                                                              FILED
                                                         Jul 05 2016, 10:38 am

                                                              CLERK
                                                          Indiana Supreme Court
                                                             Court of Appeals
                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Nathaniel Lee                                              James F. Bleeke
      Lee & Fairman, LLP                                         Bleeke Dillon Crandall
      Indianapolis, Indiana                                      Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      John Green,                                                July 5, 2016
      Appellant-Petitioner,                                      Court of Appeals Case No.
                                                                 49A02-1509-MI-1487
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      Stephen Robertson,                                         The Honorable John M.T. Chavis,
      Commissioner, Indiana                                      II, Judge
      Department of Insurance,                                   Trial Court Cause No.
      Appellee-Respondent.                                       49D12-1412-MI-40514
                                                                 49D05-1412-MI-40514



      Robb, Judge.



                                Case Summary and Issues
[1]   John Green filed a petition for excess damages from the Indiana Patient’s

      Compensation Fund (“PCF”) after settling a medical malpractice claim against

      Health and Hospital Corporation of Marion County d/b/a Wishard Memorial

      Hospital (“Wishard”) and Emergency Medical Group, Inc. (“EMG”). The trial


      Court of Appeals of Indiana | Opinion 49A02-1509-MI-1487 | July 5, 2016                Page 1 of 29
      court awarded Green an additional $300,000.00. Green appeals, raising several

      issues, which we consolidate and restate as whether the findings and judgment

      of the trial court are clearly erroneous. Concluding the trial court’s findings and

      judgment are not clearly erroneous, we affirm.



                            Facts and Procedural History
[2]   Around 2:00 a.m. on March 29, 2008, Green lost control of his legs and fell in

      his bedroom. Green was also experiencing ringing in his ears, headache,

      nausea, and vomiting. Once Green realized he could not get up from the floor,

      he told his fiancée, Elaine Wise, to call 911. Fire department records indicate

      an ambulance was dispatched at 2:28 a.m. and arrived at Green’s home at 2:35

      a.m. Green’s “chief complaint” was listed as “vomiting/weakness” and the

      paramedic’s notes indicate Green complained of “nausea, vomiting, weakness,

      lightheadedness starting approx 3 hrs prior.” Appellee’s Appendix at 19. The

      ambulance departed at 2:45 a.m. and transported Green to Wishard, arriving at

      3:00 a.m. Emergency room records indicate Green’s condition was assessed

      “non-urgent.” Id. at 24.


[3]   At approximately 3:30 a.m., Wise called Green’s daughter, Geneisha Berry, to

      inform Geneisha of her father’s condition. Geneisha immediately called her

      brother, John Berry, and both children set out for Wishard. Green was first

      examined by a physician at 4:30 a.m., and his children arrived between 4:00

      and 5:00 a.m. Geneisha and John recall their father was experiencing

      numbness and loss of motor function on the left side of his body, drooping on

      Court of Appeals of Indiana | Opinion 49A02-1509-MI-1487 | July 5, 2016   Page 2 of 29
      the left side of his face, headache, and difficulty speaking. Yet, Wishard staff

      did not document any of these symptoms, all of which indicated Green was

      experiencing a stroke. Dr. Becky Doran ordered an abdominal x-ray to

      evaluate Green’s gastrointestinal symptoms, but the results were

      “unremarkable.” Id. at 134. Dr. Jeff Hamman ordered an electrocardiogram to

      determine whether Green was experiencing a heart attack; he was not.

      Ultimately, Green was diagnosed with nausea and vomiting and prescribed an

      anti-nauseant.


[4]   Dr. Jordan Schmitt discharged Green from Wishard at 12:51 p.m. Geneisha

      and John recall their father could not stand on his own when he was discharged

      and had to be lifted into a wheelchair in order to leave the hospital. When they

      reached Wise’s car in the parking lot, John had to lift him again. Once John

      lifted Green and placed him in the vehicle, Green was unable to pivot his body

      to face forward in the seat; John had to pick up his limbs, turn him, and place

      his limbs inside the vehicle. When Green arrived home, John lifted Green out

      of the vehicle and helped Green walk to the door. Green was unable to move

      his left side, so John was “carrying that half of him.” Id. at 62. Green “was

      actually feeling worse” than when he arrived at Wishard earlier that day. Id. at

      46. His condition did not improve:


              Q.       Okay. Were you still having problems when you left
                       Wishard Hospital?

              A.       Yes.

              Q.       So the problems that you had that took you to Wishard
      Court of Appeals of Indiana | Opinion 49A02-1509-MI-1487 | July 5, 2016   Page 3 of 29
                       Hospital never got better?

              A.       No.

              Q.       They just continued?

              A.       Uh-huh. And got worse.


      Id. at 172 (Deposition of John Green); see also Plaintiff’s Exhibit 12 (Answer to

      Dr. Doran’s Interrogatory No. 12, in which Green states, “My condition got

      worse after being released from Wishard Hospital.”).


[5]   On March 30, 2008, Green’s friend and former physician, Dr. Earnest Berry,

      stopped by to visit Green. Dr. Berry suspected Green had suffered a stroke:

              When I got to his house, I went in and he was in a chair facing
              the wall. I came from the back. And when I said “John” . . . he
              tried to turn around, and I went in front of him and I noticed that
              he had slurred speech, he couldn’t get up with[out] help, and he
              had upper extremity – left upper extremity – I think at that time
              the left upper extremity wasn’t moving. And at that point I
              thought maybe it was a stroke . . . . His wife was there and his
              daughter was there and I asked them what had happened and
              they told me . . . he had gone to Wishard the night before and
              that was it. So I said let’s get him to the hospital.


      Appellee’s App. at 183. Green was admitted to St. Vincent Hospital (“St.

