Payne v. Marion General Hosp.

• Decision Date: 05 February 1990
• Docket Number: No. 80A02-8802-CV-84,80A02-8802-CV-84
• Citation: 549 N.E.2d 1043
• Parties: David M. PAYNE, Personal Representative of the Estate of Cloyd A. Payne, Deceased, Appellant (Counter-Plaintiff), v. MARION GENERAL HOSPITAL, Miles W. Donaldson, M.D. and Marion Family Practice, Inc., Appellees (Counter-Defendant and Third Party Defendants).
• Court: Indiana Appellate Court

Page 1043

549 N.E.2d 1043

David M. PAYNE, Personal Representative of the Estate of Cloyd A. Payne, Deceased, Appellant (Counter-Plaintiff), v. MARION GENERAL HOSPITAL, Miles W. Donaldson, M.D. and Marion Family Practice, Inc., Appellees (Counter-Defendant and Third Party Defendants).

No. 80A02-8802-CV-84.

Court of Appeals of Indiana Second District.

Feb. 5, 1990.

Rehearing Denied March 26, 1990.

C. Robert Rittman, Biddinger & Johnson, Marion, for David M. Payne.

Thomas J. Trauring, Fell McGarvey & Trauring, Kokomo, for Marion General Hosp.

Albert C. Harker, Polly A. Stephenson, Kiley, Osborn, Kiley, Harker Rogers, Michael & Certain, Marion, for Miles W. Donaldson and Marion Family Practice, Inc.

BUCHANAN, Judge.

CASE SUMMARY

Counter-plaintiff-appellant, the Estate of Cloyd Payne, (Estate) appeals from the entry of summary judgment in favor of the counter-defendants-appellees Miles W. Donaldson, M.D. (Dr. Donaldson), Marion General Hospital, Inc. (Hospital) and Marion Family Practice, Inc. (Practice), claiming the trial court erred when it determined there was no genuine issue of material fact.

We reverse in part and affirm in part.

FACTS

The facts most favorable to the non-moving party (the Estate) reveal that Cloyd Payne (Payne) was admitted to the Hospital on June 6, 1983. Payne was suffering from a variety of maladies, including malnutrition, uremia, hypertensive cardiovascular disease, chronic obstructive lung disease, non-union of a previously fractured left humerus, and congenital levoscoliosis of the lumbar spine. Payne was a 65-year-old alcoholic who had allowed his condition to deteriorate to the point he required hospitalization.

Throughout his stay in the Hospital, Payne was subjected to various tests, which confirmed the admitting diagnosis of malnutrition and uremia. By June 10 his condition was deteriorating. He ate poorly and his respirations became labored. On the morning of June 11, Dr. Donaldson examined Payne but made no modifications in Payne's treatment. Payne ate poorly and was visited by family. At approximately 7:00 p.m., Payne's condition worsened as his temperature rose and his respirations became more frequent and labored. Payne appeared to be awake and alert.

At approximately 9:25 p.m., Payne became congested and mucus was aspirated from his lungs. Shortly thereafter, the nurses attempted to reach Payne's nephew, but were unable to contact him. The nurses did contact Payne's sister and she arrived at the Hospital a short time later. The nurses also contacted Dr. Donaldson and related Payne's condition. Dr. Donaldson then ordered some minor adjustments in Payne's treatment.

After observing Payne for several minutes, his sister informed the nurse she did not want Payne resuscitated if he began to die. The nurse contacted Dr. Donaldson and informed him of Payne's condition and of his sister's request. After consulting with the nurse and talking to Payne's sister, Dr. Donaldson then authorized the entry of a "no code" on Payne's chart, after verifying his order with another nurse pursuant to the Hospital's policy. A "no code" is a designation on a patient's chart that no cardiopulmonary resuscitation is to be given in the event the patient begins to expire. The "no code" was entered by the nurse attending Payne, and no efforts to give Payne cardio-pulmonary resuscitation were attempted.

Supportive care was continued, including the suctioning of mucus from Payne's lungs. Occasionally, Payne was awake and alert, and he made eye contact with the nurses attending him. Payne was conscious and capable of communicating with the nurses until moments before his death. His condition continued to worsen, and at 12:55 a.m. on June 12, 1983, Payne died, and no cardio-pulmonary resuscitation was attempted.

Dr. Donaldson later sued the Estate for compensation, and the Estate counter-claimed, alleging Dr. Donaldson committed malpractice when he issued the "no code." The counter-claim averred that Dr. Donaldson was acting as an agent of the Practice, and joined the Practice as a party. The counter-claim also included a claim of negligence against the Hospital for failing to

                provide the proper procedural safeguards when doctors issue "no codes."   Dr. Donaldson, the Practice and the Hospital moved for summary judgment and introduced the medical review panel's opinion, issued in accordance with the requirements of the medical malpractice law, which determined the defendants were not negligent.  The motions were granted and summary judgment was entered in favor of Dr. Donaldson, the Practice and the Hospital
                

ISSUES

1. Whether the trial court erred when it entered summary judgment in favor of Dr. Donaldson and the Practice?

2. Whether the trial court erred when it entered summary judgment in favor of the Hospital?

DECISION

ISSUE ONE--Did the trial court err when it determined there was no issue of material fact and that Dr. Donaldson and the Practice were entitled to judgment as a matter of law?

