                                                                           FILED
                                                                       Oct 10 2019, 6:05 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
Michael G. Smith                                           Eric A. Frey
Wooden McLaughlin LLP                                      Frey Law Firm
Evansville, Indiana                                        Terre Haute, Indiana
                                                           ATTORNEY FOR AMICUS
                                                           CURIAE INDIANA TRIAL
                                                           LAWYERS ASSOCIATION
                                                           Sara A. Langer
                                                           Langer and Langer
                                                           Valparaiso, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Christopher R. Glock, M.D.,                                October 10, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CT-2486
        v.                                                 Appeal from the Vigo Superior
                                                           Court
Rickey D. Kennedy,                                         The Honorable Lakshmi Reddy,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           84D02-1501-CT-382



Brown, Judge.




Court of Appeals of Indiana | Opinion 18A-CT-2486 | October 10, 2019                           Page 1 of 27
[1]   Christopher R. Glock, M.D. (“Dr. Glock”) appeals the trial court’s denial of his

      motion for judgment on the evidence and motion to correct error. Dr. Glock

      raises several issues which we consolidate and restate as:


            I.     Whether the trial court abused its discretion in denying his motion
                   for judgment on the evidence; and

           II.     Whether the court abused its discretion in denying his motion to
                   correct error.

      We affirm. 1


                                        Facts and Procedural History

[2]   This case arises from Dr. Glock’s treatment of a crush injury to Rickey D.

      Kennedy’s left hand, which he endured while at work in May 2010 and which

      resulted in burst lacerations to the index and middle fingers and in his middle

      finger “pointing in the wrong direction.” Transcript Volume III at 33. Dr.

      Glock, whom Kennedy did not know and from whom he had no prior medical

      treatment, cleaned and debrided the injuries and fixed the middle finger with pins

      and the index finger with plate and screws.


[3]   “[A]bout a year later” Dr. Glock amputated Kennedy’s index finger from the

      tip to the first knuckle. Transcript Volume II at 160. He performed a repeat




      1
        We heard effective oral argument in this case on September 25, 2019, in Indianapolis, and thank counsel for
      their oral advocacy and written presentations in this matter.

      Court of Appeals of Indiana | Opinion 18A-CT-2486 | October 10, 2019                            Page 2 of 27
      amputation which removed an infection and Kennedy’s finger “[d]own to the

      nub,” resulting in a “stump” near the knuckle nearest to his palm. Id. at 162.


[4]   On October 3, 2011, Dr. Glock provided treatment (the “neuroma procedure”)

      for a neuroma, or a “painful end” of a nerve that has been traumatized and is

      “swelling . . . in its response or attempt to heal.” Transcript Volume III at 23-24.

      Following the procedure, Kennedy experienced pain in his thumb, called Dr.

      Glock’s office “concerned that his thumb was still numb,” and appeared for a

      post-operative visit “probably within a week” of the procedure. Id. at 50-51. On

      November 2, 2011, Dr. Glock performed a “repair of the ulnar digital nerve to

      the thumb with an autologous nerve graft from the radial digital nerve of the

      index finger.” Exhibits Volume I at 58.


[5]   On October 24, 2014, a medical review panel, which included Dr. Dale K.

      Dellacqua, issued an opinion after considering evidence Kennedy had submitted

      to the Indiana Department of Insurance against Dr. Glock. The opinion stated:


              The panel is of the unanimous opinion that the evidence does not
              support the conclusion that the defendant failed to meet the
              applicable standard of care, and that his conduct was not a factor
              of the resultant damages, but there is a material issue of fact, not
              requiring expert opinion, bearing on liability for consideration by
              the court or jury, with regard to the informed consent of the
              patient before the fourth surgery.


      Exhibits Volume I at 4.


[6]   In January 2015, Kennedy filed a Complaint For Medical Negligence, and in

      January 2016, Dr. Glock filed a motion for partial summary judgment. On
      Court of Appeals of Indiana | Opinion 18A-CT-2486 | October 10, 2019       Page 3 of 27
      May 26, 2016, the parties tendered a proposed agreed order on the motion for

      partial summary judgment that identified the five surgeries, including Surgery

      Four as the neuroma procedure, and “would grant summary judgment” in

      favor Dr. Glock on all of Kennedy’s claims “arising out of Surgery 1, Surgery 2,

      Surgery 3, and Surgery 5,” and all claims “arising out of the Surgery 4, except

      for a claim of ‘informed’ consent with respect to that procedure, which the

      court granted on June 1, 2016.” May 26, 2016 Proposed Agreed Order at 2.


[7]   On June 26, 2018, the court held a jury trial. Kennedy’s stepsister, Terri Lynn

      Coleman, testified that she accompanied him to the neuroma procedure and

      answered in the negative when asked if Dr. Glock had told Kennedy: “that

      surgery had a serious possibility of not being functional? Of not working,” “there

      was going to be nerve injury, nerve damage,” and that “there was any risk of

      nerve damage.” Transcript Volume II at 138-139. She testified that she believed

      there was a time when Dr. Glock told Kennedy that he had cut the nerve and

      that she remembered “[t]hat it was an accident” and “they were going to do the

      fifth one to correct it.” Id. at 139. She answered in the negative when asked if

      she ever heard Dr. Glock say that the proposed treatment might not alleviate all

      of Kennedy’s pain that he experienced from the original injury. Id. at 140. She

      indicated that Kennedy told her that it hurt “[m]ainly in his thumb and his hand”

      “so bad that he can’t stand it somedays.” Id. at 142. When asked if Dr. Glock

      indicated “at any time during your conversation” that there might be a need for

      future procedures or surgery, she answered in the negative and stated “[i]t would

      fix everything.” Id. at 143.