      Vincent”) around noon. Dr. Mark Janicki concluded Green did suffer a stroke:


              [Green] is a 56-year-old gentleman who had been seen at
              Wishard Hospital [the day] before this admission. He presented
              with severe dizziness, nausea and trouble walking. He was
              released after nothing acute was found. He was reevaluated in

      Court of Appeals of Indiana | Opinion 49A02-1509-MI-1487 | July 5, 2016   Page 4 of 29
                 our Emergency Room, again, with nausea and difficulty walking
                 and now with a left facial droop. He is also experiencing slurred
                 speech. . . . An MRI scan performed . . . showed an acute left
                 cerebellar stroke and a right occipital stroke. . . .


      Id. at 30 (St. Vincent Discharge Summary). Green was released from St.

      Vincent on April 4, 2008, and transferred to Rehabilitation Hospital of Indiana

      for physical, occupational, and speech therapies. He was released to go home

      several weeks later but subsequently required two surgeries because his left

      eyelid no longer closed on its own, resulting in permanent corneal scarring.


[6]   On February 19, 2010, Green filed a proposed complaint with the Indiana

      Department of Insurance against Wishard, Dr. Hamman, Dr. Schmitt, and Dr.

      Doran. On December 9, 2014, the parties reached a settlement, which provided

      Wishard and EMG would pay Green a structured settlement totaling

      $250,000.00.1 On December 11, 2014, Green filed a petition for excess

      damages from the PCF, which alleged in relevant part:

                 5.       Plaintiff John Green presented to the Emergency Room at
                          [Wishard] on March 29, 2008 with facial drooping and
                          inability to stand up and maintain his balance and was
                          discharged after being evaluated by agents of Wishard for
                          which the hospital is vicariously liable . . . .

                 6.       John Green was admitted the following day to St.
                          Vincent’s Hospital for a stroke and has residuals from the
                          stroke.



      1
          The nature of EMG’s involvement and liability in this matter is unclear from the record.


      Court of Appeals of Indiana | Opinion 49A02-1509-MI-1487 | July 5, 2016                        Page 5 of 29
                 7.       Defendants breached and violated their duty to Plaintiff
                          John Green in one or more of the following ways:
                          a.    They failed or refused to adequately
                                assess/evaluate/treat John Green’s condition.

                 8.       As a direct and proximate result of the negligence and/or
                          medical malpractice of Defendants, Plaintiff John Green
                          was injured.


      Appellant’s Appendix at 7. At the excess damages stage, Green maintained he

      was experiencing a transient ischemic attack (“TIA”) when he arrived at

      Wishard, subsequently experienced an acute ischemic stroke, and was injured

      by the physicians’ failure to administer tissue plasminogen activator (“tPA”), a

      clot-busting drug used to treat strokes.2 He requested the trial court award

      $1,000,000.00 in excess damages. The PCF maintained Green was fully

      compensated by the underlying settlement.


[7]   A bench trial was held on June 19, 2015. The trial court admitted into evidence

      the depositions of Green, Green’s children, physicians who treated Green, and

      a United Auto Workers Union (“UAW”) representative. The PCF called Dr.

      Kevin Puzio, a neurologist, as an expert witness. Green called Dr. Debra



      2
          By contrast, in his Submission of Evidence to the Department of Insurance, Green maintained,

               Green was denied the rapid response for his ischemic stroke during the so called “golden
               window” of opportunity for effective treatment which is the key to minimizing the effects of a
               stroke; this was due to the misdiagnosis of his condition by the Wishard Hospital Emergency
               Department staff. . . . If a stroke is promptly and correctly diagnosed, lasting damage can often
               be avoided by the administration of blood thinning/clot dissolving medication . . . . [B]y the
               time he was treated at St. Vincent Hospital the next day, it was too late.
      Pl.’s Ex. 24.

      Court of Appeals of Indiana | Opinion 49A02-1509-MI-1487 | July 5, 2016                              Page 6 of 29
Carter-Miller, his primary care physician; Dr. Claude Anderson, his

optometrist; and Michael Blankenship, a vocational rehabilitation expert. On

June 29, 2015, the trial court entered its findings and conclusions and awarded

Green an additional $300,000.00 in damages. The trial court’s findings

included the following:


        1. This case arises from the alleged injuries Mr. Green
        experienced following a stroke on March 29, 2008, which were
        caused by the failure of doctors and staff at [Wishard] to
        diagnose Mr. Green’s stroke and treat him with [tPA], a
        medication that reduces clotting factors in an effort to break up or
        eliminate clots in affected arteries.

        ***
        6. At Wishard Hospital, Mr. Green experienced left-sided
        numbness, drooping facial features, loss of motor function, and
        could not speak. Mr. Green’s children, John Berry and Geneisha
        Berry, visited him at Wishard Hospital, and stated that he was
        almost falling out of bed, was not making sense when he tried to
        speak, and could not walk.

        7. Time is of the essence in assessment of emergency conditions
        and there was a “Golden Window” of three (3) hours to
        administer tPA, so that critical time was lost.

        ***
        10. Wishard Hospital staff observed Mr. Green and diagnosed
        him with vomiting and discharged him that day without
        diagnosing his stroke or providing treatment with tPA.

        11. The Wishard Hospital records did not document Mr.
        Green’s neurologic findings. Dr. Puzio explained that the
        physicians and staff at Wishard Hospital apparently had
        incorrectly focused on a gastrointestinal problem, and had

Court of Appeals of Indiana | Opinion 49A02-1509-MI-1487 | July 5, 2016   Page 7 of 29
        negligently failed to document Mr. Green’s neurologic symptoms
        of a stroke. Thus, Dr. Puzio placed greater weight upon the
        history provided by Mr. Green and his children, which explained
        that Mr. Green could not walk or talk coherently throughout the
        time he was at Wishard Hospital. The Court concludes that the
        factual testimony of Mr. Green and his children detailing Mr.
        Green’s symptoms of inability to walk or talk, and of left-sided
        weakness are more reliable than the Wishard Hospital Chart,
        which fails to document anything about Mr. Green’s neurologic
        status.

        12. Mr. Green returned home and continued to experience left-
        sided numbness affecting his face, arms and legs, the loss of
        control of his legs, difficulty speaking, and difficulty moving.