PARTIES' CONTENTIONS--The Estate claims that genuine issues of material fact exist as to whether Payne was competent and terminally ill, and therefore summary judgment was inappropriate. Dr. Donaldson and the Practice respond that the Estate's failure to produce any expert opinion in support of its claim is fatal and therefore summary judgment was correctly granted.

CONCLUSION--The trial court erred when it entered summary judgment in favor of Dr. Donaldson and the Practice.

This is a case of first impression, in which a doctor is sought to be held liable for issuing a "do not resuscitate" order, commonly referred to as a "no code." While numerous courts have considered similar issues, such as a patient's right to refuse medical treatment and the consent needed to effectuate that right for incompetent patients, no court has considered the physician's liability after having entered a "no code." ¹ See Rasmussen v. Fleming (1987), 154 Ariz. 207, 741 P.2d 674; Foody v. Manchester Memorial Hosp. (1984), 40 Conn.Supp. 127, 482 A.2d 713; Severns v. Wilmington Medical Center (1980), Del., 425 A.2d 156; Brophy v. New England Sinai Hosp., Inc. (1986), 398 Mass. 417, 497 N.E.2d 626; Custody of a Minor (1981), 385 Mass. 697, 434 N.E.2d 601; Matter of Spring (1980), 380 Mass. 629, 405 N.E.2d 115; Superintendent of Belchertown State School v. Saikewicz (1977), 373 Mass. 728, 370 N.E.2d 417; Matter of Dinnnerstein (1978), 6 Mass.App. 466, 380 N.E.2d 134; Matter of Conroy (1985), 98 N.J. 321, 486 A.2d 1209; In Re Quinlan (1976), 70 N.J. 10, 355 A.2d 647, Matter of Westchester Co. Medical Center (1988), 72 N.Y.2d 517, 534 N.Y.S.2d 886, 531 N.E.2d 607; Matter of Storar and Matter of Eichner (1981), 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64; Matter of Colyer (1983), 99 Wash.2d 114, 660 P.2d 738.

Our focus is different. The Estate's claim is that Payne was competent at the time the "no code" was issued and that Dr. Donaldson failed to obtain Payne's informed consent before he issued the "no code." The Estate appeals from the grant of a motion for summary judgment in favor of Dr. Donaldson and the Practice.

In reviewing a grant of summary judgment, this court stands in the place of the trial court and considers the same issues and follows the same process as the trial court. Burke v. Capello (1988), Ind., 520 N.E.2d 439; Madison County Bank & Trust Co. v. Kreegar (1987), Ind., 514 N.E.2d 279. We must determine the probative value of each piece of evidence without weighing it, considering the facts in the light most favorable to the nonmoving party, and summary judgment will be appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Burke, supra; Kreegar, supra.

A trial court's belief that the nonmovant will be unsuccessful at trial is not grounds for summary judgment. Newhouse v. Farmers Nat'l Bank (1989), Ind.App., 532 N.E.2d 26. A hearing on summary judgment is not an abbreviated trial, and summary judgment is generally inappropriate in claims based on negligence. Jackson v. Warrum (1989), Ind.App., 535 N.E.2d 1207; Rediehs Express, Inc. v. Maple (1986), Ind.App., 491 N.E.2d 1006, cert. denied 480 U.S. 932, 107 S.Ct. 1571, 94 L.Ed.2d 762.

The Estate's claim against Dr. Donaldson and the Practice is prefaced on the doctrine of informed consent and is considered as based on negligence. Ellis v. Smith (1988), Ind.App., 528 N.E.2d 826; Kranda v. Houser-Norborg Medical Corp. (1981), Ind.App., 419 N.E.2d 1024, appeal dismissed 459 U.S. 802, 103 S.Ct. 23, 74 L.Ed.2d 39; Searcy v. Manganhas (1981), Ind.App., 415 N.E.2d 142, trans. denied; Revord v. Russell (1980), Ind.App., 401 N.E.2d 763. ²

In Indiana, the tort of medical malpractice has the same elements of other negligence torts. The elements are: (1) a duty on the part of the defendant in relation to the plaintiff; (2) a failure on the part of the defendant to conform his conduct to the requisite standard of care required by the relationship; and (3) an injury to the plaintiff resulting from that failure. Burke, supra.

The duty owed to Payne by Dr. Donaldson is well established as a matter of law. A physician has the duty to make reasonable disclosure of material facts relevant to the care of a patient. Revord, supra; Joy v. Chau (1978), 177 Ind.App. 29, 377 N.E.2d 670, trans. denied. The patient's right of self-determination is the sine qua non of the physician's duty to obtain informed consent. As Justice (then Judge) Cardozo said: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body...." Schloendorff v. Society of New York Hospital (1914), 211 N.Y. 125, 129, 105 N.E. 92, 93. See Canterbury v. Spence (C.A.D.C.1972), 464 F.2d 772.

Dr. Donaldson's first response is that Payne was an incompetent, terminally ill patient, and therefore he owed Payne no duty to obtain his consent for the entering of the "no-code," and...