      Court of Appeals of Indiana | Opinion 18A-CT-2486 | October 10, 2019      Page 4 of 27
[8]   Kennedy testified that he lived with his mother, daughter, girlfriend, and her

      son and that he moved in about two-and-one-half to three years prior to help

      take care of his mother, who has been going blind, and his ill father. He

      indicated that he did not have a college education and, at the time of the

      accident, the nature of his work was physical labor. After describing how the

      crush injury occurred and the first two surgeries, he stated that after the first

      surgery there “was always something.” Id. at 161. He answered affirmatively

      when he was asked if he had a conversation with Dr. Glock in his office about

      the neuroma procedure on September 28, 2011, and stated “Oh, it was going to

      get better” and “I mean it’s gonna be good” when asked if Dr. Glock told him

      what would be the outcome of that surgery. Id. at 166. He answered in the

      negative when asked whether Dr. Glock ever told him that there was a

      likelihood that it would not work and whether he ever told him that there was a

      risk of further nerve injury. Id. He responded “No. Cause he’s the one that cut

      it, so he was gonna fix it” when asked if Dr. Glock ever told him “the surgery in

      your palm was, there’s a likelihood it wouldn’t work.” Id. He indicated that he

      would not have had the surgery if Dr. Glock had told him that he might die

      from it.


[9]   The court admitted diagrams of a hand as Plaintiff’s Exhibits 4 and 5, and

      Records from the Terre Haute Regional Hospital as Defendant’s Exhibits B and

      C and Plaintiff’s Exhibits 2 and 3. Plaintiff’s Exhibit 5 is a cross-section

      diagram labeling the arteries and nerves of the palm. Defendant’s Exhibits B

      and C contain forms with Kennedy’s signature that are titled “Consent for


      Court of Appeals of Indiana | Opinion 18A-CT-2486 | October 10, 2019        Page 5 of 27
Anesthesia,” dated July 1, 2011 and October 3, 2011, and contain the statement

that “rare, unexpected severe complications with anesthesia . . . include the

remote possibility of infection, bleeding, drug reactions, blood clots, loss of sensation,

loss of limb function, paralysis, stroke, brain damage, heart attack, or death.” Exhibits

Volume II at 90-91, 194-195. Both Plaintiff’s Exhibits 2 and 3 include a form,

which includes Kennedy and Dr. Glock’s signatures beside a date of “9-28-11,”

is titled “Consent for Administration of Anesthesia and for Performance of

Operations and Other Procedures,” and which states in relevant part, “I, Rickey

Kennedy . . . consent to and authorize the performance of the following

treatment, procedure, examination or test: left index finger neuroma excision of

radial digital nerve to palm by or under the direction of Christopher R. Glock.” 2

Exhibits Volume I at 72, 131. The form also states:


         B. Explanation

         1. The general nature of my condition, the purpose, benefits and
         expected outcome of the Procedure, reasonable alternative
         methods of treatment along with their material risks, benefits and
         side effects, the possible outcome without the Procedure or
         alternative treatment, the Procedure or alternative treatment, and
         the possibility of complications have been fully explained to me
         by the Physician or an affiliated doctor (“Doctor”), and all of my
         questions have been answered. I acknowledge that no guarantees
         have been made to me concerning the results of the Procedure. I
         understand the nature of the Procedure to be (description of




2
 Both names and the phrase, “left index finger neuroma excision of radial digital nerve to palm,” are written
by hand onto the form. See Exhibits Volume I at 72, 131.

Court of Appeals of Indiana | Opinion 18A-CT-2486 | October 10, 2019                             Page 6 of 27
               Procedure in layman’s language): Get pain out of hand by
               removing nerve from nub.[ 3]


       Id. Both Plaintiff’s Exhibits 2 and 3 include a record from Terre Haute

       Regional Hospital that describes the neuroma procedure and which states that

       Kennedy was a patient with “left index finger neuroma pain at the stump” and

       who “had improvement on the ulnar side with persistence on the radial side,” 4

       the “branches to the proper digital nerve to the index finger radial border and

       the common digital nerve to the second web space index and middle were

       identified each,” the “common digital nerve to the second web space was

       preserved,” the “flexor tendons to the index finger were assessed, and the

       proper digital nerve to the radial border of the index finger was identified,” and

       that “[i]t was tensioned, and there was no corresponding tension in the thumb,

       only to the radial border of the stump.” Id. at 66-67, 129-130.


[10]   Plaintiff’s Exhibit 2 includes a “History & Physical Report #24,” which details a

       “followup for left index finger” after a “neuroma transposition” and states

       “Physical Exam (Christopher R Glock; 10/12/2011 8:39 AM)” and that

       Kennedy


               called postop, the day after, and stated that his thumb was very
               numb. I thought it was still the anethestic. He comes back today



       3
        The phrase, “Get pain out of hand by removing nerve from nub,” is written by hand onto the form. See
       Exhibits Volume I at 72, 131.
       4
        In his testimony, Dr. Glock explained that “radial” means “away from the small finger” and “ulnar” means
       “on the small finger side.” Transcript Volume III at 50.

       Court of Appeals of Indiana | Opinion 18A-CT-2486 | October 10, 2019                         Page 7 of 27
        for his normal followup and he states that it is still numb in the
        thumb. It looks like the whole thumb, radial and ulnar sides are
        numb.

        PHYSICAL EXAMINATION: . . . He no longer has any pain at
        the index finger stump. He has numbness and tingling on the
        radial and ulnar borders of the left thumb . . . . At the time of
        surgery, the nerve was tested for its distribution and it seemed to
        be only coming from the area of the index finger stump,
        however, there can be branches from the stump to the thumb and
        so this needs to be evaluated surgically in my opinion.


