Chi Yun Ho v. Frye

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE ATTORNEYS FOR AMICUS CURIAE
Edna M. Koch Daniel M. Mills IND. STATE MEDICAL ASSOC. &
Jennifer A. Strickland-Padgett Mills Law Office THE AMERICAN MEDICAL ASSOC.
Zeigler Cohen & Koch Bloomington, Indiana Thomas J. Costakis
Indianapolis, Indiana Libby Y. Mote
William C. Lloyd Krieg DeVault LLP
Lloyd Law Office Indianapolis, Indiana
Bloomington, Indiana
THE IND. TRIAL LAWYERS ASSOC.
E. Paige Freitag Stephen L. Williams
Bauer & Densford Mann Law Firm
Bloomington, Indiana Terre Haute, Indiana
________________________________________________________________________
In the
Indiana Supreme Court
FILED
Feb 21 2008, 3:14 pm

_________________________________
No. 67S01-0707-CV-291 CLERK
of the supreme court,
court of appeals and
tax court

CHI YUN HO, M.D., Appellant (Defendant below)
and Cross-Appellee,
v.
LORETTA M. FRYE AND
THOMAS HOFFMANN, PERSONAL
REPRESENTATIVE OF THE ESTATE OF
CHARLES FRYE, Appellees (Plaintiffs below),
and Cross-Appellants.

_________________________________

Appeal from the Putnam Circuit Court, No. 67C01-0210-PL-349
The Honorable Matthew L. Headley, Judge
_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No. 67A01-0603-CV-122
_________________________________

February 21, 2008

Dickson, Justice.

In this medical negligence case arising from the alleged failure to remove all of the
surgical sponges following abdominal surgery, the trial court denied the plaintiffs' motion for
partial summary judgment, the jury returned a verdict in favor of the surgeon, and the trial court
thereafter granted a new trial. The Court of Appeals reversed the denial of partial summary
judgment, found for the plaintiffs on liability as a matter of law, and remanded for a
determination of damages. Ho v. Frye, 865 N.E.2d 632 (Ind. Ct. App. 2007). We granted
transfer, thereby automatically vacating the opinion of the Court of Appeals. Ind. Appellate Rule
58(A). We affirm the denial of summary judgment, reverse the order granting a new trial, and
reinstate the jury verdict.

The defendant-appellant, Chi Yun Ho, M.D. (Dr. Ho), brings this appeal to challenge the
trial court's order setting aside the jury verdict and granting the plaintiffs, Loretta M. Frye and
Thomas Hoffman, personal representative of the Estate of Charles Frye, a new trial on liability
and damages. Dr. Ho's challenge to the order setting aside the verdict and granting a new trial
presents two claims: (1) the trial court order failed to make specific findings as required under
Ind. Trial Rule 59(J), and (2) the jury verdict was supported and not against the weight of the
evidence.

On cross-appeal, the plaintiffs contend that the trial court erred in (1) denying their
motion for partial summary judgment on the issue of liability, (2) failing to grant their motion for
judgment on the evidence on the issue of liability, and (3) permitting defense witnesses to
present testimony seeking to shift the sponge count responsibility from Dr. Ho to the attending
nurses.

The principal facts are undisputed. In October 2000, Dr. Ho performed an abdominal
surgical procedure on Loretta Frye. Shortly before closing the patient's abdomen, Dr. Ho was
informed by the nursing staff that all of the sponges used during the procedure were outside of
the patient and accounted for. In March of 2001, however, it was discovered that a sponge from
Dr. Ho's surgery remained inside the patient's abdomen. As a result, Mrs. Frye suffered
complications and required further medical care. The plaintiffs thereupon initiated this action
pursuant to the Indiana Medical Malpractice Act.1 The medical review panel convened
thereunder issued its unanimous opinion that Dr. Ho failed to meet the applicable standard of
care.

