Surgeon loses malpractice appeal in amputation case

A northern Indiana orthopedic surgeon has lost his appeal in a medical negligence case brought by a patient who continued to experience pain in his hand following a finger amputation.

After Rickey Kennedy crushed two fingers on his left hand in a work-related accident, his index finger was amputated. Christopher R. Glock, M.D., and orthopedic hand surgeon who performed the amputation, later performed a neuroma procedure to remove a painful end of a nerve on the nub.

Not more than a week after the procedure, Kennedy experienced pain in his thumb and called Glock’s office. Glock then performed another surgery to repair the nerve with an autologous nerve graft. A medical review panel found nothing supported that Glock failed to meet the applicable standard of care but noted that a material issue of fact existed regarding Kennedy’s informed consent before the neuroma procedure.

Kennedy filed a complaint for medical negligence and Glock responded with a motion for partial summary judgment. A Vigo Superior Court jury ultimately ruled in Kennedy’s favor, awarding him $2.3 million, despite the statutory cap of $1.25 million. Glock filed a motion to correct error as well as a motion for judgment on the evidence, but those motions were denied.

The Indiana Court of Appeals affirmed the denial of Glock’s motions in Christopher R. Glock MD v. Rickey D. Kennedy,18A-CT-02486.

It first noted that reasonable inferences to be drawn from the expert testimony included that roughly 25% of people who undertake a neuroma procedure do not experience a reduction in the level and intensity of pain to the point that the patient says “that was worth it”; that the roughly 75% of people who do experience success do not have complete elimination of pain; and that a primary component of a discussion on the risks of a neuroma procedure includes discussing the reoccurrence of pain or the lack of eliminating the pain.

“We find under these circumstances that a finding that reasonable persons, if properly informed, would have rejected the proposed treatment is not against the great weight of the evidence and conclude that the evidence most favorable to the judgment along with all reasonable inferences to be drawn from the evidence supports the judgment with regard to this issue,” Judge Elaine Brown wrote for the appellate court.

The appellate panel further concluded that it could not say that the trial court abused its discretion in denying Glock’s motion to correct error, noting that the pain Kennedy experienced before the procedure was in two other fingers, not his thumb. Likewise, it found that the pain following the procedure was located mostly in Kennedy’s thumb and is permanent, and that the problem with his thumb interferes with his work depending on the task.

“We further note (Kennedy’s stepsister Terri Lynn) Coleman’s testimony that Kennedy has shared that the pain mainly in his thumb and hand ‘is so bad that he can’t stand it somedays.’ Dr. Glock’s arguments to the contrary are essentially a request for us to reweigh the evidence and reassess witness credibility, which we cannot do,” the panel concluded.

The Indiana Trial Lawyers Association entered an amicus brief in support of Kennedy in this appeal.

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