MATHIAS, Judge.
Roy L. Harris ("Roy") and Anita K. Harris ("Anita") (collectively "the Harrises") brought a claim for medical malpractice against Dr. Francis McDonnell ("Dr. McDonnell"), Dr. Peter Stevenson ("Dr. Stevenson"), and Deaconess Hospital ("Deaconess"). Stacy Wissel ("Wissel"),
We affirm the trial court's determination of liability and damages, but reverse the award of prejudgment interest.
On August 4, 2000, Anita was working as a salesman for a life insurance company and was making a call at a customer's home when she was bitten by the homeowner's dog. As a result, Anita suffered a serious wound on her left arm and later suffered from complications, including a severe infection. This later led to Anita developing reflex sympathetic dystrophy, causing her to have numerous maladies, including: difficulty with her short-term memory, sleeplessness, dizziness, blurred vision, neck pain, headaches, change of color on parts of her left hand and arm, and numbness and pain spreading to her entire right upper extremity. Because of her continuing pain, Anita was referred to the Cleveland Clinic. There, a physician recommended that Anita receive continuing treatment for her pain, including a "tunneled epidural catheter" that could infuse pain medication. Tr. p. 127.
Subsequently, Anita was referred to Dr. McDonnell, who worked at the Pain Clinic at the University of Kentucky Medical Center in Lexington, Kentucky. Dr. McDonnell placed an epidural catheter in Anita that remained in place for twelve weeks. This treatment resulted in significant relief for Anita for approximately one month, but her pain gradually returned. On August 18, 2001, Dr. McDonnell placed a cervical epidural catheter in Anita for continuous infusion of pain medication.
Six days later, Anita was exiting her car when the external end of the catheter was accidentally pulled from the infusion pump. Roy telephoned Dr. McDonnell, and McDonnell gave Roy instructions on how to reconnect the catheter to the pump. Roy did so, but the next day Anita went to a pain clinic at Deaconess Hospital in Evansville, Indiana, where a nurse disconnected, cleaned, trimmed, and reconnected the catheter tube to the infusion pump. Per Dr. McDonnell's instructions, the nurse also doubled the infusion rate.
The following morning, however, Anita began to have pain in her neck. Roy called the hospital and was told to take his wife to the emergency room. At the emergency room, Anita complained of pain in her back and upper neck; she described her pain to the nurse as feeling as if "her brain [was] going to explode," and further stated that it was different than the pain she was being treated for with the catheter and pump. Tr. p. 228. The nurse noted that the right side of Anita's neck was tender to touch. Anita was eventually seen by Dr. Stevenson. Dr. Stevenson noted that Anita had been prescribed an antibiotic by Dr. McDonnell, but she had been unable to fill the prescription because Dr. McDonnell was not licensed to practice in Indiana. Dr. Stevenson also noted that Anita complained of extreme pain in her face and neck, but concluded that she did not have meningitis because there was no stiffness in her neck.
Dr. Stevenson then consulted with Dr. McDonnell over the telephone, and Dr. McDonnell concluded that there was nothing wrong with the catheter and that Anita's neck pain was caused by irritation to her lesser occipital nerve and that her pain should be treated by continuing the use of the infusion pump in addition to over-the-counter non-steroidal anti-inflammatory medications ("NSAIDs"), muscle relaxers, and heat. Dr. Stevenson gave Anita a prescription for an antibiotic that could be filled, and discharged her at approximately 2:00 p.m. Anita was given Dr. McDonnell's telephone number and told to call him if she had any problems.
Later that evening, Anita began to run a fever of 101.5 degrees Fahrenheit, but Roy did not call Dr. McDonnell until approximately 2:00 a.m. the following morning, when Anita's fever had reached 102.6 degrees Fahrenheit. By this time, Anita had become unresponsive, was unable to walk, and was moaning loudly. When Roy relayed this information to Dr. McDonnell, he was instructed to remove the catheter, give her a dose of antibiotics, and take her to the emergency room. Still, Roy did not take Anita to the emergency room immediately. Anita began to vomit at 4:00 a.m., and then became delirious and unresponsive to verbal commands. Later that morning, Roy called for an ambulance, and Anita arrived at the hospital at approximately 11:20 a.m.
