Jane E. Wilson, M.D., and IU Medical Group, Appellants,
Tyler Lawless b/n/f Mindy R. Lawless, Appellee.
from the Marion Superior Court Trial Court Cause No.
49D14-1312-CT-43325 The Honorable James B. Osborn, Judge
ATTORNEYS FOR APPELLANTS Kelly J. Pitcher Adam R. Doerr
Clendening Johnson & Bohrer, P.C.
ATTORNEY FOR APPELLEE C. Dennis Wegner C. Dennis Wegner &
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.
and Procedural History
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.
Dr. Wilson believed that Tyler's condition was not
related to the kidney biopsy and instead diagnosed him with
viral gastroenteritis. She did consider other, less common
complications from kidney biopsies, such as hydronephrosis,
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
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. 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.
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
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.
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. 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.
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.
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 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.
** * * *
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
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