        ***
        14. Dr. Berry went to Mr. Green’s home and examined him.
        Dr. Berry opined that Mr. Green experienced a stroke-in-progress
        when he initially presented to Wishard Hospital. Dr. Berry
        testified that Mr. Green was not experiencing a transient
        ischemic attack (“TIA”) because his symptoms were continuous
        and did not resolve with time . . . .

        15. Mr. Green was admitted for additional treatment at St.
        Vincent at approximately 12:20 p.m. on March 30, 2008, and
        was treated by Dr. Mark Janicki, a board certified neurologist.
        Dr. Janicki testified that Mr. Green was suffering from a stroke in
        his basilar artery that affected his left cerebellum and right
        occipital lobe. Symptoms associated with this type of stroke
        include incoordination of left side, right side vision problems,
        double vision, slurred speech, and facial droop. These symptoms
        develop very quickly after the stroke begins.

        16. Dr. Janicki testified that tPA was the only thing we have to
        treat ischemic strokes and that in 90 days, 39% of patients who
        had tPA did better than those who did not receive it.


Court of Appeals of Indiana | Opinion 49A02-1509-MI-1487 | July 5, 2016    Page 8 of 29
        17. Dr. Janicki is . . . familiar with tPA and agrees that it does
        not always work. He testified that “people don’t miraculously
        get better after tPA is delivered.” Dr. Janicki also testified that
        he cannot say whether Mr. Green would have had a better
        recovery if he had received tPA.

        18. As a result of his stroke on March 29, 2008, Mr. [G]reen
        experiences hearing loss in his left ear, difficulty with balance and
        coordination, and . . . numbness.

        19. Mr. Green was hospitalized at St. Vincent for several days
        and referred to physical therapy as a result of his March 29, 2008
        stroke. Dr. Debra Carter-Miller, Mr. Green’s treating family
        physician, testified that even if Mr. Green had been promptly
        given tPA, his ongoing care would have been very similar to
        monitor the progress of his recover[y] after his stroke. Dr.
        Carter-Miller opined that all stroke patients are initially
        hospitalized for one or two days in the Intensive Care Unit;
        patients are then transferred to the hospital floor for several more
        days of observation; finally, patients are sent to rehabilitation for
        therapy and recovery. Dr. Kevin J. Puzio, a board-certified
        neurologist, agreed with this pattern of care for stroke patients,
        stating that even with successful tPA treatment, recovery and
        therapy for a stroke requires extensive hospitalization and
        rehabilitation therapy.

        20. Dr. Puzio examined Mr. Green on May 6, 2015, at the
        request of the PCF and also reviewed Mr. Green’s medical
        records and interpreted his CT scans and MRI’s. Dr. Puzio
        stated that the tPA is a thrombolytic that attempts to dissolve
        clots and restore blood flow to blocked arteries. Dr. Puzio
        explained that tPA is most effective in treating relatively small
        clots in small arteries. It is less effective in clearing blockages in
        medium-sized and larger arteries, such as the basilar and
        vertebral arteries that were involved in Mr. Green’s stroke.

        21. Dr. Puzio opined that on March 29, 2008 Mr. Green

Court of Appeals of Indiana | Opinion 49A02-1509-MI-1487 | July 5, 2016          Page 9 of 29
        experienced an acute stroke that resulted from a blood clot in his
        basilar artery, which is a medium-sized artery that feeds his brain
        stem in the back of his neck. The clot in Mr. Green’s basilar
        artery then broke off and caused a clot in his posterior cerebral
        artery, which is a smaller artery feeding his occipital lobe.
        Symptoms associated with this type of stroke include nausea,
        vomiting, and incoordination.

        22. Dr. Puzio opined that Mr. Green did not experience a
        transient ischemic attack, because his stroke symptoms never
        resolved, as evidenced by the testimony of Mr. Green and his
        two children, who all testified that he could not walk and had
        facial drooping and difficulty speaking throughout his time at
        Wishard Hospital. Mr. Green’s acute stroke is what prompted
        him to seek treatment at Wishard on March 29, 2008, (and thus,
        it preceded the medical negligence at issue in this case.)

        23. Dr. Puzio noted that Mr. Green’s CT scan and MRI revealed
        that he had experienced several micro-strokes before his acute
        stroke on March 29, 2008. These small, old strokes were not
        transient ischemic attacks, because they resulted in permanent
        damage to Mr. Green’s brain. Dr. Puzio opined that these prior
        micro strokes resulted in reduced brain tissue reserve that made a
        full recovery medically improbable, even with prompt
        administration of tPA therapy. Dr. Puzio also explained that the
        moderate blockage of Mr. Green’s basilar artery and the previous
        small strokes demonstrate a history of “very chronic undertreated
        hypertension.”

        24. Dr. Puzio opined that if Mr. Green had received tPA in a
        timely manner, he would have likely regained additional function
        in the area of the brain that receives blood supply from the
        posterior cerebral artery. A decreased infarction of Mr. Green’s
        posterior cerebral artery likely would have primarily improved
        his balance and coordination. Dr. Puzio stated that the [b]rain
        stem which receives blood supply from the larger basilar artery
        would be unlikely to have been significantly improved with tPA

Court of Appeals of Indiana | Opinion 49A02-1509-MI-1487 | July 5, 2016   Page 10 of 29
        therapy. Thus, Mr. Green’s hearing and ability to assimilate and
        work around moving objects would be unlikely to have been
        improved with tPA treatment. Overall, Mr. Green’s symptoms
        likely would have improved as follows:
               A. Mr. Green’s double vision, loss of motor control, and
               balance problems would be slightly improved, but would
               not likely have returned to normal;
               B. Mr. Green’s hearing loss would not have been
               improved;
               C. Mr. Green would still be expected to have some
               deficits based on the distribution of his stroke; and
               D. Mr. Green likely would continue to have significant
               fatigue and stamina issues for years.

