Adkins v. Ropp

• Decision Date: 10 May 1938
• Docket Number: 15906.
• Citation: 14 N.E.2d 727,105 Ind.App. 331
• Parties: ADKINS v. ROPP.
• Court: Indiana Appellate Court

14 N.E.2d 727

105 Ind.App. 331

ADKINS v. ROPP.

No. 15906.

Appellate Court of Indiana, in Banc.

May 10, 1938

Claycombe & Stump, of Indianapolis, for appellant.

Carey & Cox, of Indianapolis, for appellee.

WOOD Judge.

Appellee brought this action against appellant to recover damages because of the alleged malpractice of the appellant in the treatment of appellee's right eye, resulting in the enucleation of the eye.

Briefly summarized, the allegations of negligence are: That the appellant removed a foreign substance (a particle of old screen wire) from appellee's eye without first disinfecting it and without first sterilizing the instrument which appellant used in removing said foreign substance from the eye; that appellant did not use proper skill in removing said substance from the appellee's eye; that appellant failed, after removing said substance from the eye, to properly disinfect and treat it and to apply proper dressings and bandages; all of which unsuccessful treatment resulted in infection and ulceration in the eye and ultimately made it necessary to have the same removed.

The complaint was in one paragraph, answered by a general denial. On these issues the case was tried to the court and a jury resulting in a verdict and judgment in favor of appellee. The question of diagnosis was not tendered by the issues.

Within due time appellant filed a motion for a new trial; the causes alleged therefor and not waived being: That the verdict of the jury was not sustained by sufficient evidence; that the verdict of the jury was contrary to law; error of the court in giving to the jury each of the instructions numbered one to eleven, inclusive, requested by the appellee; error of the court in the admission of certain testimony over the objection of the appellant. This motion was overruled, to which ruling appellant excepted and appeals to this court assigning as errors for reversal, first, the overruling of his motion for judgment on the jury's answers to interrogatories, and, second, the overruling of his motion for a new trial.

The rules which govern our Supreme Court and this court, in determining whether or not error has been committed in overruling a motion for judgment on the jury's answers to interrogatories, has been stated many times, and it is not necessary that they be again set out in this opinion. With these rules in mind and being guided by them, we have examined the record, in so far as we are permitted to do under such an assignment of error, and conclude that the court did not commit error in overruling appellant's motion for judgment on the jury's answers to interrogatories.

This brings us to appellant's second assignment of error predicated upon the action of the court in overruling his motion for a new trial. Because of the result which we are compelled to reach in this case, we will pass at once to an examination of cause four of appellant's motion for a new trial, based upon the giving by the court of each of instructions numbered one to eleven, inclusive, tendered by the appellee, and first to instruction numbered 11, which reads as follows: "While the general rule is that where the question as to whether a surgical operation is skillfully performed or whether the care and attention following the operation was proper, are questions of science to be determined from the evidence of medical men, yet this general rule is not applicable in all cases but jurors of ordinary intelligence, sense and judgment, although not skilled in medical science, may be capable of reaching a conclusion, without the aid of expert testimony as to whether it was proper treatment to perform an operation on a patient's eye where some cutting and scraping is done with an unsterilized and undisinfected instrument and then leave the eye unsterilized and undisinfected and exposed to the elements and without any covering or bandage of any kind to protect it from the sunlight, wind and possible germs in the air."

The degree of skill and care to be exercised by a physician and surgeon in the treatment of a patient and the result of such treatment, which the patient may expect will be obtained therefrom, has been well stated by this court in the case of Adolay v. Miller, 1916, 60 Ind.App. 656, 111 N.E. 313, 314, as follows:

"When a physician and surgeon assumes to treat and care for a patient, in the absence of a special agreement, he is held in law to have impliedly contracted that he possesses the reasonable and ordinary qualifications of his profession, and that he will exercise at least reasonable skill, diligence, and care in his treatment of him. This implied contract on the part of the physician does not include a promise to effect a cure, and negligence cannot be imputed because a cure is not effected, but he does impliedly promise that he will use due diligence and ordinary skill in his treatment of the patient so that a cure may follow such care and skill, and this degree of care and skill is required of him, not only in performing an operation, or administering first treatments, but he is held to the like degree of care and skill in the necessary subsequent treatments, unless he is excused from further service by the patient himself, or the physician or surgeon upon due notice refuses to further treat the case.

"In determining whether the physician or surgeon has exercised the degree of care and skill which the law requires, regard must be had to the advanced state of the profession at the time of treatment and in the locality in which the physician or surgeon practices. But where a physician or surgeon is employed as a specialist on account of his peculiar learning and skill, he is 'bound to bring to the discharge of his duty to patients employing him, as such specialist, that degree of skill and knowledge which is ordinarily possessed by physicians who devote special attention and study to the disease, its diagnosis and treatment, having regard to the present state of scientific knowledge."'

See Edwards v. Uland, 1923, 193 Ind. 376, 140 N.E. 546.

The next inquiry which logically presents itself for determination is: By what kind of evidence is the jury to determine whether the physician and surgeon has exercised the proper care and skill in his treatment of the patient, and whether the result obtained by the treatment meets the requirements exacted by the rules of law relating to physicians and patients, as above quoted?

In the absence of some countervailing circumstances, the general rule in malpractice ...