A TTORNEYS FOR A PPELLANT A TTORNEY FOR A PPELLEE A TTORNEYS FOR

William H. Kelley James A. Mellowitz A MICUS C URIAE Darla S. Brown Robert W. York & Associates I NS

. I NST

. OF I N D

. Kelley, Belcher & Brown Indianapolis, Indiana Karl L. Mulvaney Bloo mington, Indiana Barry C. Cope Briana L. Kovac Bingham McHale LLP Indianapolis, Indiana

____________________________________________________________________________ 

# In the 

# Indiana Supreme Court

_______________________ __________ No. 49S02

- 0906

- CV

- 00275

E RIC P. S IBBING , Appellant (Defendant below)
,

v.

A MANDA N. C AVE , I NDIVIDUALLY , AND AS THE M OTHER AND G UARDIAN O F M ERCY M. C AVE , A M INOR C HILD , Appellee (Plaintiff below)

.

_________________________________ Appeal from the Marion Superior Court , No. 49D10

- 0608

- CT

- 33387

The Honorable David J. Dreyer, Judge

_________________________________ On Petition To Transfer from the Indiana Court o f Appeals, No. 49A02

- 0802

- CV

- 165

_________________________________

Marc h 4, 2010
Dickson, Justice.

F ollowing a plaintiff's verdict in this automobile rear

- end collision personal i n jury case
, the defendant appealed, claiming trial court error in (a) permit ting the plaintiff to testify about

w hat she was told by her treating physician and her own beliefs about the cause of her pain, and (b) excluding medical necessity evidence from the defendant's expert witness. The Court of A ppeals affirmed. Sibbing v. Cave , 901 N.E.2d 1155 (Ind. Ct. App. 2009). We granted transfer
and affirm, holding that some of the challenged medical testimony of the plaintiff was imprope rly admitted but that the resulting error does not require reversal, and that the defendant's ev i-2

dence regarding medical necessity was properly e x cluded.

A brief summary of the factual and procedural background provides context for our di scussion of the issues. This case arises from an Indianapolis motor vehicle collision on October 27, 2005, in which the defendant drove his automobile into the rear of the vehicle occ u pied by the plaintiff and her eleven

- year

- old daughter. The defendant was driving "around 45, 50 miles a[n] hour poss i bly a little over," Tr. at 219, preoccupied with adjusting his car radio, did not see the slowed traffic in front of him, and failed to apply his brakes or reduce his speed before the forceful impact . The resulting vehicular damage was substantial. The plaintiff exp e rienced a sudden onset headache but was able to drive home after the collision. About three hours later,
she drove her self to the St. Francis Hospital emergency room where she was e x amined, treated, and released. About two weeks later, beginning November 14, 2005, she sought and r e ceived medical care and treatment from Muhammad Saquib, M.D., and his associates at a medic al cli nic, Priority 1 Medical, consist ing of fourteen or fifteen visits over the course of one month. Fo llowing procedural difficulties in arranging for treatment with Pain Management Services at Community Hospital East, she sought further care for relief of her continuing pain and disability at Castleton Chiropractic, where she received treatment, primarily from Ronald She p pard, D. C
., consisting of about forty visits from February through June, 2006.

The defendant did not contest liability at trial. 1 The plaintiff's evidence included var i ous medical records and bills from St. Francis Hospital, Priority 1 Medical, and Castleton Chiropra ctic, and testimony from herself, her mother, her daughter, the defendant, the investiga t ing police officer, and Dr. Sheppard. The defendant's witnesses included J. Paul Kern, M.D., by video d eposition, 2 and the defendant's girlfriend, who arrived at the scene of the collision while the plai n-

1 The plaintiff contends, and the defendant does not dispute, that the parties filed a "Joint Pr oposed Preliminary Issue Instruction" to advise the jury. The stipulated instruction included the following: "Defendant admits that he was solely at fault for causing the collision. However, Defendant denies that all of the claimed injuries and damages were caused by the crash, and disputes the nature and extent of the claimed injuries and damages." Appellee's App'x at 35

– 3 6, and noted in Appellee's Br. at 5. Neither pa rty has supplied in the record the a c tual preliminary or final instructions in the case.

