                                                                FILED
                                                           Nov 18 2016, 9:56 am

                                                                CLERK
                                                            Indiana Supreme Court
                                                               Court of Appeals
                                                                 and Tax Court




ATTORNEYS FOR APPELLANTS                                  ATTORNEY FOR APPELLEE
Kelly J. Pitcher                                          C. Dennis Wegner
Adam R. Doerr                                             C. Dennis Wegner & Assoc.,
Clendening Johnson & Bohrer, P.C.                         Pro.Corp.
Indianapolis, Indiana                                     Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jane E. Wilson, M.D., and IU                              November 18, 2016
Medical Group,                                            Court of Appeals Case No.
Appellants,                                               49A05-1511-CT-1814
                                                          Appeal from the Marion Superior
        v.                                                Court
                                                          The Honorable James B. Osborn,
Tyler Lawless b/n/f Mindy R.                              Judge
Lawless,                                                  Trial Court Cause No.
Appellee.                                                 49D14-1312-CT-43325




Brown, Judge.




Court of Appeals of Indiana | Opinion 49A05-1511-CT-1814 | November 18, 2016          Page 1 of 22
[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.




      Court of Appeals of Indiana | Opinion 49A05-1511-CT-1814 | November 18, 2016   Page 2 of 22
[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 Leiser, the

      doctor who performed the biopsy on Tyler. Dr. Wilson believed based thereon

      that Tyler was going to be seen by Dr. Leiser 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. Leiser’s office or another doctor.




      1
       The Mayo Clinic’s website notes that viral gastroenteritis is commonly known as the stomach flu. See Viral
      gastroenteritis (stomach flu), MAYO CLINIC, http://www.mayoclinic.org/diseases-conditions/viral-
      gastroenteritis/basics/definition/con-20019350 (last visited Sept. 16, 2016).
      2
       The National Kidney Foundation’s website states that “Hydronephrosis is the swelling of a kidney due to a
      build-up of urine. It happens when urine cannot drain out from the kidney to the bladder from a blockage or
      obstruction.” See Hydronephrosis, NATIONAL KIDNEY FOUNDATION,
      https://www.kidney.org/atoz/content/hydronephrosis (last visited Sept. 30, 2016).
      3
        According to the court’s Judgment, Dr. Leiser documented the voicemail as follows: “Biopsy revealed thin
      glomerular basement membrane disease. Generally not associated with progressive kidney disease. No
      medications or activity limitations. Will need periodic follow-up, e.g., annually. Call to leave me a contact
      number and time.” Appellants’ Appendix at 30.

      Court of Appeals of Indiana | Opinion 49A05-1511-CT-1814 | November 18, 2016                      Page 3 of 22
[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.

      Court of Appeals of Indiana | Opinion 49A05-1511-CT-1814 | November 18, 2016   Page 4 of 22
      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
      Court of Appeals of Indiana | Opinion 49A05-1511-CT-1814 | November 18, 2016   Page 5 of 22
        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 Tyler’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”).


                                              *****



Court of Appeals of Indiana | Opinion 49A05-1511-CT-1814 | November 18, 2016   Page 6 of 22
        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.




Court of Appeals of Indiana | Opinion 49A05-1511-CT-1814 | November 18, 2016   Page 7 of 22
        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 have had Dr. Chabon’s experience testifying,
        but even accounting for nervousness in an unfamiliar role, Dr.
        Padgett’s testimony remained unconvincing.



Court of Appeals of Indiana | Opinion 49A05-1511-CT-1814 | November 18, 2016   Page 8 of 22
                                CONCLUSIONS OF LAW


        1. Medical malpractice cases are governed by a modified version
        of traditional negligence law. In a negligence action, a plaintiff
        bears the burden of proving that there is “1) a duty on the part of
        the defendant to conform his conduct to a standard of care
        arising from his relationship with the plaintiff, (2) a failure of the
        defendant to conform his conduct to the requisite standard of
        care required by the relationship, and (3) an injury to the plaintiff
        proximately caused by the breach.” Webb v. Jarvis, 575 N.E.2d
        992, 995 (Ind. 1991)[, reh’g denied].


        2. A physician’s duty to conform his or her conduct to the
        standard of care arises from the physician-patient relationship.
        Miller v. Martig, 754 N.E.2d 41, 46 (Ind. Ct. App. 2001). A
        physician-patient relationship existed between Dr. Wilson and
        Tyler Lawless.


