Cochrane v. Lovett

• Decision Date: 24 November 1975
• Docket Number: No. 2--1274A294,2--1274A294
• Citation: 337 N.E.2d 565,166 Ind.App. 684
• Parties: Hall COCHRANE et al., Appellants (Plaintiffs below), v. Harvey D. LOVETT, Appellee (Defendant below).
• Court: Indiana Appellate Court

Page 565

337 N.E.2d 565

166 Ind.App. 684

Hall COCHRANE et al., Appellants (Plaintiffs below), v. Harvey D. LOVETT, Appellee (Defendant below).

No. 2--1274A294.

Court of Appeals of Indiana, Second District.

Nov. 24, 1975.

Marshall E. Williams, Charles E. Johnson, Indianapolis, for appellants.

Jon D. Krahulik, Richard J. Darko, Indianapolis, for appellee.

BUCHANAN, Judge.

CASE SUMMARY

Plaintiffs-Appellants Hall Cochrane and Evelyn T. Cochrane, on behalf of their minor son, Douglas B. Cochrane, (Cochrane) appeal a negative judgment resulting from We affirm.

a medical malpractice action against Defendant-Appellee Dr. Harvey D. Lovett (Lovett), claiming that the trial court erred in submitting Court's Final Instruction 13 to the jury and rejecting Plaintiffs' Requested Instruction 11.

FACTS

The evidence and facts presented at trial most favorable to Lovett and the trial court's judgment are as follows:

On April 6, 1972, Cochrane filed a complaint in the Boone Circuit Court alleging that on or about May 14, 1970, Lovett carelessly and negligently failed to properly examine, diagnose and treat an illness from which Douglas B. Cochrane was then allegedly suffering . . . acute appendicitis. Damages sought were $100,000.00 for Douglas Cochrane and $50,000.00 for his parents Hall and Evelyn Cochrane jointly.

After a Motion for Change of Venue from the County was granted, trial to a jury commenced on June 17, 1974, at which time the court read Preliminary Instruction 2 to the jury. It stated:

'It is the duty of a doctor diagnosing the condition of, treating, or operating upon a patient to possess and use that degree of skill and learning which is ordinarily possessed and used by a doctor in similar practice in the same or similar localities at the time of the particular treatment or service. A failure to meet this standard of skill and learning constitutes negligence.

In deciding whether the doctor possessed and used the degree of skill and learning required, and whether or not such act or failure to act was the proximate cause of plaintiff, Douglas B. Cochrane's injuries, you may consider only the evidence presented by the doctors called as expert witnesses. However, expert evidence is not required where the treatment or the results thereof are of such character as to warrant an inference of want of care by persons of ordinary intelligence, sense and judgment.'

(Preliminary Instruction 2--also Final Instruction 13)

This Instruction was submitted to the parties, and Cochrane's sole objection at this time was:

'. . . to the language in court's preliminary instruction No. 2, as submitted to us this morning 'in the same or similar locality' for the reason that the same or similar locality rule, we believe, is now obsolete in view of the requirement, the uniform requirement for admission to practice, the standardization of tests for admission and the enhancement of communicative facilities and predication of hospital facilities throughout the country, and that the restriction of standard of care to a similar locality in a profession of that nature is no longer appropriate.' (Our emphasis.)

Following completion of the evidence, which was conflicting, the trial court included in its final instructions Court's Final Instruction 13, which was a verbatim statement of Preliminary Instruction 2.

Cochrane then objected to the Final Instruction 13 on a different ground than his objection to the identical language when given at the commencement of the trial as Preliminary Instruction 2:

'Mr. Williams:

Judge maybe I can define my point on this. I think the whole second paragraph is erroneous in that in determining whether the doctor had used the degree of skill you're not bound by the expert testimony. In determining what the degree of skill and care he was required to use, I think you are bound by expert testimony, but you are not bound by expert testimony in deciding if he used it because you are entitled to believe the At this time Cochrane also tendered Plaintiffs' Requested Instruction 11 with supporting argument:

plaintiff's story as opposed to the doctor's.' (Emphasis supplied.)

