ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Robert D. Brown Arend J. Abel 

Spangler, Jennings & Dougherty, P.C. Cohen & Malad, LLP 

Merrillville, Indiana Indianapolis, Indiana 

 Thomas A. Clancy 

 Jeanine L. Stevens 

 Clancy & Stevens 

 Chicago, Illinois 

______________________________________________________________________________ 

In the 

Indiana Supreme Court 

_________________________________ 

No. 45S03-0505-CV-239 

ROBERT CAVENS, M.D., 

 Appellant (Defendant below), 

V. 

TIM ZABERDAC, 

 Appellee (Plaintiff below). 

_________________________________ 

Appeal from the Lake Superior Court, No. 45D04-9807-CP-534 

The Honorable Gerald N. Svetanoff, Judge 

_________________________________ 

On Petition To Transfer from the Indiana Court of Appeals, No. 45A03-0312-CV-516 

_________________________________ 

June 22, 2006 

Dickson, Justice. 

 The primary appellate issue in this medical malpractice case is whether the trial court 

erred by prohibiting the physician from asserting the patient's conduct prior to the alleged malpractice as a contributory negligence defense. We affirm the judgment of the trial court. 

 Following the death of his wife, Peggy Miller, Tim Zaberdac, individually and as admin-
istrator of her estate, commenced this medical malpractice action against Robert Cavens, M.D., 

and others. The case proceeded to trial only against the doctor, who asserted his patient's contributory negligence as an affirmative defense. At the conclusion of the evidence, the trial court 

granted the plaintiff's motion for judgment on the evidence, which sought to prevent the doctor 

from asserting the defense of contributory negligence. The trial court also ordered that defense 

counsel could not argue that the patient's conduct was the proximate cause of her death. This 

appeal follows a jury verdict for the plaintiff in the sum of $1,570,000, which the court reduced 

to $750,000 pursuant to the maximum allowed by the Indiana Medical Malpractice Act.1

 

The defendant challenges the trial court's actions (1) foreclosing his defense of contributory negligence; (2) precluding the doctor from arguing that his patient's conduct proximately 

caused her death; and (3) rejecting his tendered instruction to the effect that, if his patient would 

have died regardless of the doctor's error, the verdict should be in his favor. 

 The parties do not dispute that there was evidence to support the following facts. Peggy 

Miller had suffered severe and persistent asthma, for which she was regularly treated by Dr. 

Mary E. Strek, M.D., a pulmonologist, who had specifically instructed Peggy regarding the use 

of medicine and the need for emergency room care in the event of significant asthma symptoms. 

She had been treated for asthma attacks in the hospital or emergency room on at least eight different occasions. On July 21, 1996, Peggy began experiencing profound shortness of breath 

around 7:00 a.m. Over the course of the morning, Peggy took several doses of medication, with 

limited success, and finally called a friend for help. The friend arrived quickly, and they called 

an ambulance at 11:29 a.m. The ambulance took Peggy to a hospital emergency room, where 

Dr. Cavens, the emergency room physician gave her medications and arranged for her to receive 

an EKG test. But Peggy went into cardiac arrest and died at approximately 11:45 p.m. 

 

Expert medical witnesses disagreed at trial regarding whether Dr. Cavens complied with 

the applicable standard of care and whether her death resulted from any failure to comply. Physicians testifying on behalf of Dr. Cavens expressed the opinion that Peggy improperly used her 

 1 See Ind. Code § 34-18-14-3. The Act limits the total amount recoverable for an injury or death 

of a patient to $500,000 for malpractice occurring prior to January 1, 1990; $750,000 for malpractice injuries between December 31, 1989, and July 1, 1999; and $1,250,000 for malpractice after June 30, 1999. 

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medications in excess of their prescribed doses, which probably aggravated her condition, and 

that Peggy unreasonably delayed seeking medical treatment and emergency room care, which 

decreased her chances of surviving. 

Contributory Negligence 

Dr. Cavens's first argument on appeal is that the trial court erred when it granted the 

plaintiff's motion for judgment on the evidence on the issue of contributory negligence.2

 Dr. 

