The Court of Appeals of Indiana (“Appellate Court”) held in a case it decided on November 18, 2016 that the contributory negligence of the parent of a child cannot be imputed to the child in the child’s medical malpractice claim against a health care provider. In general, Indiana courts have not allowed a parent’s negligence to be imputed to a child in a personal injury action by the child.
The Underlying Facts
On October 9, 2008, the mother of a ten-year-old child brought her son to a pediatrician, who was filling in for the boy’s usual pediatrician, because he had experienced fever, vomiting, and had diarrhea since undergoing a percutaneous kidney biopsy ten days prior. The common complications from percutaneous kidney biopsies are bleeding and infection for which the symptoms are flank or abdominal pain (vomiting is a less common symptom and diarrhea is not a symptom). The boy did not have flank or abdominal pain at that time, and a urinalysis showed no signs of bleeding or infection.
The pediatrician believed that the boy’s condition was not related to the kidney biopsy and diagnosed him with viral gastroenteritis. The pediatrician did not order an ultrasound or sonogram that would have revealed that the boy suffered a urinoma from the biopsy. The pediatrician wrote a prescription for Zantac and gave the boy’s mother instructions to “return for new or concerning symptoms or persistent fever.”
After the October 9, 2008 appointment with the pediatrician, the boy continued to vomit at least once a week. Then, in December 2008, the boy began having flank pain, which is the most common symptom of a kidney biopsy complication and the most common symptom of a kidney obstruction. The mother gave her son acetaminophen almost every day for his flank pain.
On January 22, 2009, the mother brought her son to another pediatrician due to his vomiting, which had become more frequent during the previous week, and for flank pain. The boy was referred to a pediatric gastroenterologist and he was seen at a hospital’s pediatric gastroenterology clinic. An abdominal ultrasound revealed that the boy had urinoma, which is a collection of urine outside of the ureter and is a rare complication of a percutaneous kidney biopsy. The boy’s urinoma gradually increased in size until it obstructed the kidney, causing an obstructive nephropathy. On May 5, 2009, the boy had his left kidney removed due to the obstructive nephropathy.
The boy’s mother, as his next friend, filed an Indiana medical malpractice complaint against the first pediatrician and the pediatric practice, alleging that they failed to meet the applicable standard of care in treating her son on October 9, 2008, causing the loss of his kidney. The Indiana medical malpractice bench trial started on July 27, 2015 and ended on October 8, 2015 at which time the judge entered its judgment in favor of the boy in the total amount of $255,000.
The Indiana medical malpractice defendants appealed, arguing that the judgment should be reversed because of the mother’s failure to seek follow-up medical treatment for her son between October 9, 2008, when he was initially seen by the first pediatrician, and January 22, 2009, when he was seen by another pediatrician, contending that this constituted contributory negligence which must be imputed to the child and that it was an intervening, superseding cause.
The Appellate Court stated that under Indiana law, children between the ages of seven and fourteen are required to exercise due care for their own safety under the circumstances of a child of like age, knowledge, judgment, and experience, and there is a rebuttable presumption they are incapable of negligence. The Appellate Court stated, “We decline the Appellants’ invitation to create an exception to the general rule that a parent’s alleged contributory negligence may not be imputed to a child’s medical malpractice claim.”
Intervening, Superseding Cause
The Appellate Court stated that, in general, a defendant’s act is a proximate cause of an injury if the injury is the natural and probable consequence of the act and should have been reasonably foreseen and anticipated in light of the circumstances. However, under the doctrine of superseding causation, a chain of causation may be broken if an independent agency intervenes between the defendant’s negligence and the resulting injury. The key to determining whether an intervening agency has broken the original chain of causation is to determine whether, under the circumstances, it was reasonably foreseeable that the agency would intervene in such a way as to cause the resulting injury.
In the case it was deciding, the Appellate Court stated that the evidence presented at trial did not reveal that the delay in seeking to follow up medical attention was an intervening cause of the boy’s injury, i.e., the loss of his kidney. The evidence presented showed that he developed flank pain in December 2008, when the defendant pediatrician testified that the obstruction likely developed. The mother brought her son to the second pediatrician on January 22, 2009, at which time he did not identify the urinoma and obstruction, and he referred the child to pediatric gastroenterology. The child was examined over two months later, on March 30, 2009, and tests revealed the urinoma, which had gradually increased in size until it obstructed the kidney, causing an obstructive nephropathy.
The Appellate Court stated that the evidence reveals that the mother brought her son for medical treatment in January 2009 but that the obstruction was not detected for over two months following that appointment. There was no evidence presented that, even had the urinoma been discovered in January when the mother brought her son to the second pediatrician, her son still would have lost the kidney. In other words, evidence was not presented showing that the delay until January 22, 2009 was a cause sine qua non of the injury. Accordingly, the Appellate Court concluded that the mother’s failure to immediately bring her son to see a doctor after he developed flank pain, instead of waiting for a few weeks to do so, did not constitute an intervening cause of his injury.
Source Wilson v. Lawless, Court of Appeals Case No. 49A05-1511-CT-1814
If you or a loved one may be the victim of medical malpractice by a pediatrician in Indiana or in another U.S. state, you should promptly consult with an Indiana medical malpractice attorney (or a medical malpractice attorney in your state) who may investigate your medical malpractice claim for you and represent you in a malpractice lawsuit, if appropriate.
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