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Hassan v. Begley10/28/2005
ut by the designated evidence establish a lack of causation of Begley's death on Dr. Hassan's part. To be sure, Dr. Swerdlow's testimony that Dr. Hassan's failure to place the tube in Begley was insufficient to establish proximate cause and rebut the unanimous panel opinion.
III. Intervening and Superseding Cause
On a related note, this court has determined that a chain of causation may be broken if an independent agency intervenes between the defendant's negligence and the resulting injury. Lane, 817 N.E.2d at 273. The key to determining whether an intervening agency has broken the original chain of causation is to determine whether, under the circumstances, it was reasonably foreseeable that the agency would intervene in such a way as to cause the resulting injury. Id. That is, if the intervening cause was not reasonably foreseeable, the original negligent actor is relieved of any and all liability resulting from the original negligent act. Id.
In this case, the designated evidence shows that while Begley was in the emergency room, he exhibited no clinical deterioration, but he also exhibited no improvement. Appellant's App. p. 79. Begley was admitted to the special care unit of the Hospital in light of Dr. Hassan's belief that the prudent course was immediate hospital admission with a consultation with a surgeon. Appellant's App. p. 79. Under the circumstances where the NG tube was incorrectly inserted on two occasions, there is no designated evidence establishing that Dr. Hassan should have foreseen such alleged negligence of the nurses. Thus, in the absence of that foreseeability, the nurses' alleged negligence supersedes any causation flowing from Dr. Hassan's failure to order or place the NG tube while Begley was in the emergency room. To illustrate, in Straley v. Kimberly, 687 N.E.2d 360 (Ind. Ct. App. 1998), trans. denied, an excavation subcontractor struck a main gas line. Thereafter, the Indiana Gas Company (Gas Company) dispatched a repair crew to the site. Straley, a member of the repair crew, was injured when an unknown source ignited the gas. Straley then filed suit against the various contractors who had caused the gas leak. In the end, this court determined that it was not the conduct of the defendant contractors that proximately caused the explosion. Rather, it was the superseding conduct of the Gas Company in attempting to repair a major gas leak without turning off the gas. We specifically found that the Gas Company's conduct was unforeseeable. Id. at 363.
Like the circumstances in Straley, it was unforeseeable from Dr. Hassan's standpoint that trained and experienced nurses would misplace the NG tube on two occasions. Hence, such conduct supersedes any alleged negligence and causation flowing from Dr. Hassan's omission to place the NG tube in Begley.
That said, Begley advances yet another attempt to salvage the trial court's ruling by directing us to section 457 of the Restatement (Second) of Torts which provides:
If the negligent actor is liable for another's bodily injury, he is also subject to liability for any additional harm resulting from normal efforts of third persons rendering aid which the other's injury reasonably requires, irrespective of whether such acts are done in a proper or a negligent manner.
Under this section, where an individual negligently causes a bodily injury to the plaintiff, and thereafter the plaintiff seeks medical attention for that injury, the negligent party is responsible for any malpractice committed by the healthcare provider in treating the plaintiff. See Whitaker v. Kruse, 495 N.E.2d 223, 225-26 (Ind. Ct. App. 1996). However, as we have already concluded, Dr. Hassan did
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