1
Following mediation, the plaintiffs' action against the hospital was settled and dismissed.

2
 The plaintiffs filed a motion for partial summary judgment on the issue of Dr. Ho's
negligence, asserting that the doctor had a non-delegable duty to remove every sponge used in
the surgery and was thus responsible for such removal as a matter of law. The trial court denied
the motion without explanation. The case proceeded to trial and the jury returned a verdict in
favor of Dr. Ho. Eleven days later, the plaintiffs filed an Ind. Trial Rule 50 motion for judgment
on the evidence, and three days thereafter filed a supplemental motion to correct error pursuant
to Ind. Trial Rule 59(J). Following "consideration of the evidence and testimony at trial [and]
argument and briefs by [c]ounsel," the trial court ordered a new trial on the issue of liability and
damages but did not make any special findings of fact or provide any explanation for the basis of
its order. Appellant's App'x at 17.

1. Order for New Trial

Dr. Ho challenges the order primarily on grounds that the trial court failed to make
specific findings as required by T.R. 59(J). The plaintiffs respond that the new trial was ordered
in response to their T.R. 50 motion, which does not require findings.

Rules 50 and 59(J) significantly differ as to the requirement of findings if a new trial is
ordered. Keith v. Mendus, 661 N.E.2d 26, 31 (Ind. Ct. App. 1996), trans. denied; Anderson v.
Amtech Capital Corp, 600 N.E.2d 149, 150 (Ind. Ct. App. 1992). Under T.R. 50(C), a trial court
may grant a new trial as to part or all of the issues, and the rule imposes no explicit requirement
for supporting findings. A trial court is not required to enter special findings and conclusions
when granting a new trial under T.R. 50(C). Keith, 661 N.E.2d at 31; Anderson, 600 N.E.2d at
150. But under T.R. 59(J), a trial court's authority to grant a new trial on a motion to correct
error is conditioned upon explicit prerequisites. To the extent relevant to the asserted bases for
the plaintiffs' T.R. 59(J) motion, the rule states that when a new trial is granted:
if the decision is found to be against the weight of the evidence, the findings shall relate
the supporting and opposing evidence to each issue upon which a new trial is granted; if
the decision is found to be clearly erroneous as contrary to or not supported by the
evidence, the findings shall show why judgment was not entered upon the evidence.
T.R. 59(J)(7). The different requirements for written findings in T.R. 50 and T.R. 59(J) are

3
consistent with the differing nature of trial court review of a jury verdict. As explained in Keith:
When a trial court grants a new trial on the basis of a motion for judgment on the
evidence pursuant to T.R. 50(C), it must consider only the evidence most favorable to the
nonmoving party and may grant the motion only when there is no evidence or reasonable
inferences therefrom to support an essential element of the claim. However, when the
trial court grants a new trial as a "thirteenth juror" under the provisions of T.R. 59(J), it
must sift and weigh the evidence and judge witness credibility. "If Rule 50(C) new trial
relief is granted, it cannot be on the basis of the '13th Juror' or a review of the evidence.
If the trial court is going to 'weigh the evidence' then this kind of new trial must come as
part of a motion to correct error under Trial Rule 59."
Keith, 661 N.E.2d at 31, quoting 3 Harvey, Indiana Practice 299 (1988) (other included citations
omitted). A new trial under T.R. 50(C) is thus appropriate only when there is a glaring absence
of critical evidence or reasonable inferences—a critical failure of proof,2 but to order a new trial
under T.R. 59(J), a trial court must determine "that the verdict . . . is against the weight of the
evidence," T.R. 59(J)(7), thus requiring the careful sifting and evaluation described in Keith.
When a trial judge reweighs the evidence and substitutes his or her judgment for that of the jury
under T.R. 59(J), the rule mandates special findings that "relate the supporting and opposing
evidence to each issue upon which a new trial is granted[.]" T.R. 59(J). When a trial court
orders a new trial because the verdict is against the weight of the evidence, but fails to make the
required special findings, "the proper remedy is reinstatement of the jury verdict." Weida v.
Kegarise, 849 N.E.2d 1147, 1152 (Ind. 2006); see also State v. White, 474 N.E.2d 995, 1000
(Ind. 1985).