2 Before t he trial began, the court granted the plaintiff' s motion to strike from Dr. Kern's depos ition certain passages relating to whether some of the plaintiff's medical care (a nerve conduction study by Dr. Saquib and all chiropractic care received by the plaint iff) was necessary. Appellant's App'x at 25

– 2 6.3

tiff was still present. The trial court entered judgment upon the jury's verdi ct awarding the plai ntiff $71,675 and her daughter $325.

1. Admission of Plaintiff's Testimony

The defendant first challenges the trial court's decision in allowing the plaintiff, over d efendant's objection, "to recite hearsay testimony at trial abou t what Dr. Saquib told her about her injuries." Appellant's Br. at 16. The defendant argues that "Dr. Saquib, Cave's internist, was not the one receiving medical diagnosis or treatment" and that the plaintiff's "testimony as to what Dr. Saquib allegedly told her about the results of diagnostic tests and the cause of her pain does not qualify as an exception to the hearsay rule under Evid. R. 803(4) since the statements at issue were made by Dr. S aquib to Cave and not by Cave to Dr. Saquib for purposes of receiving a d iagnosis or trea t ment." Id. at 19.

Indiana Evidence Rule 803(4) operates as an exception to the general rule that hearsay is
inadmissible ev i dence at trial. The rule states: Statements for Purpose of Medical Diagnosis or Treatment . S tatements made for purposes of medical diagnosis or treatment and describing med i cal history, or past or present symptoms, pain, or sensations, or the inception or general chara cter of the cause or external source thereof insofar as reasonably pertinent to dia gnosis or treatment.
The p laintiff points to Coffey v. Coffey , 649 N.E.2d 1074 (Ind. Ct. App. 1995)
, tran s

. not sough t , as authority for allowing statements made by a health care provider to a patient to be a dmitted under the 803(4) hearsay exception

. Co f fey involved the distribution of marital assets in a dissolution proceeding. To show available assets, the husband attempted to admit a letter from his doctor describing his medical condition and diagnosis , arguably a relevant factor when d eterminin g property division

. Id . at 1078. The trial court excluded the letter, and in his appeal, the husband argued the letter should have been admitted under 803(4). Id. The Court of Appeals agreed , reversed, and remanded , apparently concluding that the lett er's information regarding physical diagnosis, treatment agenda, and resulting inability to work fell within rule 803(4)'s la n-

The trial court's order resulted in the exclusion of an aggregate of approximately 15 of the depos i tion's 135 pages.4

guage, which does not expl i citly state whose statements fall within the exception.

We disagree with and disapprove of this hol ding in Coffey . The rationale for the 803(4) hearsay exception is that a declarant has a personal interest in obtaining a medical diagnosis and treatment, and this interest motivates the patient to provide truthful information. See McClain v.
State , 675 N.E.2d 329, 331 (Ind. 1996). Stated another way, a patient's personal interest in r eceiv ing medical treatment supplies significant indicia of reliabil i ty that the patient's statements

are true , thus reducing the need for exclusion of hearsay evidence not subject to cross

examination . Declar a tions made by a physician or other health care provider to a patient do not share this enhanced indicia of reliability. Furthermore, because of the substantial likelihood that

a typical patient may fail to fully or ac curately comprehend or understand the physician's report,
to admit into evidence a patient 's personal perception of the physician's statement would not only foster the possibility of misreporting but also eliminate the opportunity for clarifying cross

e x am ination of the physician. While Rule 803(4) does not expressly identify which declarants'
medical statements are intended to be treated as a hearsay rule exception, we hold that the Rule is intended and should apply only to statements made by persons who are seeking medical diagn osis or treatment

.

