MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                  Feb 21 2020, 5:31 am

regarded as precedent or cited before any                                  CLERK
                                                                       Indiana Supreme Court
court except for the purpose of establishing                              Court of Appeals
                                                                            and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Timothy S. Schafer                                       SAMARA KESTER, D.O.
Timothy S. Schafer, II                                   Edna M. Koch
Todd S. Schafer                                          Joseph D. McPike, II
Schafer & Schafer, LLP                                   Zeigler Cohen & Koch
Merrillville, Indiana                                    Indianapolis, Indiana
                                                         ATTORNEYS FOR APPELLEE
                                                         PORTER MEMORIAL HOSPITAL
                                                         Marian C. Drenth
                                                         Michael E. O’Neill
                                                         O’Neill McFadden & Willet LLP
                                                         Schererville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Doll III, Rebekah Doll,                           February 21, 2020
and Amanda Doll,                                         Court of Appeals Case No.
Appellants-Plaintiffs,                                   19A-CT-663
                                                         Appeal from the
        v.                                               Porter Superior Court
                                                         The Honorable
Samara Kester, D.O., and                                 Jeffrey W. Clymer, Judge
Porter Memorial Hospital,                                Trial Court Cause No.
Appellees-Defendants                                     64D02-0712-CT-11508




Court of Appeals of Indiana | Memorandum Decision 19A-CT-663 | February 21, 2020               Page 1 of 10
      Vaidik, Judge.



                                          Case Summary
[1]   Robert Doll III, Rebekah Doll, and Amanda Doll (“the Dolls”) appeal

      following a jury verdict in favor of Samara Kester, D.O. (“Dr. Kester”) and

      Porter Memorial Hospital (“the Hospital”) in this medical-malpractice action

      arising from the death of the Dolls’ father, Robert Doll II (“Robert”). The

      Dolls contend that the trial court erred by failing to give certain jury

      instructions. Finding no error, we affirm.



                            Facts and Procedural History
[2]   On October 3, 2000, Robert went to the Hospital’s emergency room

      complaining of chest and abdominal pain that had started the day before while

      he was working on a deck at his house. He was fifty-two years old, weighed

      377 pounds, and had a history of hypertension. He was seen by Dr. Kester, an

      ER doctor. He reported that “he may have strained himself.” Hospital’s App.

      Vol. II p. 3. Dr. Kester noted that it “hurt more” if Robert “takes a deep breath

      or moves around” and if he “lifts his arms up.” Id. Dr. Kester palpated

      Robert’s chest wall, and the pain was reproduced. She ordered a chest x-ray

      and interpreted it as “negative.” Appellants’ App. Vol. II p. 39. Dr. Kester also

      ordered an EKG and lab work, the results of which she interpreted as normal.


[3]   Dr. Kester believed that Robert’s pain was confined to his chest wall and stated

      as much in the discharge instructions: “It appears that your chest pain today is
      Court of Appeals of Indiana | Memorandum Decision 19A-CT-663 | February 21, 2020   Page 2 of 10
      due to a problem confined to the chest wall, and is not in your lungs or heart.”

      Id. at 45. However, Dr. Kester also instructed Robert to “FOLLOW UP WITH

      FAMILY DR IN 2-3 DAYS.” Id. at 46. In addition, the instructions stated as

      follows with regard to x-rays: “If you had x-rays completed, they will be

      reviewed by a radiologist. If his interpretation is different from mine, we will

      call you as soon as possible at the number you gave to the registration clerk.”

      Id. at 45.


[4]   As indicated on the discharge instructions, a radiologist reviewed the chest x-

      ray and determined that it showed cardiomegaly—an enlarged heart.1 Copies

      of the radiologist’s report were sent to the ER and to Robert’s family doctor,

      Dr. Kimberly Perry, but according to the Dolls no one from the Hospital

      contacted Robert to tell him about the finding of cardiomegaly. No evidence

      was presented as to whether Robert did or did not follow up with Dr. Perry as

      he had been instructed to do.


[5]   Twenty-four days after his visit to the ER, Robert died. His death certificate

      lists the causes of death as “Suspected Cardiac Arrhythmia” and

      “Artherosclerosis of Coronary Arteries” and under “Other significant




      1
        This finding by the radiologist was not necessarily inconsistent with Dr. Kester’s interpretation of the x-ray
      as “negative.” At trial, Dr. Kester testified that when ER doctors interpret x-rays, they “look for the acute
      process, like a collapsed lung or pneumonia or some other reason why the patient may be having their
      symptoms.” Tr. Vol. II pp. 56-57. She added, “This patient [Robert] probably had cardiomegaly for years.
      Was it an acute thing that I needed to pay attention to at that time? No. My interpretation when I put
      negative on there means negative for an acute process.” Id. at 57. In any event, we assume for purposes of
      this appeal that the radiologist’s interpretation of the x-ray was “different” than Dr. Kester’s.

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-663 | February 21, 2020                    Page 3 of 10
      conditions” lists “Marked Cardiomegaly With Left Ventricular Wall

      Thickness.” Id. at 59.