At the hospital, the intake nurse listed Anita's main afflictions as fever, disorientation, and headache. An emergency room physician, Dr. Michael Peters ("Dr. Peters") saw Anita and listed her symptoms as confusion, fever, headache, and neck stiffness that began during the night. Dr. Peters and other physicians at the hospital noted these as symptoms of meningitis. A lumbar puncture returned cloudy spinal fluid, and Anita was admitted to the hospital with a diagnosis of bacterial meningitis. Anita testified that during this stay at the hospital, Dr. McDonnell came into her room and stated, "There's the girl I gave meningitis to." Tr. p. 794. After being treated with several antibiotics, Anita was finally discharged on August 26, 2001.
As a result of her meningitis, Anita had to undergo speech therapy, and suffered from hearing loss. She also suffers from mental impairment, and was initially even unable to recognize her own children. She has problems with math skills and remembering dates, and even has difficulty finding her way home while driving. A report prepared by a psychiatric social worker indicated that Anita is now seriously mentally impaired. Even though Anita had hoped to return to work, she had to apply for disability benefits.
On January 25, 2008, the Harrises filed their complaint alleging medical malpractice against Dr. McDonnell, Dr. Stevenson, and Deaconess. As neither party requested a jury trial, a bench trial was held on May 3 through May 14, 2010, at which time the trial was continued to September 8, 2010.
Dr. McDonnell first claims that the trial court improperly placed upon him the burden of disproving the plaintiffs' claims. Specifically, Dr. McDonnell takes issue with the following portion of the trial court's conclusions of law:
Appellant's App. pp. 10-11 (emphases added). Dr. McDonnell claims that this establishes that the trial court placed upon him the burden of disproving his negligence, when the burden of proof was properly on the plaintiffs.
To be sure, the burden of proving a claim of negligence rests with the plaintiff. It is well settled that, "[i]n a medical malpractice action based on ordinary negligence, the plaintiff must establish (1) a duty on the part of the defendant physician in relation to the plaintiff, (2) failure of the physician to meet the requisite standard of care, and (3) an injury to the plaintiff resulting from that failure."
We presume that trial courts know the law and apply it correctly.
Dr. McDonnell next claims that the trial court's judgment in favor of the plaintiffs is clearly erroneous because it is not supported by any findings of fact that Dr. McDonnell's failure to act with the proper standard of care was the cause of any injuries to Anita. Dr. McDonnell claims that there is nothing in the trial court's findings of fact and conclusions of law indicating that Anita developed meningitis based upon any act or omission on the part of Dr. McDonnell. We disagree.
Here, the trial court's findings and conclusions were extensive, and clearly set forth what the trial court determined to be Dr. McDonnell's failure to follow the requisite standard of care, i.e. directing Roy to reconnect the catheter tube himself instead of instructing him to take Anita to a nearby hospital where the reconnection could be properly performed and failing to recognize that Anita was suffering from meningitis as a result of the non-sterile reconnection of the catheter. The trial court then found that Anita had sustained damages, and listed the damages it found. Although the trial court's findings and conclusions do not explicitly state that Anita's damages were the result of Dr. McDonnell's negligence, it is clear from a reading of the findings and conclusions as a whole that the trial court concluded that Anita's damages were caused by Dr. McDonnell's negligence. Moreover, the plaintiffs note, and Dr. McDonnell does not deny, that there was ample evidence from which the trial court could have concluded that Anita's damages were caused by Dr. McDonnell's negligence.
Dr. McDonnell also claims that the trial court's judgment is clearly erroneous because it contains no findings to support the trial court's award of damages. Dr. McDonnell argues that the trial court's findings of fact and conclusions of law are "silent as to the amount of any medical expenses or any lost wages or the nature and extent of any mental or physical impairment incurred by Anita Harris as a result of her meningitis that is attributable in whole or in part to any failure of Dr. McDonnell to render appropriate care." Appellant's Br. p. 26. Again, we disagree.
