Kranda v. Houser-Norborg Medical Corp.

Decision Date05 May 1981
Docket NumberHOUSER-NORBORG,No. 3-480A107,3-480A107
Citation419 N.E.2d 1024
PartiesMary C. KRANDA, Appellant (Plaintiff Below), v.MEDICAL CORPORATION and Keim T. Houser, M.D., Appellees (Defendants Below).
CourtIndiana Appellate Court

Daniel J. Harrigan, Bayliff, Harrigan, Cord & Maugans, P. C., Kokomo, Edward A. Zych, Matthews-Petsche & Associates, South Bend, for appellant.

Edward A. Chapleau, Chapleau, McInerny, Minczeski & Farabaugh, South Bend, for appellees.

YOUNG, Presiding Judge.

Mary C. Kranda, appellant-plaintiff, appeals from a negative judgment in a medical malpractice action against Houser-Norborg Medical Corporation and Dr. Keim Houser, M. D. The trial court granted judgment on the evidence as to the issue of informed consent and the issue of the defendant corporation's liability. The jury returned a verdict for Dr. Houser and judgment was entered accordingly.

On appeal, Kranda raises a number of issues for our consideration. For purposes of review, we have consolidated similar questions.

(1) Whether the trial court erred in permitting members of the review panel to testify and in admitting each individual panel members' written opinion into evidence.

(2) Whether the opinion of the Medical Review Panel should be excluded because it was rendered pursuant to the Indiana Medical Malpractice Act which Kranda contends is unconstitutional.

(3) Whether the trial court erred in refusing to admit into evidence the deposition of Dr. Roseman who testified at trial and the minutes of the Medical Review Panel meeting.

(4) Whether the trial court erred in withdrawing the issue of informed consent from the jury's consideration.

(5) Whether the trial court erred in the imposition of a "one pass rule."

(6) Whether the trial court erred in giving certain instructions and in refusing certain requested instructions.

(7) Whether the trial court erred in granting judgment on the evidence in favor of defendant Houser-Norborg Medical Corporation.

We affirm.

In October 1975 Kranda consulted Dr. Keim Houser, an obstetrician-gynecologist employed by Norborg-Houser Medical Corporation, concerning problems she was having with vaginal warts. At this time, Dr. Houser also noted a Bartholin cyst deep within the tissue on the left side of her vagina. From Kranda's medical history, Dr. Houser knew that a similar cyst had been surgically removed from the same area in 1972 and that Kranda suffered from Crohn's disease 1 which had resulted in a number of hospitalizations.

After several attempts to treat the warts with medication, Dr. Houser recommended and scheduled the surgical removal of them. Before this surgery, Kranda developed problems with the Bartholin cyst. She consulted Dr. Norborg about this problem, who prescribed antibiotics and hot baths. When this treatment caused the cyst to fill with pus and open, Dr. Norborg stated that he would schedule removal of the cyst on the same date as her other surgery.

On January 28, 1976 Dr. Houser did a preoperative examination and discussed the possibility of removing the cyst during the surgery for the warts. At this time he did not discuss her Crohn's disease or the risks associated with it in surgery. Dr. Devetsky, Kranda's treating physician for her Crohn's disease, discussed with Dr. Houser the use of steroids and stated that he would order the necessary steroids. Neither doctor discussed the effect of steroids on the healing process with Kranda.

Surgery was performed on February 6, 1976 by Dr. Houser. During the surgery, he removed the remaining part of the Bartholin gland and the cyst. In this process, Dr. Houser brought the cyst up and did a rectal exam to determine the location of the scar tissue from the prior surgery. He peeled the tissue away from the cyst. Dr. Houser testified that he could not see where the rectum was because of tissue fibrosis and scarring. As he was removing the cyst, he recognized a small rent (tear) in the rectal mucosa. Dr. Houser repaired this rectal laceration by sutures placed close to the rectum. That evening Dr. Houser told Kranda of the rectal entry and the repair and stated that he did not think there would be any problems.

