Dolezal v. Goode

• Decision Date: 13 April 1982
• Docket Number: No. 3-381A71,3-381A71
• Citation: 433 N.E.2d 828
• Parties: Gregory M. DOLEZAL and Beverly J. Dolezal, Husband and Wife, and Genevieve Dolezal, Their Minor Daughter, Plaintiffs-Appellants, v. Robert J. GOODE and Starke Memorial Hospital, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 828

433 N.E.2d 828

Gregory M. DOLEZAL and Beverly J. Dolezal, Husband and Wife and Genevieve Dolezal, Their Minor Daughter Plaintiffs-Appellants, v. Robert J. GOODE and Starke Memorial Hospital, Defendants-Appellees.

No. 3-381A71.

Court of Appeals of Indiana, Third District.

April 13, 1982.

Charles A. Asher, Myron J. Hack, South Bend, for plaintiffs-appellants.

Edward A. Chapleau, Chapleau, McInerny, Minczeski & Farabaugh, South Bend, for defendant-appellee Robert J. Goode.

R. Kent Rowe, South Bend, for defendant-appellee Starke Memorial Hospital.

GARRARD, Judge.

Beverly Dolezal had worked as an assistant for Dr. Robert Goode. During her pregnancy Beverly consulted with Dr. Goode and he advised her on prenatal care. Late in the pregnancy Dr. Goode discovered that the fetus was in a breech presentation and he advised that the baby be delivered by caesarean section. On May 20, 1977 another physician, Dr. Law, delivered the infant girl by caesarean section in Starke Memorial Hospital. Dr. Goode was in attendance as an assistant. He fully examined the infant immediately after birth. He found that she was in good health, being orthopedically and neurologically sound.

Dr. Goode visited Beverly and the infant daily. On the day of discharge, the 24th of May, Dr. Goode looked in on Beverly and the infant. He determined that the infant was healthy after he observed her behavior, but he did not conduct an extensive examination of the infant because she had been dressed and bundled for her trip home.

On May 26 Beverly noticed that the infant's upper left leg was swollen and that the infant did not want the leg moved. The next day Beverly was examined by Dr. Goode and she mentioned the infant's swollen leg. Dr. Goode examined the infant and ordered that x-rays be taken. The x-rays indicated that the infant was suffering from a fracture of the upper left femur. The infant was then admitted to the LaPorte Hospital where she was treated for the fracture.

Beverly and her husband Gregory filed suit against Starke Memorial Hospital and Dr. Goode. As to Starke Memorial, the Dolezals alleged that their infant daughter was negligently injured by someone within the employ of the hospital. The action against Dr. Goode asserted that his decision not to conduct a pre-discharge examination of the infant caused the infant's injuries to go untreated and become exacerbated, all of which constituted medical malpractice.

The Dolezals' case proceeded to trial. Because the extent of the injury to the infant was unknown, the Dolezals asked for a bifurcated trial so that the issue of liability could be tried in the present action but the question of the amount of damages could be postponed. The court granted this motion.

After the Dolezals rested their case, Starke Memorial and Dr. Goode each moved for a judgment on the evidence pursuant to Indiana Rules of Procedure, Trial Rule 50. The trial court denied Starke Memorial's motion but granted a judgment on the evidence in favor of Dr. Goode.

The issue of Starke Memorial's negligence was submitted to the jury, which returned a verdict in favor of the hospital. The Dolezals filed a motion to correct errors and from a denial of that motion they now appeal.

The appellants raise two distinct issues:

1. Did the trial court err in granting Dr. Goode's Trial Rule 50 motion for a judgment on the evidence?

2. Did the trial court err in giving jury instruction 7?

ISSUE I

The Dolezals contend that the judgment on the evidence at the close of their case in chief was in error because their proof established a prima facie case of medical malpractice against the doctor. They assert the evidence shows that Dr. Goode had a duty to perform a pre-discharge examination of the infant and that his cursory observation of the clothed child on the day of release was below the level of care owed by him.

Since a judgment on the evidence was granted at the close of plaintiff's case, the issue on appeal is whether there was sufficient evidence presented by the Dolezals to establish a prima facie case of medical malpractice. Killebrew v. Johnson (1980), Ind.App., 404 N.E.2d 1194, 1196. To make a prima facie case a plaintiff must show that (1) a duty was owed to him by the defendant; (2) the defendant breached this duty by permitting his conduct to fall below the set standard of care; and (3) the plaintiff suffered a compensable injury proximately caused by the defendant's breach of duty.

