Davis v. Schneider

• Citation: 182 Ind.App. 275,395 N.E.2d 283
• Decision Date: 28 September 1979
• Docket Number: No. 1-877A176,1-877A176
• Parties: Mabel Bernice DAVIS, Plaintiff-Appellant, v. K. D. SCHNEIDER, M.D., Defendant-Appellee.
• Court: Court of Appeals of Indiana

Page 283

395 N.E.2d 283

182 Ind.App. 275

Mabel Bernice DAVIS, Plaintiff-Appellant, v. K. D. SCHNEIDER, M.D., Defendant-Appellee.

No. 1-877A176.

Court of Appeals of Indiana, First District.

Sept. 28, 1979.

Glenn E. Davis, Sr., Davis & Davis, Indianapolis, Gerald G. Angermeier, Jewell, Crump & Angermeier, Columbus, for plaintiff-appellant.

Robert L. Stevenson, Stevenson, Marshall & Silva, Columbus, for defendant-appellee.

LYBROOK, Judge.

Mable Bernice Davis (Davis) was injured when the automobile in which she was a passenger collided with another automobile. She was thrown out and landed with her back draped across the curb, her feet extending into the street and her upper torso on the sidewalk. The automobile in which she was riding turned over and landed on her legs and hips, pinning her to the curb. The accident resulted in Davis' fractured spine and paraplegism.

Davis was taken by ambulance to the Bartholomew County Hospital where she was attended by Dr. K. D. Schneider, M.D. (Schneider). Davis brought suit against Schneider alleging negligence in his treatment of her, such negligence resulting in her present degree of paralysis. The jury returned a verdict in favor of Schneider. Thereafter Davis filed a timely motion to correct errors, which was denied, and a timely praecipe. This appeal results.

We affirm.

In her motion to correct errors Davis presents the following issues for our review:

(I) Whether the trial court erred in denying Davis' motion to amend her complaint to conform with the evidence?

(II) Whether the trial court erred in refusing to give Davis' Instruction No. 8?

(III) Whether the trial court erred in refusing to give Davis' Instruction No. 9?

(IV) Whether the trial court erred in giving Schneider's Instruction No. 6 over Davis' objection?

(V) Whether the trial court erred in giving Schneider's Instruction No. 3 over Davis' objection?

(VI) Whether the trial court erred in allowing Dr. Charles Cure to testify concerning Davis' injury and the effect upon said injury that negligence by Dr. Schneider in the treatment of Davis might have caused?

(VII) Whether the trial court erred in allowing into evidence expert testimony concerning Davis' injury and the effects of Schneider's treatment of the injury, which showed that no act or omission by Schneider contributed to, or aggravated, Davis' injury?

(VIII) Whether the trial court erred in applying the "best evidence rule" to tendered evidence concerning Davis' bills from the Chicago Rehabilitation Institute?

(I)

At the close of Schneider's case-in-chief, Davis moved to amend her complaint by interlineation to allege that Schneider was negligent and careless in his treatment, examination and diagnosis of her By and through his agents, a nurse and other medical staff, members at Bartholomew County Hospital. The trial court denied the motion.

Ind. Rules of Procedure, Trial Rule 15(B) states:

"(B) Amendments to conform to the evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence."

Amendments to pleadings, pursuant to T.R. 15(B), are allowed where facts are sufficiently pleaded in the original complaint which should have put the other party on notice as to the evidence presented at trial. Thompson Farms, Inc. v. Corno Feed Products Division of National Oats Co., Inc., (1977) Ind.App., 366 N.E.2d 3. "(T)he policy behind T.R. 15(B) is to promote relief for a party based upon the evidence actually forthcoming at trial, notwithstanding the initial direction set by the pleadings." Ayr-Way Stores, Inc. v. Chitwood, (1973) 261 Ind. 86, 300 N.E.2d 335, 338. Therefore, pleadings can, and should, be amended to conform to the evidence presented in the case. When a trial has ended without objection or qualification to its course, the evidence presented should control. See also Puckett v. McKinney, (1978) Ind.App., 373 N.E.2d 909. The pleadings should not operate to deprive the trier of fact of its duty or finding the facts which the evidence permits.