For this reason, the plaintiff's testimony reporting Dr. Saquib's statements about the r esults of diagnostic tests and the cause of her pain does not qualify as an exception to the hearsay rule under Rule 803(4 ). On the other hand, "errors in the admission of evidence are to be disr egarded as harmless error unless they affect the substantial rights of a party." McClain , 675 N.E.2d at 331. Likewise, reversible error cannot be predicated upon the erroneous admi ssion of evidence that is merely cumulative of other evidence that has already been properly admitted.
Davis v. Garrett , 887 N.E.2d 942, 947 (Ind. Ct. App. 2008)
, trans

. denied . To determine whet h er the admission of evidence affected a party's substantia l rights, we assess the probable impact of
the ev i dence upon the jury. McClain , 675 N.E.2d at 331.

Anticipating the application of the harmless error doctrine, the defendant argues that the objectionable evidence is not merely cumulative of other ev idence and that "[i]t cannot be said that the addition of the 'medical testimony' from the absent Dr. Saquib could not have affected5

the jury's decision and hence the outcome of the trial." Appellant's Br. at 21.

The defendant principally challenges t he plaintiff's testimony reporting Dr. Saquib's statements to her regarding the probable degree and duration of discomfort, the frequency that similar traffic accidents result in injuries not immediately evident, that "the curve of my spine
was off based o n like whiplash," tha t her MRI "showed a bulging disc between L5 and S2 spine bones," and that the location of the bulging disc wa s "in the same spot" that the plaintiff initially identified in the emerge ncy room. Appellant's Br. at 7

– 9 . The defendant id entifies the plai n tiff's

statement , "I knew the pain in my lower back was because of the bulging disc ," i d. at 10, and a rgues th at it was improperly admitted over his objection for lack of foundation
, showing no med ical expertise, id. at 19

– 2 0.

We find that substantially all of this evidence was also presented to the jury through other
exhibits , including Plaintiff's Exhibit 11, fifty

- five pages of the plaintiff's medical treatment records from Priority 1 Medical, where she was under the care of Dr. Saquib, and through the testimony of the plaintiff's medical witness, Dr. Sheppard. The Priority 1 Medical recor ds, i ncluding t he plaintiff's MRI test results
, were admitted with out objection . Among the other ev idence admitted, for example, was the writ ten report of radiologist Ronald I. Landau, M.D., e xpressing his MRI impression of "Annular disc bulging at L5

- S1." Plaintiff's Exhibit 12, Appe llee's App'x at 309

– 10. In addition, Dr. Sheppard testified without objection that the MRI showed
that the pla intiff was suffering from a bulging disc at L5

- S1, that this was consistent with her complaints of back pain, and th at her injuries were the r e sult of trauma.

Considering the nature and probable impact of the plaintiff's lay testimony expressing her
recollection of m edical information received, the substantial medical confirmation and elabor ation provided through the testimony of Dr. Sheppard
, and the rather extensive medical records admitted without objection, we conclude that the erroneous admission of the plaintiff's testimony regarding what Dr. Saquib told her about the results of diagnostic testing is cumulative, did not6

a f fect the defendant's substantial rights
, and thus do es not require reversal. 3

The defendant also contends that the trial c ourt erred in permitting the plaintiff to give
her own opinion as to the cause of her pain. In this regard, t he defendant identifies a single
statement as b e ing improperly admitted . When asked on direct examination what she believed was causing her pain, the plaintiff replied: "Well I knew that the pain in my lower back was b ecause of the bulging disc , the rest of it was just terrible muscle pain I felt like I had been rolled
down stairs repeatedly." Appellant's Br. at 10, quoting Tr. at 90 , Appellant's App'x at 20. The
d e fendant's sole trial objection claimed "no proper foundation." Id. The trial court overruled the

o b jection stating
, "I think it ' s within the range of what a patient can or the plaintiff can describe."
Id. On appeal, the defendant al ternatively contends that the plaintiff should not have been pe rmitted to repeat the opinion of Dr. Saquib " under the guise of Rule 803(4) " or that, if the plai ntiff had arrived at these opinions on her own, she was not qualified to give medical opinion t e stimony un der Indiana Evidence Rule 702 absent a proper foundation. Only the claim of impr oper foundation was presented at trial and is thus eligible for appellate conside r ation.

