Dahlberg v. Ogle
| Decision Date | 09 March 1978 |
| Docket Number | No. 777S524,777S524 |
| Citation | 268 Ind. 30,373 N.E.2d 159 |
| Parties | Donna DAHLBERG, as Administratrix of the Estate of Leslie R. Dahlberg, Jr., Deceased, Appellant, v. Dr. Robert OGLE and Dr. Francisco D. Deogracias, Appellees. |
| Court | Indiana Supreme Court |
Morris L. Klapper, Ricos, Wade & Price, Indianapolis, for appellant.
Jon D. Krahulik, Richard J. Darko, Indianapolis, for appellee Ogle.
Geoffrey Segar, Indianapolis, for appellee Deogracias.
Appellant, Donna Dahlberg, as administratrix of the estate of her husband Leslie Dahlberg, Jr., instituted this suit, maintaining that her husband's death was the proximate result of the negligence of the two defendant medical doctors. At the end of the plaintiff's evidence a motion of the defendant Dr. Ogle for judgment on the evidence was granted. The case went to the jury against the remaining defendant Dr. Deogracias and a verdict for him was returned. Plaintiff appealed and this Court granted transfer with an opinion found at 364 N.E.2d 1174.
On the evening of January 13, 1971, Mr. Dahlberg complained to his wife that he was having stomach pains. The following day the pain continued and he became acutely ill with nausea, vomiting, diarrhea and occasional fever. On the morning of January 18 he took himself to the office of the defendant Dr. Ogle, a general practitioner who examined him and made a diagnosis of acute gastroenteritis and ordered medication accordingly. Twenty-four hours later on the morning of January 19 Dr. Ogle examined him again in the office and concluded that he had a ruptured organ in the abdomen and peritonitis. Dr. Ogle admitted him to the Johnson County Memorial Hospital that morning, and there by referral he was examined by the defendant Dr. Deogracias, a surgeon who made a working diagnosis of peritonitis as secondary to a ruptured organ. Mr. Dahlberg remained in the hospital for eleven days during which time he was not operated on. On January 29 in response to pending renal failure he was transferred to Methodist Hospital in Indianapolis, Indiana, where under the care of different doctors, after having received further treatment including more than one surgical operation, he died on February 24, 1971. The immediate cause of death was renal failure and gramnegative sepsis occasioned by peritonitis, which in turn was probably the result of a breach of the intestine which permitted fecal matter to leak out. The site from which the peritonitis first developed was never determined.
Appellant first contends that the trial court erroneously granted the motion of the defendant Ogle for judgment on the evidence at the close of her case. The motion is governed by Ind.R.Tr.P. 50, and such motions are properly granted at the conclusion of the plaintiff's case where some or all of the essential issues being litigated are not supported by sufficient evidence.
Appellant's claim below against Ogle was presented on two separate theories. First, it was sought to be proved that Ogle was individually liable for his own negligent acts and omissions which occurred while he alone was treating the decedent prior to the admission of decedent to the Johnson County Memorial Hospital. In support of this theory it was alleged that Ogle failed to make a sufficient examination, that he failed to make an adequate diagnosis, and failed to procure necessary expert medical attention for his patient. Second, it was sought to be proved that Ogle was jointly liable with the surgeon Deogracias for negligently withholding necessary surgery and in providing inadequate conservative care in the form of drugs.
On first examination on the morning of January 18 Mr. Dahlberg was found to have a generalized soreness in his abdomen and was hoarse. Defendant Ogle described the examination he made as follows:
"I palpated his abdomen and I listened to it with a stethoscope, and he had bowel sounds, he did not have any point of tenderness, but he had a generalized tenderness in his abdomen."
Ogle testified that Mr. Dahlberg's abdomen was tympanitic and described what that term meant in Mr. Dahlberg's case:
The doctor further testified that the presence of bowel sounds indicated that the intestinal tract was not paralyzed. The doctor did not take his temperature, pulse or perform any blood or urine tests. He was informed by his nurse that Mr. Dahlberg had been having a fever. Mr. Dahlberg had a history of a peptic ulcer. From his examination Ogle concluded that Mr. Dahlberg had acute gastroenteritis or inflammation of the stomach and intestines, and ordered medication accordingly.
The following morning Mr. Dahlberg was again examined in his office by Ogle after a night during which his discomfort intensified and on that occasion according to Ogle, he found Mr. Dahlberg's abdomen rigid and hard and did not hear any bowel sounds. He then concluded that his patient had a ruptured organ in his abdomen and probably had peritonitis and immediately arranged for his admission to the hospital and examination by a surgeon, Dr. Deogracias. X-rays and laboratory tests verified this last diagnosis, although the exact point in place and time at which the first breach of the intestine or of any organ occurred was never determined.
The relationship of doctor and patient existed here, and clearly Ogle owed a legal duty towards Mr. Dahlberg to use reasonable medical skill and care in treating him. There is, however, an absence of evidence from which the jury might have reasonably inferred a breach of that duty while Ogle alone was treating Mr. Dahlberg. On the occasion of Mr. Dahlberg's first visit to Ogle's office, the doctor's decisions were based upon his evaluation of the symptoms manifested by Mr. Dahlberg at the time together with information supplied by Mr. Dahlberg and Mr. Dahlberg's past medical history.
