Glock v. Kennedy

• Decision Date: 10 October 2019
• Docket Number: Court of Appeals Case No. 18A-CT-2486
• Citation: Glock v. Kennedy, 133 N.E.3d 768 (Ind. App. 2019)
• Parties: Christopher R. GLOCK, M.D., Appellant-Defendant, v. Rickey D. KENNEDY, Appellee-Plaintiff.
• Court: Indiana Appellate Court

133 N.E.3d 768

Christopher R. GLOCK, M.D., Appellant-Defendant,

v.Rickey D. KENNEDY, Appellee-Plaintiff.

Court of Appeals Case No. 18A-CT-2486

Court of Appeals of Indiana.

FILED October 10, 2019

Attorney for Appellant: Michael G. Smith, Wooden McLaughlin LLP, Evansville, Indiana

Attorney for Appellee: Eric A. Frey, Frey Law Firm, Terre Haute, Indiana

Attorney for Amicus Curiae Indiana Trial Lawyers Association: Sara A. Langer, Langer and Langer, Valparaiso, Indiana

Brown, Judge.

[1]Christopher R. Glock, M.D.("Dr. Glock") appeals the trial court's denial of his motion for judgment on the evidence and motion to correct error.Dr. Glock raises several issues which we consolidate and restate as:

I.Whether the trial court abused its discretion in denying his motion for judgment on the evidence; and

II.Whether the court abused its discretion in denying his motion to correct error.

We affirm.¹

Facts and Procedural History

[2]This case arises from Dr. Glock's treatment of a crush injury to Rickey D. Kennedy's left hand, which he endured while at work in May 2010 and which resulted in burst lacerations to the index and middle fingers and in his middle finger "pointing in the wrong direction."Transcript Volume IIIat 33.Dr. Glock, whom Kennedy did not know and from whom he had no prior medical treatment, cleaned and debrided the injuries and fixed the middle finger with pins and the index finger with plate and screws.

[3]"[A]bout a year later" Dr. Glock amputated Kennedy's index finger from the tip to the first knuckle.Transcript Volume IIat 160.He performed a repeat amputation which removed an infection and Kennedy's finger "[d]own to the nub," resulting in a "stump" near the knuckle nearest to his palm.Id. at 162.

[4] On October 3, 2011, Dr. Glock provided treatment (the "neuroma procedure") for a neuroma, or a "painful end" of a nerve that has been traumatized and is "swelling ... in its response or attempt to heal."Transcript Volume IIIat 23-24.Following the procedure, Kennedy experienced pain in his thumb, called Dr. Glock's office "concerned that his thumb was still numb," and appeared for a post-operative visit "probably within a week" of the procedure.Id. at 50-51.On November 2, 2011, Dr. Glock performed a "repair of the ulnar digital nerve to the thumb with an autologous nerve graft from the radial digital nerve of the index finger."Exhibits Volume Iat 58.

[5] On October 24, 2014, a medical review panel, which included Dr. Dale K. Dellacqua, issued an opinion after considering evidence Kennedy had submitted to the Indiana Department of Insurance against Dr. Glock.The opinion stated:

The panel is of the unanimous opinion that the evidence does not support the conclusion that the defendant failed to meet the applicable standard of care, and that his conduct was not a factor of the resultant damages, but there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court or jury, with regard to the informed consent of the patient before the fourth surgery.

Exhibits Volume Iat 4.

[6] In January 2015, Kennedy filed a Complaint For Medical Negligence, and in January 2016, Dr. Glock filed a motion for partial summary judgment.On May 26, 2016, the parties tendered a proposed agreed order on the motion for partial summary judgment that identified the five surgeries, including Surgery Four as the neuroma procedure, and "would grant summary judgment" in favor Dr. Glock on all of Kennedy's claims "arising out of Surgery 1, Surgery 2, Surgery 3, and Surgery 5," and all claims "arising out of the Surgery 4, except for a claim of ‘informed’ consent with respect to that procedure, which the court granted on June 1, 2016."May 26, 2016 Proposed Agreed Orderat 2.

[7] On June 26, 2018, the court held a jury trial.Kennedy's stepsister, Terri Lynn Coleman, testified that she accompanied him to the neuroma procedure and answered in the negative when asked if Dr. Glock had told Kennedy: "that surgery had a serious possibility of not being functional?Of not working,""there was going to be nerve injury, nerve damage," and that "there was any risk of nerve damage."Transcript Volume IIat 138-139.She testified that she believed there was a time when Dr. Glock told Kennedy that he had cut the nerve and that she remembered "[t]hat it was an accident" and "they were going to do the fifth one to correct it."Id. at 139.She answered in the negative when asked if she ever heard Dr. Glock say that the proposed treatment might not alleviate all of Kennedy's pain that he experienced from the original injury.Id. at 140.She indicated that Kennedy told her that it hurt "[m]ainly in his thumb and his hand""so bad that he can't stand it somedays."Id. at 142.When asked if Dr. Glock indicated "at any time during your conversation" that there might be a need for future procedures or surgery, she answered in the negative and stated "[i]t would fix everything."Id. at 143.

