Judges decline to consider mother’s actions in med-mal case

The Indiana Court of Appeals has rejected a doctor’s argument that a patient’s mother served as an intervening cause to the loss of the patient’s kidney and instead upheld the rule that a parent’s alleged contributory negligence may not be imputed to a child’s medical malpractice claim.

On Oct. 9, 2008, Mindy Lawless brought her 10-year-old son, Tyler Lawless, to see Dr. Jane E. Wilson because he was vomiting and had a fever. Tyler had undergone a kidney biopsy 10 days earlier, but Wilson determined that his symptoms were not related to complications with the biopsy and instead diagnosed him with viral gastroenteritis.

Wilson ruled out other less common biopsy complications because he was not experience flank pain. She did not order an ultrasound, but if she had, it would have revealed that Tyler had suffered a urinoma from the biopsy.

During the appointment, Lawless played a voicemail from Dr. Jeffrey Leiser, the doctor who had performed the biopsy, and Wilson mistakenly believed based on the voicemail that Lawless was taking her son to Leiser for a follow-up biopsy appointment.

Tyler’s symptoms persisted and he began developing flank pain, so Lawless took him to see another doctor who said Tyler’s symptoms were not related to the biopsy but instead referred him to the Riley Hospital for Children pediatric gastroenterology clinic. That’s where the urinoma was discovered, and Tyler was subsequently forced to have his left kidney removed in May 2009.

Tyler, by next friend Lawless, filed a complaint against Wilson and the IU Medical Group in 2013 alleging that they had not met the applicable standard of care in treating Tyler, resulting in the loss of his kidney. The Marion Superior Court found in favor of Tyler in October 2015, placing greater weight on Lawless’ testimony that she never discussed a follow-up appointment with Leiser, and concluding that Wilson did not meet the standard of care because she took an incomplete medical history, failed to order an ultrasound, and did not confirm Tyler’s follow-up visit with Leiser.

Wilson and the IU Medical Group appealed, arguing that the judgment should be reversed because Lawless failed to seek an immediate follow-up appointment for Tyler. That constituted contributory negligence that must be imputed to Tyler and was an intervening, superseding cause, Wilson argued.

The Indiana Restatement (Second) of Torts holds that “A child who suffers physical harm is not barred from recovery by the negligence of his parent,” but Wilson requested an exception to that rule in her appeal.

The Indiana Court of Appeals denied that request in its Friday ruling in favor of Tyler, writing that Wilson’s request would apply a principle of comparative fault to the law of common law contributory negligence applicable in medical malpractice actions.

“Such a rule in this context would have severe consequences because contributory negligence acts as a complete bar to recovery,” Judge Elaine Brown wrote.

Further, the Court of Appeals rejected Wilson’s argument that Lawless’ failure to seek follow-up medical care for Tyler was an intervening cause that resulted in the loss of Tyler’s kidney. Brown wrote that the evidence did not reveal that the delay in his follow-up appointments was an intervening cause in the loss of his kidney. Further, when Lawless did take Tyler for follow-up care, doctors still did not immediately identify the urinoma. Thus, Lawless’ delay in seeking a follow-up appointment did not constitute an intervening cause.

The case is Jane E. Wilson, M.D., and IU Medical Group v. Tyler Lawless b/n/f Mindy R. Lawless, 49A05-1511-CT-1814.