Trial Rule 50(A)(4) expressly permits a party to move for a judgment on the evidence in
its motion to correct error, and the plaintiffs' T.R. 59(J) motion to correct error expressly

2
The structure of Trial Rule 50 treats the granting of a judgment notwithstanding a verdict separately
from the granting of a new trial. Section (A) authorizes a judgment notwithstanding a verdict "[w]here all
or some of the issues in a case tried before a jury . . . are not supported by sufficient evidence or a verdict
thereon is clearly erroneous as contrary to the evidence because the evidence is insufficient to support
it…" T.R. 50(A). This standard appears only in subsection (A). In contrast, Section (C) permits the trial
court to grant a new trial "when entry of a judgment is impracticable or unfair to any of the parties or
otherwise is improper, whether requested or not." T.R. 50(C). This analysis, however, was not raised or
addressed by the parties, and we find no Indiana appellate decisions that make this distinction. On the
contrary, Indiana case law has generally followed the Keith formulation that permits a new trial under
T.R. 50(C) if the reviewing court finds, limiting appellate consideration to "the evidence most favorable
to the nonmoving party," that "there is no evidence or reasonable inferences therefrom to support an
essential element of the claim." Keith, 661 N.E.2d at 31.

4
incorporated their pending T.R. 50 motion for judgment on the evidence.3 The plaintiffs' T.R.
59(J) motion alternatively asserted that the jury verdict was either "clearly erroneous" (seeking
an actual judgment in plaintiffs' favor on liability and a new trial only on damages) or "against
the weight of the evidence" (requesting a new trial on both liability and damages). Appellant's
App'x at 179. In ordering a new trial, not only did the trial court's order lack special findings or
other explanation, but also it did not specify whether the court was granting a new trial based on
the Trial Rule 50 motion for judgment on the evidence or the Trial Rule 59 motion to correct
error. Rather than grant judgment on liability and a new trial only on damages, however, the trial
court ordered a new trial on both liability and damages, which convinces us that it was granting
the relief requested by plaintiffs under the "against the weight of the evidence" standard for T.R.
59(J), which standard cannot be the basis of relief under T.R. 50. Salcedo v. Toepp, 696 N.E.2d
426, 433 (Ind. Ct. App. 1998); Keith, 661 N.E.2d at 31-32. The trial court's order for a new trial
thus rested upon its determination that the verdict was against the weight of the evidence, thereby
evidencing the court's intention to grant the T.R. 59(J) motion.4 Because the court failed,
however, to make the special findings required by the rule, the order for new trial must be
reversed. Weida, 849 N.E.2d at 1152.

2. Denial of Summary Judgment

The relief sought by the plaintiffs' T.R. 50 and 59 motions was based on the same
contention asserted by the plaintiffs in support of their motion for partial summary judgment –

3
We note that T.R. 50(C) appears to explicitly authorize a motion for judgment on the evidence "after the
jury is discharged." Some decisions, however, state that a T.R. 50 motion "may only be made in a motion
to correct errors." But these appear to address T.R. 50(A) motions seeking judgment, not T.R. 50(C)
motions seeking a new trial. See, e.g., Huff v. Travelers Indem. Co., 266 Ind. 414, 421, 363 N.E.2d 985,
990 (1977); Rothbert v. Spake, 832 N.E.2d 593, 597 (Ind. Ct. App. 2005). And although Huff opined
that a motion to correct error was the exclusive tool to challenge a verdict after jury discharge, the
language of T.R. 50(A) clearly makes resort to T.R. 59(J) permissive, not mandatory. And the provision
expressly permitting a motion for judgment on the evidence to be included in a motion to correct errors
appears only in T.R. 50(A), relating to the entry of judgment, not in T.R. 50(C), relating to the ordering of
a new trial.
4
The plaintiffs urge that, in light of a physician's non-delegable duty to insure that all sponges have been
removed, it is more likely that the trial court did not reweigh the evidence under T.R. 59(J) but rather
granted a new trial under T.R. 50. Even if this were so, such new trial order is erroneous as a matter of
law for the reasons discussed in Part 2 of this decision.

5
that the surgeon had breached, as a matter of law, his non-delegable duty to assure removal of
sponges. On cross-appeal, the plaintiffs contend that they were entitled to summary judgment on
liability because the undisputed facts presented at summary judgment required application of
Funk v. Bonham, 204 Ind. 170, 183 N.E. 312 (1932), which they assert holds that the surgeon is
responsible, as a matter of law, for the removal of surgical sponges. In response, Dr. Ho quarrels
with the plaintiffs' interpretation of Funk, and argues that the designated evidence in opposition
to partial summary judgment was sufficient to create a genuine issue of fact as to whether he met
the standard of care.

