Klinger v. Caylor, No. 1069A178

• Docket Nº: No. 1069A178
• Citation: 267 N.E.2d 848, 148 Ind.App. 508
• Case Date: March 25, 1971

Page 848

267 N.E.2d 848 148 Ind.App. 508 Esther L. KLINGER, Appellant,
v.
Harold D. CAYLOR, Truman D. Caylor, Jack L. Eisaman, Thomas
O. Dorrance, and Pierre C. Talbert, d/b/a Caylor-Nickel
Clinic, Caylor-Nickel Hospital, Inc., the Caylor-Nickel
Research Foundation, Inc., Merrill W. Rusher, Bruce S.
Kephart, John Doe,(whose true name is unknown to Plaintiff);
and Pichard Roe, (whose true name is unknown to Plaintiff), Appellees. No. 1069A178. Appellate Court of Indiana, In Bank. March 25, 1971.
Rehearing Denied April 29, 1971.

[148 Ind.App. 511]

Page 849

Bowman & Crowell, Jerrald A. Crowell, Fort Wayne, for appellant.

Barrett, Barrett & McNagny, J. A. Bruggeman, Robert L. Thompson, Jr., Fort Wayne, for appellees.

LOWDERMILK, Judge.

Plaintiff-appellant brought her action in three pleading paragraphs against defendant-appellees, which consisted of physicians, surgeons, a clinic and hospital.

The first pleading paragraph of complaint alleged that appellees Rusher, Kephart and Roe were practicing physicians and surgeons holding themselves out to be competent and skillful, and that appellees Harold D. Caylor, Truman E. Caylor, Eisamn, Dorrance, and Talbert were partners doing business as the Caylor-Nickel Clinic, and Caylor-Nickel Hospital, Inc., and the Caylor-Nickel Research Foundation, Inc. operated a clinic which they held out to the public as being properly operated for clinic and hospital services.

It is further alleged that appellee Doe was employed by all three of his co-defendant appellees Caylor-Nickel. Said pleading paragraph further alleged that in January, 1964, appellant employed appellees Caylor-Nickel and appellees Rusher, Kephart and Roe to perform surgery on her; she was admitted to the clinic on January 29, 1964, and surgery consisting of a rectocele repair was performed by appellees Rusher, Kephart and Roe, with appellee Doe assisting, on January 30, 1964. While appellant was under an anesthetic, appellees Rusher, Roe and Doe placed surgical padding in appellant's body, which they lost and failed to remove and failed to inform appellant of its presence. Appellant remained in the hospital under the care of said doctors and

Page 850

other employees of the clinic until February 11, 1964. Appellant failed to regain her health and suffered from debility, bowel stoppage, bloating, hypertension and intense physical and mental pain and suffering, because of the surgical padding which remained in her body. On November 28, 1964, appellant passed the padding [148 Ind.App. 512] through her rectum, resulting in a partial remission of symptoms, but a variety of infections were caused, requiring medical treatment and medication and her health was permanently impaired.

The complaint charges further that appellees Rusher, Kephart, Roe and Doe were negligent in failing to remove the padding after the surgery, in failing to inform appellant of its presence and failing to remove it at all times subsequent to the operation.

Pleading Paragraph II contains the same allegations of pleading Paragraph I, but further alleges that appellees Rusher, Kephart, Roe and Doe were employees of appellees Caylor-Nickel at the time and further alleges appellees Caylor-Nickel were negligent in failing to provide and implement operating room procedures which would have prevented the leaving of surgical padding in appellant. It further alleged that said appellees were negligent in employing and retaining negligent personnel and in failing to properly supervise and control the actions of its employees.

Pleading Paragraph III contains the same allegations as pleading Paragraph I, but further asserts that the specific operating procedures and relationship of the appellees is not known to appellant, but are peculiarly within the knowledge of appellees, and that the padding and operating procedures were in the exclusive management and control of appellees, and the padding would not have been left in appellant's body without negligence on the part of appellees.