        25. Dr. Puzio testified it is rare that a stroke patient returns to
        and continues a full-time job after a stroke due to fatigability and
        trouble maintaining focus. Dr. Puzio testified that he would not
        have released Mr. Green to return to work in the auto industry
        after his stroke because of safety concerns. The Court
        acknowledges that Mr. Green continues to be so fatigue[d] that
        he fell asleep during the damages hearing on June 19th. Thus,
        the Court agrees that Mr. Green’s fatigue and lack of stamina
        would probably prevent Mr. Green from performing most jobs.
        Dr. Puzio explained that fatigue problems would have been an
        issue for Mr. Green even if he had been treated successfully with
        tPA.

        26. Dr. Puzio acknowledges that it is not possible to predict
        exactly what Mr. Green’s precise recovery would have been if he
        had been successfully treated with tPA. However, Dr. Puzio
        stated that he could use his 30 years of experience treating
        thousands of stroke patients, his review of the statistics in the
        medical literature, and the location and extent of Mr. Green’s
        presenting stroke symptoms to state to a reasonable degree of
        medical probability that Mr. Green would have still had
        substantial deficits that would prevent him from returning to
        work even with successful tPA therapy.

Court of Appeals of Indiana | Opinion 49A02-1509-MI-1487 | July 5, 2016    Page 11 of 29
        27. The seventh nerve palsy was documented in the assessment
        of John Green on 3-31-08 at St. Vincent Hospital for the first
        time and Dr. Claude Anderson testified that this medical
        condition usually develops within 1 hour – a short period of time
        following a stroke. To treat [Green’s] condition, the surgical
        procedure resulted in a gold bar being placed in his eyelid to
        assist in closure. The patient is required to engage in regular
        treatment on his eyes for the remainder of his life on a daily
        basis.

        28. Dr. Anderson opined that John Green sustained permanent
        corneal scarring and will require being seen two times a year for
        his lifetime and will require ointment and lubricants.

        29. Mr. Green must tape his eye closed every night or this can
        lead to further corneal scarring and can lead to blindness.

        30. Mr. Green can drive himself in his own vehicle, but he
        normally only drives short distances, and does not drive at night
        due to vision limitations. These limitations have caused him to
        lose a portion of his freedom.

        31. Mr. Green’s talents and abilities to play golf have been
        greatly diminished by the negligence of Wishard.

        32. Mr. Green currently walks without assistance of a cane,
        walker or other assistive device; however, his balance has still
        been diminished by the stroke.

        33. On February 28, 2007, Mr. Green, at the age of 57, accepted
        a buyout package from his employer, Ford Motor Company.

        ***
        35. Mr. Green did not work at any job that produced income for
        thirteen months up to the time of his stroke on March 29, 2008
        ....

Court of Appeals of Indiana | Opinion 49A02-1509-MI-1487 | July 5, 2016    Page 12 of 29
              36. Mr. Green told his vocational rehabilitation expert, Michael
              Blankenship that he hoped to return to Purdue University to
              complete his engineering degree and then obtain a master’s
              degree to start his own engineering company. . . .

              37. Mr. Blankenship stated that it would be unrealistic for Mr.
              Green to work in the auto industry and pursue his dream of
              completing his education at Purdue.

              38. Mr. Green offered the testimony of [a UAW representative],
              who stated . . . very few people were being hired into the auto
              industry in 2008 and 2009 due to the significant economic
              downturn . . . .

              ***
              41. Mr. Green testified that he intended to invest in real estate
              following his elective retirement. In the 13 months after he left
              Ford, Mr. Green attended real estate seminars around the
              country.

              42. Mr. Green then purchased two residential properties after his
              injury on March 29, 2008 . . . .

              43. Mr. Green also testified that he had many “back-up plans”
              following his buyout. He volunteered for a political campaign
              and hoped to work for his candidate in Washington D.C., but his
              candidate lost the election. Mr. Green also “dreamed of”
              opening a bookstore. Mr. Green also hoped to make some
              money playing golf leisurely.


      Id. at 29-38 (citations omitted).


[8]   Based on these findings, the trial court concluded Green was entitled to

      additional compensation from the PCF:


      Court of Appeals of Indiana | Opinion 49A02-1509-MI-1487 | July 5, 2016     Page 13 of 29
        7. The Court after looking at all expenses to Mr. Green’s eye and
        the expenses he will incur in the future to keep his eye from going
        blind calculated a total of $167,842.94. However, Dr.
        Anderson’s testimony at the hearing showed this is a very
        common condition of stroke patients and therefore Mr. Green’s
        compensation for his damage should be reduced. The Court
        determined Mr. Green should only receive thirty-nine percent of
        the total eye cost because this was the chance of recovery if Mr.
        Green had properly been treated with tPA at Wishard Hospital.
        Therefore, Mr. Green will receive $65,692.75 for the damage to
        his eye from Wishard’s negligence.

        ***
        9. The evidence established that Mr. Green would have suffered
        from fatigue, stamina issues, and some level of physical deficits
        from his stroke even with successful tPA treatment. Those
        limitations more likely than not would have prevented Mr. Green
        from returning to work as an assembly line operator.

        10. Even if Mr. Green had been physically capable of returning
        to work, the automobile industry was in an economic downfall in
        2007 through 2009, and into 2010. There is no evidence that any
        auto company was hiring[,] to the extent that Mr. Green had
        viable job prospects in the auto industry during that time.

        11. The Court after taking all these factors into consideration for
        possible job opportunities after Mr. Green’s buyout, finds Mr.
        Green is not entitled to [compensation for] lost earning capacity
        because he still would have experienced a stroke which would
        have highly impaired his capabilities to work. The Court also
        concludes Mr. Green had not taken sufficient affirmative steps to
        seek employment prior to his stroke to make any future earnings
        anything more than speculation. However, the court takes these
        “back-up plans” into consideration when figuring Mr. Green’s
        loss of enjoyment of life.

