Mother's Actions Not Considered a Contributory Cause 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 used as a bar 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 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. Dr. Wilson declined to get an ultrasound and ruled out other complications. If Dr. Wilson would have ordered the ultrasound, urinoma would have been discovered.
After Tyler's symptoms continued, he had to be hospitalized at the Riley Hospital for Children where urinoma was discovered. Tyler had to have his left kidney removed in May of 2009.
Tyler, through his mother Mindy, 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, ruling that Wilson 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.
Dr. Wilson and the IU Medical Group appealed, arguing that because Tyler's mother failed to schedule a follow-up appointment for Tyler, she was a contributing factor in Tyler's injuries and therefore breaks the chain of responsibility. The Indiana Court of Appeals denied that request in its November 18, 2016 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. Also the Court stated that the evidence did not reveal that the delay in Tyler's follow-up appointments were an intervening cause in the loss of his kidney.