Cahoon v. Cummings

ATTORNEYS FOR APPELLANTS

Kevin C. Schiferl
Robert W. Wright
Julia Blackwell Gelinas
Indianapolis, Indiana

Steven J. Cohen
Kathryn A. Elias
Indianapolis, Indiana

AMICUS CURIAE
ATTORNEY FOR APPELLEE

Terry Kaiser Park
Indianapolis, Indiana

AMICUS CURIAE
Indiana Trial Lawyer Association
Jerry Garau
Mary A. Findling
Indianapolis, Indiana

Defense Trial Counsel
Ross E. Rudolph
James D. Johnson
Evansville, Indiana

__________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

__________________________________________________________________

JEFFREY S. CAHOON, M.D. and )
SHARI A. KOHNE AND EDWARD )
L. KENNEDY, CO-EXECUTORS OF )
THE ESTATE OF ROBERT W. )
KOHNE, M.D., )
) Indiana Supreme Court
Appellants (Defendants Below), ) Cause No. 79S05-0009-CV-513
)
v. ) Indiana Court of Appeals
) Cause No. 79A05-9801-CV-026
GLESSIE JOANN CUMMINGS, )
wife of the deceased, William T. )
Cummings, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________

APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Donald C. Johnson, Judge
Cause No. 79D01-9502-CP-38
__________________________________________________________________

ON PETITION TO TRANSFER

__________________________________________________________________

September 1, 2000
Boehm, Justice.
Mayhue v. Sparkman, 653 N.E.2d 1384, 1388-89 (Ind. 1995), held that
where a patient’s likelihood of recovery was less than fifty percent, but
negligent treatment increased the risk of loss, a claim may be asserted for
that increased risk. We grant transfer and hold that damages for such a
claim are to be measured in proportion to the increased risk, and not by
the full extent of the ultimate injury.
Factual and Procedural Background
In December of 1991, William T. Cummings sought the treatment of his
family doctor, Dr. Robert W. Kohne, for heartburn-like symptoms. Kohne
ordered x-rays of Cummings’ esophagus, stomach, and small bowel. The x-
rays were interpreted by Dr. Jeffrey S. Cahoon, who diagnosed Cummings with
a hiatal hernia and reflux esophagitis. Cummings asked Kohne whether
surgery would correct the problem, but Kohne told him he could not have
surgery “at [his] weight.” Instead, Kohne directed Cummings to lose
weight, refrain from eating greasy foods, and sleep sitting up. In July
1992, after Cummings had lost about eighty pounds, he returned to Kohne.
Cummings’ insurance carrier had changed, so Kohne arranged for further
consultation and treatment at the V.A. hospital in Danville, Illinois.
Before Cummings could obtain treatment, however, he admitted himself to the
emergency room of St. Elizabeth’s Hospital in Lafayette, Indiana with a
perforated esophagus that had hemorrhaged. Cummings was then diagnosed as
suffering from esophageal cancer. Surgery and subsequent chemotherapy were
tried, but the cancer had already spread to Cummings’ lymph nodes and
liver. He died in August of 1993.
Cummings filed a proposed complaint with the Indiana Department of
Insurance in March of 1993. The complaint as amended charged Kohne with
negligent failure to diagnose and Cahoon with negligent misdiagnosis of
Cummings’ condition. The Medical Review Panel concluded that the doctors
had failed to follow the appropriate standard of care, but that their
conduct “was not a factor of the resultant damages.” After Cummings’
death, his wife, Joann, brought suit alleging damages in the form of
medical expenses, lost income, loss of substantial chance of survival,
death, and loss of consortium.
Kohne died in March of 1996, prior to trial. Both he and Cahoon
admitted breach of his duty of care to Cummings, but each denied that his
breach proximately caused Cummings’ damages. After a three-day trial in
late September and early October of 1997, a jury found in favor of Joann,
and awarded her $194,000 from Kohne’s estate and $75,000 from Cahoon.
Joann filed a post-trial motion for prejudgment interest, which was denied
as to Kohne, but granted as to Cahoon in the amount of $18,443.84.
All parties appealed. Joann challenged the trial court’s denial of
prejudgment interest with respect to Kohne. The defendants challenged the
trial court’s jury instructions, arguing that: (1) the jury was incorrectly
instructed that causation should be evaluated under the Mayhue standard;
(2) the jury was incorrectly instructed that full damages could be awarded
if the defendants’ conduct was found to be a substantial factor in bringing
about Cummings’ death; (3) the trial court erroneously gave instructions on
both wrongful death and survival; and (4) the survival instruction
contained an incorrect statement of law in that it referenced “loss of
chance” approvingly. Kohne also contended that the trial court had
erroneously admitted evidence that he had altered Cummings’ medical
records.
The Court of Appeals concluded that these jury instructions were
proper in every respect, save that the survival instruction erroneously
recited “loss of chance” as the law in Indiana. See Cahoon v. Cummings,
715 N.E.2d 1, 9 (Ind. Ct. App. 1999). The Court of Appeals also concluded
that the trial court erred in admitting evidence that Kohne had altered
Cummings’ medical records. See id. at 17. With regard to prejudgment
interest, the Court of Appeals reversed the trial court’s award of
prejudgment interest with respect to Cahoon, and affirmed its denial of
prejudgment interest with respect to Kohne. See id. at 17-18.
All parties seek transfer. We conclude: (1) the trial court
correctly applied the causation standard of Mayhue in the wrongful death
context; (2) it was reversible error to instruct the jury that it should
award full damages if it found that defendants’ negligence was a
substantial factor in Cummings’ death; (3) the doctrine of election of
remedies does not preclude Joann from pursuing both a wrongful death and
survivorship action; (4) the instruction regarding Cummings’ survival
action did not contain a misstatement of law requiring reversal; (5) the
trial court did not abuse its discretion in admitting evidence that Kohne
had altered Cummings’ medical records; and (6) the trial court erroneously
concluded that Joann was not entitled to prejudgment interest as against
Kohne.
I. The Application of Mayhue to a Wrongful Death Suit
In Mayhue v. Sparkman, 653 N.E.2d 1384, 1388-89 (1995), this Court
held that a plaintiff is not precluded from bringing a medical malpractice
claim against a negligent doctor merely because the plaintiff is unable to
prove by a preponderance of the evidence that the doctor’s conduct was the
proximate cause of the resulting injury. We adopted Section 323 of the
Restatement of Torts, which reads:
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, or;
(b) the harm is suffered because of the other’s reliance upon
the undertaking.