        12. Mr. Green also may not recover economic damages for lost

Court of Appeals of Indiana | Opinion 49A02-1509-MI-1487 | July 5, 2016   Page 14 of 29
              real estate investments. No evidence supports Mr. Green’s claim
              that he lost real estate investments as a result of his injury. Mr.
              Green’s own testimony established that at the time of the
              underlying negligence, he owned no real estate investment
              properties. All investments were purchased after his injury
              without any evidence that Mr. Green’s physical disabilities
              affected his ability to make such investments or affected the
              income generated from those investments. . . . Thus, this claim
              for loss of real estate investment income is speculative and not
              related to Mr. Green’s injury.

              13. Mr. Green has experienced significant decrease in function
              due to the negligent treatment, which adversely affects Mr.
              Green’s ability to enjoy life. The Court recognizes the severe
              effect Wishard’s negligence had on Mr. Green’s golf game, which
              gravely reduces Mr. Green’s enjoyment of life because golf has
              always been a major portion of his life. . . .

              14. Wishard’s negligence has also caused Mr. Green to live an
              extremely restricted lifestyle. Mr. Green can no longer travel like
              he once could and his daily activities are limited to a certain
              parameter from his house. . . .

              15. The Court finds that Mr. Green’s damages for the
              aggravation of his condition, the injury associated with the
              corneal scarring, pain and suffering, and loss of enjoyment of life
              are $550,000.00. After giving the [PCF] full credit for the
              $250,000.00 paid by the health care provider, this court finds that
              Mr. Green is entitled to an additional award of $300,000.00.


      Id. at 39-42 (citations omitted).


[9]   Green promptly filed a motion to correct error, arguing the trial court erred by

      awarding only $300,000.00 in additional compensation. The trial court denied

      the motion, and this appeal followed.

      Court of Appeals of Indiana | Opinion 49A02-1509-MI-1487 | July 5, 2016   Page 15 of 29
                                  Discussion and Decision
                                       I. Standard of Review
[10]   The trial court in this case entered special findings of fact and conclusions

       thereon pursuant to Indiana Trial Rule 52(A). In reviewing a judgment based

       on such findings, we must first determine whether the evidence supports the

       findings and then determine whether the findings support the judgment.

       Atterholt v. Robinson, 872 N.E.2d 633, 638-39 (Ind. Ct. App. 2007). “[T]he court

       on appeal shall not set aside the findings or judgment unless clearly erroneous,

       and due regard shall be given to the opportunity of the trial court to judge the

       credibility of the witnesses.” Ind. Trial Rule 52(A). “Findings are clearly

       erroneous only when the record contains no facts to support them either

       directly or by inference.” Randles v. Ind. Patient’s Comp. Fund, 860 N.E.2d 1212,

       1219 (Ind. Ct. App. 2007) (citation omitted), trans. denied. A judgment is clearly

       erroneous if it applies the wrong legal standard to properly found facts. Johnson

       v. Wysocki, 990 N.E.2d 456, 460 (Ind. 2013). “In either case, we must be left

       with the firm conviction that a mistake has been made.” Id. (citation and

       internal quotation marks omitted). When the specific issue on appeal relates to

       the award of damages, we will affirm the damage award if it was “within the

       scope of the evidence before the trial court.” Smith v. Washington, 734 N.E.2d

       548, 550 (Ind. 2000). In conducting our review, we consider only the evidence

       favorable to the judgment and the reasonable inferences to be drawn therefrom.

       Samples v. Wilson, 12 N.E.3d 946, 950 (Ind. Ct. App. 2014). We do not reweigh

       the evidence. Id.

       Court of Appeals of Indiana | Opinion 49A02-1509-MI-1487 | July 5, 2016   Page 16 of 29
                                  II. Increased Risk of Harm
[11]   Under the Indiana Medical Malpractice Act, the total recovery in a medical

       malpractice action is limited to $1,250,000.00. Ind. Code § 34-18-14-3(a)(3).

       The liability of a qualified health care provider is limited to the first $250,000.00

       in damages. Ind. Code § 34-18-14-3(b). If a judgment fixes damages in excess

       of the health care provider’s liability, the patient may recover damages from the

       PCF. Ind. Code § 34-18-14-3(c). Recovery of excess damages from the PCF is

       allowed only after the health care provider has paid the first $250,000.00, Ind.

       Code § 34-18-15-3, or agreed to a settlement in which the present payment of

       money and the cost of future payments exceeds $187,000.00, Ind. Code § 34-18-

       14-4(b).


[12]   In a suit to recover excess damages from the PCF following a settlement, “the

       court shall consider the liability of the health care provider as admitted and

       established.” Ind. Code § 34-18-15-3(5). Nonetheless, if the information is

       relevant to determining the appropriate amount of damages, the PCF may

       introduce evidence of a patient’s preexisting risk of harm. Atterholt v. Herbst,

       902 N.E.2d 220, 220-21 (Ind. 2009), clarified on reh’g, 907 N.E.2d 528 (Ind.

       2009). Our supreme court recently clarified when such evidence is relevant in

       Robertson v. B.O., 977 N.E.2d 341 (Ind. 2012). Before addressing B.O., however,

       a brief review of the increased risk of harm doctrine is in order.


[13]   A plaintiff generally must prove each of the following elements in a medical

       malpractice case: (1) the physician owed a duty to the plaintiff; (2) the physician


       Court of Appeals of Indiana | Opinion 49A02-1509-MI-1487 | July 5, 2016   Page 17 of 29
       breached that duty; and (3) the breach proximately caused the plaintiff’s

       injuries. Cutter v. Herbst, 945 N.E.2d 240, 247 (Ind. Ct. App. 2011). A plaintiff

       who proves each of these elements “may recover damages for all injuries the

       defendant proximately caused.” Ind. Dep’t of Ins. v. Everhart, 960 N.E.2d 129,

       135 (Ind. 2012). In Mayhue v. Sparkman, 653 N.E.2d 1384 (Ind. 1995), our

       supreme court recognized the plight of patients who stood a 50% or worse

       chance of recovery prior to encountering a physician’s negligence:


               Where a patient’s illness or injury already results in a probability
               of dying greater than 50 percent, an obvious problem appears.
               No matter how negligent the doctor’s performance, it can never
               be the proximate cause of the patient’s death. Since the evidence
               establishes that it is more likely than not that the medical
               problem will kill the patient, the disease or injury would always
               be the cause-in-fact.