A party seeking appellate reversal of the denial of summary judgment must demonstrate
that the designated evidentiary matter negates the existence of any genuine issue of material fact
and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C);
Cinergy Corp. v. Assoc. Elec. & Gas, 865 N.E.2d 571, 574 (Ind. 2007). In determining the
appropriateness of summary judgment, the reviewing appellate court, like the trial court, must
construe all facts in favor of the nonmoving party. Time Warner Entertainment Co. v.
Whiteman, 802 N.E.2d 886, 895 (Ind. 2004).

To support their motion for partial summary judgment, the plaintiffs identified Dr. Ho's
admissions that he performed the surgery upon Mrs. Frye; that he used several sponges during
the surgery; that when he closed the surgical incision in her abdomen, he was unaware that a
sponge remained inside her abdomen; that Mrs. Frye later underwent surgery to remove the
sponge and the resulting abscess that had formed; and that the medical review panel decision
found that Dr. Ho had failed to meet the applicable standard of care. In response, Dr. Ho
designated only passages from the deposition testimony of Timothy Glass, M.D., and Dr. Ho's
own affidavit, both of which asserted that Dr. Ho's medical care for Mrs. Frye was within the
applicable standard of care. Appellees' App'x at 102-110. Dr. Glass also expressed his
disagreement with the decision of the medical review panel. Id. at 110.

The plaintiffs urge that under these facts partial summary judgment in their favor was
required by Funk and Miller v. Ryan, 706 N.E.2d 244 (Ind. Ct. App. 1999), trans. denied, 726
N.E.2d 302. They assert that Funk and Miller stand for the proposition that "[a] surgeon is

6
charged as a matter of law with the duty to remove sponges used in an operation, and ordinary
care and caution forbid the surgeon to delegate the absolute authority and responsibility to a
nurse or nurses to account for sponges and thus escape liability." Appellees' Br. at 17.

This Court's 1932 decision in Funk involved similar facts. In the course of abdominal
surgery, a sponge was left inside the patient. Following a jury verdict and judgment for the
plaintiff, the trial court denied the doctor's motion for a new trial. He appealed, asserting that the
verdict was not supported by sufficient evidence because of the absence of expert witness
testimony establishing medical negligence and because the sponge was overlooked and left
inside the patient's abdomen by "accident" rather than due to negligence. Funk, 204 Ind. at 175,
183 N.E. at 314. The doctor further asserted that the nurse had reported to him that all sponges
were accounted for, and argued that a mistake by the nurse could not be imputed to him. Finding
the evidence sufficient to sustain the verdict, the Funk court stated:
A surgeon is charged, as a matter of law, with the duty to remove sponges used in the
operation, which sponges will not be of use in the abdomen after the operation. Ordinary
care and caution forbids a surgeon to delegate the absolute authority and responsibility to
a nurse or nurses to account for sponges and to thus escape responsibility himself.
Funk, 204 Ind. at 180, 183 N.E. at 316.

Despite the apparent breadth of this language, however, Funk was an appeal from a jury
verdict, not from a trial court summary judgment for the plaintiff, nor from a judgment for
plaintiff on the evidence, nor from a judgment for plaintiff notwithstanding a contrary verdict,
nor from a judgment for the plaintiff as a matter of law in the absence of evidence from the
defendant. In fact, elsewhere in its discussion, Funk declares that "it is for the jury to determine
from the evidence whether the omission of certain treatment, like the failure to remove a lap-
sponge used in the operation before the incision was closed, was or was not negligence." Funk,
204 Ind. at 176, 183 N.E. at 314. The court found the rule of res ipsa loquitur applicable,
"which put upon the [surgeon] the burden of proving to the satisfaction of the jury, in order to
present a complete defense, that he was not negligent in leaving the sponge .…" Funk, 204 Ind.
at 177, 183 N.E. at 315. The court emphasized the absence of defense evidence from the doctor
to show that "good surgery was practiced." Id..