This doctrine permits recovery from a defendant whose negligence
significantly increases the probability of the ultimate harm, even if the
likelihood of incurring that injury was greater than fifty percent in the
absence of the defendant’s negligence. Here, as in Mayhue, all experts
agreed that Cummings would probably not have survived even if he had been
properly diagnosed and treated in December of 1991. However, Cummings’
expert testified that Cummings would have had a statistically significant
chance, perhaps twenty-five to thirty percent, of surviving his esophageal
cancer if it had been diagnosed at Cummings’ first visit to Kohne. The
defendants maintain that the relaxed causation standard of Mayhue is
inapplicable in a wrongful death case because the wrongful death statute,
by its terms, demands that the defendant’s actions be the proximate cause
of the death of the victim. The relevant provision reads:
When the death of one is caused by the wrongful act or omission of
another, the personal representative of the former may maintain an
action therefor against the latter, if the former might have
maintained an action had he or she . . . lived, against the latter for
an injury for the same act or omission.

Ind. Code § 34-23-1-1 (1998).[1] The Court of Appeals held that the
causation standard of Mayhue applied in the context of the wrongful death
action, concluding that: “[T]he intent of the wrongful death statute was to
allow an action to be brought by the decedent’s personal representative
against a defendant who may be held legally liable for the death,
regardless of the mechanism of liability.” Cahoon, 715 N.E.2d at 7. We
agree with the Court of Appeals that the statute is consistent with the
Mayhue standard of causation. The wrongful death statute requires
causation, but it does not spell out what is meant by that term and does
not specify that a plaintiff must establish proximate causation. The trial
court instructed the jury on the causation standard of Mayhue as follows:
“In this case you must first determine if the Defendant’s negligence
increased the risk of harm to Ted Cummings, and whether the increased risk
was a substantial factor in his death on August 15, 1993.” This is an
accurate recitation of the causation standard of Mayhue. Mayhue identified
the reasons to permit recovery in a loss of consortium case for increased
risk of the ultimate injury—in that case death. Principally, to deny
recovery is to encourage disregard for the proper care of more seriously
ill patients. Those with serious problems but also a significant chance of
recovery are entitled to the same level of care as less threatened
patients, and their caregivers should be held to the same standard.
Accordingly, this instruction was properly given.
Finally, the defendants note that Mayhue presented a loss of
consortium claim and urge this Court to limit Mayhue to its facts.
Although it is true that Mayhue involved a loss of consortium claim, the
policy underlying Mayhue is equally compelling here. We see no basis to
allow a relaxed standard of causation in the loss of consortium context,
but not the wrongful death context. The wrongful death statute is intended
to provide economic support to survivors, and a loss of consortium claim
compensates the plaintiff for loss of companionship of the decedent. The
issue addressed in Mayhue is the level of causation required, not the type
of claim brought. This is the same because the event giving rise to each
injury—the death—is the same. Consistent with other jurisdictions, we hold
that Section 323 applies in the wrongful death context.[2] See, e.g.,
McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 469-70 (Okla. 1987);
Perez v. Las Vegas Med. Ctr., 805 P.2d 589, 591 (Nev. 1991) (following
McKellips).
II. Damages
The trial court instructed that the defendants would be liable for
full wrongful death damages if the jury determined that their actions were
a substantial factor in Cummings’ death. The Court of Appeals majority
agreed, concluding that once causation is established under Mayhue, full
damages for the underlying injury follow. The majority reasoned that this
Court, citing McKellips v. Saint Francis Hospital, Inc., 741 P.2d 467
(Okla. 1987), intended that full damages follow because a proportional
damages scheme would have required significant further discussion by this
Court. The Court of Appeals also concluded that Section 323, by its
express language, provides for liability for the harm, not for the “portion
of the risk which was increased.” Cahoon, 715 N.E.2d at 8. Judge Sullivan
dissented as to this issue. The Court of Appeals majority correctly
pointed out that Mayhue did not discuss the issue of damages. However,
Mayhue relied on McKellips, which viewed Section 323 as indistinguishable
from “loss of chance” and awarded damages in proportion to the increased
risk attributable to the defendant’s actions. See 741 P.2d at 475-76. In
McKellips, the decedent was misdiagnosed in the emergency room as suffering
from gastritis. Although an expert testified that the heart attack from
which he subsequently died was probably “well under way” by the time he
checked into the emergency room, the Supreme Court of Oklahoma nevertheless
concluded that a relaxed causation standard should apply, and that
proportional damages should be awarded if a jury concluded that the
defendant’s negligence contributed to the patient’s death. In order to
determine proportional damages, after liability is established, statistical
evidence is admissible to determine the “net reduced figure.” McKellips,
741 P.2d at 476-77. This, the court explained, is determined by