[8] Kennedy testified that he lived with his mother, daughter, girlfriend, and her son and that he moved in about two-and-one-half to three years prior to help take care of his mother, who has been going blind, and his ill father.He indicated that he did not have a college education and, at the time of the accident, the nature of his work was physical labor.After describing how the crush injury occurred and the first two surgeries, he stated that after the first surgery there "was always something."Id. at 161.He answered affirmatively when he was asked if he had a conversation with Dr. Glock in his office about the neuroma procedure on September 28, 2011, and stated "Oh, it was going to get better" and "I mean it's gonna be good" when asked if Dr. Glock told him what would be the outcome of that surgery.Id. at 166.He answered in the negative when asked whether Dr. Glock ever told him that there was a likelihood that it would not work and whether he ever told him that there was a risk of further nerve injury.Id.He responded "No. Cause he's the one that cut it, so he was gonna fix it" when asked if Dr. Glock ever told him "the surgery in your palm was, there's a likelihood it wouldn't work."Id.He indicated that he would not have had the surgery if Dr. Glock had told him that he might die from it.

[9]The court admitted diagrams of a hand as Plaintiff's Exhibits 4 and 5, and Records from the Terre Haute Regional Hospital as Defendant's Exhibits B and C and Plaintiff's Exhibits 2 and 3.Plaintiff's Exhibit 5 is a cross-section diagram labeling the arteries and nerves of the palm.Defendant's Exhibits B and C contain forms with Kennedy's signature that are titled "Consent for Anesthesia," dated July 1, 2011 and October 3, 2011, and contain the statement that "rare, unexpected severe complications with anesthesia ... include the remote possibility of infection, bleeding, drug reactions, blood clots, loss of sensation, loss of limb function, paralysis, stroke, brain damage, heart attack, or death ."Exhibits Volume IIat 90-91, 194-195.Both Plaintiff's Exhibits 2 and 3 include a form, which includes Kennedy and Dr. Glock's signatures beside a date of "9-28-11," is titled "Consent for Administration of Anesthesia and for Performance of Operations and Other Procedures," and which states in relevant part, "I, Rickey Kennedy ... consent to and authorize the performance of the following treatment, procedure, examination or test: left index finger neuroma excision of radial digital nerve to palm by or under the direction of Christopher R. Glock."²Exhibits Volume Iat 72, 131.The form also states:

B.Explanation

1.The general nature of my condition, the purpose, benefits and expected outcome of the Procedure, reasonable alternative methods of treatment along with their material risks, benefits and side effects, the possible outcome without the Procedure or alternative treatment, the Procedure or alternative treatment, and the possibility of complications have been fully explained to me by the Physician or an affiliated doctor ("Doctor"), and all of my questions have been answered.I acknowledge that no guarantees have been made to me concerning the results of the Procedure.I understand the nature of the Procedure to be (description of Procedure in layman's language): Get pain out of hand by removing nerve from nub.^[3]

Id.Both Plaintiff's Exhibits 2 and 3 include a record from Terre Haute Regional Hospital that describes the neuroma procedure and which states that Kennedy was a patient with "left index finger neuroma pain at the stump" and who "had improvement on the ulnar side with persistence on the radial side,"⁴ the "branches to the proper digital nerve to the index finger radial border and the common digital nerve to the second web space index and middle were identified each," the "common digital nerve to the second web space was preserved," the "flexor tendons to the index finger were assessed, and the proper digital nerve to the radial border of the index finger was identified," and that "[i]t was tensioned, and there was no corresponding tension in the thumb, only to the radial border of the stump."Id. at 66-67, 129-130.

[10]Plaintiff's Exhibit 2 includes a "History & Physical Report #24," which details a "followup for left index finger" after a "neuroma transposition" and states "Physical Exam (Christopher R Glock; 10/12/2011 8:39 AM)" and that Kennedy

called postop, the day after, and stated that his thumb was very numb.I thought it was still the anethestic.He comes back today for his normal followup and he states that it is still numb in the thumb.It looks like the whole thumb, radial and ulnar sides are numb.

PHYSICAL EXAMINATION: ... He no longer has any pain at the index finger stump.He has numbness and tingling on the radial and ulnar borders of the left thumb ....At the time of surgery, the nerve was tested for its distribution and it seemed to be only coming from the area of the index finger

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