[6]   After Robert’s death, the Dolls pursued a medical-malpractice claim against Dr.

      Kester and the Hospital. In the Department of Insurance, a medical-review

      panel unanimously determined that the evidence does not support the

      conclusion that Dr. Kester or the Hospital failed to meet the applicable standard

      of care.


[7]   The Dolls then filed a complaint in Porter Superior Court. Dr. Kester and the

      Hospital initially asserted that Robert was contributorily negligent (for failing to

      follow up with Dr. Perry) but withdrew that defense shortly before the jury trial.

      At trial, witnesses described the Hospital’s process for dealing with

      discrepancies between an ER doctor’s interpretation of an x-ray and a

      radiologist’s interpretation. The Hospital summarizes this evidence as follows,

      with no dispute by the Dolls:


              [I]f the radiologist’s interpretation differs from the emergency
              medicine physician’s interpretation, the radiology department
              will send a copy of the radiologist’s report to the emergency
              department and the emergency medicine physician on shift at the
              time the report is received will review the report. It is the
              emergency medicine physician’s determination whether the
              discrepancy and the radiologist’s read of the report is significant
              enough to warrant contacting the patient.


              If the emergency medicine physician determines that no change
              in treatment plan is necessary, then a supplemental report will
              not be completed as no further action or treatment is deemed

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-663 | February 21, 2020   Page 4 of 10
              necessary. The only time that a supplemental record is created is
              if the emergency medicine physician determines that a significant
              discrepancy exists warranting a change in the treatment plan for
              the patient. In this instance, a supplemental record will be
              completed, and the emergency medicine physician will direct the
              charge nurse to have the emergency department contact the
              patient to advise them of the change in care plan.


      Hospital’s Br. p. 10. Here, the ER doctor who reviewed the radiologist’s report

      pursuant to this procedure has never been identified. However, there is no

      supplemental report, which indicates that this second ER doctor did not believe

      the radiologist’s finding of cardiomegaly constituted a significant discrepancy

      that necessitated a call to Robert.


[8]   The defense also presented substantial evidence that the second ER doctor was

      not negligent in concluding that there was no need to call Robert. Dr. Kester

      testified that cardiomegaly is not an “acute process” that “needs to be addressed

      immediately[.]” Tr. Vol. II pp. 56-57, 84-85. Dr. Thomas Gutwein, an ER

      doctor who served on the medical-review panel, testified that no call was

      necessary “because the patient had already had arrangement for followup with

      their family doctor.” Id. at 137-38. He added:


              If they had no where to go, if they did not have a primary care
              doctor or they were going to be -- they didn’t have anybody to
              prescribe them medications to address any of these issues, then
              yes. Then you would need it call them [sic] and say, Hey, you
              absolutely need to make sure you find a family doctor to follow
              up. They had already asked him to follow up early on with his
              family doctor who is very well qualified to take care of that
              problem, to manage that medical condition.

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-663 | February 21, 2020   Page 5 of 10
       Id. at 138. Similarly, Dr. John Miller, an electrophysiologist, when asked

       whether the Hospital should have notified Robert of the finding of

       cardiomegaly, answered, “I think the family physician would have gotten this

       information and that would be a time to have that conversation.” Id. at 168-69.

       Dr. Mark Tompkins, another ER doctor, testified that whether to call a patient

       about a discrepancy is a “judgment call” by the doctor and that he could “see a

       situation” in which he would not tell a patient about a finding of cardiomegaly

       and would “let their family doctor handle that[.]” Id. at 159, 160.


[9]    The Dolls tendered three jury instructions that are the focus of this appeal: one

       concerning apparent agency, one concerning contributory negligence, and one

       concerning Robert’s pre-existing conditions. The trial court rejected all three

       instructions, and the jury ultimately returned a verdict in favor of Dr. Kester

       and the Hospital.


[10]   The Dolls now appeal.



                                  Discussion and Decision
[11]   The Dolls contend that the trial court should have given three jury instructions

       that they tendered. Instructing the jury is a matter within the sound discretion

       of the trial court. Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016). As such, we

       review a trial court’s decision to give or reject a jury instruction only for an

       abuse of discretion. Id. We look at whether the instruction states the law




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-663 | February 21, 2020   Page 6 of 10
       correctly, whether it is supported by record evidence, and whether its substance

       is covered by other instructions. Id.


[12]   The Dolls first argue that the trial court abused its discretion by failing to give

       their proposed instruction on apparent agency:


               A hospital is liable for the negligent acts of a physician if the
               hospital acted or communicated directly or indirectly to the
               plaintiff in such a manner that would lead a reasonable person to
               conclude that the physician was an employee or agent of the
               hospital and that the plaintiff justifiably acted in reliance upon
               the conduct of the hospital consistent with care and prudence.