Appellees filed a motion for summary judgment, together with the affidavit of appellee Rusher, filed in support thereof, alleging there was no genuine issue as to any material fact.

The affidavit of appellee Rusher was to the effect that he was a qualified expert in the field of medicine and had special training in the fields of surgery, gynecology and obstetrics; that he performed the surgery on appellant and her bowel was not packed in any manner; that none of the appellees [148 Ind.App. 513] failed to remove surgical padding from appellant's body; and that it is scientifically and medically impossible for appellant to have received her alleged injuries as the result of the operation he performed.

Appellant filed her affidavit in opposition to appellees' motion which averred that appellees performed the surgery on her as alleged in her complaint and during the course of surgery, surgical padding was placed in her rectum and not removed; that the padding created a block in appellant's digestive tract for an extended period of time; that the surgical padding was, at the time of the filing of the affidavit, in the possession of defense attorneys, it having been turned over to them with the understanding that laboratory tests were to be run to determine its composition, but tests had not at that time been made and the results not furnished to appellant as agreed.

Appellant further deposed that in the time available before the hearing on the motion appellant had been unable to obtain medical affidavits to refute appellees' medical allegations because local physicians were unwilling to involve themselves in disputes involving a local medical group.

Thereafter, arguments were had on the motion for summary judgment and the court sustained said motion and entered judgment for appellees.

The judgment, as amended, is in the words and figures as follows, to-wit:

'Plaintiff's complaint alleges that plaintiff suffered damages in the sum of $25,000.00 as a result of a bowel obstruction

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resulting from surgical padding negligently left in plaintiff's body during surgery performed on or about January 29, 1964, by defendant.

'Defendants' motion for summary judgment, filed March 18, 1969, is accompanied by an affidavit of the medical doctor who performed the surgery, denying he or any of the defendants negligently lost, left, or failed to remove any surgical padding or material in the body of plaintiff and alleging that it is scientifically and medically impossible for plaintiff to have received the injury and condition of which [148 Ind.App. 514] he complains as a result of the operation performed by him.

'The Indiana statute concerning summary judgments, Burns' Indiana Statutes Section 2--2524, provides in sub-section (e) thereof as follows:

'Form of Affidavits--Further Testimony--Defense Required. Supporting and opposing affidavits shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated thereon. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.'

'As it applies to this case it seems clear that this statute requires, in response to defendants' motions and affidavit, the submission of affidavits of a medical doctor or medical expert to the effect that a bowel obstruction developed in plaintiff subsequent to this surgery; that said obstruction resulted from surgical padding negligently left in her body at the time of the surgery and that she suffered physical harm as a result thereof, in certain specified ways.

'Plaintiff's affidavit in opposition to defendants' motion for summary judgment has no such affidavits attached to it, but only the affidavit of plaintiff who is not shown to be a medical doctor or medical expert, repeating the allegations of plaintiff's complaint.

'Oral argument was heard on the motion and plaintiff's counter affidavit on April 28, 1969. Plaintiff did not request additional time for depositions or further discovery as might have been allowed pursuant to sub-section (f) of Indiana Statutes Section 2--2524. Plaintiff's affidavit fails to establish a justiciable issue and is therefore inadequate to establish a genuine issue for trial against defendants' motion; therefore defendants' motion for summary judgment must be granted.

'Finding and judgment for defendants and against plaintiff. Judgment against plaintiff for costs.'

[148 Ind.App. 515] Appellant timely filed her transcript and assignment of errors with the Clerk of this court, which assignment of errors is that the court erred in sustaining defendants' motion for summary judgment and granting judgment for the defendants and against the plaintiff.

Appellant, in her argument, insists that the court erred in granting the summary judgment and vigorously contends that there was a genuine triable issue of fact and that summary judgment should therefore not have been granted.

Appellant insists that the first two Paragraphs contain specific allegations of negligence; that the third Paragraph of complaint was based on res ipsa loquitur. Appellant

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points out that the amended judgment of the court does not distinguish between the three Paragraphs of the complaint and urges that there are three separate issues raised by the court's ruling.

This court will not treat the three...