subtracting the decedent’s postnegligence chance of survival from the
prenegligence chance of survival. Then, “[t]he amount of damages
recoverable is equal to the percent of chance lost multiplied by the total
amount of damages which are ordinarily allowed in a wrongful death action.”
Id. McKellips is one of many cases that award damages proportional to
the defendant’s contribution to the underlying injury. See Delaney v.
Cade, 873 P.2d 175, 186 (Kan. 1994); Roberts v. Ohio Permanente Med. Group,
Inc., 668 N.E.2d 480, 484-85 (Ohio 1996); Gray v. Ford Motor Co., 914
S.W.2d 464, 466-67 (Tenn. 1996) (applying comparative fault principles to
medical malpractice action); see also Soper v. Bopp, 990 S.W.2d 147, 150-51
(Mo. Ct. App. 1999) (“‘[I]n the end, damages can only be expressed by
multiplying the value of a lost life or limb by the chance of recovery
lost.’”) (citations omitted).
Holding the defendant liable for the full value of the wrongful death
claim is inconsistent with the statutory requirement that the loss be
caused by the defendant who only increased the risk of an already likely
result. In effect, it would hold doctors liable not only for their own
negligence, but also for their patients’ illnesses which are not the
product of the doctors’ actions. To be sure, this rule might encourage
doctors to be more vigilant, but compensation for injuries caused, not
deterrence of future actions, is the basis of recovery the legislature has
chosen for a wrongful death.
There is little support in other jurisdictions for the practice of
awarding damages measured by the full value of the injury in a Section 323
or “loss of chance” case. See Weymers v. Khera, 563 N.W.2d 647, 653 n.17
(Mich. 1997) (noting that “only five states follow this extreme approach”).
We conclude that the better approach is that followed in McKellips and
other proportional damages jurisdictions. See 741 P.2d at 476-77; see also
Herskovits v. Group Health Coop., 664 P.2d 474, 479 (Wash. 1983) (“Causing
reduction of the opportunity to recover (loss of chance) by one’s
negligence, however, does not necessitate a total recovery against the
negligent party for all damages caused by the victim’s death.”). This rule
is also consistent with the legislative policy underlying Indiana law of
apportionment of damages for tort liability generally. Under Indiana’s
comparative fault scheme, a defendant is liable only to the degree he or
she is responsible for the claimant’s injury or damages. See Ind. Code §
34-51-2-1 to 19 (1998).
In sum, we agree with Judge Sullivan’s dissent, and hold that upon a
showing of causation under Mayhue, damages are proportional to the
increased risk attributable to the defendant’s negligent act or omission.
The jury was properly instructed that damages could not be awarded under
both the survival and wrongful death claims. However, the jury did not
identify the theory of recovery under which damages were awarded against
either defendant. As a result, we cannot assign the award to either the
wrongful death claim or the survivor count. And because the jury was
instructed to award full wrongful death damages if a defendant’s conduct
was a “substantial factor” in Cummings’ death, the degree of increased risk
was not quantified and we have no basis to conclude that any specific
dollar award is proper under that theory. In sum, the amount of any award
for wrongful death is unknowable and it is equally unknowable whether the
survivor theory supported the jury’s award. As a result, remand for a new
trial is required.
III. Election of Remedies
The defendants assert that it was error for the trial judge to allow
jury instructions as to both wrongful death and survival actions. They
argue that a plaintiff must elect between a survival action and a wrongful
death action prior to trial because they are inconsistent and mutually
exclusive theories of recovery. According to defendants, it is prejudicial
to them to allow evidence of Cummings’ pain and suffering under the
survival claim because this evidence could inflate a damage award on the
wrongful death action. They argue that the trial court’s jury instruction
informing jurors that they could not award damages for both wrongful death
and a survival action was insufficient to cure the harm resulting from
allowing pain and suffering evidence. The Court of Appeals concluded, in a
thoughtful analysis of the doctrine of election of remedies, that Joann was
not required to elect a remedy prior to trial. We agree.
The election of remedies doctrine requires that a party who has two co-
existing but inconsistent remedies and elects to pursue one remedy to a
conclusion may not sue on the other remedy. Hoover v. Hearth & Home Design
Ctr., Inc., 654 N.E.2d 744, 745 (Ind. 1995). The doctrine ordinarily
applies only when a party has elected to pursue one remedy to its
conclusion and then attempts to pursue a subsequent claim on a second
inconsistent theory. See Parke v. First Nat’l Bank, 571 N.E.2d 1317, 1319
(Ind. Ct. App. 1991).
Trial Rule 8(E)(2) allows a party to plead alternative and even
inconsistent theories of recovery: “A pleading may . . . state as many
separate claims or defenses as the pleader has regardless of consistency
and whether based on legal or equitable grounds.” Under this Rule, a party
is not required to adopt a theory of the case at the outset. See Palacios
v. Kline, 566 N.E.2d 573, 576 (Ind. Ct. App. 1991). Rather, it is
sufficient to plead the operative facts of the case so the defendant is put
on notice as to the evidence that will be presented at trial. See id.
Thus, although defendants must receive notice as to what evidence will be