The trial court, after concluding that Dr. McDonnell had failed to meet the requisite standard of care, then delineated what it concluded were Anita's damages, which included $48,459.41 in medical expenses, $207,829.38 in lost wages, and $200,000 for mental and physical impairment, for a total of $456,288.79. The trial court found in favor of the other defendants and found that only Dr. McDonnell had acted in a negligent manner. It was therefore unnecessary for the trial court to explicitly state which portion of the damages were attributable to Dr. McDonnell; it is obvious from the trial court's judgment that the court found that all of the damages were attributable to Dr. McDonnell's negligence.
Still, Dr. McDonnell claims that the trial court's award of damages was improper because it was based on Plaintiff's Exhibit 16AA, to which McDonnell objected and now claims was improper for the trial court to consider. On appeal, Dr. McDonnell states that, "absent detailed bills and authentication by affidavit for all of the medial specials claimed in Plaintiffs Exhibit 16AA and absent any agreement or stipulation as to their authenticity and admissibility, Plaintiffs Exhibit 16AA as a whole is not admissible." Appellant's Br. p. 27. In this regard, Dr. McDonnell is not so much attacking the validity of the trial court's findings regarding damages as he is attacking the admissibility of Plaintiff's Exhibit 16AA. However, he sets forth no standard of review for the admissibility of evidence, cites no evidentiary rules or case law regarding hearsay, nor does he explain precisely why and which parts of Plaintiffs Exhibit 16AA are inadmissible hearsay. We therefore consider this evidentiary argument waived.
Dr. McDonnell also claims that the trial court's damages award was improper because it was not based on any findings of fact regarding the amount of damages, citing
Dr. McDonnell also claims that the trial court abused its discretion in awarding prejudgment interest in its judgment against him. Prejudgment interest represents an element of complete compensation; it is not simply an award of interest on a judgment, but rather is recoverable as additional damages to accomplish full compensation.
Here, Dr. McDonnell claims that the award of prejudgment interest was erroneous because there was no proper offer to settle made by the actual plaintiff. That is, Dr. McDonnell claims that the Harrises made an offer to settle, but that the Harrises were not the proper plaintiffs, and that the Harrises therefore had no right to be able to make an offer to settle.
As noted above, the Harrises filed their claim on July 28, 2003, but had jointly filed a petition for bankruptcy on May 14, 2003. The federal bankruptcy Judge granted the plaintiffs a discharge under Chapter 7 of the federal bankruptcy code in June of 2003. The parties agree that the Harrises' claim against Dr. McDonnell was therefore an asset of the bankruptcy estate and that Wissel, the trustee of the bankruptcy estate, was the proper party to prosecute the action.
Indeed, after the trial had started, the defendants filed a motion to dismiss the claims against them on the same grounds the Harrises were not the proper parties. As a result, an amended complaint was filed on May 24, 2010, substituting Wissel as the named plaintiff.
To be sure, it appears that Wissel had hired the Harrises' counsel to pursue this action on behalf of the bankruptcy estate. However, this does not alter the fact that, at the time the settlement offer was made, the Harrises, not Wissel, were the named plaintiffs. Thus, Wissel, the actual plaintiff, never made an offer to settle. Because the actual plaintiff never made an offer to settle, the trial court should not have awarded prejudgment interest.
Nor do we think believe this to be a mere technicality. By ensuring that the proper plaintiff, i.e. the trustee of the bankruptcy estate, is the party making the settlement offer, we ensure that creditors of the bankruptcy estate are aware of both the injury claim and any settlement offer. This minimizes the possibility that an injured party could attempt to settle an injury claim, which properly belongs to the bankruptcy estate, outside of bankruptcy, precluding the bankruptcy trustee and the party's creditors from administering the injury claim and proceeds of any settlement as assets of the bankruptcy estate.
We disagree with Dr. McDonnell's claim that the trial court applied an improper burden of proof. We further disagree with his claim that the trial court's finding of damages was improper. However, we agree with Dr. McDonnell that an award of prejudgment interest was improper under the facts and circumstances of this case. We therefore affirm the trial court with regard to its findings of liability and damages, but reverse the trial court's award of prejudgment interest and remand with instructions that the trial court modify its judgment to eliminate the award of prejudgment interest.
Affirmed in part, reversed in part, and remanded.
VAIDIK, J., and BARNES, J., concur.