7
 In light of its context, we do not understand Funk to hold that a surgeon is absolutely
liable as a matter of law for failure to remove unnecessary sponges used in a patient during
surgery. Rather, Funk properly recognizes that, notwithstanding a surgeon's assignment to
assistants the task of tracking surgical sponges, the surgeon's failure to remove a sponge is
evidence of medical negligence and will support a jury verdict finding liability on the part of the
surgeon.

In Miller v. Ryan, the Court of Appeals affirmed a jury verdict in favor of plaintiffs in a
medical malpractice action arising out of foot surgery performed by two podiatrists, one
operating upon the plaintiff's left foot and the other on the right foot. The lead surgeon
unsuccessfully challenged a jury instruction that a podiatrist performing an operation "may not
delegate the duty to another podiatrist or assistant and thereby avoid responsibility." Miller, 706
N.E.2d at 250. Like Funk, this case did not affirm a trial court granting judgment for the plaintiff
as a matter of law due to a surgeon's failure to remove a foreign object. We do not find Miller to
support the plaintiff's motion for partial summary judgment.

Burke v. Capello, 520 N.E.2d 439 (Ind. 1988), also a malpractice action, involved an
orthopedic surgeon who performed hip replacement surgery but left a fragment of cement one
inch in diameter inside the patient, requiring further surgery and resulting in ongoing numbness
and pain. This Court reversed the trial court's grant of summary judgment in favor of the doctor,
stating: "The inference of breach of duty confronts medical opinion of no breach of duty.
Justice thus requires a trial." Id. at 442. Significantly however, the opinion added: "This is not
to say that at this point justice requires a verdict for the plaintiff." Id.

Not unlike the present case, in Cox v. Paul, 828 N.E.2d 907 (Ind. 2005), we addressed a
medical malpractice plaintiff's claim of liability as a matter of law based upon language included
in Harris v. Raymond, 715 N.E.2d 388 (Ind. 1999), stating a physician's duty to warn current and
former patients of certain facts "as a matter of law." Id. at 394. Faced with almost identical facts
in Cox, we rejected the claim that such failure calls for strict liability and clarified that, while
there was a duty to warn, the duty was not absolute but rather was a "duty to make 'reasonable
efforts'" to contact all current and former patients. Cox, 828 N.E.2d at 912. Applying the rule of

8
res ipsa loquitor, we recognized the rule as having the procedural effect of "shifting the burden
of proof to the defendant or creating a presumption of negligence." Id. Cox found that a
physician's undisputed failure to warn a patient about risks associated with medical treatment
was sufficient to shift the burden to the physician to provide an explanation:
He, therefore, is fairly charged with responsibility for explaining the steps he took to give
notice and why they were reasonable under the circumstances. If he shows reasonable
steps, the trier of fact may find him not liable despite the failure of those steps to
accomplish the goal of completing the communication to the patient.
Id. at 913. But we found the physician's evidence to be insufficient to meet his burden. "Only
speculation, not evidence, is offered to support any explanation for lack of notice, and that
explanation even if it were supported by evidence is not free of the inference of negligence." Id.
We vacated the denial of plaintiffs' motion for partial summary judgment and remanded with
instructions to grant the motion.

The Court of Appeals opinion in the present case concluded that the plaintiffs had
designated sufficient evidentiary matter in support of their motion for partial summary judgment
for the rule of res ipsa loquitur to apply, and that this shifted the burden to Dr. Ho "to explain
how he met the standard of care." Ho, 865 N.E.2d at 638. The court then concluded that Dr.
Ho's designated matter contended in essence that "he did not breach his duty . . . because the
nurse had the duty to count the sponges and miscounted." Id. at 638. Finding that the
physician's explanation was insufficient, the court reversed the denial of plaintiffs' motion for
partial summary judgment and remanded for a new trial on the issue of damages.

