Meier v. Combs, 769A136

• Decision Date: 26 October 1970
• Docket Number: No. 769A136,No. 2,769A136,2
• Citation: 147 Ind.App. 617,263 N.E.2d 194
• Parties: Marion MEIER, Appellant, v. Loyal W. COMBS, Appellee
• Court: Indiana Appellate Court

Page 194

263 N.E.2d 194

147 Ind.App. 617

Marion MEIER, Appellant, v. Loyal W. COMBS, Appellee.

No. 769A136.

Appellate Court of Indiana, Division No. 2.

Oct. 26, 1970.

Louis Pearlman, Jr., Brent E. Dickson, Lafayette, for appellant.

G. G. Ball, Ball, Eggleston, King & Bumbleburg, Lafayette, for appellee.

WHITE, Judge.

This is an appeal by the plaintiff from a summary judgment for the defendant in a damage suit. The defendant is a licensed physician (M.D.) and his motion for summary judgment is premised on the undisputed fact that this suit was commenced more than two years after the cause of action accrued. He contends it is barred by the following statute:

'No action of any kind for damages, whether brought in contract or tort, based upon professional services rendered or which should have been rendered, shall be brought, commenced or maintained in any of the courts of this State against physicians, dentists, surgeons, hospitals, sanitariums, or others, unless said action is filed within two years from the date of the act, omission or neglect complained of.' ¹ (Emphasis added.)

Plaintiff-appellee contends that there is a genuine issue of material fact as to whether this action for damages is 'based upon professional services rendered'.

The action arises out of events which occurred on May 7, 1958, when plaintiff was an under-graduate student at Purdue University. Defendant at that time was Medical Director of the Purdue University Student Health Service.

The complaint is denominated merely, 'Complaint for Damages'. The pertinent allegations of its legal Paragraph I are:

'1. That on the 7th day of May, 1958, the Defendant LOYAL W. COMBS, M.D., in conspiracy with one Frank D. Sandefur, one James A. Sell and one Donald E. Jones, and pursuant to said conspiracy, forced Plaintiff, under threat of force and violence, to accompany said Frank D. Sandefur, James A. Sell and Donald E. Jones to Marion, Indiana, where Frank D. Sandefur, James A. Sell and Donald E. Jones caused Plaintiff to be confined in the Veterans Hospital.

'2. That Plaintiff was deprived of his liberty and confined in said Hospital, as aforesaid, against his express wish and desire, and without his consent.'

Virtually the same allegations are repeated in legal Paragraph II except that the named non-parties are characterized as defendant's agents rather than as his co-conspirators. Paragraph II's rhetorical paragraphs 1 and 2 read as follows:

'1. That on the 7th day of May, 1958, the Defendant LOYAL W. COMBS, M.D., by his agents Frank D. Sandefur, James A. Sell and Donald E. Jones, forced Plaintiff, under threat of force and violence, to accompany said Frank D. Sandefur, James A. Sell and Donald E. Jones to Marion, Indiana, where the said Frank D. Sandefur, James A. Sell and Donald E. Jones caused Plaintiff to be confined in the Vesterans Hospital.

'2. That Plaintiff was deprived of his liberty and confined in said Hospital, as aforesaid, against his express wish and desire, and without his consent.'

Rhetorical paragraphs 3 and 4 of legal Paragraphs I and II are allegations of injury and damage. The identical prayer of each legal paragraph is for $250,000.00 damages.

The record also includes paragraphs of answer which plead that the cause of action did not accrue within two years of the commencement of the action and replies that plaintiff was of unsound mind at the time the causes of action accrued and continuously thereafter for more than four years. This alleged incompetence would serve to toll the running of the 1881 statute of limitations ² but not the quoted 1941 statute. ³

The defendant's motion for summary judgment is supported evidentially by the defendant's affidavit. Plaintiff filed a response to defendant's motion, which response incorporated defendant's conditional examination and plaintiff's sworn answers to written interrogatories submitted by defendant. The interrogatories did not inquire as to the events of May 7, 1958, and plaintiff filed no affidavit or other evidence challenging defendant's account of the events of that day. The result is that there is no dispute as to the evidentiary (or underlying) facts. Which is not to say, however, that the untimate facts have thus been established without leaving unresolved any genuine issue of material fact. As the Supreme Court said in Cole v. Sheehan Construction Co. (1944), 222 Inc. 274, 280, 53 N.E.2d 172, 175:

'* * * (I)t does not necessarily follow that there was no conflict in the evidence merely because the testimony was undisputed. A conflict may arise out of the testimony of a single witness, though it is not disputed by any other testimony. McKee v. Mutual Life Ins. Co., Ind.Sup. (1943), Ind., 51 N.E.2d 474.'