       Id. at 1387.


[14]   In Mayhue, Mr. Sparkman filed suit for loss of consortium after a physician

       negligently failed to diagnose his wife’s cervical cancer. The Medical Review

       Panel believed the physician did not satisfy the standard of care but concluded

       his inadequate care was not the proximate cause of Mrs. Sparkman’s death.

       The parties agreed that even if the physician had earlier diagnosed Mrs.

       Sparkman, she had a less than 50% chance of recovery. Even so, the trial court

       denied the physician’s motion for summary judgment. The physician appealed,

       and our supreme court affirmed the trial court’s denial, adopting the approach

       set forth in Restatement (Second) of Torts § 323 (1965):


       Court of Appeals of Indiana | Opinion 49A02-1509-MI-1487 | July 5, 2016   Page 18 of 29
               One who undertakes, gratuitously or for consideration, to render
               services to another which he should recognize as necessary for
               the protection of the other’s person or things, is subject to liability
               to the other for physical harm resulting from his failure to
               exercise reasonable care to perform his undertaking, if
                      (a) his failure to exercise such care increases the risk of
                      such harm . . . .


       Mayhue, 653 N.E.2d at 1388-89. The court did not address the issue of

       damages.


[15]   In Cahoon v. Cummings, 734 N.E.2d 535 (Ind. 2000), two physicians

       misdiagnosed a patient’s esophageal cancer. Following the patient’s death, the

       patient’s wife filed suit against the physicians. Both physicians admitted their

       respective breaches of duty to the patient but denied their breaches proximately

       caused the patient’s injuries. At trial, all experts agreed the patient would

       probably not have survived, even if he had been properly diagnosed and treated,

       but the patient’s expert testified the patient would have had a 25 to 30% chance

       of survival with proper diagnosis and treatment. The trial court instructed the

       jury that the physicians would be liable for full damages if the jury determined

       their actions were a “substantial factor” in the patient’s death. Id. at 540. The

       jury found in favor of the patient’s wife and awarded her $269,000.00. The

       physicians appealed, and our supreme court held, “[U]pon a showing of

       causation under Mayhue, damages are proportional to the increased risk

       attributable to the defendant’s negligent act or omission.” Id. at 541.

       “[D]amages for such a claim are to be measured in proportion to the increased

       risk, and not by the full extent of the ultimate injury[,]” the court explained. Id.

       Court of Appeals of Indiana | Opinion 49A02-1509-MI-1487 | July 5, 2016      Page 19 of 29
       at 538. And because the jury was instructed to award full damages if the

       defendants’ conduct was a “substantial factor” in the patient’s death, the degree

       of increased risk was not quantified. Id. at 541. Accordingly, the court reversed

       the judgment and remanded the case for a new trial.


[16]   In Herbst, 902 N.E.2d 220, a physician misdiagnosed fulminant myocarditis as

       pneumonia, and the patient died. The patient’s estate brought a wrongful death

       action against the physician and the hospital and later entered into a settlement

       agreement permitting access to the PCF. The estate filed a petition for excess

       damages from the PCF, and a bench trial was held. Although the settlement

       precluded the PCF from litigating the issue of causation, Ind. Code § 34-18-15-

       3(5), the PCF “attempted to introduce expert testimony that even with proper

       care, [the patient] had a less than ten percent chance of surviving the

       hospitalization . . . .” Herbst, 902 N.E.2d at 222. The trial court excluded the

       expert testimony and awarded the estate $1,000,000.00 in damages from the

       PCF. The PCF appealed, arguing the trial court erred in excluding evidence

       relevant to the valuation of damages. Our supreme court held when a plaintiff

       seeks excess damages from the PCF after obtaining a settlement from a health

       care provider in a medical malpractice case, the PCF may introduce evidence of

       the patient’s preexisting risk of harm if it is relevant to establish the amount of

       damages, even if it is also relevant to liability issues foreclosed by the judgment.

       Id. at 220-21. Stated differently, even if a claim was settled, if recovery is

       limited to damages for increased risk of harm, the PCF is entitled to introduce




       Court of Appeals of Indiana | Opinion 49A02-1509-MI-1487 | July 5, 2016    Page 20 of 29
       evidence of the patient’s underlying risk of harm to assist the factfinder in

       determining the appropriate amount of damages.


[17]   Finally, in B.O., 977 N.E.2d 341, our supreme court made clear its holding in

       Herbst applies only in the context of increased risk of harm claims. In B.O., a

       child was diagnosed with a mild form of cerebral palsy at the age of four. The

       child’s parents filed suit against the health care providers who attended his

       birth, alleging they “failed to adequately monitor his condition during labor and

       delivery and then failed to respond when signs of fetal distress appeared.” Id. at

       342. The health care providers agreed to a settlement permitting access to the

       PCF. Thereafter, B.O.’s parents filed a petition for excess damages from the

       PCF, and the PCF disclosed expert witnesses prepared to testify that B.O. either

       does not have cerebral palsy—or if he does, the condition did not result from

       the conduct of the health care providers at his birth. B.O.’s parents moved for

       partial summary judgment to limit the issue at trial to the amount of damages

       and exclude any evidence disputing the existence or cause of B.O.’s condition.

       The trial court granted partial summary judgment in favor of B.O., and the PCF

       appealed, arguing the evidence it sought to introduce was “not only relevant,

       but necessary” to a determination of damages. Id. at 344. Our supreme court

       held the PCF was not entitled to introduce evidence relevant to liability because

       B.O.’s claim was not brought under Mayhue:


               Herbst was necessarily limited to Mayhue increased risk of harm
               claims because Cahoon established only the measure of damages
               in cases involving a Mayhue claim. It is thus only in Mayhue
               increased risk of harm claims that evidence of underlying risk

       Court of Appeals of Indiana | Opinion 49A02-1509-MI-1487 | July 5, 2016   Page 21 of 29
               would be relevant to both liability and to damages.