        3. Indiana has a special standard of care that doctors must
        follow. The doctor “must exercise that degree of care, skill, and
        proficiency exercised by reasonably careful, skillful, and prudent
        practitioners in the same class to which he belongs, acting under
        the same or similar circumstances.” Vergara by Vergara v. Doan,
        593 N.E.2d 185, 187 (Ind. 1992).


        4. Dr. Wilson did not comply with the standard of care because
        she took an incomplete medical history and failed either to order
        a sonogram or ultrasound to rule out renal biopsy complications
        or to confirm that a follow up visit with Dr. Leicer [sic] was
        scheduled.


        5. Dr. Wilson made a reasonable initial diagnosis based upon
        the symptoms Tyler presented. Tyler was experiencing vomiting,
        diarrhea, and low grade fever. These are all regular symptoms of
        a prevalent disease known as viral gastroenteritis. Vomiting is
        the only one of these symptom [sic] that would point to a biopsy
        complication. Vomiting, however, is much less common than
        the normal biopsy complication symptoms of flank and
        abdominal pain, symptoms Tyler lacked. Even though Tyler’s

Court of Appeals of Indiana | Opinion 49A05-1511-CT-1814 | November 18, 2016   Page 9 of 22
        symptoms pointed to gastroenteritis, Dr. Wilson still checked for
        the most common biopsy complications, infection and bleeding.
        The urinalysis she ordered showed that Tyler had no white blood
        cells (and thus no infection) and trace red blood cells in his urine
        which were consistent with his diagnosis of hematuria. Tyler
        also did not have any of the symptoms of acute hemorrhage,
        pallor, dizziness or rapid heart rate, and thus had no acute
        hemorrhage. But Dr. Wilson did not adequately test for less
        common complications such as hydronephrosis.


        6. Tyler’s persistent vomiting should have led Dr. Wilson to a
        higher suspicion and further testing for complications from a
        renal biopsy performed less than two weeks earlier, even though
        Tyler did not exhibit the most common symptom of a biopsy
        complication, flank pain.


        7. The Court agrees with Plaintiff’s experts that, as an
        alternative, Dr. Wilson should have taken steps to make sure
        Tyler was evaluated immediately by a nephrologist. Dr.
        Wilson’s belief that Mindy would be conducting a post-operative
        follow up appointment with Dr. Leiser in the immediate future
        was unreasonable given that Dr. Leiser indicated in his voice
        mail message to Mindy that he wanted to follow up annually.


        8. The Court finds that, as a 10-year old boy who relied on
        Mindy to obtain health care for him, Tyler in no way negligently
        contributed to his injuries.


        9. Mindy had a duty to exercise that degree of care that an
        ordinary reasonable person would exercise in like or similar
        circumstances. Faulk v. Northwest Radiologists, P.C., 751 N.E.2d
        233, 239 (Ind. Ct. App. 2001)[, trans. denied]. A patient’s failure
        to follow a physician’s instructions may constitute contributory
        negligence. Harris v. Cacdac, 512 N.E.2d 1138, 1139 (Ind. Ct.
        App. 1987)[, reh’g denied, trans. denied]. Plaintiff could be barred
        from recovery if her contributory negligence was a proximate
        cause of Tyler’s injury. Cavens v. Zaberdac, 849 N.E.2d 526, 529
        (Ind. 2006). The negligence of a parent can be a contributing
        cause of the child’s injury, therefore relieving a defendant of


Court of Appeals of Indiana | Opinion 49A05-1511-CT-1814 | November 18, 2016   Page 10 of 22
               some or all liability. Witte v. Mundy, 820 N.E.2d 128, 133 (Ind.
               2005).


               10. Mindy’s failure to seek medical care for Tyler until January
               2009, even though his vomiting persisted, a new complaint of
               flank pain presented, and Dr. Wilson instructed her to seek
               follow up care, constituted a breach of her duty of care. Mindy
               could have made an appointment at any time during that almost
               four month period with Dr. Wilson, Dr. Porter, or Dr. Leiser.
               She could have sought treatment for Tyler at an urgent care or
               emergency department. When Tyler began experiencing
               symptoms of flank pain in December, 2008, Mindy should have
               immediately returned to the Riley Nephrology Clinic for a follow
               up appointment. Yet Mindy did none of these things.


               11. Mindy may have been negligent to some degree for failing to
               get follow up medical care from October 9, 2008 to January 22,
               2009, but Dr. Wilson did not assert a non-party defense, did not
               name Mindy as a non-party, and is precluded from arguing that
               Mindy’s negligence contributed to Tyler’s loss.


