Christopher R. Glock, M.D., Appellant-Defendant,
Rickey D. Kennedy, Appellee-Plaintiff.
from the Vigo Superior Court The Honorable Lakshmi Reddy,
Judge Trial Court Cause No. 84D02-1501-CT-382
Attorney for Appellant Michael G. Smith Wooden McLaughlin LLP
Attorney for Appellee Eric A. Frey Frey Law Firm Terre Haute,
Attorney for Amicus Curiae Indiana Trial Lawyers Association
Sara A. Langer Langer and Langer Valparaiso, Indiana
Christopher R. Glock, M.D. ("Dr. Glock") appeals
the trial court's denial of his motion for judgment on
the evidence and motion to correct error. Dr. Glock raises
several issues which we consolidate and restate as:
I. Whether the trial court abused its discretion in denying
his motion for judgment on the evidence; and
II. Whether the court abused its discretion in denying his
motion to correct error. We affirm.
and Procedural History
This case arises from Dr. Glock's treatment of a crush
injury to Rickey D. Kennedy's left hand, which he endured
while at work in May 2010 and which resulted in burst
lacerations to the index and middle fingers and in his middle
finger "pointing in the wrong direction."
Transcript Volume III at 33. Dr. Glock, whom Kennedy did not
know and from whom he had no prior medical treatment, cleaned
and debrided the injuries and fixed the middle finger with
pins and the index finger with plate and screws.
"[A]bout a year later" Dr. Glock amputated
Kennedy's index finger from the tip to the first knuckle.
Transcript Volume II at 160. He performed a repeat amputation
which removed an infection and Kennedy's finger
"[d]own to the nub," resulting in a
"stump" near the knuckle nearest to his palm.
Id. at 162.
On October 3, 2011, Dr. Glock provided treatment (the
"neuroma procedure") for a neuroma, or a
"painful end" of a nerve that has been traumatized
and is "swelling . . . in its response or attempt to
heal." Transcript Volume III at 23-24. Following the
procedure, Kennedy experienced pain in his thumb, called Dr.
Glock's office "concerned that his thumb was still
numb," and appeared for a post-operative visit
"probably within a week" of the procedure.
Id. at 50-51. On November 2, 2011, Dr. Glock
performed a "repair of the ulnar digital nerve to the
thumb with an autologous nerve graft from the radial digital
nerve of the index finger." Exhibits Volume I at 58.
On October 24, 2014, a medical review panel, which included
Dr. Dale K. Dellacqua, issued an opinion after considering
evidence Kennedy had submitted to the Indiana Department of
Insurance against Dr. Glock. The opinion stated:
The panel is of the unanimous opinion that the evidence does
not support the conclusion that the defendant failed to meet
the applicable standard of care, and that his conduct was not
a factor of the resultant damages, but there is a material
issue of fact, not requiring expert opinion, bearing on
liability for consideration by the court or jury, with regard
to the informed consent of the patient before the fourth
Volume I at 4.
In January 2015, Kennedy filed a Complaint For Medical
Negligence, and in January 2016, Dr. Glock filed a motion for
partial summary judgment. On May 26, 2016, the parties
tendered a proposed agreed order on the motion for partial
summary judgment that identified the five surgeries,
including Surgery Four as the neuroma procedure, and
"would grant summary judgment" in favor Dr. Glock
on all of Kennedy's claims "arising out of Surgery
1, Surgery 2, Surgery 3, and Surgery 5," and all claims
"arising out of the Surgery 4, except for a claim of
'informed' consent with respect to that procedure,
which the court granted on June 1, 2016." May 26, 2016
Proposed Agreed Order at 2.
On June 26, 2018, the court held a jury trial. Kennedy's
stepsister, Terri Lynn Coleman, testified that she
accompanied him to the neuroma procedure and answered in the
negative when asked if Dr. Glock had told Kennedy: "that
surgery had a serious possibility of not being functional? Of
not working," "there was going to be nerve injury,
nerve damage," and that "there was any risk of
nerve damage." Transcript Volume II at 138-139. She
testified that she believed there was a time when Dr. Glock
told Kennedy that he had cut the nerve and that she
remembered "[t]hat it was an accident" and
"they were going to do the fifth one to correct
it." Id. at 139. She answered in the negative
when asked if she ever heard Dr. Glock say that the proposed
treatment might not alleviate all of Kennedy's pain that
he experienced from the original injury. Id. at 140.
She indicated that Kennedy told her that it hurt
"[m]ainly in his thumb and his hand" "so bad
that he can't stand it somedays." Id. at
142. When asked if Dr. Glock indicated "at any time
during your conversation" that there might be a need for
future procedures or surgery, she answered in the negative
and stated "[i]t would fix everything."