               Unless a claim is brought under Mayhue, Herbst is inapplicable.
               B.O.’s complaint does not allege an increased risk of harm, but
               rather traditional negligence resulting in personal injury, and
               therefore Herbst does not apply.


       Id. at 347 (citations, internal quotation marks, and alteration omitted).


                                 III. Green’s Damage Award
[18]   The trial court awarded Green $300,000.00 in excess damages from the PCF

       “for the aggravation of his condition, the injury associated with the corneal

       scarring, pain and suffering, and loss of enjoyment of life . . . .” Appellant’s

       App. at 42. Green contends the trial court’s findings are clearly erroneous

       because he experienced a TIA in the Wishard emergency room, rather than a

       stroke, and the administration of tPA could have prevented his stroke.3

       Proceeding from these assertions, Green further contends he is entitled to the

       statutory maximum in damages, that his medical malpractice claim was settled

       on traditional negligence principles, and the trial court erred in reducing at least

       a portion of his damages based on increased risk of harm principles. We

       conclude the trial court’s findings and judgment are not clearly erroneous and

       affirm the judgment awarding Green an additional $300,000.00.




       3
        We would note tPA is not used to treat TIAs. Appellee’s App. at 243 (Deposition of Dr. Puzio, in which
       Dr. Puzio states, “If you have a TIA, you don’t use tPA.”)

       Court of Appeals of Indiana | Opinion 49A02-1509-MI-1487 | July 5, 2016                     Page 22 of 29
                                              A. Findings of Fact
[19]   Green contends the trial court’s findings are clearly erroneous for several

       reasons, each of which amounts to a request for this court to reweigh the

       evidence. First, Green insists the trial court “did not read” the depositions of

       the Wishard physicians, which were admitted in their entirety at the bench trial.

       Appellant’s Brief at 18, 27. This argument is disrespectful and entirely

       unpersuasive, as the trial court’s thorough findings demonstrate its careful

       consideration of all the evidence admitted at trial. The Wishard physicians

       could not recall treating Green, but Green argues the trial court should have

       given their testimony greater weight. Specifically, Green argues the fact that

       they did not observe his neurological symptoms demonstrates he experienced a

       TIA, the symptoms of which had resolved.4 In deciding to credit the testimony

       of Green’s children and Green himself over the physicians—whose testimony

       was based on records that failed to adequately document Green’s condition—

       the trial court found, “the factual testimony of Mr. Green and his children

       detailing Mr. Green’s symptoms of inability to walk or talk, and of left-sided




       4
         A TIA is a “transient event” often preceding a stroke. Appellee’s App. at 165. The stroke-like symptoms of
       a TIA typically resolve within four hours, and the patient experiences no permanent brain damage as a result.
       Id. at 165, 180. If the symptoms do not resolve and the patient suffers permanent brain damage, the patient
       has experienced a stroke. Id. at 180. Determining whether a patient is experiencing a TIA or a stroke is a
       matter of timing. As Dr. Puzio explained,
              A TIA, by definition, has reversed. So . . . you can’t call it a TIA until after the event was either
              cleared or completed. In which case, if it’s cleared, it’s a TIA. If it hasn’t cleared then it’s a
              stroke. . . . You don’t know if it’s a TIA until after you get to the end point of whatever it’s
              going to be . . . .
       Id. at 243.

       Court of Appeals of Indiana | Opinion 49A02-1509-MI-1487 | July 5, 2016                              Page 23 of 29
       weakness are more reliable than the Wishard Hospital Chart, which fails to

       document anything about Mr. Green’s neurologic status.” Appellant’s App. at

       31. The trial court as factfinder was entitled to weigh the evidence and credit

       the testimony of certain witnesses over others, and we will not second guess its

       determination.


[20]   Green also argues he could not have experienced a stroke at Wishard because

       his facial drooping was first documented at St. Vincent the following day.

       Green relies on the testimony of his optometrist, Dr. Anderson, who stated

       seventh nerve palsy causes facial drooping within an hour of a stroke. Given

       the Wishard physicians’ total failure to document any of Green’s neurological

       symptoms, we are not persuaded. Green’s children testified their father

       exhibited facial drooping while he was in the emergency room at Wishard.

       Likewise, in his petition for excess damages, Green stated he “presented to the

       Emergency Room at [Wishard] on March 29, 2008 with facial drooping and

       inability to stand up and maintain his balance . . . .” Appellant’s App. at 7

       (emphasis added). We will not reweigh the evidence.


[21]   Finally, in order to compute proportional damages in a medical malpractice

       case, statistical evidence is admissible to determine the increased risk of harm

       attributable to the defendant’s negligence. Cutter, 945 N.E.2d at 248. Green

       argues the trial court’s findings are clearly erroneous because the trial court

       credited Dr. Puzio’s “speculative” testimony on the effectiveness of tPA. As

       our supreme court explained, once the admissibility of an expert’s opinion is

       established under Evidence Rule 702, “the accuracy, consistency, and

       Court of Appeals of Indiana | Opinion 49A02-1509-MI-1487 | July 5, 2016   Page 24 of 29
       credibility of the expert’s opinions may properly be left to vigorous cross-

       examination, presentation of contrary evidence, argument of counsel, and

       resolution by the trier of fact.” Bennett v. Richardson, 960 N.E.2d 782, 786-87

       (Ind. 2012) (citation and internal quotation marks omitted). Green

       characterizes Dr. Puzio’s testimony as “pure speculation” based on

       “probabilities and statistics” but does not challenge the admissibility of his

       opinions under Evidence Rule 702. Appellant’s Br. at 27. Green points to no

       evidence in the record contradicting Dr. Puzio’s evaluation, and all of the

       physicians who testified to the effectiveness of tPA agreed stroke patients often

       retain neurological deficits even after tPA treatment. Green’s own expert, Dr.

       Carter-Miller, stated tPA is aimed at “mitigating the damage,” not “becoming

       symptom free.” Appellee’s App. at 200. The trial court’s findings concerning

       the effectiveness of tPA are not clearly erroneous.