       Appellants’ App. Vol. II p. 79. The Dolls maintain that the second ER doctor

       was negligent in failing to call Robert after reviewing the radiologist’s report,

       that the doctor was an apparent agent of the Hospital (even if technically an

       independent contractor), and that therefore the jury should have been instructed

       that the Hospital could be held liable for the negligence. On the first issue—

       negligence—the Dolls’ theory proceeds as follows: (1) the discharge instructions

       said Robert would get a call if the radiologist’s interpretation of the chest x-ray

       was different than Dr. Kester’s; (2) the radiologist’s interpretation of the chest x-

       ray was different than Dr. Kester’s; (3) no one called Robert; and (4) therefore,

       the second ER doctor was negligent.


[13]   The problem with this theory is that it conflates the discharge instructions with

       the applicable standard of care. To be sure, the failure to call was a breach of

       the discharge instructions. However, that does not mean it was a breach of the

       standard of care. In other words, while the discharge instructions said that
       Court of Appeals of Indiana | Memorandum Decision 19A-CT-663 | February 21, 2020   Page 7 of 10
       Robert would get a call if the radiologist’s interpretation of the x-ray was at all

       “different” than Dr. Kester’s, the Dolls do not direct us to any evidence that the

       difference at issue—the finding of cardiomegaly—was of such a nature that the

       applicable standard of care required a call to Robert. As set forth above, the

       defendants presented extensive expert testimony that the failure to call, under

       the specific circumstances of this case, was not a breach of the standard of care,

       regardless of what the discharge instructions said. The Dolls do not direct us to

       any evidence to the contrary.2 Because the Dolls do not cite any evidence that

       the second ER doctor breached the applicable standard of care, we cannot say

       that the trial court abused its discretion by declining to instruct the jury that the

       Hospital could be held liable for any such breach. In short, with no evidence of

       a breach, there was nothing the Hospital could be held liable for, so there was

       no reason to give the instruction.


[14]   Next, the Dolls assert that the trial court abused its discretion by failing to give

       the jury the Dolls’ proposed instruction on contributory negligence: “There is

       no claim for contributory negligence against Mr. Doll. You cannot place fault

       on Mr. Doll for anything he did or did not do.” Appellants’ App. Vol. II p. 85.

       This was an accurate statement of the law in this case. The defendants initially

       asserted a claim of contributory negligence but withdrew it shortly before trial.

       Again, however, the Dolls’ argument fails on the second prong—the evidence

       did not support the giving of the instruction. The Dolls contend that the



       2
           In fact, the partial transcript provided by the Dolls does not include the testimony of any of their experts.


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-663 | February 21, 2020                       Page 8 of 10
       instruction was necessary because “[t]he defense repeatedly discussed how Mr.

       Doll was instructed to follow up with his family doctor but did not.”

       Appellants’ Br. p. 28. But while the jury heard that Robert was instructed to

       follow up with his family doctor, the Dolls do not point to anything in the

       record indicating that the jury was ever told that Robert did not follow up.

       Therefore, the trial court did not abuse its discretion by rejecting the tendered

       instruction.3


[15]   Finally, the Dolls argue that the trial court abused its discretion by failing to

       give the following instruction based on Indiana Model Civil Jury Instruction

       925 (titled “Defendant Takes Plaintiff as He Finds Him”): “Dr. Kester and

       Porter Memorial Hospital are not excused from responsibility just because Mr.

       Doll was overweight and suffered from hypertension, elevated cholesterol and

       cardiomegaly at the time of his ER visit that made it more likely to experience

       complications including arrhythmia and sudden cardiac death.” Appellants’

       App. Vol. II p. 84. According to the Dolls, our Supreme Court held in Cavens v.

       Zaberdac, 849 N.E.2d 526 (Ind. 2006), that “an instruction on this issue is

       required” whenever there is evidence of pre-existing conditions. Appellants’

       Reply Br. 10. That is a misrepresentation of the holding in Cavens. In fact, the




       3
         The Dolls also assert that the parties “stipulated” that Robert was not contributorily negligent and that their
       tendered contributory-negligence instruction was therefore consistent with Indiana Model Civil Jury
       Instruction 309, which provides for juries to be instructed about stipulations of fact: “The parties in this case
       have agreed that certain facts are true. You must accept these facts as true: [insert agreed facts].” But the
       defendants did not stipulate that Robert was not contributorily negligent. They simply decided not to pursue
       a contributory-negligence defense, which explains why they never told the jury that Robert did not follow up
       with his family doctor.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-663 | February 21, 2020                    Page 9 of 10
       part of Cavens relied on by the Dolls has nothing to do with a jury instruction.

       The issue was simply whether a defendant doctor could assert a contributory-

       negligence defense relating to a patient’s pre-existing conditions. Our Supreme

       Court held that he could not. Here, consistent with that holding, the

       defendants did not assert or seek to assert a contributory-negligence defense

       based on Robert’s pre-existing conditions. The Dolls have failed to establish

       that they were entitled to the proposed instruction.


[16]   Affirmed.


       Riley, J., and Bradford, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-663 | February 21, 2020   Page 10 of 10