Id. at 143.
Kennedy testified that he lived with his mother, daughter,
girlfriend, and her son and that he moved in about
two-and-one-half to three years prior to help take care of
his mother, who has been going blind, and his ill father. He
indicated that he did not have a college education and, at
the time of the accident, the nature of his work was physical
labor. After describing how the crush injury occurred and the
first two surgeries, he stated that after the first surgery
there "was always something." Id. at 161.
He answered affirmatively when he was asked if he had a
conversation with Dr. Glock in his office about the neuroma
procedure on September 28, 2011, and stated "Oh, it was
going to get better" and "I mean it's gonna be
good" when asked if Dr. Glock told him what would be the
outcome of that surgery. Id. at 166. He answered in
the negative when asked whether Dr. Glock ever told him that
there was a likelihood that it would not work and whether he
ever told him that there was a risk of further nerve injury.
Id. He responded "No. Cause he's the one
that cut it, so he was gonna fix it" when asked if Dr.
Glock ever told him "the surgery in your palm was,
there's a likelihood it wouldn't work."
Id. He indicated that he would not have had the
surgery if Dr. Glock had told him that he might die from it.
The court admitted diagrams of a hand as Plaintiff's
Exhibits 4 and 5, and Records from the Terre Haute Regional
Hospital as Defendant's Exhibits B and C and
Plaintiff's Exhibits 2 and 3. Plaintiff's Exhibit 5
is a cross-section diagram labeling the arteries and nerves
of the palm. Defendant's Exhibits B and C contain forms
with Kennedy's signature that are titled "Consent
for Anesthesia," dated July 1, 2011 and October 3, 2011,
and contain the statement that "rare, unexpected severe
complications with anesthesia . . . include the remote
possibility of infection, bleeding, drug reactions, blood
clots, loss of sensation, loss of limb function, paralysis,
stroke, brain damage, heart attack, or death."
Exhibits Volume II at 90-91, 194-195. Both Plaintiff's
Exhibits 2 and 3 include a form, which includes Kennedy and
Dr. Glock's signatures beside a date of
"9-28-11," is titled "Consent for
Administration of Anesthesia and for Performance of
Operations and Other Procedures," and which states in
relevant part, "I, Rickey Kennedy . . . consent
to and authorize the performance of the following treatment,
procedure, examination or test: left index finger neuroma
excision of radial digital nerve to palm by or under the
direction of Christopher R.
Glock."Exhibits Volume I at 72, 131. The form also
1. The general nature of my condition, the purpose, benefits
and expected outcome of the Procedure, reasonable alternative
methods of treatment along with their material risks,
benefits and side effects, the possible outcome without the
Procedure or alternative treatment, the Procedure or
alternative treatment, and the possibility of complications
have been fully explained to me by the Physician or an
affiliated doctor ("Doctor"), and all of my
questions have been answered. I acknowledge that no
guarantees have been made to me concerning the results of the
Procedure. I understand the nature of the Procedure to be
(description of Procedure in layman's language): Get
pain out of hand by removing nerve from
Id. Both Plaintiff's Exhibits 2 and 3 include a
record from Terre Haute Regional Hospital that describes the
neuroma procedure and which states that Kennedy was a patient
with "left index finger neuroma pain at the stump"
and who "had improvement on the ulnar side with
persistence on the radial side, "the "branches
to the proper digital nerve to the index finger radial border
and the common digital nerve to the second web space index
and middle were identified each," the "common
digital nerve to the second web space was preserved,"
the "flexor tendons to the index finger were assessed,
and the proper digital nerve to the radial border of the
index finger was identified," and that "[i]t was
tensioned, and there was no corresponding tension in the
thumb, only to the radial border of the stump."
Id. at 66-67, 129-130.
Plaintiff's Exhibit 2 includes a "History &
Physical Report #24," which details a "followup for
left index finger" after a "neuroma
transposition" and states "Physical Exam
(Christopher R Glock; 10/12/2011 8:39 AM)" and that
called postop, the day after, and stated that his thumb was
very numb. I thought it was still the anethestic. He comes
back today for his normal followup and he states that it is
still numb in the thumb. It looks like the whole thumb,
radial and ulnar sides are numb.
PHYSICAL EXAMINATION: . . . He no longer has any pain at the
index finger stump. He has numbness and tingling on the
radial and ulnar borders of the left thumb . . . . At the
time of surgery, the nerve was tested for its distribution
and it seemed to be only coming from the area of the index
finger stump, however, there can be branches from the ...