Green v. Robertson

Decision Date05 July 2016
Docket NumberNo. 49A02–1509–MI–1487.,49A02–1509–MI–1487.
Citation56 N.E.3d 682
Parties John GREEN, Appellant–Petitioner, v. Stephen ROBERTSON, Commissioner, Indiana Department of Insurance, Appellee–Respondent.
CourtIndiana Appellate Court

Nathaniel Lee, Lee & Fairman, LLP, Indianapolis, IN, Attorney for Appellant.

James F. Bleeke, Bleeke Dillon Crandall, Indianapolis, IN, Attorney for Appellee.

Case Summary and Issues

ROBB, Judge.

[1] John Green filed a petition for excess damages from the Indiana Patient's Compensation Fund (“PCF”) after settling a medical malpractice claim against Health and Hospital Corporation of Marion County d/b/a Wishard Memorial Hospital (“Wishard”) and Emergency Medical Group, Inc. (“EMG”). The trial court awarded Green an additional $300,000.00. Green appeals, raising several issues, which we consolidate and restate as whether the findings and judgment of the trial court are clearly erroneous. Concluding the trial court's findings and judgment are not clearly erroneous, we affirm.

Facts and Procedural History

[2] Around 2:00 a.m. on March 29, 2008, Green lost control of his legs and fell in his bedroom. Green was also experiencing ringing in his ears, headache, nausea, and vomiting. Once Green realized he could not get up from the floor, he told his fiancée, Elaine Wise, to call 911. Fire department records indicate an ambulance was dispatched at 2:28 a.m. and arrived at Green's home at 2:35 a.m. Green's “chief complaint” was listed as “vomiting/weakness” and the paramedic's notes indicate Green complained of “nausea, vomiting, weakness, lightheadedness starting approx 3 hrs prior.” Appellee's Appendix at 19. The ambulance departed at 2:45 a.m. and transported Green to Wishard, arriving at 3:00 a.m. Emergency room records indicate Green's condition was assessed “non-urgent.” Id. at 24.

[3] At approximately 3:30 a.m., Wise called Green's daughter, Geneisha Berry, to inform Geneisha of her father's condition. Geneisha immediately called her brother, John Berry, and both children set out for Wishard. Green was first examined by a physician at 4:30 a.m., and his children arrived between 4:00 and 5:00 a.m. Geneisha and John recall their father was experiencing numbness and loss of motor function on the left side of his body, drooping on the left side of his face, headache, and difficulty speaking. Yet, Wishard staff did not document any of these symptoms, all of which indicated Green was experiencing a stroke. Dr. Becky Doran ordered an abdominal x-ray to evaluate Green's gastrointestinal symptoms, but the results were “unremarkable.” Id. at 134. Dr. Jeff Hamman ordered an electrocardiogram to determine whether Green was experiencing a heart attack ; he was not. Ultimately, Green was diagnosed with nausea and vomiting and prescribed an anti-nauseant.

[4] Dr. Jordan Schmitt discharged Green from Wishard at 12:51 p.m. Geneisha and John recall their father could not stand on his own when he was discharged and had to be lifted into a wheelchair in order to leave the hospital. When they reached Wise's car in the parking lot, John had to lift him again. Once John lifted Green and placed him in the vehicle, Green was unable to pivot his body to face forward in the seat; John had to pick up his limbs, turn him, and place his limbs inside the vehicle. When Green arrived home, John lifted Green out of the vehicle and helped Green walk to the door. Green was unable to move his left side, so John was “carrying that half of him.” Id. at 62. Green “was actually feeling worse” than when he arrived at Wishard earlier that day. Id. at 46. His condition did not improve:

Q. Okay. Were you still having problems when you left Wishard Hospital?
A. Yes.
Q. So the problems that you had that took you to Wishard Hospital never got better?
A. No.
Q. They just continued?
A. Uh-huh. And got worse.

Id. at 172 (Deposition of John Green); see also Plaintiff's Exhibit 12 (Answer to Dr. Doran's Interrogatory No. 12, in which Green states, “My condition got worse after being released from Wishard Hospital.”).

[5] On March 30, 2008, Green's friend and former physician, Dr. Earnest Berry, stopped by to visit Green. Dr. Berry suspected Green had suffered a stroke:

When I got to his house, I went in and he was in a chair facing the wall. I came from the back. And when I said “John” ... he tried to turn around, and I went in front of him and I noticed that he had slurred speech, he couldn't get up with [out] help, and he had upper extremity—left upper extremity—I think at that time the left upper extremity wasn't moving. And at that point I thought maybe it was a stroke.... His wife was there and his daughter was there and I asked them what had happened and they told me ... he had gone to Wishard the night before and that was it. So I said let's get him to the hospital.