presented against them, there is no procedural bar to pursuing both a
wrongful death and survival action.[3] Cf. Olympia Hotels Corp. v. Johnson
Wax Dev. Corp., 908 F.2d 1363, 1371 (7th Cir. 1990) (concluding that, in
contract case, the adoption of Rule 8(E) has abolished the requirement for
election of remedies at the pleading stage in the federal courts).
Defendants nevertheless urge that a plaintiff should in some instances
be required to elect a remedy before trial to avoid prejudice to the
defendant. Although this Court is mindful of the practical difficulties of
defending on two separate theories, there is scant precedential support for
the proposition that it may not be attempted. The Court of Appeals has
held that, under some circumstances, concurrent pursuit of two or more
remedies may be barred. See, e.g., City of Hammond v. Beiriger, 164 Ind.
Ct. App. 275, 280, 328 N.E.2d 466, 469 (1975) (“[W]hen the remedies
available to a prospective litigant are inconsistent or mutually exclusive
. . . the election of one remedy will operate as a bar to concurrent or
subsequent remedies.”). None of the cited cases had occasion to address
the issue of “concurrent remedies” in light of Rule 8(E), and defendants
point to no case in which a party has been forced to elect a remedy prior
to trial to avoid prejudice to the defendants in having to defend against
inconsistent theories of recovery.
Defendants rely heavily on American International Adjustment Co. v.
Galvin, 86 F.3d 1455, 1458 (7th Cir. 1996), in which the Seventh Circuit
noted that the admission of a tape of the last moments of the decedent’s
life—admissible as evidence of pain and suffering for the survival
action—had likely inflated the wrongful death award. Galvin, however, does
not hold that a plaintiff may not concurrently pursue both a survival cause
of action and a wrongful death claim. Rather, in Galvin, the court noted
that defense counsel’s motion in limine seeking to require election of
remedies, which had been denied, ran counter to the abolition of the theory
pleading requirement. 86 F.3d at 1460. What Galvin does suggest is that
evidence as to damages on a theory unsupported by the evidence is
inadmissible. See id. at 1458-59. This is simply another way of saying
that irrelevant evidence is inadmissible, regardless of how the claim is
pleaded. Thus, if it is clear that the decedent’s death was caused by the
defendant’s actions, only damages for wrongful death, and not those for a
survival action, could be shown. Here, however, there was evidence to
support both theories. Galvin also observes that under Indiana law damages
cannot be awarded for both a wrongful death claim and a survival claim.
See id. at 1457-58. In Galvin, however, unlike here, there was no jury
instruction given to that effect.
The defendants also rely on Osborne v. Wenger, 572 N.E.2d 1343, 1346
(Ind. Ct. App. 1991), in which the Court of Appeals held that the trial
court had not erred in requiring the plaintiff to choose between pursuing
treble damages and punitive damages. The recovery of both treble damages
and punitive damages is prohibited by statute in a civil action by a crime
victim. See Ind. Code 34-24-3-3 (1998).[4] Osborne made no mention of
Rule 8(E). Whether or not it was correct to affirm the trial court’s
requirement that the plaintiff specify the remedy sought for a single
wrong, it is not reversible error to permit the plaintiff to proceed on
alternative inconsistent theories under instructions that preclude recovery
on both.[5]
In sum, Trial Rule 8(E) is designed to avoid the problem that a
plaintiff may recover nothing on a valid claim if forced to speculate as to
which theory a jury will ultimately find credible. What remains of the
election of remedies doctrine after the adoption of Trial Rule 8(E) is
substantive law that acts as a bar to double recovery. See Olympia Hotels,
908 F.2d at 1371 (“In its substantive aspect, however, the doctrine of
election of remedies is not affected by the federal rules of procedure. . .
. It seeks to prevent double recovery.”). The wrongful death statute
requires proof that the defendant caused the death of the plaintiff. Under
the survival statute, “[W]hen a person receives personal injuries caused by
the wrongful act or omission of another and subsequently dies from causes
other than those personal injuries, the personal representative . . . may
maintain an action.” Ind. Code § 34-9-3-4 (1998).[6] If there is no
dispute regarding the cause of the decedent’s death, it is obvious that
only one theory of recovery may be pursued. Here, in contrast, defendants
admitted that they had breached a duty to Cummings, and causation was the
primary issue for the jury. The trial court’s instruction informing the
jury that it could not grant damages on both theories was sufficient to
ensure that double recovery would be avoided. The trial court was correct
to allow Joann to pursue both theories to verdict.
IV. Survival Instruction
Defendants assert that the trial court instruction regarding survival
actions misstated the law. The instruction read:
If you determine that the Defendant’s negligence was not a
substantial factor in Mr. Cummings’ death, but the Defendant’s
negligence increased the risk of harm to Mr. Cummings by reducing his
opportunity for a better result, and that increased risk was a
substantial factor in that harm, then you should award such damages as
will fairly compensate the Plaintiff for the harm sustained. Harm may
be the loss of opportunity for cure, decreased short-term survival, or
unnecessary physical pain and mental suffering. [Joann] Cummings is
also entitled to be compensated for her loss of consortium . . . .