Cavens contends that he should have been allowed to present his defense asserting contributory 

negligence based on evidence of Peggy's excessive use of medication and delay in seeking treatment. 

The standard of review for a challenge to a ruling on a motion for judgment on the evidence is the same as the standard governing the trial court in making its decision. Smith v. Baxter, 796 N.E.2d 242, 243 (Ind. 2003); Kirchoff v. Selby, 703 N.E.2d 644, 648 (Ind. 1998); Bals 

v. Verduzco, 600 N.E.2d 1353, 1357 (Ind. 1992). Judgment on the evidence is appropriate 

"[w]here all or some of the issues . . . are not supported by sufficient evidence . . . ." Ind. Trial 

Rule 50(A); see also Smith, 796 N.E.2d at 243; Kirchoff v. Selby, 703 N.E.2d at 648. A reviewing court looks only to the evidence and the reasonable inferences drawn most favorable to the 

non-moving party, and the motion should be granted only where there is no substantial evidence 

supporting an essential issue in the case. Smith, 796 N.E.2d at 243; Kirchoff, 703 N.E.2d at 648; 

Clark v. Wiegand, 617 N.E.2d 916, 918 (Ind. 1993). If there is evidence that would allow reasonable people to differ as to the result, judgment on the evidence is improper. Smith, 796 

N.E.2d at 243. Where the issue involves a conclusion of law based on undisputed facts, the reviewing court is to determine the matter as a question of law in conjunction with the motion for 

judgment on the evidence, and to this extent, the standard of review is de novo. City of 

Hammond v. Cipich, 788 N.E.2d 1273, 1279 (Ind. Ct. App. 2003); see also MacLafferty v. 

MacLafferty, 829 N.E.2d 938, 941 (Ind. 2005). 

 2

 The Comparative Fault Act does not apply to medical malpractice suits. See Ind. Code 34-51-2-

1. Thus the common law defense of contributory negligence, if proven, bars a patient from recovering 

any damages for injuries or losses that may have resulted from a physician's medical negligence. 

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Under Indiana law, the historic common law defense of contributory negligence remains 

available to defendants in cases alleging medical malpractice. The Indiana Comparative Fault 

Act replaced the defense of contributory negligence, which completely bars a plaintiff from any 

recovery, with a system providing for the reduction of a plaintiff's recovery in proportion to the 

plaintiff's fault, but this Act does not apply to actions for medical malpractice. See Ind. Code 34-

51-2-1. The contributory negligence defense has been applied in medical malpractice cases. 

See, e.g., Mem'l Hosp. of South Bend, Inc. v. Scott, 261 Ind. 27, 300 N.E.2d 50 (1973) (defense 

alleged negligence of plaintiff in use of hospital toilet facilities, resulting in severe burns from 

scalding water); Fall v. White, 449 N.E.2d 628, 632-34 (Ind. Ct. App. 1983) (defendant alleged 

patient's failure to provide complete and accurate information, and failure to follow defendant 

doctor's instructions), trans. denied. A patient may not recover in a malpractice action where the 

patient is contributorily negligent by failing to follow the defendant physician's instructions if 

such contributory negligence is simultaneous with and unites with the fault of the defendant to 

proximately cause the injury. Harris v. Cacdac, 512 N.E.2d 1138, 1139-40 (Ind. Ct. App. 1987), 

trans. denied. 

Dr. Cavens offers that "pre-treatment actions by a patient which merely create the need 

for treatment cannot, generally, be raised as contributory negligence," but then seeks to distinguish this case because "Peggy's contributory negligence in taking excessive amounts of her 

medication and in failing to timely seek medical treatment did not create the need for medical 

treatment." Appellant's Br. at 18 He urges that "it was Peggy's asthmatic episode that created the 

need for medical treatment." Id. Dr. Cavens characterizes his own conduct as "part of the same 

event" as Peggy's conduct. Id. The effect of Dr. Cavens's argument is that when a person seeks 

medical attention for a medical condition after having been negligent in caring for the condition, 

a doctor who provides subsequent treatment should not be liable for any ensuing injuries or aggravation caused by the doctor's treatment, even if it falls below the applicable standard of care. 