To support their motion for partial summary judgment on liability, the plaintiffs
designated evidence describing the physician-patient relationship between Mrs. Frye and Dr. Ho,
providing the fact and details of the surgery and the fact that a sponge was left in her abdomen
when Dr. Ho completed the surgery, describing the resulting injuries, and attaching the opinion
of the medical review panel that Dr. Ho and the hospital "failed to meet the applicable standard
of care and that such conduct was a factor of the resultant damages." Appellees' App'x at 91.
Because the plaintiffs' designated materials included this expert medical opinion, this case does
not call for application of the rule of res ipsa loquitur. The plaintiffs' designated matters
satisfied their burden as the party moving for summary judgment. To defeat the motion, Dr. Ho,

9
as non-movant, was required to designate evidence that demonstrated a genuine issue of material
fact upon a determinative issue.

In responding to the plaintiffs' motion for partial summary judgment on liability, Dr. Ho
does not dispute any of the plaintiffs' factual assertions except the medical review panel's finding
on medical negligence. His response designates only his own affidavit and certain passages from
the evidentiary deposition of Dr. Timothy Glass, M.D., who performed subsequent surgery on
Mrs. Frye. Dr. Ho's affidavit declares that he is a licensed Indiana physician; Board Certified in
Obstretrics and Gynecology; is familiar with the standard of care required to be exercised by a
reasonable, prudent, careful and skillful surgeon performing gynecological surgery; and "took all
the necessary and reasonable steps, in accordance with the standard of care, to remove all
sponges from Mrs. Frye's abdomen at the conclusion of the surgery." Appellees' App'x at 106. It
further states that the hospital surgery record shows that final sponge counts were completed and
correct and that no sponges were unaccounted for, and that a surgery nurse had verbally reported
to him that the sponge counts were correct. Dr. Ho's affidavit states his opinion that the surgical
care he rendered was within the applicable standard of care. In the designated passages from Dr.
Glass's deposition, he states that during his subsequent surgical procedure on Mrs. Frye, he
personally kept track of sponges and relied upon the nurses to count sponges, that in his opinion
Dr. Ho's care of Mrs. Frye was not below the applicable standard of care, and that he disagreed
with the decision of the medical review panel. Dr. Ho contends that these designated matters
were sufficient to show a genuine issue of material fact by "directly opposing [the] opinions"
presented by the plaintiffs "on whether Dr. Ho's care met the standard of care." Appellants'
Reply Br. and Cross-Appellees' Br. at 21.

Dr. Ho's designation of evidence in opposition to summary judgment is extremely sparse
in factual content. The fact that the nursing staff made and recorded sponge counts showing all
sponges accounted for and reported that fact to Dr. Ho does not preclude Dr. Ho's liability. As
held in Funk, a surgeon may not escape his responsibility to remove sponges used during the
surgery simply by delegating responsibility for tracking surgical sponges to attending nurses.
The designated matters opposing summary judgment do not provide any facts describing the
specific actions taken by Dr. Ho during the surgery, nor do they provide any facts that form a

10
basis for any explanation for his conduct. But Dr. Ho's designated matters do challenge the
medical review panel's finding of medical negligence.

The determinative question is thus whether conflicting opinions regarding whether a
physician met the applicable standard of care, in the absence of facts supporting such opinions,
operate to create a genuine issue of material fact precluding summary judgment. In Cox, we held
that "speculation, not evidence" is insufficient. 828 N.E.2d at 913. But in a medical malpractice
case, an opinion on the ultimate fact of whether a defendant physician's conduct fell below the
applicable standard of care may be seen as qualitatively different from the speculation found
insufficient in Cox. Unless satisfied by the rule of res ipsa loquitur, a medical malpractice
plaintiff is ordinarily required to present expert opinion that a defendant health care provider's
conduct fell below the applicable standard of care. Perry v. Driehorst, 808 N.E.2d 765, 768 (Ind.
Ct. App. 2004), trans. denied. Medical negligence is thus not generally a conclusion that may be
reached by a jury without such an expert opinion among the evidence presented. Such expert
opinion takes on the character of an evidentiary fact in medical malpractice cases.

It is well-established that in medical malpractice summary judgment proceedings, the
non-movant "is only required to produce expert evidence refuting the panel's opinion" presented
by the moving party regarding the standard of care. Randolph County Hosp. v. Livingston, 650
N.E.2d 1215, 1218 (Ind. Ct. App. 1995), trans. not sought. See also McIntosh v. Cummins, 759
N.E.2d 1180, 1184 (Ind. Ct. App. 2001); Jones v. Minick, 697 N.E.2d 496, 499 (Ind. Ct. App.
1998). In the present case, by creating a genuine issue of material fact regarding his compliance
with the applicable standard of care, Dr. Ho's designated materials were sufficient to defeat the
plaintiffs' motion for partial summary judgment.

