Wilson v. Lawless

• Court: Indiana Appellate Court
• Writing for the Court: BROWN, Judge.
• Citation: Wilson v. Lawless, 64 N.E.3d 838 (Ind. App. 2016)
• Decision Date: 18 November 2016
• Docket Number: No. 49A05–1511–CT–1814.,49A05–1511–CT–1814.
• Parties: Jane E. WILSON, M.D., and IU Medical Group, Appellants, v. Tyler LAWLESS b/n/f Mindy R. Lawless, Appellee.

64 N.E.3d 838

Jane E. WILSON, M.D., and IU Medical Group, Appellants,

v.Tyler LAWLESS b/n/f Mindy R. Lawless, Appellee.

No. 49A05–1511–CT–1814.

Court of Appeals of Indiana.

Nov. 18, 2016.

Kelly J. Pitcher, Adam R. Doerr, Clendening Johnson & Bohrer, P.C., Indianapolis, IN, Attorneys for Appellants.

C. Dennis Wegner, C. Dennis Wegner & Assoc., Pro.Corp., Indianapolis, IN, Attorney for Appellee.

BROWN, Judge.

[1] Jane E. Wilson, M.D., and the IU Medical Group ("IU," and together with Wilson, the "Appellants") appeal the trial court's judgment in favor of Tyler Lawless on a complaint for damages filed by Tyler's mother Mindy Lawless as Tyler's next friend. The Appellants raise two issues which we consolidate and restate as whether the trial court's judgment is clearly erroneous. We affirm.

Facts and Procedural History

[2] The relevant facts are not in dispute. On October 9, 2008, Mindy brought Tyler, who was ten years old at the time, to see Dr. Wilson because Tyler was vomiting and had a fever. Dr. Wilson filled in for Tyler's regular physician, Dr. David Porter, who was not available that day. Dr. Wilson noted that Tyler had undergone a percutaneous kidney biopsy ten days before and that he was experiencing symptoms of fever, vomiting, and diarrhea. Dr. Wilson accessed a medical website to refresh her knowledge regarding common complications from percutaneous kidney biopsies, which are bleeding and infection, the symptoms of which are flank or abdominal pain. Vomiting is a less common symptom of kidney biopsy complications, and diarrhea is not a symptom of complications. Dr. Wilson ordered a urinalysis to check for possible biopsy complications, which showed no signs of bleeding or infection. She examined Tyler's abdominal area to see if he had any flank or abdominal pain and determined that he did not.

[3] Dr. Wilson believed that Tyler's condition was not related to the kidney biopsy and instead diagnosed him with viral gastroenteritis.¹ She did consider other, less common complications from kidney biopsies, such as hydronephrosis,² but she ruled it out because Tyler was not experiencing flank pain. Dr. Wilson did not order an ultrasound or sonogram, which would have revealed that Tyler suffered a urinoma from the biopsy.

[4] At the visit Mindy played a voicemail message from Dr. Jeffrey Teiser, the doctor who performed the biopsy on Tyler. Dr. Wilson believed based thereon that Tyler was going to be seen by Dr. Teiser for follow up to the biopsy.³ Dr. Wilson wrote Tyler a prescription for Zantac and gave instructions to "return for new or concerning symptoms or persistent fever." Exhibit 1 at 57. Dr. Wilson did not contact Dr. Leiser's office to confirm whether Tyler had a follow up appointment scheduled. Mindy did not obtain a follow up appointment with Dr. Teiser's office or another doctor.

[5] Following the appointment with Dr. Wilson, Tyler continued to vomit at least once a week. Around December 2008 he began having flank pain, which is the most common symptom of a kidney biopsy complication and the most common symptom of a kidney obstruction. Mindy gave Tyler acetaminophen almost every day for his flank pain. On January 22, 2009, she brought Tyler to see Dr. David Kosten with Sunshine Pediatrics for his vomiting, which had become more frequent during the previous week, and flank pain. At the visit, Dr. Kosten noted that he did not believe Tyler's symptoms were related to his kidney disease, and he referred Tyler to pediatric gastroenterology.

[6] On March 30, 2009, Dr. Mark Corkins saw Tyler at the Riley Hospital pediatric gastroenterology clinic, and Mindy reported that Tyler was vomiting one to two times per week and complained that his hips hurt. Dr. Corkins ordered a number of tests including an abdominal ultrasound, revealing that Tyler had urinoma, which is a collection of urine outside of the ureter and is a rare complication of a percutaneous kidney biopsy. The urinoma gradually increased in size until it obstructed the kidney, causing an obstructive nephropathy. On May 5, 2009, Tyler had his left kidney removed due to the obstructive nephropathy.

[7] On December 3, 2013, Tyler by next friend Mindy filed a complaint alleging that the Appellants failed to meet the applicable standard of care in treating Tyler when Dr. Wilson examined him on October 9, 2008, causing the loss of his kidney. On January 29, 2014, the Appellants filed an answer pleading the affirmative defenses of contributory negligence and failure to mitigate damages. On July 24, 2015, the parties submitted trial briefs, and the Defendants' brief argued that Tyler's "recovery is barred by the doctrine of contributing negligence and/or by the subsequent intervening and superseding negligence of Ms. Lawless." Appellants' Appendix at 23.