We disagree. 

 Permitting medical malpractice defendants to assert the defense of contributory negligence by reason of a patient's negligence prior to the defendant physician's treatment of the pa4
tient conflicts with a long-standing common law principle: "It is a staple of tort law that the tortfeasor takes her victim as she finds him." Bemenderfer v. Williams, 745 N.E.2d 212, 218 (Ind. 

2001). Similarly, in Dunkelbarger Constr. Co. v. Watts, 488 N.E.2d 355, 358 (Ind. Ct. App. 

1986), the court described as "black letter law" a jury instruction advising that a plaintiff "will be 

entitled to recover where the negligence of the defendants caused an injury even though by reason of previous physical or diseased condition such injuries are more serious, or the person is 

more susceptible to injury, or death is directly hastened." See also Brokers, Inc. v. White, 513 

N.E.2d 200, 203-05 (Ind. Ct. App. 1987); Johnson v. Bender, 174 Ind. App. 638, 644-45, 369 

N.E.2d 936, 940 (1977), trans. denied. Indeed, this principle is embodied in Section 461 of the 

Restatement (Second) of Torts (1965): 

The negligent actor is subject to liability for harm to another although a physical condition of the other which is neither known nor should be known to the actor makes the injury greater than that which the actor as a reasonable man should have foreseen as a 

probable result of his conduct. 

 It is people who are sick or injured that most often seek medical attention. Many of these 

infirmities result, at least in part, from the patients' own carelessness (e.g. negligent driving or 

other activities, failure to regularly exercise, unhealthy diet, smoking, etc.). To permit healthcare 

providers to assert their patients' pre-treatment negligent conduct to support a contributory negligence defense would absolve such providers from tort responsibility in the event of medical negligence and thus operate to undermine substantially such providers' duty of reasonable care. 

 

Numerous other jurisdictions agree that, where a patient seeks medical treatment for a 

condition that may have arisen in whole or in part from the patient's own negligence, such negligence is not available as a defense to claims alleging medical malpractice in providing subsequent treatment. In Jensen v. Archbishop Bergan Mercy Hosp., 236 Neb. 1, 15, 459 N.W.2d 

178, 186-87 (1990), where a patient failed to follow the instructions of his doctor to lose weight, 

and his weight problem was causally related to a pulmonary embolism for which he obtained 

negligent treatment, the defense of contributory negligence was held inapplicable in a medical 

malpractice case "when a patient's conduct provides the occasion for medical attention, care, or 

treatment . . . or when the patient's conduct contributes to an illness or condition for which the 

patient seeks the medical attention, care, or treatment on which a subsequent medical malpractice 

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claim is based.” Likewise in Eiss v. Lillis, 233 Va. 545, 553, 357 S.E.2d 539, 543-44 (1987), the 

patient's contributory negligence was not available as a defense because the patient’s conduct 

occurred before rather than contemporaneously with the doctor’s treatment. The court in Eiss

noted that “[t]he law is not concerned with the existence of negligence in the abstract; the law is 

only concerned with negligence that is the proximate cause of the injury complained of by the 

plaintiff.” Eiss, 233 Va. at 553, 357 S.E.2d at 543. 

Similarly, in jurisdictions that look to comparative fault rather than contributory negligence, many have held that a patient’s conduct prior to treatment should not be considered for 

comparative fault purposes. See, e.g., Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 125 

(Tenn. 2003) (holding that “fault may not be assessed against a patient in a medical malpractice 

action in which a patient’s negligent conduct provides only the occasion for the medical attention, care, or treatment which is the basis for the action,” where the defendant doctor was treating 

the plaintiff patient for injuries sustained in a car accident negligently caused by the plaintiff who 

was driving while intoxicated); Whitehead v. Linkous, 404 So. 2d 377, 379 (Fla. Dist. Ct. App. 