Id. at 24. Both Plaintiff’s Exhibits 2 and 3 include a record from Terre Haute

Regional Hospital of the November 2, 2011 procedure that states, subsequent to

the procedure, Kennedy “has had numbness on the ulnar side of the left thumb”

and that it “was felt that he had a common digital nerve, which was previously

suspected in the first web space between the index and thumb accounting for

the numbness and thumb after division.” Id. at 58, 133. Plaintiff’s Exhibit 2

includes a “History & Physical Report #26,” which details a “follow-up for

[Kennedy’s] left thumb and index finger” and states “Physical Exam

(Christopher R Glock; 11/10/2011 2:18 PM)” and that


        since I have last seen him, at the time of surgery, we found that
        he did have a common digital branch to the index finger and the
        ulnar side of thumb. This was branched after I already cut it
        from the previous procedure. . . . He is made aware that I did
        not do the test intraoperatively that I did on the procedure that
        originated in the cut of the nerve . . . . I explained to him that
        what we did at surgery, to reconstruct it.




Court of Appeals of Indiana | Opinion 18A-CT-2486 | October 10, 2019         Page 8 of 27
       Id. at 22. Plaintiff’s Exhibit 2 further includes a “History & Physical Report

       #31,” which states “Physical Exam (Christopher R Glock; 1/16/2012 9:58

       AM),” “since I have last seen him he is having difficulty when he uses his hand

       for heavy activity or touches it to the steering wheel right in this first web space,”

       and “IMPRESSION: Left hand wound with revision amputation and neuroma

       transposition, and repair of iatrogenic nerve injury to the thumb.” 5 Id. at 17.


[11]   Kennedy testified about various records included in Plaintiff’s Exhibits 2 and 3.

       He stated he had written the explanation for the neuroma procedure included on

       the form and indicated that it said “[g]et pain out of” “[h]and by removing nerve

       from nub,” which correctly described his understanding of the operation.

       Transcript Volume II at 170. He stated that Dr. Glock “did not tell me how he

       was gonna cut it” and indicated he had not explained “any risks to the nerves

       being close together.” Id. at 173. When asked if he had pain in his thumb before

       the neuroma procedure, he answered in the negative and stated “[i]t had nothing

       to do with my thumb. It was just these two fingers.” Id. at 174. He indicated he

       did not have any other surgery on his thumb besides “the one that was done on

       the fifth surgery” subsequent to the neuroma procedure, and stated, “[i]n my

       thumb. My thumb mostly,” when asked about the location of the pain after the

       neuroma procedure. Id. He indicated that the pain did not “get out of [his] hand




       5
         “Iatrogenic” is defined as “induced inadvertently by a physician or surgeon or by medical treatment or
       diagnostic procedures.” MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/iatrogenic
       (last visited September 30, 2019). See also AMERICAN HERITAGE DICTIONARY 867 (4th ed. 2006) (defining
       “iatrogenic” as “[i]nduced in a patient by a physician’s activity, manner, or therapy. Used especially of an
       infection or other complication of treatment”).

       Court of Appeals of Indiana | Opinion 18A-CT-2486 | October 10, 2019                              Page 9 of 27
       from removing the nerve to the nub” after the neuroma procedure and stated

       “[h]e just put it in another spot.” Id. When asked when he first started having

       the “numbness [he] described and the sensation in [his] thumb,” he responded

       “[t]he same surgery.” Id. at 175. He testified that his writing on the diagram in

       Plaintiff’s Exhibit 4 stated “Point where nerve was cut,” that the diagram

       illustrated as best as he could recall “what Dr. Glock had told him about what

       happened in the surgery,” and that Dr. Glock told him that “[h]e was gonna re-

       attach it to get the sensation, he was gonna fix what he done.” Id. at 176. He

       further stated “You can feel it” when asked whether, as he sat there, he had pain

       in his thumb and testified that the problem with his thumb interferes with his

       work “[d]epend[ing] on what [he’s] doing.” Id. at 180.


[12]   Kennedy presented and played for the jury the deposition of Dr. Dellacqua, a

       member of the medical review panel, who indicated that the neuroma procedure

       “was a resection of a neuroma.” Id. at 242. When asked what risks the hand

       surgeon should tell the patient about before completing a neuroma resection, he

       stated that the “standard risk is nerve injury, infection, blood vessel injury,

       wound healing, and then obviously loss of life and limb. We don’t always go

       into those. . . . But in a very general term, the gravity of surgery needs to be

       relayed to the patient.” Id. at 244. When asked if there should be a discussion

       about reoccurrence, Dr. Dellacqua stated in part, “Nerves are a very fickle

       instrument. And just in my opinion, I have in my own hands gone back several

       times on nerves to try to get them to not stick to either skin or muscle or bone or

       become a problem in the hand. [T]he answer to your question is, reoccurrence of


       Court of Appeals of Indiana | Opinion 18A-CT-2486 | October 10, 2019        Page 10 of 27
       the pain or lack of getting rid of the pain is, to me, the number one.” Id. After

       the deposition concluded, the court took judicial notice without objection of the

       fact that the “life expectancy of a person . . . is thirty-seven point six years based

       upon the age that [Kennedy] was at the time this occurred” and the Social

       Security Administration actuarial table. Transcript Volume III at 7.


[13]   After Kennedy rested, Dr. Glock moved for judgment on the evidence. He

       argued that Kennedy “by his own testimony and by the evidence that [the

       court] received through those consents” was advised about “the risk that

       manifested itself and came about unintended nerve injury” as a risk prior to

       electing to complete the procedure and that there was “no evidence of medical

       causation between anything that happened in the fourth surgery and any injury

       which he claims he now has or has ever suffered.” Id. at 8. After some

       argument, the court noted that it was a pretty low threshhold to overcome a

       motion for judgment on the evidence and denied Dr. Glock’s motion. Id. at 16.