In giving the challenged testimony, the plaintiff was not testifying a s an expert. The question eliciting the plaintiff's response did not ask for her medical expertise regarding the ca usation of her pain; it merely asked , "What did you believe was causing your pain?" Tr. at 90,
A p pellant's App'x at 20. Her resulting answ er, merely stating her own personal belief about the source of her pain
, was permissible as testimony by a la y witness pursuant to Indiana Evidence
Rule 701. The trial court did not err in overruling the defendant's objection.

2. Exclusion of Defe ndant's Evidence Challeng ing Plaintiff's Medical Treatment

The defendant contends that the trial court erred in striking portions of the videotape d eposition of the defendant's medical expert, Paul Kern, M.D. Urging that he should have been permitted to present this evidence challenging the medical necessity of Dr. Saquib's nerve co nduction studies at Priority 1 Medical and "passive care" treatment provided more than four weeks

3 Because we decline to reverse on the Evidence Rule 803(4) issue, we do not address the plai ntiff's contention that admission of her challenged testimony does not require application of the Rule 803(4) ex ception to the hearsay rule because her testimony was not hearsay.7

after the collision
, first from Pr iority 1 Medical and later from Dr. Sheppar d at Castleton Chir opractic, the defendant argues that he was thereby precluded from rebutting the plaintiff's claim.
T he defendant emphasizes that a pa r ty seeking to recover damages for medical expenses must prove that the expenses were both reasonable a nd necessary, citing Cook v. Whitsell

- Sherman
, 796 N.E.2d 271, 277 (Ind. 2003), and Burge v. T e ter , 80 8 N.E.2d 124, 132 (Ind. Ct. App. 2004)
, trans. not sought

.

The plaintiff asserts that the testimony was properly excluded because it was contrary to
W hitaker v. Kruse , 495 N.E.2d 223 (Ind. Ct. App. 1986)
, trans

. not sought , which she co n tends prevents a defendant tort feasor from seeking to reduce his liability by questioning the judgment of a plaintiff's health care providers. Applying Whitaker , the Co urt of Appeals a f firmed the trial court's decision to exclude portions of the defendant's medical witness's testim o ny, concluding that the defendant "should not be able to challenge the particular course of trea t ment chosen by the plaintiff's medical care providers to treat the injuries resulting from the defendant's negl igence. " Si b bing
, 901 N.E.2d at 1162.

The defendant argues that if Whitaker is correct and applicable here, "then a defendant
will ne v er be able to refute a plaintiff's claim that medi cal bills were reasonable and necessary." Appe l lant's Br. at 26.

On appeal, the defendant contends that the trial court's striking of portions of Dr. Kern's deposition testimony erroneously prevented the defendant from challenging "the reasonableness and the necessity of some of Cave's treatment." Appellant's Br. at 22. In other places, he ident ifies his claim by referring only to whether the challenged treatment was "medically necessary."
Id. at 13 , Appellant's Reply Br. at 14

. The defe n dant does not challenge the reasonableness as to any of the dollar amounts incurred by the plaintiff for her medical care
, but rather he asserts that he should have been permitted to present evidence to challenge the necessity of certain trea tment , specifically the nerve conduction study and "passive care" treatment provided more than
four weeks after the coll i sion.

For over a century , some Indiana appellate opinions have recit ed that to recover damages8

for medical expenses, such expenses must be " reasonable and necessary. " See, e.g. Hickey v.
Shoemaker , 132 Ind. App. 136, 143
, 167 N.E.2d 487
, 490 (1960)
, trans

. not sought ; City of Be dford v. Woody , 23 Ind.App. 401, 403
, 55 N.E. 499
, 500 (1899)
, trans

. not sought . When this phrase has appear ed , the issue usually addressed is the reasonableness of medical expenses, not the necessity of the med i cal treatment

.