               12. The failure of Dr. Wilson to exercise reasonable care for
               Tyler’s health needs contributed to the loss of Tyler’s kidney.
               Without any medical intervention, the urinoma continued to
               grow to the point that it caused obstruction, hydronephrosis, and,
               eventually, loss of Tyler’s kidney.


       Appellants’ Appendix at 28, 31, 35-42. The court entered judgment in favor of

       Tyler and against the Appellants and awarded Tyler damages totaling $255,000.


                                                    Discussion

[10]   The issue is whether the court’s Judgment is clearly erroneous. When a trial

       court enters findings of fact and conclusions thereon, findings control only as to

       the issues they cover and a general judgment will control as to the issues upon

       which there are no findings. Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind.

       Court of Appeals of Indiana | Opinion 49A05-1511-CT-1814 | November 18, 2016   Page 11 of 22
       1997). A general judgment entered with findings will be affirmed if it can be

       sustained on any legal theory supported by the evidence. Id. When a court has

       made special findings of fact, an appellate court reviews sufficiency of the

       evidence using a two-step process. Id. First, it must determine whether the

       evidence supports the trial court’s findings of fact, and second it must determine

       whether those findings of fact support the trial court’s conclusions. Id.

       Findings will be set aside only if they are clearly erroneous. Id. Findings are

       clearly erroneous only when the record contains no facts to support them either

       directly or by inference. Id. In order to determine that a finding or conclusion

       is clearly erroneous, an appellate court’s review of the evidence must leave it

       with the firm conviction that a mistake has been made. Id.


[11]   The Appellants argue that the court’s Judgment should be reversed because of

       Mindy’s failure to seek follow up medical treatment for Tyler between the time

       he was seen by Dr. Wilson and January 22, 2009, when he was seen by Dr.

       Kosten. They contend that this constituted contributory negligence which must

       be imputed to Tyler, and that it was an intervening, superseding cause. We

       address each of the Appellants’ arguments separately.


       A. Contributory Negligence


[12]   Under Indiana law, the historic common law defense of contributory negligence

       remains available to defendants in cases alleging medical malpractice. Cavens v.

       Zaberdac, 849 N.E.2d 526, 529 (Ind. 2006). The Indiana Comparative Fault Act

       replaced the defense of contributory negligence, which completely bars a


       Court of Appeals of Indiana | Opinion 49A05-1511-CT-1814 | November 18, 2016   Page 12 of 22
       plaintiff from any recovery, with a system providing for the reduction of a

       plaintiff’s recovery in proportion to the plaintiff’s fault, but this Act does not

       apply to actions for medical malpractice. Id. (citing Ind. Code § 34-51-2-1).

       The contributory negligence defense has been applied in medical malpractice

       cases. Id. (citing Mem’l Hosp. of South Bend, Inc. v. Scott, 261 Ind. 27, 300 N.E.2d

       50 (1973) (defense alleged negligence of plaintiff in use of hospital toilet

       facilities, resulting in severe burns from scalding water); Fall v. White, 449

       N.E.2d 628, 632-634 (Ind. Ct. App. 1983) (defendant doctor alleged patient’s

       failure to provide complete and accurate information and failure to follow

       defendant doctor’s instructions), trans. denied). A patient may not recover in a

       malpractice action where the patient is contributorily negligent by failing to

       follow the defendant physician’s instructions if such contributory negligence is

       simultaneous with and unites with the fault of the defendant to proximately

       cause the injury. Id. (citing Harris v. Cacdac, 512 N.E.2d 1138, 1139-1140 (Ind.

       Ct. App. 1987), reh’g denied, trans. denied). A plaintiff’s contributory negligence

       operates as a complete bar to recovery. McSwane v. Bloomington Hosp. and

       Healthcare Sys., 916 N.E.2d 906, 911 (Ind. 2009).


[13]   We note that Tyler was ten years old at the relevant time. 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. Cook v. Ford Motor Co., 913 N.E.2d 311, 329 (Ind. Ct. App. 2009)

       (citing Creasy v. Rusk, 730 N.E.2d 659, 662 (Ind. 2000)), trans. denied.

       Court of Appeals of Indiana | Opinion 49A05-1511-CT-1814 | November 18, 2016   Page 13 of 22
[14]   The Appellants acknowledge that the non-party defense is created by Indiana’s

       Comparative Fault Act, which is not applicable to medical malpractice cases,

       and accordingly “defendants are unable to attribute fault to non-parties in

       malpractice cases. Instead, they argue the trial court should have analyzed

       [Mindy’s] negligence through the doctrine of imputed contributory negligence.”