The most striking aspect of this jury instruction is its inclusion of
damages for “loss of chance” in the survival action. Plaintiff’s counsel
argued, over the objection of defense counsel, that the loss of chance
itself was compensable, and the trial court allowed the instruction.
This Court recently had occasion to address the “loss of chance,” or
increased risk of harm doctrine, in Alexander v. Scheid, 726 N.E.2d 272
(Ind. 2000). Scheid involved a plaintiff whose chances of long-term
survival were allegedly substantially decreased by the defendant’s
negligence, but whose cancer was in remission at the time of suit. In
Scheid, this Court reviewed the “loss of chance” doctrine as it has been
applied in other jurisdictions and concluded that a plaintiff may recover
in Indiana for the increased risk of harm caused by the defendant’s act or
omission in certain circumstances. We distinguished between Section 323,
which was adopted in Mayhue to deal with claims for increased risk for an
injury that has been incurred, and the situation presented in Scheid,
where, although the risk had been increased, the plaintiff’s ultimate
injury was uncertain. In the face of that uncertainty, we held that the
plaintiff may recover for her decreased chance of long-term survival, and
is not required to wait until the ultimate injury comes to pass. See id.
at 277-78.
The survival statute precludes recovery on both a wrongful death claim
and a survival claim. See Ind. Code § 34-9-3-4 (1998) (the Survival of
Cause of Action statute applies only if the person “receives personal
injuries caused by the wrongful act or omission of another and . . .
subsequently dies from causes other than those personal injuries”).
Accordingly, a plaintiff cannot recover on both a wrongful death claim and
a claim of an increased risk of harm caused by the same wrong. If the
alleged result of the defendant’s acts that increase the risk of harm is
death itself, this converts the patient’s claim into a wrongful death or
related action, as in Mayhue. That is the circumstance here. It is
possible, however, for a representative to bring a survival action on an
increased risk of harm claim even where the plaintiff has died, if the
death resulted from another cause. In the case before us, assuming the
jury found that the defendant’s negligence was not a substantial factor in
bringing about Cummings’ death, for example, because that risk was already
100%, the jury might still conclude that the delay in the diagnosis
resulted in an accelerated death, or a decreased life expectancy. Whether
that claim is of sufficient value to pursue is a decision for the
plaintiff. A valuation of this injury as outlined in Scheid would then be
appropriate. See 726 N.E.2d at 282-83. Thus, the instruction on the
survival action, albeit unclear, did not contain an erroneous statement of
law. On remand, if the theory remains in the case, the parties should
attempt to clarify this instruction sufficiently for the jury.
V. Alteration of Medical Records
After arguments from both parties concerning the admissibility of
evidence that Kohne altered Cummings’ medical records, the trial court
determined that evidence of “spoliation” was admissible against Kohne on
the issue of proximate causation. According to the trial court, because
“Dr. Kohne was a medical doctor with knowledge of the stages of cancer and
the increased risks to the patient when cancer is not timely diagnosed and
treated. A reasonable inference is that Dr. Kohne was conscious that he
increased the risk of harm to Mr. Cummings giving rise to falsification of
his testimony and his records.” The Court of Appeals concluded that the
spoliation rule, as it exists in Indiana, does not apply where the evidence
has not been destroyed and no jury instruction is required to cure its
unavailability. See Cahoon, 715 N.E.2d at 16. Under normal relevancy
restrictions, the court further concluded, the trial court had abused its
discretion in admitting this evidence because, once Kohne had conceded
breach of duty, this evidence was no longer relevant. See id. at 16-17.
Spoliation consists of “[t]he intentional destruction, mutilation,
alteration, or concealment of evidence, usually a document. If proved,
spoliation may be used to establish that the evidence was unfavorable to
the party responsible.” Black’s Law Dictionary 1409 (7th ed. 1999). “In
Indiana, the exclusive possession of facts or evidence by a party, coupled
with the suppression of the facts or evidence by that party, may result in
an inference that the production of the evidence would be against the
interest of the party which suppresses it.” Porter v. Irvin’s Interstate
Brick & Block Co., 691 N.E.2d 1363, 1364-65 (Ind. Ct. App. 1998); see also
Great Am. Tea Co. v. Van Buren, 218 Ind. 462, 467, 33 N.E.2d 580, 581