For example, in Stanley v. Walker , 906 N.E.2d 852, 855 (Ind. 2009), this Court recently

o b serve d that an injured plaintiff "is entitled to recover damages for medical expenses that were both necessary and reasonable." Id. at 855. But our decision in Stanley concern ed only the re asonableness of the amount of claimed medical expenses , not the necessity of the medical trea tment

. The principal issue wa s the a dmissibility of a defendant's evidence of discounted amounts accepted by the plaintiff's medical providers , and we conclude: "The focus is on the reaso n able value, not the actual charge. This is especially true given the current state of health care pri ci ng." Id . at 856

– 5 7. Similarly, in Cook , 796 N. E.2d 271 , we recite the "reasonable and nece ssary" qualification, id . at 277, b ut focus only on the "reasonable" component, holding that Ind iana Evidence Rule 413 (which permits statements of charges for heal th care expenses to be a dmissible and to "constitute prima facie evidence that the charges are reasonable") applie s only to expenses already incurred, not to the estimated cost of future medical treatment. Id. at 278. Another example of our referring to the "reasonable and necessary" rule without explic a tion or application is Smith v. Syd's, Inc.
, 598 N.E.2d 1065 (Ind. 1992) , in which we recite the rule
, "it must be proven at trial that these expenses were both reasonable and nece s sary , " id. at 1066, but
fi nd the issue waived

. Id . at 1066

– 67.

As authority for the "reasonable and necessary" requirement, Stanley rests upon Cook
, Cook rests upon Smith , and Smith cites to Hickey and Bedford as its authority. While both Hickey and Bedford use the phrase " reasonable and necessary," n either case addresses the "n ecessary" component. In Hickey
, the issue addressed was whether the defendant could be liable
for the wife's medical bills
, then the debt of her husband

. T he issue in Bedford was the need to prove " reasonable value" of unpaid medical servi c es. 4

4 Similar references noting that a personal injury plaintiff must show both reas o nableness and necessity, but wi thout elaboration as to the meaning and application of the necessity comp o nent, are also9

In a few Indiana appellate cases, the outcomes appear to have involved application of the "necessary" component , altho ugh without detailed discussion

. See, e.g. Childress , 779 N.E.2d 546 (applying "damag es directly attributable to the wrong" to satisfy "reasonable costs of nece ssary medical treatment," affirmed trial court order that jury verdict was inadequate); Coo p er v. High , 262 Ind. 405, 407, 317 N.E.2d 177, 179 (1974) (finding that a rule disallowin g reco v ery of a plaintiff's expenses for a physician incurred in litigation prepar a tion was "i n accord with the Indiana policy of allowing the necessary and reasonable expenses for medical attention, med icine and nursing "); Pennsylvania Co. v. Marion , 104 Ind. 239, 244, 3 N.E. 874, 877 (1885) (v oluntary nursing services provided without charge "were nece s sary to ameliorate the condition and suffering of the plaintiff" and evidence of attending physician as to the value of these servi ces was a d missible)

.

While the foregoing opinions provide little clarification as to the proper application of "necessary, " it is apparent that the shorthand phrase "reasonable and necessary" embodies two

found, for example, in Burge , 808 N.E.2d at 132 (reciting that the plaintiff must prove that "expenses were both reasonable a nd necessary" but finding satisfactory proof thereof from admission of medical stat e ments under Evidence Rule 413 and by the defendant's concessions at trial); Russell v. Neumann

