have ordered serial x-rays, only that he “would have gotten an x-ray

       in this situation.” Tr. Vol. IV at 168 (emphasis added). Therefore, his

       testimony would not have been repetitive of Oaks’ experts’ testimony. Second,

       the testimony of Oaks’ experts on the standard of care does not address the

       credibility of Dr. Chamberlain’s expert. That is, their testimony does not

       impeach Moore but simply conflicts with his opinion of the standard of care.

       Dr. Moore’s testimony, excluded from cross-examination, that he would have

       done something that he said was not required by the standard of care, on the

       other hand, speaks directly to his own credibility regarding the standard of care.

       Accordingly, we hold that the exclusion of the relevant impeachment evidence

       was not harmless error.


                                                Conclusion
[34]   Oaks did not waive his claim on appeal by failing to object to Jury Instruction

       15, as that instruction did not address the issue in this case where a medical

       expert would have testified upon cross-examination that he personally would

       have ordered a treatment or procedure above what he had testified was the

       standard of care. And we hold that that the admission of Dr. Moore’s expert

       testimony about his personal practices is relevant and admissible for the

       Court of Appeals of Indiana | Opinion 92A04-1609-CC-2041 | May 11, 2017   Page 20 of 21
       purpose of impeaching his testimony about the standard of care. Such

       testimony by Dr. Moore was not more prejudicial than probative, and the trial

       court abused its discretion in excluding it. Moreover, because Dr. Moore’s

       testimony was the only expert testimony that Dr. Chamberlain had met the

       standard of care, the exclusion of impeachment evidence from cross-

       examination was not harmless error. We reverse the jury’s verdict and remand

       for a new trial.


[35]   Reversed and remanded with instructions.


       Riley, J., and Bradford, J., concur.




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