1981) (holding that conduct by the plaintiff contributing to his illness or medical condition and 

furnishing the occasion for medical treatment is not a defense to medical malpractice, where a 

doctor negligently treated a man who had attempted to commit suicide); Matthews v. Williford, 

318 So. 2d 480, 483 (Fla. Dist. Ct. App. 1975) (“[C]onduct of a patient which may have contributed to his illness or medical condition, which furnishes the occasion for medical treatment . . .

simply is not available as a defense to malpractice which causes a distinct subsequent injury—

here, the ultimate injury, wrongful death.”). But see Krklus v. Stanley, 359 Ill. App. 3d 471, 480, 

833 N.E.2d 952, 960 (2005) (recognizing an exception to the general rule that the patient's conduct prior to treatment should not be considered in assessing damages, holding that "comparative 

negligence applies when the plaintiff's negligence is a legally contributing cause of his harm if, 

but only if, it is a substantial factor in bringing about his harm and there is no rule restricting his 

responsibility for it.") (quotation marks omitted). 

The convergence of the negligence of both the patient and the physician is a recurring rationale in decisions addressing the question, which is often discussed in the context of whether 

the patient's alleged negligent conduct was a proximate cause of the claimed injuries. "[I]n order 

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to constitute a bar to recovery, contributory negligence must be a proximate cause of the injury. 

It must unite in producing the injury, and thus be 'simultaneous and cooperating with the fault of 

the defendant . . . (and) enter into the creation of the cause of action.'" Harris, 512 N.E.2d at 

1139-40 (quoting 61 Am.Jur.2d Physicians and Surgeons § 302, p. 449 (1981)) (other included 

citations omitted); see also, e.g., Sendejar v. Alice Physicians and Surgeons Hosp., Inc., 555 

S.W.2d 879, 885 (Tex. Civ. App. 1977); Ponirakis v. Choi, 262 Va. 119, 125, 546 S.E.2d 707, 

711 (2001); Leadingham v. Hillman, 224 Ky. 177, 5 S.W.2d 1044, 1045 (1928); Bird v. 

Pritchard, 33 Ohio App. 2d 31, 32, 291 N.E.2d 769, 771 (1973). 

Dr. Cavens also asserts that "[h]ad Peggy presented to her treating pulmonologist, Dr. 

Strek, in the exact same manner in which she presented to Dr. Cavens, there can be no doubt that 

Dr. Strek would be entitled to argue contributory negligence." Appellant's Br. at 19. He argues 

that the identity of the treating physician should not matter because the patient's "conduct is negligent regardless of the status of the physician defendant." Id. We decline to address the hypothetical whether the treating pulmonologist could have asserted contributory negligence. The 

principle remains that a physician is subject to liability for harm to a patient notwithstanding that 

the patient has a physical condition that may make the patient's injury greater than what a reasonable doctor should have foreseen as a probable result of his conduct. See Restatement (Second) of Torts § 461 (1965). The alleged negligence of Peggy Miller was not "simultaneous and 

cooperating" with the alleged medical negligence of Dr. Cavens. She presented to Dr. Cavens in 

the midst of an acute asthmatic attack, and the doctor then had the duty to provide reasonable 

medical care under the circumstances. He cannot avoid responsibility for a failure to fulfill such 

duty by claiming that his patient's prior negligence caused or contributed to the dire condition 

that necessitated her treatment. This action alleges the medical negligence of Dr. Cavens only 

for his treatment of this medical emergency, not for any medical care provided by him for Peggy 

Miller's prior course of pulmonary treatment. 

There was no evidence in this case that Peggy Miller was under treatment by Dr. Cavens 

at the time of her alleged excessive use of medication and delay in seeking treatment. Thus there 

is insufficient evidence supporting the issue of contributory negligence. We find as a matter of 

law that any alleged negligence of Peggy Miller, the plaintiff's decedent, that may have contrib7
uted to the illness that brought her to the defendant, Dr. Cavens, for treatment, does not constitute a basis for a defense of contributory negligence. The trial court did not err in granting the 

plaintiff's motion for judgment on the evidence preventing Dr. Cavens from asserting the defense 

of contributory negligence. 