Steadman , 759 N.E.2d 234, 237 (Ind. Ct. App. 2001)
, trans. not soug h t (noting that an injured plai n tiff may recover "the reasonable cost of necessary medical expenses" and holding insufficient a personal i njury verdict for the plaintiff on liability but awarding zero damages); Chemco Transport v. Conn. , 506 N.E.2d 1111, 1115 (Ind. Ct. App. 1987), summarily affirmed on this issue , 527 N.E.2d 179, 180 (Ind. 1988) (holding that the defendant's failure to challenge the admiss i bility of the medical bills precluded the need to address whether they " alone were sufficient to prove [the plai n tiff's] reasonable and necessary medical expenses"); Dee v. Becker , 636 N.E.2d 176, 178 (Ind. Ct. App. 1994)
, trans

. not sought (affir ming verdict for an amount less than the plaintiff's actual medical expenses, recognizing the "jury's respo nsibility to e valuate reasonableness"); Childress v. Buckler , 779 N.E.2d 546, 551 (Ind. Ct. App. 2002)
, trans

. not sought (holding verdict inadequate in light of uncontroverted evidence of the "reasonable costs of necessary medical expenses"); Acme

- Evans Co. v. Schnepf
, 105 Ind.App 475, 481

– 8 2, 15 N.E.2d 742, 744 (1938)
, trans

. not sought (holding that plaintiff's recovery for "reasonable value of the necessary se rvices of a nurse, the same as the services of a physician or surgeon
, " includes the gratuitous nursing se rvi ces given by mother of injured minor son in action by father); Brosnan v. Sweet s er , 127 Ind. 1, 9, 26 N.E. 555, 557 (1891) (stating that liability extends to "the reasonable value of the necessary se r vices" of nursing care provided by the plaintiff's broth er and sister, "the same as the services of a physician or surgeon"); Summers v. Tarney , 123 Ind. 560, 564, 24 N.E. 678, 679 (1890) (noting a presumption that the amount actually expended "for surgical treatment [of an injured horse] was a reasonable and p roper pa yment " ); Herrick v. Sayler
, 160 F. Supp. 25 (N.D. Ind. 1958) (addressing whether value of go v ernment medical care supplied to a member of the armed services is a proper element of damages, o b served that Indiana law allows an injured plaintiff to re cover any reasonable expense necessarily i n curred).10

a s pects. First
, the claimed amount of medical expenses must be reason able. Second, the nature
and extent of the claimed medical treatment must be nece s sary.

In the present case, the plaintiff asserts that evidence proffered by the defendant to cha llenge the medical necessity of some of the plaintiff's treatment was corr ectly excluded pursuant

to Whitaker

.

In Whitaker , the Court of Appeals reversed a verdict for the defendants because an i nstruction improperly permitted the defendant s to contest the propriety of the plaintiff's doctor's diagnosis and treatment. It co ncluded : We hold that an injured party may recover for injuries caused by the original tort

- feasor's negligent conduct and for any aggravation of those injuries caused by a physician's i mproper diagnosis and unnecessary treatment or proper diagnosis and ne gligent treat m ent. In order to recover under this rule, the plaintiff need only show he exercised re a sonable care in choosing the physician.
Whitaker , 495 N.E.2d at 226. T he court found that the defendants' allegation was merely that their expert wit nesses "wou ld have elected to continue conservative treatments rather than pe rform su r gery." Id. at 227. 5

The rationale expressed in Whitaker was that "the tort

- feasor created the necessity for medical care in the first instance. So long as the indiv idual seeking medical care makes a re asonable choice of physicians, he is entitled to recover for all damages resulting from any aggr avation of his original injury caused by a physician's misdiagnosis or mistreatment." Id . at 225

– 2 6, citing Suelzer v. Car penter , 183 Ind. 23, 32, 107 N.E. 467, 470

– 7 1 (1915). The court also noted the Restatement (Second) of Torts § 457 (1965): If the negligent actor is liable for another's bodily injury, he is also subject to liability for

