Stewart v. Alunday

• Decision Date: 28 April 2016
• Docket Number: No. 16A04–1507–CT–760.,16A04–1507–CT–760.
• Parties: Susan STEWART, Personal Representative of the Estate of Joanne Hatton, deceased, Appellant–Plaintiff, v. Arthur ALUNDAY, M.D., Appellee–Defendant.
• Court: Indiana Appellate Court

53 N.E.3d 562

Susan STEWART, Personal Representative of the Estate of Joanne Hatton, deceased, Appellant–Plaintiff

v.Arthur ALUNDAY, M.D., Appellee–Defendant.

No. 16A04–1507–CT–760.

Court of Appeals of Indiana.

April 28, 2016.

John P. Young, Young & Young, Indianapolis, IN, Attorney for Appellant.

Daniel R. Fagan, Karl L. Mulvaney, Nana Quay–Smith, Bingham Greenebaum Doll LLP, Indianapolis, IN, Attorneys for Appellee.

VAIDIK

, Chief Judge.

Case Summary

[1] In this medical-malpractice case, the plaintiff filed a motion for judgment on the evidence claiming that Dr. Arthur Alunday, M.D., made a judicial admission during his testimony that he breached the standard of care, thereby leaving only the issues of causation and damages for the jury. Although the trial court found that Dr. Alunday judicially admitted that he breached the standard of care, the court concluded that the judicial admission was not conclusive and binding but rather should be considered and weighed as other evidence. We clarify that, contrary to a line of authority that has developed in this Court, judicial admissions—as opposed to evidentiary admissions, which can be accepted or rejected by the trier of fact—are conclusive and binding on the trier of fact. Nevertheless, considering Dr. Alunday's trial testimony as a whole, we find that he did not unequivocally admit that he breached the standard of care. We affirm the jury's verdict in his favor.

Facts and Procedural History

[2] Dr. Alunday is an internist in Greensburg with over twenty years of experience, including treating infectious diseases. In March 2008, Joanne Hatton—who was eighty-five-years old with osteoporosis

and scoliosis —was living in a nursing home in Greensburg; Dr. Alunday was her doctor. On March 10, Hatton was admitted to Decatur County Memorial Hospital (“the hospital”) in Greensburg with flu-like symptoms. Hatton received intravenous fluids to prevent dehydration. She was discharged on March 14 and returned to the nursing home.

[3] The next day, March 15, the nursing home called Dr. Alunday to tell him that the area where the IV had been inserted into Hatton's arm was red and tender. Suspecting it was a skin infection, Dr. Alunday ordered a blood culture

and gave Hatton a shot of the antibiotic Rocephin.

[4] On March 16, Hatton went to the emergency room complaining of left hip and back pain. X-rays did not show any fractures, so Hatton returned to the nursing home.

[5] Hatton's preliminary blood-culture

results came back on Sunday, March 17; they showed that Hatton had a Staphylococcus (staph) infection. Dr. Alunday's partner was on call that day and admitted Hatton to the hospital, where she began receiving intravenous cefazolin, another antibiotic.

[6] Dr. Alunday resumed Hatton's care on Monday. That morning, additional blood-culture

results showed that Hatton's staph infection was methicillin-resistant Staphylococcus aureus (MRSA)¹ and that the infection was sensitive to the antibiotic vancomycin. Dr. Alunday immediately started Hatton on intravenous vancomycin, which was later delivered through a PICC (peripherally inserted central catheter) line. Dr. Alunday planned to keep Hatton on vancomycin for four weeks, which was the standard course of treatment for MRSA blood infections.² Hatton stabilized, and on March 22 she was transferred from an acute-care bed to a “swing bed” in the hospital. Tr. p. 46.

[7] On March 26, eight days after starting vancomycin

, Hatton complained of “worsening low back pain.” Id. This pain was worse than the chronic back pain that she was taking narcotics for. Because Hatton's bones were weakened and she had been in a hospital bed since March 17, Dr. Alunday suspected that Hatton had a spinal-compression fracture. And because 40% of eighty-year-olds with osteoporosis have spinal-compression fractures, this was the “first thing” that entered his mind. Id. at 47. Accordingly, Dr. Alunday ordered an MRI to find out the cause of Hatton's back pain.

[8] Hatton underwent an MRI on March 27, and it showed scoliosis

and extensive degenerative changes but no spinal-compression fracture. It also did not show any infection. Dr. Alunday performed a physical examination and did not observe any of the typical signs that MRSA had spread, or “seeded,” to Hatton's back. After completing the examination, Dr. Alunday discharged Hatton from the hospital to continue her four-week course of vancomycin

at the nursing home. Dr. Alunday visited Hatton at the nursing home on April 3 and performed a short examination.