[14]   Dr. Glock then presented evidence on his behalf. He testified that, across the

       country in large populations of people who study it, seventy-five percent chance

       of success with a neuroma is what is quoted, and that “[s]uccess in this particular

       situation is improvement in pain” and “it’s never complete elimination.” Id. at

       46. When asked if, by improvement, he meant “reduction in the level and

       intensity of the pain,” he answered affirmatively and stated “To the point that the

       patient says, that was worth it. I’m glad I did it. That’s the only hurdle. It’s no

       more arduous than that. Does the patient think that it was worth it? And in

       these studies, roughly seventy-five percent (75%) did.” Id. When asked if he told

       Court of Appeals of Indiana | Opinion 18A-CT-2486 | October 10, 2019         Page 11 of 27
       Kennedy that he thought Kennedy’s chance of success for the surgery as he had

       defined it was seventy-five percent, Dr. Glock answered, “I did.” Id. When

       asked if he thought “it was reasonable for [Kennedy] to elect to have the surgery

       after the disclosures [he] made for it,” he answered “Yes.” Id.


[15]   Dr. Glock indicated he “absolutely” recalled seeing Kennedy at the first post-

       operative visit for the neuroma procedure and that he had “independent

       recollection” of it. Id. at 51. He stated he was greatly concerned that Kennedy

       “said he had numbness here and here” and that he had “unusual variance,

       abnormal anatomy.” Id. Dr. Glock testified he did exactly what he was trained

       to do with respect to that potential problem and that the test to identify normal

       anatomy did not work. He indicated that, at a meeting in his office, he

       explained to Kennedy what he “thought the cause was,” that he “felt that the

       problem [Kennedy] was experiencing was as a result of my surgery,” and that,

       when he cut a nerve that he “thought was an isolated nerve just going to the

       stump,” he thought he “may have injured the nerve to [Kennedy’s] thumb even

       though [he] checked for it.” Id. at 54-55. During cross-examination, in

       response to being asked if the numbness and tingling to his thumb had not

       “gone away now, can we assume that it’s permanent after this period of time,”

       Dr. Glock stated “[s]adly.” Id. at 61. He presented and played for the jury the

       deposition of Dr. Paul Perry, who indicated:


               So the ideal circumstance, since you know every – as we know
               that every cut nerve is going to make neuroma, every single one,
               we want to put the nerve – or put the neuroma where it will do
               that – cause the least amount of trouble. And so, when we talk

       Court of Appeals of Indiana | Opinion 18A-CT-2486 | October 10, 2019    Page 12 of 27
                about moving neuromas, and the medical term for that is
                relocating, that the surgery that we do where we move that
                neuroma into a less conspicuous place, a less troublesome space.
                So that’s what a neuroma relocation is or a removal of the
                neuroma. You’re really not removing it; you’re moving it.


       Id. at 83. Kennedy testified as a rebuttal witness that Dr. Glock had not told

       him that the likelihood of success for the neuroma procedure was seventy-five

       percent and stated “[t]oday was the first time I heard that” when asked if Dr.

       Glock had given “any percentage at all of success.” Id. at 123.


[16]   At the close of evidence, the court heard argument regarding the final jury

       instructions. After deliberating for only an hour, the jury returned a verdict in

       favor of Kennedy in the amount of $2,300,000. 6 Kennedy’s counsel indicated

       that the cap in this case was $1,250,000 and stipulated that Dr. Glock’s liability

       “does not exceed Two Hundred and Fifty Thousand Dollars ($250,000.00)

       under the act.” Id. at 170. The court allowed the record to reflect that Dr.

       Glock was a qualified provider, Kennedy’s counsel agreed that judgment

       against him could not exceed $250,000, and the court entered judgment on July

       6, 2018.


[17]   Dr. Glock filed a motion to correct error, and the court issued a sixteen-page

       order denying the motion on October 5, 2018. The order noted in denying the

       “Motion to Correct Error based upon the issue of causation,” that Dr. Glock



       6
         The court’s order on the motion to correct error indicates that the “jury began deliberating at 6:41 pm and
       the verdict was read into the record at 7:42 pm.” Appellant’s Appendix Volume II at 25.

       Court of Appeals of Indiana | Opinion 18A-CT-2486 | October 10, 2019                             Page 13 of 27
       testified that the fourth surgery he performed caused Kennedy’s problems to his

       thumb area and “the jury appears to have relied on that testimony”; and, in

       denying the “Motion to Correct Error on the issue of informed consent,” that

       whether “Kennedy met his burden of proof on the issue of informed consent

       depends on whether expert testimony is required for certain elements and

       whether the expert testimony can come from the defendant doctor” and that

       recent Indiana Court of Appeals caselaw “at least makes a suggestion that

       expert testimony is not required on the issue of what decision a reasonable

       properly informed patient would make.” Appellant’s Appendix Volume II at

       13-14. In denying the “Motion to Correct Error on the basis that the jury

       verdict was excessive and outrageous,” the court stated that it had a duty to

       review the entire evidence relevant to the issue of damages. Id. at 26. In

       reviewing that evidence, it made over eight pages of findings based on the

       testimony of Kennedy, Dr. Dellacqua, Dr. Glock, and Dr. Perry.


                                                     Discussion

                                                           I.


[18]   The first issue is whether the trial court abused its discretion by denying Dr.

       Glock’s motion for judgment on the evidence. We note that Dr. Glock

       presented evidence after the court denied his motion and did not renew his

       motion at the close of the evidence. We therefore address Dr. Glock’s

       argument as a sufficiency challenge. See Bd. of Works of City of Lake Station v.