On February 10, 1976 Kranda was released. That evening she felt gas escaping from the incision. Fecal matter escaped from a hole not present prior to surgery. The following day she saw Dr. Houser who could find no fecal matter escaping from a hole. The deep rectal sutures were still intact. On the 13th of February she again went to see Dr. Houser for the same problem. Because Dr. Houser was not in the office his father, also an obstetrician-gynecologist, saw her and upon examination recognized a fistula. He recommended heat treatment until he could consult with his son, Dr. Keim Houser. On the same day, Kranda saw her internist. In view of her underlying illness, he immediately recommended going to Chicago for repair surgery. She entered Rush-Presbyterian-St. Lukes Hospital in Chicago the next day. At St. Luke's, Dr. Roseman, a surgeon, performed a temporary colostomy which diverted the fecal matter from the rectum to promote the healing of the fistula. Following this operation, a bowel obstruction developed as a result of her Crohn's disease and part of the bowel had to be removed. She underwent another operation for an ileostomy. In January 1977 Dr. Roseman eliminated the ileostomy and made the colostomy partial. Kranda then improved; however, several days later she developed an abscess which was lanced several times before she returned to St. Luke's Hospital for a complete colostomy. Other than activation of her Crohn's disease, Kranda has had no further complications. She currently has a complete colostomy.

Appellant Kranda first claims error in the trial court allowing two panel members to testify regarding their decisions and in admitting each panel member's written opinion because each opinion was based upon casual conversations with other physicians. Kranda refers to Indiana Code 16-9.5-9-4 2 to support her contention that the only information to be considered under this act is evidence submitted in writing by the parties. While Section 4 might leave that impression if read alone, Section 6 of the same act permits the panel to consult with medical authorities. 3 Kranda argues, however, that this language means only that the panel may consult treatises, journals, medical textbooks and similar medical authorities. Therefore, she contends the panel member's opinions were not formulated in accordance with the statute and members should not be able to testify or have their opinions admitted. We disagree. In construing a statute words used are to be given their usual and ordinary meaning; a court should not so construe a statute as to willfully and unnecessarily narrow its provisions. Evansville-Vanderburgh School Corporation v. Roberts, (1979) Ind.App., 395 N.E.2d 291. To assign Kranda's meaning to the statutory term "medical authorities" would unnecessarily narrow this provision. The ordinary meaning given to "authorities" includes both written materials and individuals qualified in the field. See e. g. Webster's Third New International Dictionary 146 (1976). In addition, the term appears to refer to individuals when read in the context of the section which states that "(t)he panel may consult with medical authorities." IC 16.9.5-9-6. Ordinarily one consults with a person rather than a book or written materials.

Kranda further claims that these consultations are impermissible because she had no opportunity to cross-examine these consulted physicians, had no knowledge of these conversations and could not offer rebuttal evidence. However, Section 5 of the same act provides either party with the opportunity to convene the panel and question members concerning any matters relevant to the issues to be decided by the panel. 4 Thus, she had access to this information in her opportunity to question members as to whether and what consultations were made. She then had the opportunity to offer rebuttal evidence. Her claim is therefore without merit and the admission of testimony and the opinions were not error in this respect.

In addition, Kranda contends that these opinions are inadmissible because panel members were not advised of the law of evidence or legal standards applicable to a medical malpractice case. The record does not support this contention. Dr. Cook, one member of the panel, testified that the panel had a copy of the malpractice statute which the chairman went through in detail in the panel's introductory preparation. Furthermore, the statute contemplates that the panel will function in an informal and reasonable manner. Johnson v. St. Vincent's Hospital, Inc., (1980) Ind., 404 N.E.2d 585. The panel does not conduct a hearing or trial and does not render a decision or judgment. Rather than adjudicate the merits of the claim, its purpose is to conduct a rational inquiry into the extent and source of the patient's injuries for the purpose of forming its expert opinion. Id. at 596. The chairman acts in an advisory capacity only, 5 supervising the panel to assure that each party has a reasonable opportunity to present its evidence and authorities. See, e. g. Johnson, supra. Nothing in the record suggests that the chairman did not fulfill his duty. Furthermore, we find nothing in the statute requiring the panel to comply with the formal rules of evidence in conducting its inquiry. Therefore we cannot find the opinions inadmissible on this basis.

Kranda also argues that each individual panel member's testimony and written opinion are inadmissible because they are hearsay and are contrary to IC 16-9.5-9-7 6 and IC 16-9.5-9-9 7 which she contends provides only for a collegial opinion. We reject the hearsay argument. First, an expert witness can draw upon all sources of information coming to his knowledge or through the results of his investigation in order to enable him to formulate an...

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