In brief outline the pertinent evidentiary facts, all undisputed, are these:

Plaintiff, the student, had been to the university president's office about a week before May 7, 1958, demanding to see President Hovde to discuss an alleged narcotics ring involving faculty members, hypnosis of students in class, bizarre sexual activities, etc. His agitated emotional state aroused concern and he was requested to report these matters to the Dean of Men's Office on May 7, 1958. Arrangements were made for the defendant and a clinical psychologist to be there with the Dean. The three of them talked with plaintiff when he appeared. From the interview the defendant made a determination that plaintiff was 'an obviously disturbed individual suffering from hallucinations and with distinct indications of a paranoidal tendency demanding immediate specialized professional and psychiatric diagnosis and treatment.' Defendant asked plaintiff if he would go to Marion (Indiana) to report to the authorities there the matters he had reported to the Dean. When plaintiff consented, defendant sent him home to get his clothes, telling him that campus police would come to his residence later and furnish him transportation to Marion. Defendant purposely did not tell plaintiff that he was to be taken to the Veteran's Administration Hospital in Marion. His stated reason was that he did not wish to provoke plaintiff in his agitated state. Defendant, however, made arrangements with the V.A. Hospital authorities at Marion for plaintiff's admission and with the campus police to transport him there, which they did. ⁴ There is no evidence that judicial action was taken to obtain a commitment. There is no evidence of how plaintiff's physical entry into the hospital was actually accomplished. There is no sworn denial of the allegation in plaintiff's complaint that he was confined 'against his express wish and desire and without his consent.' Since plaintiff, himself, has not supported that allegation by affidavit or other evidentiary material, it cannot be taken as true, but it is sufficient to raise doubts. The same is true of the conclusional allegations that those who transported plaintiff to the hospital and accomplished his physical admittance were defendant's co-conspirators or agents.

We now quote from the learned nisi prius judge's opinion rendered at the time he granted summary judgment: ⁵

'In the circumstances at hand, it is clear that the defendant rendered professional services to the plaintiff on May 7, 1958. Plaintiff had gone to the office of the president of the university and demanded to see the president. He was obviously in an agitated state of mind, and it seems to have been apparent even to a layman that he was mentally ill. Since the plaintiff was a Purdue Student and the defendant was the head of the Purdue Student Health Service, the defendant was called to come to the office of the Dean of Men to examine the plaintiff. This he did, talking to him for fifteen to twenty minutes and diagnosing him as being mentally ill and dangerous. He than made arrangements to have him taken to a mental hospital. When a doctor is called to decide whether a person is ill, examines him, determines that he is ill, and sends him to a hospital, it would require a very strained construction to say that he has not rendered professional services.

'Having answered the question of whether professional services were rendered, we come to the second question: is plaintiff's cause of action based upon such services? In this connection, plaintiff contends that if professional services were rendered, they ceased when the defendant had completed his diagnosis, and that he was not acting as a physician when he arranged to have the plaintiff taken to the V.A. Hospital. He claims that the cause of action for false imprisonment is not based on anything that defendant did in rendering professional services, but on something quite apart and separate which occurred after the professional services were over.

'Plaintiff has attempted to draw an analogy between this case and a hypothetical case where a doctor, called to treat a patient, gratuitously hits the patient in the mouth. He argues, quite correctly, that an action for assault and battery arising therefrom is not based upon the professional services. I would go even farther and hypothesize the case of a doctor, examining a female patient, who proceeds to make a sexual assult upon her. The sexual assault, even though it arises as a result of the examination, is not in any way a part of the doctor's professional services (at least by generally accepted standards), and therefore an action based upon it is not based upon professional services.

'But it seems to me that the analogy does not hold when we apply it to the instant case. Hitting a patient in the mouth, or making a sexual assault upon a female patient, is not normally a part of the professional services customarily rendered by a physician. Sending a patient to a hospital after he has been diagnosed ill is a part of such professional services. In this case, the defendant made a medical diagnosis of the plaintiff, decided he was mentally ill, and then sent him to a mental hospital. We are of course...