       I.A.E., Inc., 956 N.E.2d 86, 92 n.3 (Ind. Ct. App. 2011) (holding that the appeal

       of the denial of defendant’s judgment on the evidence motion was waived by its
       Court of Appeals of Indiana | Opinion 18A-CT-2486 | October 10, 2019      Page 14 of 27
       subsequent presentation of evidence and addressing its argument as a

       sufficiency challenge), trans. denied. In reviewing the sufficiency of evidence in

       a civil case, we will decide whether there is substantial evidence of probative

       value supporting the judgment. Jamrosz v. Res. Benefits, Inc., 839 N.E.2d 746,

       758 (Ind. Ct. App. 2005), trans. denied. We neither weigh the evidence nor

       judge the credibility of witnesses but consider only the evidence most favorable

       to the judgment along with all reasonable inferences to be drawn therefrom. See

       Davidson v. Bailey, 826 N.E.2d 80, 87 (Ind. Ct. App. 2005) (quoting Indian

       Trucking v. Harber, 752 N.E.2d 168, 172 (Ind. Ct. App. 2001)). The verdict will

       be affirmed unless we conclude that it is against the great weight of the

       evidence. Id.


[19]   Generally, in a medical malpractice action based on ordinary negligence, a

       plaintiff must establish (1) a duty on the part of the defendant physician in

       relation to the plaintiff, (2) failure of the physician to meet the requisite

       standard of care, and (3) an injury to the plaintiff resulting from that failure. See

       Spar v. Cha, 907 N.E.2d 974, 979 (Ind. 2009) (citing Bader v. Johnson, 732

       N.E.2d 1212, 1216-1217 (Ind. 2000); Oelling v. Rao, 593 N.E.2d 189, 190 (Ind.

       1992)). “‘Lack of informed consent’ is a theory of liability that is distinct from a

       medical malpractice claim that a doctor provided treatment that negligently

       failed to meet the requisite standard of care.” Perez v. Hu, 87 N.E.3d 1130, 1135

       (Ind Ct. App. 2017) (quoting Spar, 907 N.E.2d at 979). Lack of informed

       consent “is viewed as a battery claim if there is an alleged complete lack of

       consent to medical treatment, but otherwise it is ‘regarded as a specific form of

       Court of Appeals of Indiana | Opinion 18A-CT-2486 | October 10, 2019        Page 15 of 27
       negligence for breach of the required standard of professional conduct.’” Id. In

       light of the medical review panel’s opinion and our review of the record, we

       conclude that Kennedy’s lack of informed consent claim is of the second type.


[20]   “To succeed on a lack of informed consent action, the plaintiff must prove ‘(1)

       nondisclosure of required information; (2) actual damage . . . (3) resulting from

       the risks of which the patient was not informed; (4) cause in fact, which is to say

       that the plaintiff would have rejected the medical treatment if she had known

       the risk; and (5) that reasonable persons, if properly informed, would have

       rejected the proposed treatment.’” Spar, 907 N.E.2d at 979-980 (quoting Dan

       B. Dobbs, The Law of Torts, § 250 (2001) (footnotes omitted)).


[21]   Dr. Glock first contends that the trial court erred regarding the issue of

       causation and argues Kennedy presented no expert medical evidence, that

       “medical causation[] raises the bar and may only be determined by the expert

       testimony of a physician,” and that Dr. Dellacqua did not provide expert

       testimony as to that issue. Appellant’s Brief at 14. Kennedy maintains that

       Plaintiff’s Exhibits 2 and 3 indicated that Dr. Glock admitted to him that

       “during the [neuroma procedure] he had tested to make sure that the nerve

       from the base of the stump did not have a branch to go to the thumb but that

       now he suspected that there was a branch which did so and he had severed that

       nerve” during the neuroma procedure. Appellee’s Brief at 8. He argues that

       there is no reason to differentiate between or require evidence from the

       testimony of another expert medical witness “especially where the defendant

       physician has admitted that his surgery . . . caused the permanent injury” and

       Court of Appeals of Indiana | Opinion 18A-CT-2486 | October 10, 2019     Page 16 of 27
       contends that Dr. Glock’s testimony in direct and cross-examination provided

       undisputed evidence of causation from a medical expert. Id. at 20. The record

       reveals that Kennedy’s witness, Dr. Dellacqua, who was a member of the

       medical review panel, testified in his deposition about the risks of the neuroma

       procedure. Based upon the evidence as set forth above and in the record, we

       find that substantial evidence of probative value supports the judgment and we

       cannot say that reversal is warranted on this basis.


[22]   Dr. Glock further contends that no expert evidence demonstrated it was

       reasonable for Kennedy to refuse the neuroma procedure and Kennedy did not

       provide expert testimony which proved that, more likely than not, a reasonable

       person who was properly informed of the risks and complications of the

       neuroma procedure would have refused it. He argues that no medical evidence

       contradicted Dr. Perry’s testimony, contends that this case is a perfect example

       of why the fifth element of an informed consent claim is required and “is

       particularly important where there is no evidence that actual care rendered fell

       below the standard of care,” and asserts that the trial court should decide, in

       circumstances such as this one, the question as a matter of law. Appellant’s

       Brief at 25. Kennedy responds that the issue was properly left to the jury and

       that the “reasonable patient is an adaptation of the reasonable man standard

       which we have employed as a community ideal of reasonable behavior to be

       determined by the jury’s social judgment and not by expert opinion.”

       Appellee’s Brief at 26. The Indiana Trial Lawyers Association filed an amicus

       brief and argues that requiring expert testimony to show that a reasonable


       Court of Appeals of Indiana | Opinion 18A-CT-2486 | October 10, 2019    Page 17 of 27
       person, if properly informed, would have rejected the proposed treatment runs

       afoul of public policy, is counter to the “most important and central goal of the

       informed consent doctrine[,] protect[ing] a patient’s personal autmonomy,” and

       “is essentially to say that people can control their bodies only to the extent that

       they are reasonable in the estimate of physicians.” Amicus Brief at 13-14.