       Appellant’s Brief at 8.


[15]   Tyler contends that this court need not decide whether the trial court correctly

       determined that Mindy was not added as a non-party because, under common

       law contributory negligence, the negligence of a parent may not be imputed to a

       minor child “as contributory negligence in an action by the child against a third

       party . . . .” Appellee’s Brief at 7 (citing Jeffersonville v. McHenry, 22 Ind. App.

       10, 53 N.E. 183 (1899); Evansville v. Senhenn, 151 Ind. 42, 47 N.E. 634 (1897),

       reh’g denied; Gillam v. J.C. Penney Co., 341 F.2d 457 (7th Cir. 1965)). Tyler also

       directs the court’s attention to cases from other jurisdictions, the Restatement

       (Second) of Torts, and an American Law Reports Annotation for the

       proposition that in personal injury actions the negligence of a parent may not be

       imputed to the child on a claim by the child. He asserts that the Appellants do

       not cite “a single medical malpractice case allowing for such an imputation

       under Indiana law” and “simply invoke their own proposed rule . . . .” Id. at 12

       (internal quotations omitted).


[16]   The crux of this matter is whether any alleged contributory negligence by

       Mindy may be imputed to Tyler to bar Tyler’s claim for medical malpractice.

       In general, Indiana courts have not allowed a parent’s negligence to be imputed

       Court of Appeals of Indiana | Opinion 49A05-1511-CT-1814 | November 18, 2016   Page 14 of 22
       to a child in a personal injury action by the child. See Senhenn, 151 Ind. at 45,

       47 N.E. at 635 (“The law, taking cognizance of [a child plaintiff’s] want of

       discretion, and that its tender years renders it impossible for it to know any

       better, exempts it from the charge of negligence. Upon what principle, then, we

       are led to inquire, may its parent’s, guardian’s, or custodian’s negligence be

       imputed to it so as to take away its property in its cause of action for

       defendant’s negligence making it a cripple for life? We know of none . . . .”).

       The Indiana rule is supported by the Restatement (Second) of Torts, which

       states unequivocally: “A child who suffers physical harm is not barred from

       recovery by the negligence of his parent, either in the parent’s custody of the

       child or otherwise.” RESTATEMENT (SECOND) OF TORTS, § 488 (1965). The

       Appellants request that this court create an exception to this rule under these

       circumstances.


[17]   The Appellants cite to Witte for the proposition that Mindy’s alleged

       contributory negligence should be imputed to Tyler. In Witte, five-year-old

       Mikayla Mundy was riding her bicycle when she ran a stop sign and was struck

       by a car driven by Monica Witte, also a minor. 820 N.E.2d at 131. Mikayla’s

       mother, Kristin, sued as Mikayla’s next friend and also in her own capacity,

       naming Witte and her parents as defendants, and the defendants responded by

       asserting that Witte was not negligent and also that the accident was due to

       negligence on the part of both Mikayla and Kristin. Id. Before trial, Kristin

       moved to dismiss her individual claim without prejudice, and Mikayla moved

       for an order to preclude the defendants from offering evidence of negligence on


       Court of Appeals of Indiana | Opinion 49A05-1511-CT-1814 | November 18, 2016   Page 15 of 22
       the part of Kristin by negligent supervision. Id. The defendants objected to

       Kristin’s dismissal and, in the alternative, sought to amend their answer to

       include Kristin as a nonparty defendant under the comparative fault statute. Id.

       The trial court granted Kristin’s motion to dismiss and denied the defendants’

       motion to add Kristin as a nonparty. Id.


[18]   On transfer, the Indiana Supreme Court examined the question of whether

       Kristin was a proper nonparty defendant and determined that she was, noting

       that “[i]t is one thing to say a child under age seven is ‘incapable of judgment or

       discretion’ and therefore, as a matter of law, cannot be negligent” and that “[i]t

       is another thing to conclude that an adult’s negligent supervision cannot be a

       contributing cause to the child’s injury relieving a third party of some or all

       liability.” Id. at 133. In so holding, the Court observed that, “[i]n a

       comparative fault cause, ‘the jury shall determine the percentage of fault of the

       claimant, of the defendant, and of any person who is a nonparty. . . .’” Id.