In the case at bar, no evidence was presented by Davis to show that an agency relationship existed between the "nurse" and Schneider, or other medical staff members and Schneider. All evidence concerning any agency relationship was presented by Schneider and was, in essence, negative evidence which refuted any agency relationship. Therefore, the trial court properly refused to grant Davis' motion to amend her pleadings.

(II)

Davis' next allegation of error is that the trial court refused to give her tendered Instruction No. 8. This tendered instruction stated:

"An agency is the relationship that results from the consent by one person to act for another and subject to his control. The one who does the act is called the agent, and the one for whom the agent is acting is called the principal. If you find that the defendant, K. D. Schneider, M.D., is a principal and others acted as his agent at Bartholomew County Hospital, and further, if you find such agent was negligent, then you must find that the principal, K. D. Schneider, M.D., was negligent."

As mentioned above, Davis introduced no evidence addressing an agency relationship between Schneider and either a nurse at the Bartholomew County Hospital or staff members of that hospital. An instruction concerning such agency relationship was, therefore, not warranted. Instructions not pertinent to the issues presented at trial should be refused by the trial court. Spence v. Downham, (1967) 140 Ind.App. 385, 223 N.E.2d 587. See also Horton v. Sater, (1966) 140 Ind.App. 1, 221 N.E.2d 452.

(III)

Davis next alleges that the trial court erred in refusing to give her Instruction No. 9 to the jury. This instruction stated:

"A doctor, in performing an examination or in diagnosing and treating a patient under his care, may not delegate to a nurse the responsibility to see that X-rays necessary to a diagnosis of the condition of the patient are, in fact, taken. The doctor is further under a duty to use reasonable and ordinary care in determining that proper X-rays were taken and the results of that X-ray examination."

As previously stated, the trial court need not give instructions pertaining to issues not presented before the court. Spence, supra; Horton, supra. Instruction No. 9 refers to a delegation of duty from a doctor to a nurse. Davis presented no evidence concerning this issue; therefore, the instruction was properly denied by the trial court.

Even if such delegation of authority had been pleaded, and evidence presented concerning such delegation, the refusal of Instruction No. 9 by the trial court was proper. To recover, Davis apparently is relying on the fact that Schneider gave oral orders to one Nurse Maupin to have X-rays taken of Davis' skull, ribs, legs and spine, and that Maupin only ordered X-rays of the skull, ribs and legs. We further assume that Davis intended to show that Maupin was Schneider's agent; thereby, Maupin's mistake in ordering X-rays was also the mistake of Schneider under a theory of Respondeat superior.

If the above were the intent of Davis, a leading case refutes this theory of recovery. In Keene v. Methodist Hospital, (1971) 324 F.Supp. 233 (N.D.Ind.), it was determined that a physician's relationship to a hospital is that of an independent contractor, and that the hospital is not responsible for medical acts performed by him. A hospital is, however, responsible for the administrative and ministerial duties requisite to the operation of a hospital. Keene, supra, at 234. The manner in which physician's reports are recorded, and the channel through which such information is conveyed, are administrative matters. A hospital is responsible for negligent failure of its administrators to provide such procedures.

In the case at bar, the parties agree that Schneider's oral orders to Nurse Maupin were properly transcribed onto hospital records by her, but she failed to include the orders to X-ray Davis' spine when she filled out the X-ray requisition. It was usual hospital procedure to fill out the X-ray requisition from the orders on the original hospital records. Consequently, only orders concerning X-rays of Davis' skull, ribs and legs were transmitted to the X-ray Department, and only such X-rays were taken.

The hospital had a duty to assure that Schneider's orders for X-rays were properly recorded and conveyed to the X-ray Department. It was an administrative duty for which the hospital was responsible. Therefore, Instruction No. 9 stating that "a doctor . . . may not delegate to a nurse the responsibility to see that X-rays . . . are, in fact, taken" was not, in its actual context, an appropriate instruction and was properly denied by the trial court.

(IV)

Davis next contends that it was error for the trial court to give Schneider's tendered Instruction No. 6 which stated:

"You are instructed that in considering whether the defendant in his treatment and care of plaintiff exercised reasonable care and skill on medical issues, you cannot set up a standard of your own, but you must be guided in that regard by the...