[23]   Jurors are free to draw inferences from the evidence presented. “[A]n inference

       is not disqualified simply because the subject of the inference is a matter of

       scientific knowledge.” City of Alexandria v. Allen, 552 N.E.2d 488, 494 (Ind. Ct.

       App. 1990) (citing Magazine v. Shull, 60 N.E.2d 611 (Ind. Ct. App. 1945)), reh’g

       denied. “The evidence of an expert witness is to be received by the Court or jury

       trying the cause under the same rules and in the same manner that evidence of

       other witnesses is received and must be weighed by the trier of facts, the same

       as other evidence is weighed; the trier of facts is not bound by an expert’s

       opinion.” Ferdinand Furniture Co., Inc. v. Anderson, 399 N.E.2d 799, 807 (Ind.

       Ct. App 1980).


[24]   This Court recently held:


               Twenty-five years ago, our supreme court decided Culbertson v.
               Mernitz, 602 N.E.2d 98 (Ind. 1992). In a 3-2 decision, the court
               addressed whether a “reasonably prudent physician” or
               “reasonably prudent patient” standard is controlling in informed
               consent cases and whether expert testimony is required to prove
               an informed consent claim. The majority stated:

                        Resolution of the issue of the necessity of expert medical
                        testimony in informed consent cases depends on whether
                        the issue is viewed through the eyes of the physician or the

       Court of Appeals of Indiana | Opinion 18A-CT-2486 | October 10, 2019       Page 18 of 27
                 patient. When viewed through the eyes of the physician, it
                 is easy to see that a physician should not be required to
                 guess or speculate as to what a hypothetical “reasonably
                 prudent patient” would “need to know” in order to make a
                 determination. A physician should only be required to do
                 that which he is trained to do, namely, conduct himself as
                 a reasonably prudent physician in taking a history,
                 performing a physical examination, ordering appropriate
                 tests, reaching a diagnosis, prescribing a course of
                 treatment, and in discussing with the patient the medical
                 facts of the proposed procedure, including the risks
                 inherent in either accepting or rejecting the proposed
                 course of treatment. From a physician’s viewpoint, he
                 should not be called upon to be a “mind reader” with the
                 ability to peer into the brain of a prudent patient to
                 determine what such patient “needs to know,” but should
                 simply be called upon to discuss medical facts and
                 recommendations with the patient as a reasonably prudent
                 physician would.

        Culbertson, 602 N.E.2d at 103. Ultimately, the majority
        concluded, “except in those cases where deviation from the
        standard of care is a matter commonly known by lay persons,
        expert medical testimony is necessary to establish whether a
        physician has or has not complied with the standard of a
        reasonably prudent physician.” Id. at 104. The majority did not
        explicitly adopt a set of elements needed to prove an informed
        consent claim.

        The lengthy dissent began by citing a decision by that court in the
        previous year in Matter of Lawrance, 579 N.E.2d 32, 39 (Ind.
        1991). The dissent stated:

                 Emphasizing respect for patient autonomy, we
                 acknowledged that liberty interests protected in the
                 Indiana Constitution and public policy values preserved in
                 Indiana statutory and common law reflect “a commitment
                 to patient self-determination.” In seeming disregard of
Court of Appeals of Indiana | Opinion 18A-CT-2486 | October 10, 2019     Page 19 of 27
                 these fundamental principles, however, today’s decision
                 rejects the prudent patient standard in informed consent
                 cases. It ignores “the basic human need of self-
                 determination and individual autonomy” in deference to
                 decision-making by physicians.

                 The central concern of the majority appears to be whether
                 a plaintiff should be permitted to establish an informed
                 consent claim without presenting expert medical
                 testimony. This issue should not blind the Court to the
                 basic values articulated in Lawrance. Nor does the prudent
                 patient standard eliminate the need for a plaintiff to
                 present medical expertise.

        Culbertson, 602 N.E.2d at 104 (Dickson & DeBruler, JJ,
        dissenting). The dissent also observed:

                 Although there is widespread acceptance of the doctrine of
                 informed consent as a theory of liability, there is
                 disagreement concerning the role of expert medical
                 witnesses in determining whether the informed consent of
                 the patient has been obtained. Those invoking the
                 “prudent patient” standard assess the adequacy of the
                 disclosure by requiring mention of all inherent risks which
                 a reasonably prudent patient would consider material in
                 deciding to undergo or forego a particular procedure.
                 While medical expertise would be required to identify the
                 risks of proposed treatment and non-treatment, the fact
                 finder needs no expert guidance to determine the
                 materiality of a particular risk to a patient. The “prudent
                 physician” standard, on the other hand, evaluates the
                 adequacy of the risk disclosure only from the physician’s
                 viewpoint.

        Id. at 105. The majority did not respond directly to the dissent’s
        arguments. Thus, it appeared after Culbertson that an informed
        consent claim rested entirely upon what a “reasonably prudent
        physician” would believe necessary to disclose, as proven by

Court of Appeals of Indiana | Opinion 18A-CT-2486 | October 10, 2019        Page 20 of 27
        expert testimony, without reference to what a “reasonably
        prudent patient” would want to know.

        In later years, our supreme court has seemingly drifted away
        from the majority holding in Culbertson and toward the dissent’s
        view, although it has never been overruled. In Weinberg v. Bess,
        717 N.E.2d 584, 588 n.5 (Ind. 1999), the court stated, “Under the
        doctrine of informed consent, a physician must disclose the facts
        and risks of a treatment which a reasonably prudent physician
        would be expected to disclose under like circumstances, and
        which a reasonable person would want to know.” (Emphasis added).
        For this proposition, the court cited a part of
        the Culbertson opinion that was discussing cases from other
        jurisdictions that had adopted the view that “a jury is in the best
        position to determine whether the physician gave the patient the
        information needed by the patient to weigh the alternatives and
        make the ultimate decision of whether to proceed with the
        proposed treatment.” Culbertson, 602 N.E.2d at 100 (citing Cobbs
        v. Grant, 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1 (1972)).
        However, this was precisely the position the Culbertson majority
        seemed to end up rejecting and the dissent wanted to adopt.
        There is nothing in the Culbertson majority opinion indicating that
        “and which a reasonable person would want to know” is an
        element of an informed consent case in Indiana.