       (quoting Ind. Code § 34-51-2-7). It noted that nonparty is defined as “a person

       who caused or contributed to cause the alleged injury, death, or damage to

       property but who has not been joined in the action as a defendant,” id. (quoting

       Ind. Code § 34-6-2-88), and that accordingly “the comparative fault statute ‘no

       longer requires that the nonparty be liable to the plaintiff, but only that he or

       she have caused or contributed to the cause of the plaintiff’s injury.’” Id.

       (quoting Bulldog Battery Corp. v. Pica Invs., 736 N.E.2d 333, 338 (Ind. Ct. App.

       2000), reh’g denied). Importantly, the Court also observed that “[t]he trial

       court’s instruction that the parent’s negligence is not attributable to the child

       Court of Appeals of Indiana | Opinion 49A05-1511-CT-1814 | November 18, 2016   Page 16 of 22
       would have been proper” had Kristin not been a valid nonparty defendant but

       that, under the comparative fault scheme, it was error to deny the defendants’

       motion to name her as a nonparty. Id. (citing Senhenn, 151 Ind. at 48, 47 N.E.

       at 435).


[19]   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. The Appellants essentially ask this court to apply a

       principle from Witte, arising out 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. Indeed, the purpose of the

       Comparative Fault Act is to ameliorate the harshness of the common law

       doctrine of contributory negligence. Baker v. Osco Drug, Inc., 632 N.E.2d 794,

       797 (Ind. Ct. App. 1994), trans. denied. Even in Witte the Court recognized, that

       under the common law, negligence on the part of a parent may not be imputed

       to the child – we see no reason to deviate from this long-standing rule. See

       Young v. Washington Hosp., 761 A.2d 559, 563-564 (Pa. Super. Ct. 2000) (noting

       that the plaintiffs in a medical malpractice action “argue that the allegations of

       contributory negligence are unsupported by the record and that their conduct,

       subsequent to [defendants’] negligence, was not a proximate or superseding

       cause of the child’s injury. [The Plaintiffs] emphasize that the parents and the

       child are separate and distinct persons in the eyes of the law. We agree that this

       latter point is dispositive. As this action was brought by the parents on behalf


       Court of Appeals of Indiana | Opinion 49A05-1511-CT-1814 | November 18, 2016   Page 17 of 22
       of the child, the actions of the parents—their asserted contributory negligence

       or failure to mitigate damages—is irrelevant.”), appeal denied; Vieregger v.

       Robertson, 609 N.W.2d 409, 416 (Neb. Ct. App. 2000) (holding that the trial

       court erred in not instructing the jury that “the negligence or acts or omissions

       of the parents cannot be imputed to the child” on a medical malpractice action),

       review overruled; Galvin v. Cosico, 456 N.Y.S.2d 259, 259 (N.Y. App. Div. 1982)

       (“The court correctly charged that Justine, who was 3 years and 10 months of

       age at the time of the claimed malpractice, was incapable as a matter of law of

       contributory negligence; and that even if Justine’s mother was negligent in not

       immediately transporting her to the hospital, as defendants contend, such

       negligence could not be ascribed to Justine.”), appeal dismissed.4


       B. Intervening, Superseding Cause


[20]   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.” Scott v. Retz,

       916 N.E.2d 252, 257 (Ind. Ct. App. 2009). 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.”

       Id. “The key to determining whether an intervening agency has broken the

       original chain of causation is to determine whether, under the circumstances, it



       4
        We observe that, although the Appellants raised the defense of mitigation of damages in their answer, they
       do not assert that defense on appeal.

       Court of Appeals of Indiana | Opinion 49A05-1511-CT-1814 | November 18, 2016                   Page 18 of 22
       was reasonably foreseeable that the agency would intervene in such a way as to

       cause the resulting injury.” Id.; see also Conder v. Hull Lift Truck, Inc., 435 N.E.2d

       10, 14 (Ind. 1982) (the action of someone or something other than the alleged

       tortfeasor that affects the chain of causation is an intervening cause; it becomes

       a superseding cause breaking the chain of causation if it was not foreseeable).

       When assessing foreseeability in the context of proximate cause, courts

       “evaulat[e] the particular circumstances of an incident after the incident

       occurs.” Scott, 916 N.E.2d at 257-258. Although proximate cause is generally a

       question of fact to be determined by the jury, it becomes a question of law when

       the relevant facts are undisputed and lead to only a single inference or

       conclusion. Id. at 258 (citing Peters v. Forster, 804 N.E.2d 736, 743 (Ind. 2004)).