Appellee's App. at 183. Green was admitted to St. Vincent Hospital (“St. Vincent”) around noon. Dr. Mark Janicki concluded Green did suffer a stroke:

[Green] is a 56–year–old gentleman who had been seen at Wishard Hospital [the day] before this admission. He presented with severe dizziness, nausea and trouble walking. He was released after nothing acute was found. He was reevaluated in our Emergency Room, again, with nausea and difficulty walking and now with a left facial droop. He is also experiencing slurred speech.... An MRI scan performed ... showed an acute left cerebellar stroke and a right occipital stroke....

Id. at 30 (St. Vincent Discharge Summary). Green was released from St. Vincent on April 4, 2008, and transferred to Rehabilitation Hospital of Indiana for physical, occupational, and speech therapies. He was released to go home several weeks later but subsequently required two surgeries because his left eyelid no longer closed on its own, resulting in permanent corneal scarring.

[6] On February 19, 2010, Green filed a proposed complaint with the Indiana Department of Insurance against Wishard, Dr. Hamman, Dr. Schmitt, and Dr. Doran. On December 9, 2014, the parties reached a settlement, which provided Wishard and EMG would pay Green a structured settlement totaling $250,000.00.1 On December 11, 2014, Green filed a petition for excess damages from the PCF, which alleged in relevant part:

5. Plaintiff John Green presented to the Emergency Room at [Wishard] on March 29, 2008 with facial drooping and inability to stand up and maintain his balance and was discharged after being evaluated by agents of Wishard for which the hospital is vicariously liable....
6. John Green was admitted the following day to St. Vincent's Hospital for a stroke and has residuals from the stroke.
7. Defendants breached and violated their duty to Plaintiff John Green in one or more of the following ways:
a. They failed or refused to adequately assess/evaluate/treat John Green's condition.
8. As a direct and proximate result of the negligence and/or medical malpractice of Defendants, Plaintiff John Green was injured.

Appellant's Appendix at 7. At the excess damages stage, Green maintained he was experiencing a transient ischemic attack (“TIA”) when he arrived at Wishard, subsequently experienced an acute ischemic stroke, and was injured by the physicians' failure to administer tissue plasminogen activator (“tPA”), a clot-busting drug used to treat strokes.2 He requested the trial court award $1,000,000.00 in excess damages. The PCF maintained Green was fully compensated by the underlying settlement.

[7] A bench trial was held on June 19, 2015. The trial court admitted into evidence the depositions of Green, Green's children, physicians who treated Green, and a United Auto Workers Union (“UAW”) representative. The PCF called Dr. Kevin Puzio, a neurologist, as an expert witness. Green called Dr. Debra Carter–Miller, his primary care physician; Dr. Claude Anderson, his optometrist; and Michael Blankenship, a vocational rehabilitation expert. On June 29, 2015, the trial court entered its findings and conclusions and awarded Green an additional $300,000.00 in damages. The trial court's findings included the following:

1. This case arises from the alleged injuries Mr. Green experienced following a stroke on March 29, 2008, which were caused by the failure of doctors and staff at [Wishard] to diagnose Mr. Green's stroke and treat him with [tPA], a medication that reduces clotting factors in an effort to break up or eliminate clots in affected arteries.
* * *
6. At Wishard Hospital, Mr. Green experienced left-sided numbness, drooping facial features, loss of motor function, and could not speak. Mr. Green's children, John Berry and Geneisha Berry, visited him at Wishard Hospital, and stated that he was almost falling out of bed, was not making sense when he tried to speak, and could not walk.
7. Time is of the essence in assessment of emergency conditions and there was a “Golden Window” of three (3) hours to administer tPA, so that critical time was lost.
* * *
10. Wishard Hospital staff observed Mr. Green and diagnosed him with vomiting and discharged him that day without diagnosing his stroke or providing treatment with tPA.
11. The Wishard Hospital records did not document Mr. Green's neurologic findings. Dr. Puzio explained that the physicians and staff at Wishard Hospital apparently had incorrectly focused on a gastrointestinal problem, and had negligently failed to document Mr. Green's neurologic symptoms of a stroke. Thus, Dr. Puzio placed greater weight upon the history provided by Mr. Green and his children, which explained that Mr. Green could not walk or talk coherently throughout the time he was at Wishard Hospital. The Court concludes that the factual testimony of Mr. Green and his children detailing Mr. Green's symptoms of inability to walk or talk, and of left-sided weakness are more reliable than the Wishard Hospital Chart, which fails to document anything about Mr. Green's neurologic status.
12. Mr. Green returned home and continued to experience left-sided numbness affecting his face, arms and legs, the

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