[8] The court commenced a bench trial on July 27, 2015. Dr. Wilson testified that "a uroma [ ] was slowly, slowly developing over time" around Tyler's kidney and that the obstruction likely developed in December when Tyler began developing flank pain. Transcript at 270. Dr. Wilson testified that, although she advised Mindy to bring Tyler back for a follow up if he "should worsen or fail to improve," she did not specifically instruct Mindy to bring Tyler back if he continued vomiting. Id. at 262. She also did not advise Mindy that Tyler could have a renal obstruction and that continued vomiting could be a symptom of a renal obstruction.

[9] On October 8, 2015 the court entered its judgment (the "Judgment") in favor of Tyler containing findings of fact consistent with the foregoing and conclusions of law. The Judgment stated in part:

FINDINGS OF FACT

28. It was Dr. Wilson's understanding from listening to the voice mail message and from her recollection of talking to Mindy that Mindy intended to return Dr. Leiser's call and confirm a follow up visit on Monday or Tuesday of the following week. Mindy denies that she had a conversation about a future appointment with Dr. Leiser with Dr. Wilson. The Court places greater weight on Mindy's testimony because Dr. Leiser had not scheduled a follow up visit and Mindy was seeing Dr. Wilson because Mindy was dissatisfied with Dr. Leiser.

Expert Opinion

59. Pediatrician Robert Chabon, M.D., J.D., (hereinafter "Dr. Chabon") was retained by the Plaintiff to offer expert testimony.

68. Dr. Chabon has both observed and performed percutaneous renal biopsies.

69. After reviewing Lyler's medical records, Dr. Chabon concluded that Dr. Wilson's treatment of Tyler did not comply with the standard of care because Dr. Wilson failed to take a complete medical history and failed to either confirm a follow up appointment with Dr. Leiser or schedule a follow up within 24 to 48 hours with herself or Dr. Porter.

71. The Court found Dr. Chabon's testimony and opinion to be of great value. He has abundant expertise in pediatrics both as a practicing physician and as a teaching physician. His testimony was clear, substantial, detailed, and credible.

72. In addition to Dr. Chabon, Plaintiff retained nephrologist Douglas Johnstone, M.D., J.D. (hereinafter "Dr. Johnstone").

76. Dr. Johnstone is not a pediatrician. He does not practice pediatrics in an office setting like Dr. Wilson. He is not familiar with the standard of care for pediatricians.

77. Dr. Johnstone once opined that Dr. Wilson did not meet the standard of care because she either failed to make certain that there was a follow up appointment with Dr. Leiser or failed to order an ultrasound.

78. Dr. Johnstone also opined that if Dr. Wilson understood that Tyler was planning to follow up with Dr. Leiser, Dr. Wilson would have complied with the standard of care.

79. Because of his lack of familiarity with the standard of care for pediatricians and his shifting positions on whether Dr. Wilson met the standard of care, Dr. Johnstone's testimony was of little value.

80. The three physicians on the Medical Review Panel found that Dr. Wilson complied with the standard of care—Mona Zawaideli, M.D., a pediatric nephrologist, Theresa Travis, M.D. (hereinafter "Dr. Travis"), a doctor of nephrology and internal medicine, and Thomas Padgett, M.D. (hereinafter "Dr. Padgett"), a pediatrician.

82. While serving on the Medical Review Panel, Dr. Travis deferred to Dr. Padgett's knowledge of the standard of care for a pediatrician because it was not her area of expertise.

83. In reviewing Dr. Wilson's notes on Tyler, Dr. Travis believed that Dr. Wilson had not considered hydronephrosis as a possible diagnosis because Dr. Wilson had made no note to that effect.

84. Dr. Travis concluded that, if Dr. Wilson did indeed consider hydronephrosis as a diagnosis, Dr. Wilson should have gotten an ultrasound for Tyler to meet the standard of care.

85. No evidence was presented questioning whether Dr. Travis was biased. The Court found Dr. Travis's testimony to be clear, specific, and credible.

86. The Court now finds that Dr. Travis would not have deferred to Dr. Padgett on the standard of care had she known that Dr. Wilson considered hydronephrosis as a differential diagnosis.

87. Dr. Padgett is a board certified pediatrician with a medical degree from Indiana University School of Medicine and pediatric residency.

88. Dr. Padgett has been in private pediatric practice since 1985.

89. Dr. Padgett is familiar with the standard of care for pediatricians in circumstances similar to that of Dr. Wilson.

90. Dr. Padgett opined that Dr. Wilson's plan complied with the standard of care.

91. The Court accords some weight to Dr. Padgett's opinion, given his lengthy history of practice in pediatrics. However, Dr. Padgett's testimony was confusing and often incoherent. Dr. Padgett seemed to be deliberately failing to understand the questions of Plaintiff's counsel, often struggling with the meaning of relatively easy to understand terms. Unlike Dr. Chabon and Dr. Travis, Dr. Padgett did not give a substantial factual and reasonable basis for his opinion. The Court considered that Dr. Padgett might not

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