5 Strikingly similar to the present case, Whitaker arose from a rear

- end collision resulting in neck and back injuries. The defendant s there argued that some of the plaintiff's medical treatment was unre asonable or unnecessary. The c ourt explained: The evidence was undisputed that Whitaker had suffered some injury to her neck and back as a result of the accident, although the extent of that injury was disputed. The only issue raised by [defendants ] through their expert witnesses was whether Whitaker's physicians had chosen the correct course of action in treating her neck and back injuries. [The defendants] expert witnesses did not dispute that Whitaker had suffered back and neck injuries from the automobile accident or that Whitaker had selected qualified phys i cians to treat her injuries. Whitaker
, 495 N.E.2d at 227

.11

any additional bodily harm resulti ng from normal efforts of third persons in rendering aid which the other's injury reasonably requires, irrespective of whether such acts are done in a proper or a ne g ligent manner.
Whitaker explained: "Liability is imposed because it is reasonably foresee able that medical care providers are human and capable of making mistakes." 495 N.E.2d at 226.

Recognizing the general rule in Indiana that a plaintiff's recovery may be re duced if he fails to obey his physician's instructions and thereby exacerbates or aggravates his injury, the
Whita k er court sternly rejected the proposition that an injured party could not recover for injuries caused by misdiagnosis or performance of an arguably unnecessary procedure, declaring that such a rule would place the injure d party "in the unenviable position of second

- guessing his ph ysicians in order to determine whether the doctor properly diagnosed the injury and chose the co rrect treatment. This court will not place innocent parties who have been injured by another's

neg ligence in such a position." Id

.

But w e do not read Whitaker to allow an injured plaintiff to recover for med i cal treatment wholly unrelated to a defendant's wrongful conduct. Whitaker does not eliminate the causation element. It specifically states : "We hold that an injured party may recover for inj u ries caused by the original tort

- feasor's negligent conduct . . . ." Id. (emphasis added). A nd a lthough holding that a plaintiff may recover for damages from a physician's misdiagnosis or mistrea t ment, the language of Whitaker is that such damages must be " resulting from any aggravation of his orig inal injury caused by a physician's misdiagnosis or mistreatment." Id. (emphasis added)

.

"Under standard negligence doctrine, in order for a defendant to be liable for a plai n tiff's injury, the defendant's act or omission must be deemed to be a proximate cause of that i n jury." City of Gary v. Smith & Wesson Corp. , 801 N.E.2d 1222, 1243 (Ind. 2003) . " ' Prox imate cause' has two components : causation

- in

- fact and scope of liability." Kovach v. Caligor Midwest , 913 N.E.2d 193, 197 (Ind. 2009). "The scope of liability doctrine asks whether the injury was a nat ural and probable consequence of the defendant's conduct, which in the light of the circumstances
shou ld have been foreseen or anticipated." Id. at 198. The analysis in Whitaker is helpful in u nderstanding the contours of this foreseeability aspect when a defendant seeks to cha l lenge the nature and extent of medical treatment selected and provided by a p laintiff's medical care profe s-12

sionals. Even if their medical judgment is unsound or erroneous, such human frailties are re asonably foreseeable and do not allow a defendant to escape liability for wrongful co n duct. Id. at
226.

This formulation does no t have the result, as the defendant here warns, that "a defendant will never be able to refute a plaintiff's claim that medical bills were reasonable and necessary." Appellant's Br. at 26. As to reasonableness, the Whitaker rule does not affect the evalu ation of whether the amount claimed for a medical expense is reasonable. The rule does, however, guide appl i cation of the "scope of liability" aspect of the proximate cause element. While Whitaker restricts a defendant's evidence as to the "scope of liab ility" component of proximate cause, it does not preclude challenge to the "causation

- in

- fact" component. A future defendant may thus present evidence to counter a plaintiff's claim that but for the defendant's alleged negligence, the
di s puted medical tre atment would not have occurred. See Kovach , 913 N.E.2d at 198; City of Gary , 801 N.E.2d at 1244. Thus, for example, a plaintiff may not recover damages for dental care received following a collision in which harm to the plaintiff's teeth was not implicat ed. Likewise, a defendant may properly challenge whether a plaintiff's medical treatment was not at
all necessitated by the alleged tort i ous conduct but by a non

- aggravated
, pre

- existing co n dition.