The jury heard evidence from which it could have inferred that Ogle's evaluation on that first occasion was mistaken in that he failed to come to a realization of the actual seriousness of Mr. Dahlberg's condition. It also heard evidence that Ogle did not order tests such as blood, urine, or x-ray examination in making that evaluation. Those facts without more indicating a lack of skill or lack of care in making the examination and diagnosis would not warrant a verdict for the plaintiff. Edwards v. Uland (1923), 193 Ind. 376, 140 N.E. 546; Williams v. Chamberlain (Mo.1958), 316 S.W.2d 505; Ulma, as Administratrix, etc. v. Yonkers General Hospital et al. (1976), 53 A.D.2d 626, 384 N.Y.S.2d 201. The motion was properly granted as the liability of Dr. Ogle arising from his individual acts and omissions as physician.
Appellant further contends that the Trial Rule 50 motion should have been overruled as to Dr. Ogle because Ogle and Deogracias were "jointly diagnosing and treating Mr. Dahlberg while he was at the Johnson County Memorial Hospital" and there was evidence presented "that at least one of them, Dr. Deogracias, was negligent." This case finally went to the jury against Deogracias alone upon evidence that he wrongfully failed to operate and to provide sufficient dosages of antibiotics after having concluded that Mr. Dahlberg's condition had worsened to the point where he could not tolerate surgery.
The joint liability theory upon which appellant relies is dependent upon the existence of a joint and common legal duty. The general rule in Indiana today is that no such joint and common duty exists between a family physician and a surgeon whom he recommends. Powers v. Scutchfield (1965), 137 Ind.App. 211, 205 N.E.2d 326; Huber v. Protestant Deaconess Hospital, etc. (1956), 127 Ind.App. 565, 133 N.E.2d 864. The basis of the rule is that it would be unjust to subject a family physician to liability for the wrongful acts of the surgeon, because the family physician has no dominion or control over the acts and decisions of the surgeon specialist. Appellant accepts the proposition, but contends that Ogle exercised an equal voice with Deogracias in making the medical decisions to withhold surgery and to provide antibiotics in the amounts ordered.
After the doctor-patient relationship was established between Mr. Dahlberg and Deogracias, Ogle continued to visit his patient daily in the hospital and make chart notes. He spoke with Deogracias about the case. Late one night he ordered a sleeping pill for Mr. Dahlberg by telephone. He personally made no other orders for medication. After about ten days in the hospital, Mr. Dahlberg's kidney function diminished to a serious degree. Upon observing this Ogle ordered a battery of lab tests in response and then arranged for the transfer of Mr. Dahlberg to Methodist Hospital in Indianapolis and into the care of surgeons there. At this point in time Deogracias announced to Ogle that he was prepared to operate. In spite of that Ogle's transfer plan was immediately carried out. Deogracias testified that he and Ogle worked "synchronously together." Ogle testified that they worked "in concert." The evidence and reasonable inferences therefrom warrant only the conclusion that Ogle maintained his professional relationship with his patient while he was in the hospital as general practitioner. By his personal presence he provided support for his patient and information and support for Deogracias. He did assume control of the patient after ten days of unsuccessful conservative treatment by drugs, however that fact would not warrant the inference that he made decisions with regard to surgical matters and antibiotic dosages during the preceding ten day period. The record therefore fails to demonstrate that Dr. Ogle shared a legal duty which was breached by the alleged wrongful acts of the surgeon Deogracias. The ruling of the trial court was therefore not erroneous on this...
To continue reading
Request your trial
-
Johnson v. St. Vincent Hospital, Inc.
...the opinion of medical experts, has heretofore been expressly sanctioned by rules of evidence as declared by the courts. Dahlberg v. Ogle, (1978) Ind., 373 N.E.2d 159; Iterman v. Baker, (1938) 214 Ind. 308, 15 N.E.2d 365. Consequently, this Act does not take away from the courts their judic......
-
Noblesville Casting Div. of TRW, Inc. v. Prince
...heretofore quoted; it asserts the questions were improper because material facts were both omitted and misstated. In Dahlberg v. Ogle, (1978) 268 Ind. 30, 373 N.E.2d 159, this Court held that hypothetical questions are not improper merely because facts pertinent to the evidence are omitted ......
-
Breese v. State
...protection of mental patients is not a medical act and that the applicable standard of care is one of ordinary care. Dahlberg v. Ogle (1978) 268 Ind. 30, 373 N.E.2d 159. III. FAILURE TO CALL AVAILABLE Breese next argues that the trial court erroneously refused to give his tendered instructi......
-
State v. Edgman, 3-680A171
...And, the trial court did, in fact, instruct on contributory negligence in final Instructions Nos. 9 and 10.16 See Dahlberg v. Ogle, (1978) 268 Ind. 30, 373 N.E.2d 159; LaSalle Motor Car Sales v. Calumet National Bank, supra.17 The instruction at issue in the supreme court was:" 'You are ins......
-
The Physician's Duty to Refer to a Specialist
...procedure, consulted with surgeon and was present in the operating room during allegedly negligent hysterectomy); see Dahlberg v. Ogle, 373 N.E.2d 159 (Ind. 1978) (referring physician admitted patient to hospital, called surgeon, visited patient daily and discussed case with surgeon, but di......