[9] In the meantime, Dr. Alunday referred Hatton to Dr. Edward Negovetich, a physiatrist, to determine how to manage her back pain. Dr. Negovetich ordered a bone scan

of Hatton's spine. The bone scan, which was performed on April 8, showed evidence of an acute L2 compression fracture. Dr. Negovetich then referred Hatton to Dr. Andrew Trobridge, a pain-management specialist, for a possible kyphoplasty, and Hatton saw Dr. Trobridge on April 11.³

[10] That same day, Dr. Trobridge asked Dr. Alunday to clear Hatton for the kyphoplasty

; Dr. Alunday was familiar with the process of clearing a patient for surgery. In determining whether to clear Hatton, Dr. Alunday noted that Hatton had no other health issues—such as cardiovascular or pulmonary problems—and good labs and vital signs. But because she was still receiving antibiotics for MRSA, Dr. Alunday wanted to “make sure whether or not she still had MRSA in the blood stream” because he knew that if Hatton still had MRSA, the procedure would kill her. Id. at 54, 74. So Dr. Alunday ordered a new blood culture, which came back negative for MRSA on April 17. According to Dr. Alunday, even though Hatton was on a therapeutic dose of vancomycin, which can sometimes mask MRSA, if there was a “strong” MRSA infection, it would have shown up in her blood culture. Id. at 54. Based on the negative blood culture, Hatton's good vital signs, the fact that the March 27 MRI showed no infection, and the fact that Hatton was in debilitating back pain with no relief from narcotics, Dr. Alunday cleared Hatton for the outpatient procedure.

[11] Dr. Trobridge performed the kyphoplasty

on April 17. Dr. Trobridge found no signs of infection in Hatton's spine. Although Hatton was initially stable following the procedure, by mid-May she developed a widespread MRSA infection. Hatton died on May 26.

[12] Susan Stewart, Hatton's daughter and the personal representative of Hatton's estate, filed a proposed complaint for medical malpractice against Dr. Alunday with the Indiana Department of Insurance. In April 2012, the Medical Review Panel unanimously concluded that the evidence did not support the conclusion that Dr. Alunday failed to meet the applicable standard of care.

[13] Stewart then filed a complaint against Dr. Alunday in Decatur Superior Court in June 2012. Stewart alleged that the “medical care and treatment received by Joanne Hatton fell below the appropriate standard of care and was therefore negligent.”⁴ Appellant's App. p. 19. A five-day jury trial was held in March 2015. Dr. Alunday testified extensively on direct examination about his efforts to determine whether Hatton still had a MRSA infection

before clearing her for the kyphoplasty. He also testified that his decision in clearing Hatton was reasonable and appropriate and that he met the standard of care. Tr. p. 62–63. Stewart's attorney then cross-examined Dr. Alunday, in part, as follows:

Q. Okay. Turn to page six (6), will you please? Are you there?

A. Yes, sir.

Q. Do you see right in the middle of the page, everybody there? Right in the middle of the page, the statement, a reasonable physician should be concerned that MRSA would have seeded to compression fracture

in an elderly patient with acute onset back pain with evidence of compression fracture on ... Vancomycin (indiscernible) MRSA. Do you see that?

A. Yes.

Q. Is that a true statement?

A. Yes, sir.

Q. And if a doctor fails to consider that, it would fall below the appropriate standard of care?

A. It would be a consideration, but I had other circumstances of the compression fracture due to osteoporosis —

Q. I understand—

A. As ... higher on the list of causing that fracture.

Q. I understand that you want to explain that, but what I'm asking you is would it fall below the appropriate standard of care if the physician does not consider?

A. Well, if he does not consider it, okay.

Q. Does it fall below the appropriate standard of care?

A. If it's not considered, okay.

Q. Does it fall below the appropriate standard of care?

A. Yes, sir.

Q. Uh, please turn back to page five (5), ... about two-thirds (2/3) of the way down the page. MRSA in fracture did not cross your mind at all.... Did I read that correctly? MRSA in fracture did not cross your mind at all?

A. (Indiscernible) that's what's written there, sir.

Tr. p. 110–12. The two pages that Stewart's attorney referenced are part of Dr. Alunday's submission to the Medical Review Panel and labeled as Plaintiff's Exhibit 5 at trial. These are the only pages from Dr. Alunday's panel submission that Stewart introduced into evidence at trial. The actual quotes are:

• “MRSA in fracture did not cross his mind at all.” (quote from page 5)

• “A reasonable physician should be concerned that MRSA could have seeded to compression fracture

in an elderly patient with acute onset back pain with evidence of compression fracture on Vancomycin for treatment of MRSA.” (quote from page 6)

Appellant's App. p. 17–18. These “quotes,” however, are not statements made by Dr. Alunday; instead, they are bullet points that Dr. Alunday's attorney made when summarizing Dr. Alunday's deposition. See Tr. p. 108 (Dr. Alunday's attorney objecting to the admission of Exhibit 5 because it was attorney work product and not made under oath). On redirect examination, Dr. Alunday clarified that contrary to the quote on page 5 of Exhibit 5, which said “MRSA in fracture did not cross his mind at all,” he in fact considered but then...