Limitation of argument 

Dr. Cavens also contends that the trial court erroneously prevented him from arguing that 

Peggy Miller's conduct was the sole proximate cause of her death. This contention is not based 

on any rulings on jury instructions, but rather relates to comments of the trial court regarding the 

scope of closing argument. After explaining its reasons for granting the plaintiff's motion for 

judgment on the evidence on the issue of contributory negligence, the court suggested a brief 

break before the instruction conference. The following colloquy then occurred: 

[DEFENSE COUNSEL]: Your Honor, might I ask for a little bit of clarification with respect to the extent that I'll be able to argue proximate cause related to – 

THE COURT: Well, the Court has just indicated there's no proximate cause here. Certainly, you can argue on the basis that, you know, there's certain circumstances that apparently occurred, but beyond that, as a matter of law the Court has made a determination 

that there is no proximate cause here, because there was no relationship between the doctor and the patient prior to the time the patient came into the emergency room. 

[DEFENSE COUNSEL]: Thank you. I just wanted a clarification. I wasn't sure you 

were saying as a matter of law there was no proximate cause also, as well as contributory 

negligence. 

THE COURT: Right. I mean, if you don't have contributory negligence here, you can't 

have proximate cause. They relate to each other. I mean, if the doctor undertook his care 

of the patient, and then you're going to argue that there's some type of proximate cause 

between what she did before the relationship ensued and what the doctor did after the relationship ensued, then you're circumventing what the Court has indicated here. 

[DEFENSE COUNSEL]: I just wanted to—thank you very much. 

Tr. at 1059-60. At this point, a recess was declared and the parties met with the trial judge in 

chambers for a final instruction conference. 

Significantly, the defense was seeking only a clarification. It did not take issue with the 

8
court's answer. It did not object to the trial court's response. There was no challenge to the 

court's statement, no argument presented suggesting that the defense believed the court's view to 

be legally incorrect. Issues not raised at the trial court are waived on appeal. Reemer v. State, 

835 N.E.2d 1005, 1007 n.4 (Ind. 2005); Ealy v. State, 685 N.E.2d 1047, 1050 (Ind. 1997). In 

order to properly preserve an issue on appeal, a party must, at a minimum, "show that it gave the 

trial court a bona fide opportunity to pass upon the merits of the claim before seeking an opinion 

on appeal." Endres v. Ind. State Police, 809 N.E.2d 320, 322 (Ind. 2004). We find this issue to 

have been procedurally defaulted. 

Refusal of Tendered Instruction 

 The defendant contends that the trial court erred in refusing one of his tendered jury instructions, which stated: 

If you find from a fair preponderance of the evidence that Peggy Miller's 

injuries and damages would have occurred regardless of the type of treatment rendered by Robert Cavens, M.D., in this case, then your verdict 

should be for the defendant. 

Appellant's App'x. at 88. This instruction, according to the defendant, "required a verdict in his 

favor in the event the jury found that Peggy would have died regardless of Dr. Cavens's conduct." Appellant's Br. at 27. 

The defendant argues that the evidence established that "Peggy was unfortunately going 

to die regardless of the treatment provided by Dr. Cavens." Appellant's Br. at 27. He asserts that 

a similar instruction was approved by the court in Fall, 449 N.E.2d at 631, and by the court in 

Hartman v. Mem'l Hosp. of South Bend, 177 Ind. App. 530, 533, 380 N.E.2d 583, 585 (1978). 

In concluding that the trial court did not err in giving a substantially identical instruction, the 

court in Fall explained, "[I]f death occurs no matter what care is provided, there is no causation, 

and the jury should find for the defendant." 449 N.E.2d at 631. The challenged instruction in 

Hartman informed the jury of the plaintiff's burden to prove that the defendant's breach of duty 

"proximately caused the plaintiff's decedent's death" and that the plaintiff "may not recover" 

damages "which you find would have occurred no matter what nursing and hospital care was 

rendered." 177 Ind.App. at 533, 380 N.E.2d at 585. Upholding the giving of the instruction, the 

9
Hartman court emphasized the necessity for a "causal connection" between the death and the 

hospital's care. Id. at 534, 380 N.E.2d at 586. 

In both Fall and Hartman, the Court of Appeals declined to reverse in cases where the 

trial courts had given the instruction. But in the present case, the issue is different: here the defendant asks us to find that the trial court erred in refusing to give the instruction. 