(1941) (“While this rule will not be carried to the extent of relieving a
party of the burden of proving the case, it may be considered as a
circumstance in drawing reasonable inferences from the facts
established.”). Spoliation evidence arises more commonly in the criminal
context, but is also relevant in civil cases. 12 Robert Lowell Miller,
Jr., Indiana Practice § 401.112 (2d ed. 1995). Spoliation evidence is
ordinarily admissible not as to a single issue only, but rather bears on
the strength of the case in general and the defendant’s consciousness of
guilt. See 2 John Henry Wigmore, Evidence in Trials at Common Law § 278
(1979), revised by James H. Chadbourn.
The primary alteration alleged here is the addition of the words
“Cline scope” to Cummings’ December 1991 x-ray report. Kohne originally
maintained that he had recommended to Cummings that he have an endoscopy,
but that Cummings had not done so. Cline was a doctor to whom Kohne would
have referred Cummings had Kohne recommended an endoscopy. The endoscopy,
in turn, would have likely revealed esophageal cancer. Copies of medical
records sent to plaintiff’s counsel before litigation was commenced did not
bear this notation.[7]
Although it is true that the few Indiana cases on point have involved
situations in which evidence has been destroyed or is made unavailable,
see, e.g., Porter, 691 N.E.2d at 1363, we see no reason to restrict the
application of this rule to that context. Spoliation, according to its
dictionary definition, includes the alteration of documentary evidence as
well as its destruction. Thus, we hold that the evidence of the addition
of “Cline scope” to Cummings’ x-ray report qualifies under the spoliation
rule in Indiana.
The trial court did not abuse its discretion in admitting the
evidence as probative of Kohne’s belief on the issue of proximate
causation. As we have already noted, spoliation evidence is admissible to
show the defendant’s consciousness of guilt and the strength of his or her
case generally. Here, Kohne conceded that he breached his duty to
Cummings. By trial, the only remaining issue for the jury to resolve was
causation. Therefore, the trial court concluded that this evidence was
admissible as to the only remaining issue—proximate causation.
The Court of Appeals concluded that instructing the jury regarding the
defendant’s perspective on causation had the effect of converting Kohne
into an expert witness. The instruction read: “[I]f you find that there
are unexplained or intentional alterations of medical records by Dr. Kohne,
you can presume that the evidence would have been unfavorable to Dr. Kohne
on the issue of proximate causation.” Allowing evidence to be presented as
to Kohne’s perspective regarding proximate cause was proper to demonstrate
that Kohne himself believed his inaction to have been significant in the
treatment of Cummings. A jury could easily find this evidence significant
as to both duty and proximate cause, necessary elements of a tort claim.
Thus, it was not error to instruct the jury that they could infer from the
alteration of Cummings’ records that Kohne believed he had caused harm to
Cummings.[8]
VI. Prejudgment Interest
The trial court awarded prejudgment interest in the amount of
$18,443.84 against Cahoon, but not against the Kohne estate, reasoning that
the then $100,000 cap on medical malpractice liability of a health care
provider limited Kohne’s liability on the $194,000 jury verdict against his
estate, but that prejudgment interest could be awarded on the $75,000
verdict against Cahoon. The Court of Appeals took the view that the offers
of settlement Joann made did not qualify under the prejudgment statute, so
prejudgment interest could not be awarded against either defendant. This
ruling rendered moot the question whether the health care provider’s
liability applied to prejudgment interest.
The threshold question is whether prejudgment interest is awardable
at all under the prejudgment interest statute. That statute permits the
trial court to award prejudgment interest, but includes several
disqualifying circumstances. Because the defendants made no offer to
settle, the only provision relevant here is found in Indiana Code § 34-51-4-
6, which requires that the plaintiff have made a written offer “to the
party or parties against whom the claim is filed” to settle for an amount
that turns out to be more than seventy-five percent of the judgment
ultimately awarded.[9] Subsection 6(2) of that section provides that the
terms of the offer must “provide for payment of the settlement offer within
sixty (60) days after the offer is accepted.”
In July 1994, and a few times thereafter, Joann’s counsel sent to
counsel for the common insurer of both Cahoon and Kohne a letter that
stated Joann was “offering to settle this claim now for $75,001.” The