                                                B. Judgment
[22]   The trial court concluded Green was entitled to an additional $300,000.00 “for

       the aggravation of his condition, the injury associated with the corneal scarring,

       pain and suffering, and loss of enjoyment of life . . . .” Appellant’s App. at 42.

       The trial court did not award damages for lost earning capacity, and at least a

       portion of the award was reduced to reflect the degree of risk attributable to the

       defendants’ negligence:

               The Court after looking at all expenses to Mr. Green’s eye and
               the expenses he will incur in the future to keep his eye from going
               blind calculated a total of $167,842.94. However, Dr.
               Anderson’s testimony at the hearing showed this is a very
       Court of Appeals of Indiana | Opinion 49A02-1509-MI-1487 | July 5, 2016   Page 25 of 29
               common condition of stroke patients and therefore Mr. Green’s
               compensation for his damage should be reduced. The Court
               determined Mr. Green should only receive thirty-nine percent of
               the total eye cost because this was the chance of recovery if Mr.
               Green had properly been treated with tPA at Wishard Hospital.
               Therefore, Mr. Green will receive $65,692.75 for the damage to
               his eye from Wishard’s negligence.


       Id. at 39-40.5


[23]   Green contends the trial court’s judgment is clearly erroneous because the

       underlying settlement was based on traditional negligence principles, not

       increased risk of harm principles. He argues the claim must have been settled

       on traditional negligence principles because he did not allege increased risk of

       harm in the complaint. He also believes he is entitled to $1,000,000.00 in

       excess damages. We disagree on both counts. Although liability was

       established by the settlement, the settlement agreement did not specify the

       theory of recovery. See Pl.’s Ex. 6. And we do not agree Green’s

       characterization of the claim in the pleadings necessarily determines the proper

       theory of recovery. Certainly plaintiffs would prefer to prove causation by

       traditional means and thereby recover full damages, but in cases where the

       patient stood less than a 50% chance of recovery prior to encountering medical

       negligence, permitting the plaintiff to recover full damages “would hold doctors




       5
        It is unclear whether the trial court reduced any other portion of the damage award based on the probability
       of a patient having minimal or no disability after receiving tPA.

       Court of Appeals of Indiana | Opinion 49A02-1509-MI-1487 | July 5, 2016                         Page 26 of 29
       liable not only for their own negligence, but also for their patients’ illnesses,

       which are not the product of the doctors’ actions.” Cahoon, 734 N.E.2d at 541.


[24]   We acknowledge B.O. states Herbst did not apply because “B.O.’s complaint

       does not allege an increased risk of harm,” but B.O. is readily distinguishable.

       B.O., 977 N.E.2d at 347. In B.O., the malpractice claim arose from a

       physician’s failure to adequately monitor and respond to signs of fetal distress

       during labor and delivery, resulting in brain injury. B.O.’s parents filed a

       malpractice claim, which the health care provider settled prior to trial.

       Thereafter, when his parents filed a petition for excess damages, the PCF

       disclosed expert witnesses who intended to dispute the existence or cause of

       B.O.’s injury. Our supreme court held the PCF was not entitled to introduce

       the testimony because it was evident B.O.’s claim sounded in traditional

       negligence. Id. Because B.O. did not have a preexisting injury or condition

       aggravated by medical negligence, the evidence the PCF proffered was not

       relevant to the question of damages.


[25]   By contrast, Green’s CT and MRI scans revealed he experienced several small

       strokes prior to his acute ischemic stroke on March 29, 2008:

               These small, old strokes were not transient ischemic attacks,
               because they resulted in permanent damage to Mr. Green’s brain.
               Dr. Puzio opined that these prior micro strokes resulted in
               reduced brain tissue reserve that made a full recovery medically
               improbable, even with prompt administration of tPA therapy.
               Dr. Puzio also explained that the moderate blockage of Mr.
               Green’s basilar artery and the previous small strokes demonstrate
               a history of “very chronic undertreated hypertension.”

       Court of Appeals of Indiana | Opinion 49A02-1509-MI-1487 | July 5, 2016     Page 27 of 29
       Appellant’s App. at 34. And because Green’s symptoms on March 29, 2008,

       never resolved, the medical experts agreed Green was experiencing a stroke in

       the Wishard emergency room—a condition that preceded the negligence at

       issue. Green maintains he was injured by the physicians’ failure to promptly

       administer tPA, but tPA is not always effective. According to a study cited by

       Dr. Janicki and Dr. Puzio, only 39% of patients who receive tPA within three

       hours of a stroke have minimal or no disability three months later. In the same

       study, 26% of patients who received a placebo also had minimal or no disability

       three months later. Based on Green’s current disability, Dr. Puzio opined

       Green would have had a one in eight (12.5%) chance of having minimal or no

       disability if he had received tPA in a timely fashion at Wishard. Yet, the trial

       court reduced only a portion of Green’s damage award, and only by 61%.6


[26]   The trial court’s judgment is not clearly erroneous because the damage award

       was within the scope of the evidence before the trial court. Where recovery is

       limited to damages for increased risk of harm because the patient stood less

       than a 50% chance of recovery prior to encountering the physician’s negligence,

       the trial court may consider evidence of the patient’s underlying risk in order to

       determine the appropriate amount of damages. “[D]amages for such a claim

       are to be measured in proportion to the increased risk, and not by the full extent

       of the ultimate injury.” Cahoon, 734 N.E.2d at 538.




       6
        The PCF makes the same observation but does not challenge the damage award in this case. See Brief of
       Appellee at 24 n.1.

       Court of Appeals of Indiana | Opinion 49A02-1509-MI-1487 | July 5, 2016                     Page 28 of 29
                                               Conclusion
[27]   The trial court’s findings and judgment are not clearly erroneous. We therefore

       affirm the judgment awarding Green $300,000.00 from the PCF.


[28]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1509-MI-1487 | July 5, 2016   Page 29 of 29