"In reviewing a trial court's decision to give or refuse a tendered instruction, this Court 

considers whether the instruction (1) correctly states the law, (2) is supported by the evidence in 

the record, and (3) is covered in substance by other instructions." Wal-Mart Stores, Inc. v. 

Wright, 774 N.E.2d 891, 893 (Ind. 2002); Davenport v. State, 749 N.E.2d 1144, 1150 (Ind. 

2001). If the challenge to a jury instruction is that it does not correctly state the law, we will review the instruction de novo; but if the challenge is that the instruction is not supported by the 

evidence in the record or that the substance is not covered by other instructions, we will only reverse if the trial court has abused its discretion. Wright, 774 N.E.2d at 893-94. 

 The determinative issue here is whether the tendered instruction was covered in substance 

by other instructions. Among the court's final instructions, we find the following: 

 The law does not require that a physician guarantee that he will make an accurate assessment, or that the patient will have no complications or even that they will obtain a 

good result. The fact the Peggy Miller died is not, of itself, evidence that Robert Cavens, 

M.D., was negligent. 

Instruction No. 21, Appellant's App'x. at 112 (emphasis added). 

 You must determine the total amount of money that would fairly compensate the 

plaintiff for those elements of damage that you find were proven by a preponderance of 

the evidence to have resulted from the negligence of the defendant. . . . If you are satisfied from a preponderance of the evidence that physical injury was caused by the 

defendant's negligence, you should not decline to award some amount by way of general 

damages. . . . 

Instruction No. 25, Id. at 116 (emphasis added). 

 You are to consider the question of damages only if you have decided that the defendant was negligent and that this negligence was the proximate cause of Peggy Miller's 

death.

Instruction No. 26, Id. at 117 (emphasis added). 

10
 "Proximate cause" is that cause which produces the death complained of and without 

which the result would not have occurred. That cause must lead in a natural and continuous sequence to the resulting death unbroken by any intervening cause. 

Instruction No. 11, Id. at 102. 

 Applying an abuse of discretion standard, we find that the defendant's tendered instruction, advising that the plaintiff could not recover if Peggy Miller's death would have occurred 

regardless of the type of treatment provided by Dr. Cavens, was sufficiently covered in substance 

by the foregoing final instructions. These final instructions informed the jury that, for the plaintiff to recover, a preponderance of the evidence must prove that Peggy Miller's death was caused 

by the negligence of the defendant, and that the mere fact that she died is insufficient. We decline to find that the trial court abused its discretion in refusing to give the defendant's tendered 

instruction. 

Conclusion 

Concluding that the trial court was correct in granting the plaintiff's motion for judgment 

on the evidence as to the issue of contributory negligence, that the defendant may not challenge 

on appeal a trial court ruling that he did not challenge at trial, and that the trial court did not 

abuse its discretion in refusing to give a tendered instruction, we affirm the judgment of the trial 

court. 

Sullivan, Boehm, and Rucker, JJ., concur. Shepard, C.J., concurs with separate opinion. 

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SHEPARD, Chief Justice, concurring. 

 I think the jury in this case rendered its decision under a misapprehension of the applicable law. I join in affirming only because of procedural default. 

 I agree with what Justice Dickson has written about contributory negligence and proximate cause as they apply to this case and other similar fact patterns. And I agree with some hesitation that a trial court does not abuse its discretion when it decides to refuse an instruction saying there can be no recovery if the jury believes the patient’s own negligence was the proximate 

cause of her injuries, though I think it is a helpful instruction and I wish it had been given here. 

 Refusing to give such an instruction would typically not be fatal to the jury’s ability to 

focus on the patient’s acts as a potential proximate cause. The standard instructions about the 

plaintiff’s need to prove proximate cause would legitimize counsel’s arguments to the jury about 

whether it was patient or doctor who caused the death. 

 The jury could not hear that argument in this case, of course, because the trial court told 

counsel it would not be permitted. Counsel and client were entitled to make this argument. Affirming on the basis of procedural default is a harsh result, but I join my colleagues in holding 

that it is the correct one.