3. Denial of Judgment for Plaintiff on Liability

The plaintiffs also assert on cross-appeal that the trial court erred in failing to enter
judgment on the evidence directing a verdict or entering judgment against Dr. Ho on the issue of
liability. In Part 1 above, we addressed Dr. Ho's claim of trial court error in ordering a new trial
on both liability and damages, vacating it because of the absence of special findings. The

11
plaintiffs' separately contend, however, that the trial court was required, as a matter of law, to
grant their T.R. 50(C) motion for judgment on the evidence and to enter judgment finding Dr. Ho
liable as a matter of law. Citing Funk, they argue that a surgeon is required as a matter of law to
remove all surgical sponges and may not escape liability by relying on nurses to count the
sponges.

We disagree with the plaintiffs' understanding of Funk. As discussed in Part 2 above,
Funk stands for the proposition that, notwithstanding a surgeon's assignment to surgical
assistants the task of tracking surgical sponges, a surgeon's failure to remove a surgical sponge is
evidence of medical negligence and will support a jury verdict finding liability on the part of the
surgeon. Funk did not consider whether the failure to remove a sponge required judgment to be
entered against a surgeon as a matter of law without a jury determination that the surgeon's
conduct fell below the applicable standard of care.

In the appellate review of the denial of a T.R. 50(A) motion for judgment on the
evidence, the reviewing court assesses whether granting the motion would have been proper.
This requires that, considering only the evidence and reasonable inferences drawn most
favorable to the non-moving party, there is no substantial evidence supporting an essential issue
in the case. Smith v. Baxter, 796 N.E.2d 242, 243 (Ind. 2003). We find that Dr. Ho's expert
medical evidence that his performance of the surgery on Mrs. Frye satisfied the applicable
standard of care constituted evidence sufficient to support Dr. Ho's claim of non-liability. The
trial court did not err in denying the plaintiffs' request for judgment on liability as a matter of
law.

4. Permitting Defense Witnesses Testimony

The plaintiffs contend that Dr. Ho and his expert witnesses should not have been
permitted to testify "that the standard of care is met when the surgeon relies upon nurses to count
sponges." Appellees' Br. at 23. The plaintiffs argue that permitting such testimony was (1)
irrelevant because under Funk, Dr. Ho is ultimately accountable as a matter of law for the
surgical sponge error, and (2) confusing "to have other doctors testify that they rely on their

12
nurses for the sponge count and that Dr. Ho did no wrong," contrary to Miller. Id.

The plaintiffs have misread the holding in Funk. The challenged evidence was directly
relevant to whether Dr. Ho's conduct during surgery fell below the applicable standard of care.
As to the claim that the evidence was confusing, we understand this assertion to be based on the
language used by the Court of Appeals in Miller that a doctor "may not delegate to another . . .
assistant and thereby avoid responsibility." Miller, 706 N.E.2d at 250 (emphasis added). As
noted in Part 2 above, however, Miller affirmed a medical malpractice verdict for the plaintiff
and the above language, in effect, explained that evidence of assignment of responsibility to
another surgical team member would not avoid liability as a matter of law so as to require
reversal of the verdict. The Miller language does not establish that a physician may not seek the
assistance of other medical professionals in the course of surgery, nor not does it preclude
evidence of such "delegation" of function as evidence to be considered in the overall
determination of whether a defendant medical provider fell below the applicable standard of
care.

In the present case, the testimony offered by Dr. Ho's witnesses was neither irrelevant nor
confusing. The trial court did not err in overruling the plaintiffs' objections thereto.

Conclusion

The order of the trial court denying the plaintiffs' motion for partial summary judgment
is affirmed. The trial court's rulings on admissibility of testimony is affirmed. The trial court
did not err in failing to order judgment on liability in response to the plaintiffs' motion for
judgment on the evidence. The order granting a new trial, however, is reversed. This case is
remanded with instructions to enter judgment on the jury's verdict.

Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.

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