        Nevertheless, our supreme court subsequently cited
        the Weinberg footnote as a correct statement of the law of
        informed consent, in Spar, 907 N.E.2d at 984.


Perez, 87 N.E.3d at 1135-36. In applying the Spar elements of an informed

consent claim, we noted:


        [I]t seems clear that no expert testimony would be required with
        respect to whether a particular disclosure did or did not occur,
        nor as to whether the plaintiff herself would have chosen
        different treatment if she had known of the risk involved with the

Court of Appeals of Indiana | Opinion 18A-CT-2486 | October 10, 2019     Page 21 of 27
        performed treatment. On the other hand, expert testimony
        generally is required to determine what a reasonably prudent
        physician should tell a patient before performing a medical
        procedure, unless the matter is within a layperson’s
        understanding. Bowman v. Beghin, 713 N.E.2d 913, 916-17 (Ind.
        Ct. App. 1999). Additionally, whether actual damage was
        caused as a result of an inadequate disclosure generally is a
        matter requiring expert opinion. Bunch v. Tiwari, 711 N.E.2d
        844, 850 (Ind. Ct. App. 1999).

                                               *****

        Here, the primary focus of the parties’ dispute is whether [the
        plaintiff] had to present expert testimony in support of the
        element that a properly-informed reasonable person would have
        rejected [the defendant physician’s] proposed treatment – i.e.,
        whether an objectively reasonable person would have chosen to
        have a c-section rather than a vaginal delivery. There is currently
        no clear answer to that question. To require expert testimony in
        support of that element would seem consistent with the Culbertson
        majority’s rejection of a “reasonable patient standard” for
        informed consent claims and its requirement that an informed
        consent claim be proven by expert testimony. On the other hand,
        the very fact that our supreme court now has adopted the
        “reasonable patient” test as an element of an informed consent
        claim arguably indicates an implicit overruling of Culbertson and
        agreement with the dissent. In accordance with that view, expert
        testimony would be required as to some informed consent
        elements but not others. Namely, “[w]hile medical expertise
        would be required to identify the risks of proposed treatment and
        non-treatment, the fact finder needs no expert guidance to
        determine the materiality of a particular risk to a patient.”
        Culbertson, 602 N.E.2d at 105 (Dickson & DeBruler, JJ,
        dissenting) (citing Canterbury v. Spence, 464 F.2d 772, 787 (D.C.
        Cir. 1972), cert. denied). Furthermore, as a matter of the meaning
        of a “reasonable person” standard in legal parlance, normally it is
        an objective standard measured by the collective judgment of a

Court of Appeals of Indiana | Opinion 18A-CT-2486 | October 10, 2019     Page 22 of 27
               lay jury, not experts. See Pierce v. Horvath, 142 Ind. App. 278,
               285, 233 N.E.2d 811, 815 (1968) (stating that the “reasonable
               man” standard “‘is a personification of a community ideal of
               reasonable behavior, determined by the jury’s social judgment.’”)
               (quoting Prosser’s Treatise on Torts, § 32 p. 154 (3rd ed. 1964)).
               Under this standard, it would be up to the jury to decide, based
               on its collective judgment and experience and not expert
               testimony, whether a reasonable person would have chosen a
               different course of medical treatment if he or she had been
               adequately informed.


       Id. at 1137-1138 (footnotes omitted).


[25]   The record reveals that Kennedy submitted medical records from Terre Haute

       Regional Hospital describing the five procedures that occurred in 2010 and

       2011, as well as reports on the follow-up exams conducted by Dr. Glock after

       the neuroma procedure and subsequent procedure in which Dr. Glock

       discovered a common digital branch to the index finger and the ulnar side of the

       thumb. Kennedy testified that he did not have pain in his thumb before the

       neuroma procedure and indicated that he had pain in his thumb at trial. The

       form dated prior to the neuroma procedure and signed by both Dr. Glock and

       Kennedy included Kennedy’s statement “get pain out of hand by removing

       nerve from nub,” which he testified correctly described his understanding of the

       operation at the time. Exhibits Volume I at 72. He further presented the

       deposition of Dr. Dellacqua, a member of the medical review panel, who stated

       that the standard risk of a neuroma resection was “nerve injury, infection, blood

       vessel injury, wound healing, and then obviously loss of life and limb” and “in

       a very general term, the gravity of surgery needs to be relayed to the patient.”

       Court of Appeals of Indiana | Opinion 18A-CT-2486 | October 10, 2019    Page 23 of 27
       Transcript Volume II at 244. He further testified that reoccurrence of the pain

       or lack of eliminating the pain is “number one” in a discussion on the risks of a

       neuroma procedure. Id. Dr. Perry stated that a removal of the neuroma is

       “really not removing it” but “moving it.” Transcript Volume III at 83. Dr.

       Glock indicated that roughly seventy-five percent of people experienced a

       reduction in the level and intensity of pain to the point that the patient says

       “that was worth it,” and he stated that success was “never complete

       elimination.” Id.