[21]   This court in Scott identified factors previous cases have examined “[i]n

       determining whether an intervening agency is unforeseeable and therefore

       superseding” as follows:

               First, we have looked to whether the intervening actor is
               independent from the original actor, or, in other words, whether
               the intervening actor is an “independent agency.” Hassan[ v.
               Begley], 836 N.E.2d [307, 308 (Ind. Ct. App. 2005), reh’g denied] .
               ...


               Second, we have looked to whether the instrumentality of harm
               is under the complete control of the intervening actor. . . .


               Third, this court has looked to whether the intervening actor, as
               opposed to the original actor, is in the better position to prevent
               the harm. . . .


       Court of Appeals of Indiana | Opinion 49A05-1511-CT-1814 | November 18, 2016   Page 19 of 22
       Id.


[22]   The Appellants assert that the Indiana Supreme Court in Walker v. Rinck, 604

       N.E.2d 591 (Ind. 1992), “did not reject the possibility that ‘unforeseeable’

       actions by parents could be an intervening cause.” Appellants’ Brief at 14.

       They cite to cases from other jurisdictions for the proposition that “a patient’s

       failure to seek follow up care is not foreseeable and is an intervening cause of

       that patient’s injuries” and assert that this “rationale also applies to parents

       supervising their children who are patients.”5 Id. at 15. The Appellants argue

       that Mindy’s failure to seek follow up medical care for Tyler despite his

       persistent vomiting and development of flank pain was an intervening cause.

       They assert that Mindy was an independent force not under the control of the

       Appellants, was in complete control over whether Tyler received follow up

       medical care, and was in a better position to prevent harm to Tyler.


[23]   Tyler argues that the Appellants “have failed to establish that any delay by

       Mindy in follow up visits was the proximate cause of the loss of Tyler’s

       kidney,” noting that a treatise on torts states that “[t]he intervening force, to

       become a superseding cause and break the chain of causation, must be a cause

       in fact of the harm of which the plaintiff complains, that is, it must be a cause

       sine qua non.” Appellee’s Brief at 15-16 (quoting FOWLER HARPER, A




       5
        The Appellants cite to Williams v. Birkeness, 34 F.3d 695 (8th Cir. 1994), reh’g denied; Eldred v. Blue Cross &
       Blue Shield of Ga., Inc., 274 Ga. App. 798 (2005); and Sorina v. Armstrong, 554 N.E.2d 943 (Ohio Ct. App.
       1988).

       Court of Appeals of Indiana | Opinion 49A05-1511-CT-1814 | November 18, 2016                         Page 20 of 22
       TREATISE ON THE LAW OF TORTS § 114 (1933)). Tyler also notes that “Dr.

       Kosten was himself unsure of what was causing Tyler’s flank pain and

       vomiting, even though he was aware that Tyler had been vomiting since his

       renal biopsy,” that the Appellants “never presented any expert medical

       testimony at trial to show that any delay by Mindy in Tyler’s follow up care

       prevented the urinoma from being successfully treated,” and that “[w]ithout

       such evidence, there is no proof that any negligence on Mindy’s part was the

       proximate cause of the loss of Tyler’s kidney.” Id. at 19-20.


[24]   We need not examine the foreseeability of Mindy’s actions because, as asserted

       by Tyler, we find that the evidence presented at trial did not reveal that the

       delay in seeking follow up medical attention was an intervening cause of Tyler’s

       injury, i.e., the loss of his kidney. The evidence presented showed that Tyler

       developed flank pain in December 2008. Dr. Wilson at trial testified that the

       obstruction likely developed around this time. Mindy brought Tyler to see Dr.

       Kosten on January 22, 2009, at which appointment Dr. Kosten did not identify

       the urinoma and obstruction, and he referred Tyler to pediatric

       gastroenterology. Tyler 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.


[25]   Thus, the evidence reveals that Mindy brought Tyler 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 Mindy brought Tyler to see Dr.

       Court of Appeals of Indiana | Opinion 49A05-1511-CT-1814 | November 18, 2016   Page 21 of 22
       Kosten, Tyler 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, we conclude that Mindy’s failure to

       immediately bring Tyler to see a doctor after he developed flank pain, instead

       waiting for a few weeks to do so, did not constitute an intervening cause of

       Tyler’s injury.


                                                    Conclusion

[26]   For the foregoing reasons, we affirm the trial court’s Judgment.


[27]   Affirmed.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 49A05-1511-CT-1814 | November 18, 2016   Page 22 of 22
