Statement of the Case
In this medical malpractice case, David Oaks appeals the trial court’s decision to exclude his cross-examination of an adverse expert witness about the expert’s personal medical practices. He raises two issues on appeal, which we restate as follows:
1. Whether the trial court abused its discretion when it excluded the cross-examination of a medical expert about his personal medical practices, which Oaks sought to elicit for the purpose of impeaching the expert’s testimony on the standard of care.
2. Whether the exclusion of that testimony was harmless error.
We reverse and remand with instructions.
In medical malpractice cases, the parties usually must present medical expert testimony to establish the standard of care and whether particular acts or omissions by the health care provider met the standard of care. Perry v. Anonymous Physician 1, 25 N.E.3d 103, 107 (Ind. Ct. App. 2014), trans. denied. Here, Oaks’ experts opined that the standard of care in Oaks’ post-operative situation required serial x-rays, which Dr. Chamberlain did not order. But Dr. Chamberlain’s expert, Dr. Moore, opined that the standard of care did not require x-rays. Thus, the jury had before it conflicting evidence on the standard of care. Oaks wished to use Dr. Moore’s testimony that Dr. Moore would have ordered an x-ray in Oaks’ situation to impeach Dr. Moore’s testimony that the standard of care did not require x-rays. The trial court ruled that such impeachment testimony was inadmissible. We hold that the trial court’s exclusion of this impeachment evidence was an abuse of discretion.
As the parties note, the specific question in this case is whether cross-examination of an adversary’s medical expert on his or her personal practices can be used to impeach the expert’s credibility regarding his or her opinion on the standard of care. There are no Indiana cases that directly address this issue. Some Indiana cases hold, in contexts other than medical malpractice, that industry custom and practice is not admissible to establish the standard of care in the first instance but may be relevant to the standard of care once that standard has been established by other means. See, e.g., Hagerman Constr., Inc. v. Copeland, 697 N.E.2d 948, 958 (Ind. Ct. App. 1998) (construction industry), opinion amended on reh’g, trans. denied; Van Duyn v. Cook-Teague P’ship, 694 N.E.2d 779, 782 (Ind. Ct. App. 1998) (laundromat industry), trans. denied. And our Supreme Court has held in the context of a medical malpractice case that a medical expert’s affidavit that stated only what the expert would have done (and not what the standard of care was) was insufficient to establish the standard of care in the first instance. Oelling v. Rao, 593 N.E.2d 189, 190 (Ind. 1992). However, Oelling did not address the specific issue here: whether personal practices testimony would be relevant and admissible to impeach the credibility of the expert’s standard of care testimony. Id.
Dr. Moore’s testimony about his personal practices was in conflict with his testimony on the standard of care. Therefore, his personal practices testimony was relevant and admissible. E.g., Rallos, 890 N.E.2d at 1208. Moreover, even if Dr. Moore had testified that he would merely go “above” the standard of care by ordering an x-ray, his personal practices testimony would be relevant and admissible….
… As noted above, Dr. Moore’s excluded testimony was relevant to whether he was credible when he testified that the standard of care did not require x-rays. [Footnote omitted.] And Dr. Moore was Dr. Chamberlain’s only witness on the central question of the standard of care. Given the lack of any other evidence that the standard of care did not require x-rays, we conclude that the exclusion of Dr. Moore’s personal practices testimony had a probable impact on Oaks’ substantial rights.
… Accordingly, we hold that the exclusion of the relevant impeachment evidence was not harmless error.
Oaks did not waive his claim on appeal by failing to object to Jury Instruction 15, as that instruction did not address the issue in this case where a medical expert would have testified upon cross-examination that he personally would have ordered a treatment or procedure above what he had testified was the standard of care. And we hold that that the admission of Dr. Moore’s expert testimony about his personal practices is relevant and admissible for the purpose of impeaching his testimony about the standard of care. Such testimony by Dr. Moore was not more prejudicial than probative, and the trial court abused its discretion in excluding it. Moreover, because Dr. Moore’s testimony was the only expert testimony that Dr. Chamberlain had met the standard of care, the exclusion of impeachment evidence from cross-examination was not harmless error. We reverse the jury’s verdict and remand for a new trial.
Reversed and remanded with instructions.
Riley, J., and Bradford, J., concur.