McNabb v. Mason, 269A25

• Decision Date: 17 December 1970
• Docket Number: No. 1,No. 269A25,269A25,1
• Citation: 264 N.E.2d 623,148 Ind.App. 233
• Parties: Margie G. McNABB, Administratrix of the Estate of Robert McNabb, Deceased, Appellant, v. Donald G. MASON, Appellee
• Court: Indiana Appellate Court

Page 623

264 N.E.2d 623

148 Ind.App. 233

Margie G. McNABB, Administratrix of the Estate of Robert

McNabb, Deceased, Appellant, v. Donald G. MASON, Appellee.

No. 269A25.

Appellate Court of Indiana, Division No. 1.

Dec. 17, 1970.

Howard E. Petersen, LaGrange, for appellant.

William F. McNagny, Robert L. Thompson, Jr., Fort Wayne, Barrett, Barrett & McNagny, Fort Wayne, of counsel, for appellee.

SULLIVAN, Judge.

In this medical malpractice action initiated by the appellant's decedent for damages against defendant-appellee, Dr. Mason, the summary judgment motion of the defendant was sustained. An appeal on the judgment was taken.

The amended complaint filed by plaintiff's decedent charged that on September 22, 1962, the defendant was consulted professionally concerning a circumcision operation to be performed upon the plaintiff, a forty-nine year old married man; that the defendant performed an operation but that during the surgery he negligently cut the urethra of the plaintiff causing abnormal urination through the site of the incision and that defendant also excised, without authorization, two substantial portions of the plaintiff's penis upon which laboratory analysis indicated a wart condition, which according to plaintiff's complaint was apparent by visual observation; that a subsequent operation was authorized for circumcision but that during the latter surgery two more portions of the penis were excised; and that a post-operative acid treatment for warts was then negligently prescribed and used by defendant upon the plaintiff. As a result of these procedures, plaintiff asserted that a major portion of his penis was severed; that he was unable to have sexual relations with his wife; that he incurred debts; that his body had become debilitated; his ability to work imparied, and that he suffered great physical pain and mental anguish.

The defendant-appellee denied plaintiff's allegations and in his answer claimed that he was consulted concerning a gross inflammation, soreness and discharge of plaintiff's penis; that he advised and later did perform surgery by making an incision upon the dorsal side of the prepusa of plaintiff's penis in order to determine the cause of the inflammation; that observing a condition indicating a predisposition to cancer he followed standard and accepted medical procedure by removing two tissue samples, .5 to .8 centimeters in diameter, for laboratory tests; that after consultation and examination of plaintiff by a urologist a second operation involving the removal of warts by electro-cautery was advised and also performed by defendant; and that post operative treatment as well as all other treatment was rendered according to the accepted medical standard of due care in the treatment of such condition in the locale.

After five years of assorted and varied legal skirmish and delay, ¹ during which the plaintiff McNabb's widow and administratrix became substituted as party plaintiff, defendant filed a motion for summary judgment. The motion was accompanied by the affidavits of the defendant and the consulting physician, Dr. Ward. Said motion, in part, reads as follows:

'The affidavits show conclusively that the treatment given the plaintiff was correct for the condition for which he was suffering and that his problems stem entirely from his own conduct, habits and failure to follow the doctor's directions.

'It is the understanding of the undersigned that the plaintiff is deceased by reason of a malignancy which is the very condition for which defendant herein took precautions in the form of a biopsy. Plaintiff, as shown by the affidavit of Dr. Mason, was in a state which often preceeds a malignancy and he was so treated. The fact that the plaintiff later developed a malignancy and died therefrom is about the most conclusive evidence one could present that he was being treated in the proper fashion by Dr. Mason.

'The court is further asked to note the period when this case has pended and the complete inactivity on the part of the plaintiff for a considerable period of time.'

No affidavits or other evidence were offered by plaintiff-appellant. ² After hearing, the court sustained defendant's motion and entered judgment thereupon.

Although plaintiff-appellant alleges several instances of error upon appeal only the propriety of the court's ruling on the summary judgment motion will be here considered.

The relief granted is supported solely by two affidavits. The affidavit of Dr. Gerald Ward, consulting physician, indicated an opinion that the treatment administered by defendant met every standard of due care in the community. That opinion was extremely generalized and conclusionary in nature and was directed by its specific language only to the treatment subsequent and relative to the dorsal incision made by defendant. It did not relate to other allegations by plaintiff of negligent treatment, e.g., biopsy excisions or acid treatment. Defendant's affidavit stated that Mr. McNabb was treated initially for inflammation of the penis at which time circumcision was advised but to be performed subsequently. A second operation was performed for removal of warts, not for cancer, though plaintiff had a condition predisposed to cancer. The affidavits of both Drs. Ward and Mason for the most part contain mere conclusions which may or may not be accurate depending upon the unstated facts supporting such conclusions and upon the credibility of the individual stating such opinion. We have held that in such instances the granting of a summary judgment is improper. Mayhew v. Deister (1969), Ind.App., 244 N.E.2d 448.

As noted in Doe v. Barnett (1969), Ind.App., 251 N.E.2d 688, 695:

'* * * Summary judgment is seldomly appropriate in negligence cases where the standard of the reasonable man must be applied to conflicting evidence. Even in cases of undisputed facts it is usually for the trier of fact to determine whether the conduct in question met the standard of the reasonable man.

'* * * If there is a question as to the state of mind, credibility of witnesses or weight of testimony summary judgment should be denied.

'* * * Even where the trial judge may surmise that the proponent of a motion for summary judgment is likely to prevail at the trial, this is not a sufficient basis for refusing the respondent to a motion for summary judgment his day in court with respect to any genuine issue as to a material fact.'

We believe such to be the case here.

There were several indications of record which would lead one to strongly infer, if not clearly determine that a genuine issue existed as to material facts. In answers to interrogatories, the defendant indicated that the physician-patient relationship terminated when Mr. McNabb refused to follow instructions and consulted another doctor. Defendant further stated that in his opinion the cause of the disability, which plaintiff alleged was caused by defendant's negligence, was the presence of carcinoma in addition to venereal warts and existent at the time of defendant's treatment of plaintiff. Further, Dr. Ward in a deposition which was before the trial court during the summary judgment proceeding, recalled that the original biopsy 'did not show any sort of malignant condition.' Dr. Ward additionally stated that upon examination following the initial surgery he was not sure whether Mr....