The doctor's Trial Rule 50 motion asserted that in a medical malpractice case the plaintiff must establish the requisite standard of care by utilizing expert testimony. Because the Dolezals did not call medical experts to testify as to whether the recognized standard of care required a pre-discharge examination, the doctor contended that the Dolezals failed to carry their burden of proof. The trial court agreed and granted the motion. The doctor maintains these arguments on appeal.

The Dolezals argue that a jury, without the guidance of experts, could reasonably have found that the doctor's failure to perform a pre-discharge examination constituted negligence. Also, they assert that Dr. Goode's testimony established a standard of care and that his actions fell below that standard.

In the usual negligence action the defendant's conduct is judged against what a reasonable man would do under the circumstances.

"The traditional standard to be applied is whether the defendants exercised their duty with the level of care that an ordinary prudent person would under the circumstances."

Miller v. Griesel (1974), 261 Ind. 604, 308 N.E.2d 701, 706.

However, in caring for and treating the ailment of his patient a physician is recognized as holding himself out to have the special qualifications of his profession and the reasonable character of his conduct is to be judged by them.

"The degree of skill and care required of the physician or surgeon who is employed because he is a specialist, is that degree of skill and knowledge which is ordinarily possessed by physicians and surgeons who devote special attention to the ailment, its diagnosis and treatment, in similar localities. Worster v. Caylor, supra, 231 Ind. 625, 110 N.E.2d (337) at 339; Baker v. Hancock (1902), 29 Ind.App. 456, 64 N.E. 38."

Bassett v. Glock (1977), Ind.App., 368 N.E.2d 18, 22.

The question of whether a physician has exercised the degree of skill and care possessed by physicians in the locality involves questions of science and professional judgment which are outside the realm of the layperson. Adkins v. Ropp (1938), 105 Ind.App. 331, 14 N.E.2d 727.

"Indiana courts have held that this question may not be resolved without resort to expert testimony. Similarly, expert opinion is indispensable to an evaluation of a particular defendant's conduct within the framework of the duty imposed by law.

(T)he substantive law requires expert opinion as to the existence and scope of the standard of care which is imposed upon medical specialists and as to whether particular acts or omissions measure up to that standard of care."

Bassett v. Glock, supra, 368 N.E.2d at 23-4. See, e.g., Davis v. Schneider (1979), Ind.App., 395 N.E.2d 283; Cochrane v. Lovett (1975), 166 Ind.App. 684, 337 N.E.2d 565.

The Dolezals did not call an expert to testify on the issue of malpractice. Thus, no medical testimony was presented establishing that a pre-discharge examination was a necessity to the delivery of reasonable care rendered by physicians in attending the birth of a child. The appellants did ask Dr. Goode whether he recognized the standards and publications of the American Academy of Pediatrics (A.A.P.) to be authoritative in the field to which they spoke. The doctor replied that he recognized the publication as authoritative. Appellants' counsel then read an excerpt from an A.A.P. publication which stated that "A complete examination (of an infant) should be performed within twenty-four hours by the physician in charge of the infant." The doctor agreed with the statement. Appellants' counsel then read another excerpt which stated that an examination should be made within 12 hours before the baby is discharged. The doctor disagreed with this proposition. The Dolezals assert that by agreeing with the first excerpt Dr. Goode recognized the standards of care put forth by the publication. Hence, he was bound by the publication's second proposition that a pre-discharge examination should be conducted. We do not accept the Dolezals' argument. Whatever the worth of this A.A.P. publication, the act of reading excerpts to the doctor did not establish a standard of care.

Dr. Goode performed an examination of the infant immediately after her birth. Naturally, he would agree with the propriety of such a procedure, regardless of what source espoused it. Agreement with the procedure followed in one statement does not bind him to the procedures outlined in another statement emanating from the same source.

Furthermore, no evidence was adduced that the procedures outlined by the publication are necessary or appropriate to the degree of skill and care required in the locality where Dr. Goode practiced, in Knox, Indiana. Appellants' cross-examination of Dr. Goode did not establish what standard of care was owed by the doctor to the Dolezals and their infant daughter.

We are also concerned by an issue which the parties have not addressed. We noted above the elements of a cause of action for negligence, with the third element being that the plaintiff suffer a compensable injury proximately caused by the defendant's breach of duty. The evidence herein does not prove how any failure to conduct an examination proximately caused injury to the infant.

The Dolezals asked for a bifurcated trial, requesting that the issue of damages be tried in separate proceedings. At issue in the present trial were the doctor's and hospital's liabilities. While the evidence established that the infant's...