'Mr. Williams:

At this time in view of the Court's ruling on other objections, the Plaintiffs would tender Plaintiff's requested instruction No. 11, and request that the same be read in conjunction with the Court's final instruction No. 13, which reads as follows: 'However in determining whether or not the defendant did or omitted to do certain specific things, you may consider the testimony of other witnesses.' In support of our tender, Your Honor, we submit that instruction No. 13, as proposed, would permit a jury to consider and listen only to the defendant where the evidence is conflicting as to what the defendant did in specific instances of his examination and obtaining history and so forth, but since he is the only expert witness as between the conflicting witnesses, the plaintiffs and defendant, it would permit the jury to consider only his testimony and require them to disregard the plaintiffs' testimony as to whether he did the leg raising, for example, or if he turned Doug on his side or whether he asked certain questions or what he did on examination.'

The trial court overruled Cochrane's objection and submitted Final Instruction 13 to the jury without the addition of Cochrane's Requested Instruction 11.

On June 19, 1974, judgment was entered on verdicts of the same date for Lovett.

Cochrane appeals.

ISSUES

ISSUE ONE. Did the trial court err in giving Court's Final Instruction 13?

ISSUE TWO. Did the trial court err in refusing Plaintiffs' Requested Instruction 11?

As to ISSUE ONE, Cochrane contends that the entire second paragraph of Court's Final Instruction 13 (identical to Preliminary Instruction 2, and hereinafter referred to as Final Instruction 13) was erroneous in that a jury is not confined to expert testimony in determining what Lovett actually did or did not do in his diagnosis and treatment of Douglas Cochrane. They are also entitled to believe Cochranes' story as opposed to Lovett's. Although the jury is bound by expert testimony in determining what degree of skill and care Lovett was required to use, Cochrane asserts that Final Instruction 13 permitted the jury to consider jury Lovett's testimony where the evidence was conflicting because he was the only expert witness wich personal knowledge of facts in dispute. The jury was thus required to disregard Cochranes' testimony in determining what actually transpired during the examination and treatment of Douglas Cochrane.

In response, Lovett argues that Final Instruction 13 is an accurate statement of Indiana law and that Cochranes' strained and tortured interpretation of the language of the instruction should not be invoked to reverse a trial court's judgment when it is plain that a man of ordinary understanding would not have been misled. Furthermore, the exact language of Final Instruction 13 was given by the trial court in Preliminary Instruction 2 and Cochrane had an adequate opportunity to object to its submission at that time. Having failed to object upon the grounds now asserted in Appellants' Brief, Cochrane has waived any right to appeal.

As to ISSUE TWO, Cochrane contends that because the court erroneously submitted Final Instruction 13 it was reversible error to refuse Plaintiffs' Requested Instruction 11 (hereinafter Requested Instruction 11) which informed the jury that Lovett retorts that considering the final instructions as a whole, Requested Instruction 11 did not cover any relevant point on which the jury had not otherwise been fully and fairly instructed by the trial court.

it could consider the testimony of other witnesses in determining what steps Lovett did or did not take in diagnosing and treating Douglas Cochrane.

DECISION

ISSUE ONE

CONCLUSION--It is our opinion that the giving of Final Instruction 13 is not reversible error.

Cochrane's problem is that he objeced to Final Instruction 13 on a different ground than he objected to the identical language when first tendered as Preliminary Instruction 2 at commencement of the trial. His original objection was that '. . . the same or similar locality rule . . . is now obsolete. . . .' His objection at the close of the evidence was that the 'whole second paragraph' of Final Instruction 13 'is erroneous in that in determining whether the doctor had used the degree of skill you're not bound by the expert testimony.' Differently stated, he failed to make the specific and timely objection to a general instruction required by Indiana Rules of Procedure, Trial Rule 51, and particularly TR. 51(A):

'(A) General instructions at commencement of action. When the jury has been sworn the court shall instruct in writing as to the issues for trial, the burden of proof, the credibility of witnesses, and the manner of weighing the testimony to be received. Each party shall have reasonable opportunity to examine such instructions and state his specific objections thereto out of the presence of the jury and before any party has stated his case. The court may of its own motion and, if requested by either party, shall reread to the jury all or any part of the instructions so given along with the other instructions given to the jury at the close of the case. The parties shall be given reasonable opportunity to submit requested instructions prior to the swearing of the jury, and object to instructions requested or proposed to be given.' (Emphasis added.)

So our narrow inquiry is to determine if Cochrane is precluded from objecting to Final Instruction 13 because he failed to make the specific objection when the opportunity was first afforded him.

Unfortunately we find no helpful judicial interpretation of TR. 51(A), but it was lifted almost verbatim from its predecessor, Indiana Supreme Court Rule 1--7A: ¹

'1. When the jury has been sworn the court shall instruct in writing as to the issues for...