Court of Appeals held that the offer did not meet the requirement of
subsection 6(2) because the offer did not provide that the defendants must
pay the $75,001 within sixty days. At the time the offer was made, in
order for a plaintiff to access the Patient’s Compensation Fund and thereby
recover more than the $100,000 available from the health care provider, the
Medical Malpractice Act required a current settlement payment of at least
$75,000 or a structured settlement meeting the requirements of the statute.
See Ind. Code § 34-18-14-4 (1998) (version effective until July 1,
1999).[10] In that context, we think an offer to “settle this claim now
for $75,001” clearly conveys a demand for a lump sum payable forthwith, and
that there was no doubt in the defendants’ insurer’s mind that the case
could be disposed of as to both doctors for that amount immediately. The
requirement of sixty days in the cited provision parallels the same
language found in section 5(2) and 5(3) of the Prejudgment Interest Act
that permits a defendant to avoid the act by making an offer that turns out
to be at least two-thirds of the ultimate judgment. See Ind. Code § 34-51-
4-5 (1998). It seems obvious that this language is intended to deal with
the point that an offer to settle on some structured basis by periodic or
long distant lump payments is worth less in present dollars. The whole
point of the statute is to address the cost of delay in payment.
Accordingly, an offer to settle “now” is an offer to settle by payment
within sixty days. The delay is solely for the benefit of the defendants,
and the defendants had the power to accept Joann’s offer immediately.
Cahoon argues that the offer was unclear as to how much was
attributable to which defendant. That may be correct, but the statute
requires only that the offer be made to the “party or parties” who have
been sued. Either defendant, by ponying up the full $75,000 could have
terminated the case as to himself and the other doctor. Each ended up with
a judgment that was independently sufficient to trigger prejudgment
interest even if the other had been found not liable. Under those
circumstances, there is no reason why both should not compensate the
plaintiff for the use of her funds over the time it took to resolve this
dispute for more than the plaintiff would have accepted in 1994.
There remains the question of the interplay between the Prejudgment
Interest Act and the Medical Malpractice Act. The legislature has spoken
on that point. Section 2 of the Prejudgment Interest Act provides that the
Act “does not apply to a claim against the patient’s compensation fund.”
Ind. Code § 34-51-4-2 (1998). As we noted in Poehlman v. Feferman, 717
N.E.2d 578, 582 (Ind. 1999), there is no comparable provision immunizing
health care providers generally from prejudgment interest. In Emergency
Physicians v. Pettit, 718 N.E.2d 753, 755 (Ind. 1999), this Court held that
“a qualified health care provider is subject to the provisions of the pre-
judgment interest statute.” Thus, the trial court correctly concluded that
prejudgment interest was awardable as to Cahoon, whose judgment was under
the cap, even after adding the interest.
Kohne’s estate presents the question whether the cap operates to limit
the health care provider’s exposure to all items, including prejudgment
interest. This was the precise issue addressed in Pettit, where we held
that “a qualified health care provider is responsible for the payment of
the collateral litigation expense of pre-judgment interest” even if that
brings the provider’s total liability over the cap. 718 N.E.2d at 757.
However, each judgment debtor is responsible only for the interest
“attributable to [the provider’s] individual liability,” i.e., interest on
$100,000. Id.
Prejudgment interest addresses the same problem as postjudgment
interest. If a defendant has the option to terminate the dispute at a
known dollar cost, and chooses not to do so, that defendant and not the
plaintiff should bear the cost of the time value of money in the
intervening period if the ultimate result is within the parameters set by
the legislature. Accordingly, we have held that prejudgment interest is
recoverable from a health care provider on the amount of the judgment
against that provider. Because that judgment amount is subject to the
statutory cap, and prejudgment interest is not available from the fund,
this will not provide the plaintiff with full relief, but it is the balance
we conclude the legislature has struck between the competing interests of
fairness and encouragement to settle reflected in the prejudgment interest
statute and the Medical Malpractice Act’s concern for health care cost
containment.
Conclusion
We reverse the judgment of the trial court and remand for a new
trial.

SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.

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[1] This section was formerly codified at Indiana Code § 34-1-1-2.
[2] The Court of Appeals also discussed whether Joann could maintain a
separate cause of action for loss of consortium in addition to a wrongful
death claim. See Cahoon, 715 N.E.2d at 10. Neither party addressed this
issue, so we do not.
[3] We note that neither the complaint nor the three amended versions of
the complaint contain more than the loosest reference to a survival action,
and no reference to damages for pain and suffering, an element commonly
sought in survival actions. We do not address whether Joann might have
been barred from pursuing a remedy not reflected in her complaint because
this issue has not been briefed by either party. Although the defendants
objected to the jury instruction referencing a survival action, they did
not do so on the basis that this theory was not articulated in the
complaint.
[4] This section was formerly codified at Indiana Code § 34-4-30-2.
[5] Rule 8(E) became effective as of September 16, 1987. Osborne concerned
an accident occurring on January 27, 1987. It is not clear whether Trial
Rule 8(E) was in force at the time the complaint was filed, or whether the
parties and the trial court were aware of it.
[6] This section was formerly codified at Indiana Code § 34-1-1-1.
[7] There were two other notations on Cummings’ records not present on the
initial records sent to plaintiff’s counsel: “Axid samples” and “Gene
Reiss.” Kohne claimed that he had prescribed Axid samples for Cummings.
Gene Reiss was a name of an insurance agent Kohne knew; Kohne claimed he
had made this notation after finding out that litigation was pending
against him.
[8] Kohne also argues that, if the admission of evidence of the alteration
of Cummings’ medical records is sustained, the trial court was required to
take judicial notice of its order granting summary judgment in favor of
Kohne on Joann’s punitive damages claim. The punitive damages claim was
based on the alteration of Cummings’ medical records. Kohne observes that
Indiana Evidence Rule 201(d) provides that a court must “take judicial
notice if requested by a party and supplied with the necessary
information.” Records in the same case, including the court’s own rulings,
fall within the purview of judicial notice. See Miller, Indiana Practice §
201.105, at 150, 150 n.1. That is not the only consideration, however.
Judicial notice presumes relevance and the balancing required by Rule 403.
The trial court was well within its discretion in concluding that
instructing on its ruling on a motion for partial summary judgment as to a
claim for punitive damages would be more confusing than enlightening to the
jury.
[9] This is hopefully a more easily understood description of the
statute’s mathematically equivalent disqualification of a plaintiff whose
“offer exceeds one and one-third (1 1/3) of the amount of the judgment
awarded.” Ind. Code § 34-51-4-6 (1998).
[10] The statute is the same today except the dollar amount was changed to
$187,000 effective July 1, 1999.