[26]   The reasonable inferences to be drawn from the expert testimony provided are

       that roughly twenty-five percent of people who undertake a neuroma procedure

       do not experience a reduction in the level and intensity of pain to the point that

       the patient says “that was worth it”; that the roughly seventy-five percent of

       people who do experience success do not have complete elimination of pain;

       and that a primary component of a discussion on the risks of a neuroma

       procedure includes discussing the reoccurrence of pain or the lack of

       eliminating the pain. We find under these circumstances that a finding that

       reasonable persons, if properly informed, would have rejected the proposed

       treatment is not against the great weight of the evidence and conclude that the

       evidence most favorable to the judgment along with all reasonable inferences to

       be drawn from the evidence supports the judgment with regard to this issue.


                                                           II.




       Court of Appeals of Indiana | Opinion 18A-CT-2486 | October 10, 2019      Page 24 of 27
[27]   The next issue is whether the trial court abused its discretion in denying Dr.

       Glock’s motion to correct error on the basis that the jury verdict was excessive.

       He argues that the amount of damages awarded by the jury cannot be explained

       on any reasonable ground, contends that Kennedy did not have a substantial

       change in his quality of life or the amount of pain due to his alleged injuries

       arising from the neuroma procedure, and asserts that Kennedy provided neither

       evidence that his pre-existing pain was caused or enhanced after the neuroma

       procedure nor reasons for the jury to award him for the rest of his life more

       money daily than he makes in a day’s work.


[28]   The record reveals that the jury’s verdict in favor of Kennedy awarded him

       damages of $2,300,000, Kennedy’s counsel indicated that the cap in this case

       was $1,250,000 and agreed that Dr. Glock’s liability could not exceed $250,000,

       and the court took notice that Dr. Glock was a qualified provider. This Court

       has recently explained that:


               the remedy offered by Indiana Trial Rule 59(J)(5) is “available
               only where the evidence is insufficient to support the verdict as a
               matter of law.” Solnosky v. Goodwell, 892 N.E.2d 174, 184 (Ind.
               Ct. App. 2008) (quoting City of Carmel v. Leeper Elec. Servs., Inc.,
               805 N.E.2d 389, 392 (Ind. Ct. App. 2004), trans. denied). Once
               the trial court has entered final judgment on the evidence for the
               amount of proper damages, we will reverse the decision only for
               an abuse of discretion. Id.

               We afford a jury’s damage award great deference on
               appeal. Sims v. Pappas, 73 N.E.3d 700, 709 (Ind. 2017). In
               considering whether a jury verdict is excessive, we do not
               reweigh the evidence and look only to the evidence and
               reasonable inferences that may be drawn therefrom that support
       Court of Appeals of Indiana | Opinion 18A-CT-2486 | October 10, 2019       Page 25 of 27
               the verdict. West v. J. Greg Allen Builder, Inc., 92 N.E.3d 634, 643
               (Ind. Ct. App. 2017), trans. denied (2018). If there is any evidence
               in the record which supports the amount of the award, even if it
               is variable or conflicting, the award will not be
               disturbed. Sandberg Trucking, Inc. v. Johnson, 76 N.E.3d 178, 189
               (Ind. Ct. App. 2017). “To warrant reversal, the award must
               appear to be so outrageous as to impress the Court at first blush
               with its enormity.” Id. (citation and quotation marks omitted).
               An award is not excessive unless the amount cannot be explained
               upon any basis other than prejudice, passion, partiality,
               corruption, or some other element of improper
               consideration. Sims, 73 N.E.3d at 709.

                                                      *****

               “Awards for pain, suffering, fright, humiliation, and mental
               anguish are particularly within the province of the jury because
               they involve the weighing of evidence and credibility of
               witnesses.” Landis v. Landis, 664 N.E.2d 754, 757 (Ind. Ct. App.
               1996). Indeed, “[p]hysical and mental pain are, by their very
               nature, not readily susceptible to quantification, and therefore,
               the jury is given very wide latitude in determining these kinds of
               damages.” Groves v. First Nat’l Bank of Valparaiso, 518 N.E.2d
               819, 831 (Ind. Ct. App. 1988). “Our inability to actually look
               into the minds of jurors and determine how they computed an
               award is, to a large extent, the reason behind the rule that a
               verdict will be upheld if the award falls within the bounds of the
               evidence.” Griffin v. Acker, 659 N.E.2d 659, 664 (Ind. Ct. App.
               1995).


       Carney v. Patino, 114 N.E.3d 20, 31 (Ind. Ct. App. 2018), trans. denied.


[29]   We observe that the trial court reviewed the testimony of Kennedy, Dr.

       Dellacqua, Dr. Glock, and Dr. Perry and that the findings in its order on this

       issue exceeded eight pages. The evidence reveals that Kennedy’s remaining life

       Court of Appeals of Indiana | Opinion 18A-CT-2486 | October 10, 2019       Page 26 of 27
       expectancy is 37.6 years based upon the age that he was at the time of the

       accident, that the location of the pain before the neuroma procedure “had

       nothing to do” with his thumb but rather two other fingers, that the pain after

       the neuroma procedure was located in his thumb mostly and is permanent, and

       that the problem with his thumb interferes with his work depending on the task.

       We further note Coleman’s testimony that Kennedy has shared that the pain

       mainly in his thumb and hand “is so bad that he can’t stand it somedays.”

       Transcript Volume II at 142. Dr. Glock’s arguments to the contrary are

       essentially a request for us to reweigh the evidence and reassess witness

       credibility, which we cannot do. See West, 92 N.E.3d at 643 (when party seeks

       to reverse adverse judgment on basis of insufficient evidence, appellate court

       will not weigh evidence or assess witness credibility). We cannot say that the

       court abused its discretion in denying the motion to correct error.


[30]   For the foregoing reasons, we affirm the trial court’s denial of the motion for

       judgment on the evidence and motion to correct error.


[31]   Affirmed.


       Baker, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CT-2486 | October 10, 2019    Page 27 of 27