In summary, we hold that the phrase "reasonable a nd necessary," as a qualification for the damages recoverable by an injured party, means (1) that the amount of medical expense claimed must be reasonable, (2) that the nature and extent of the treatment claimed must be necessary in the sense that it proxi mately resulted from the wrongful conduct of another, and (3) the rule in
Whitaker is a correct application of the "scope of liability" component of proximate cause. 6

In the present case, the defendant challenges th e exclusion of evidence from his med i cal expert challenging the medical necessity of Dr. Saquib's nerve conduction studies at Priority 1

6 Our holding today focuses on the extent to which a defendant may challenge the appropriateness of medical treatment p rovided t o a personal injury plaintiff. It is not intended, however, to alter existing Indiana law regarding a plaintiff's general burden of proof and does not imply disapproval of existing pa ttern jury instructions related thereto. For example, we are not sugges ting any necessary revision in Ind iana Pattern Jury Instruction No. 11.25, which describes the medical expense element of damages as fo llows: "The reasonable expense of necessary medical care, treatment, and services [and the reasonable e xpense of f u ture m edical care, treatment, and services]."13

Medical and the "passive care" treatment provided more than four weeks after the collision
, first from Priority 1 Medical and later under Dr. Sheppard at Ca stleton Chiropractic. The defe n dant
does not assert that such treatment lacks causation in fact
, that is, that plaintiff failed to establish that, but for the collision, the challenged treatment would not have occurred. Instead, the defe ndant disputes th e medical judgment of the plaintiff's medical providers in choosing to administer the questioned studies and treatment. This he may not do. The trial court was correct to exclude
the proffered evidence, and the Court of Appeals properly applied Whitaker to affirm the trial
court's decision.

Conclusion

We affirm the judgment of the trial court.

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

op i nion.SHEPARD, Chief Justice, concurring in result

.

Given the regularity with which this Court expresses its faith in the judgment of juries, I am surprised that my colleagues hold today that on a crucial issue submitted for jury decision one side may provide evidence but the other side may not.

The C ourt’s explanation about the scope of a tortfeasor’s potential responsibility for the costs necessitated by his actions seems straightforward and correct. And, the notion that a cla imant has the burden to provide proof that medical specials reflect reason able and necessary treatment expenses is hornbook law.

What is not hornbook law is the rule announced about how this issue may be litigated b efore the jury. The claimant may satisfy the burden of proof simply by tendering medical bills in
accordance wit h Evidence Rule 413. The responding party is barred from challenging whether these bills do in fact reflect reasonable and necessary treatment, the very thing the jury will be called upon to decide.

This is not the sort of jury trial Justice Boehm descr ibed for a unanimous Court:

In order to recover an award of damages for medical expenses, the party seeking to recover these damages must prove that the e xpenses were both reasonable and necessary. Smith v. Syd’s Inc
, 598 N.E.2d 1065, 1066 (Ind. 1992). This was traditionally proven by expert testimony. The purpose of Rule 413 is to provide a simpler method of proving amount of medical expenses when there is no substantial issue that they are reasonable and were caused by the tort. If there is a dispu te, of course the party opposing them may offer evidence to the contrary, including expert opinion.

Cook v. Whitsell

- Sherman , 796 N.E.2d 271, 277 (Ind. 2003). Most of the time, when medical treatment is provided by mainstream practitioners, there
will be little tussle over whether the care was reasonable and necessary and the practical effect of prohibiting a party from tendering probative evidence to the jury will not likely lead to an unjust verdict. Because I am not persuaded that the prohibition wo rked an injustice in this instance, I2

join in affirming the outcome. But the breadth of today’s ruling will lead future judges and juries to work injustices at the very moment when judgment is most needed to hold to account provi ders at the edge of reason ably necessary treatment, or beyond it. Today’s “ Sibbing rule” insulates sharp practices from scrutiny, which is why I decline to join in.