Offutt v. Sheehan, 1--175A3

Citation344 N.E.2d 92,168 Ind.App. 491
Decision Date17 March 1976
Docket NumberNo. 1--175A3,1--175A3
PartiesHattie OFFUTT, Plaintiff-Appellant, v. E. Gregg SHEEHAN, Defendant-Appellee.
CourtCourt of Appeals of Indiana

James M. Redwine, Trockman, Flynn, Swain & Tyler, Arthur Griffith, Evansville, for appellant.

Robert H. Hahn, George A. Porch, Evansville, for appellee; Bamberger, Foreman, Oswald & Hahn, of counsel.

LOWDERMILK, Judge.

In July, 1972, plaintiff-appellant (Offutt) filed her complaint, alleging that the defendant-appellee (Sheehan) had, without her prior knowledge or consent, performed a complete hysterectomy upon her. After trial in 1974, the jury found against Offutt, and the trial court entered judgment that Offutt take nothing by her complaint. Offutt now appeals the above verdict and judgment.

FACTS.

In March of 1971, Offutt was advised by Dr. William Vincent that she was three (3) to four (4) months pregnant with her third child. At that time Dr. Vincent referred her to Dr. Sheehan for further examination and pre-natal care.

During one of Offutt's visits with Sheehan, Offutt stated that she could not tolerate oral or permanent internal contraceptive devices because of other health problems, but that she did not want to have any more children. Offutt then inquired whether Sheehan would perform either a tubal ligation or tubal resection.

Given Offutt's age (26), and other factors, Sheehan asked that Offutt put her request in writing. Sheehan, approximately one (1) month before delivery of the child, received a letter from Offutt which requested that her 'tubes be tied,' because she could not use coventional contraceptive mehtods. Following receipt of this letter, Sheehan again talked with Offutt and advised her that she would be unable to have children following such an operation.

On August 13, 1971, Sheehan was contacted at his home by telephone and informed that Offutt was in the hospital in an advanced stage of labor. Sheehan prescribed several pain-relieving and/or muscle relaxing drugs, and later proceeded to the hospital. After his arrival, Sheehan discovered that the baby was in a breech position and that a cesarean section would probably be necessary. This determination was concurred in by another attending physician.

While Offutt was still in the labor room, she was presented with authorization forms which requested and permitted a tubal ligation and a cesarean section, as well as a tubal resection. The consent forms also contained the following language:

'If any unforeseen condition arises in the course of the operation, calling in his judgment, for procedures in addition to or different from those now contemplated, I further request and authorize him (Sheehan) to do whatever he deems advisable.'

Sheehan conversed with Offutt when these forms were presented and Offutt appeared to comprehend what was said. Offutt's signature appears on all of the forms, and each is further signed by two witnesses.

Offutt was subsequently prepared for the operation and given a general anesthetic. During the course of the cesarean section, it became necessary to make a very large incision in the uterus to remove the baby. After the baby was successfully removed, Sheehan and another doctor considered by size of the incision, in light of Offutt's request for sterilization and other factors as related by Sheehan's testimony:

'. . . So we were faced with leaving a uterus that was quite scarred. We knew her past history of having had an atypical cancer smear in the past, although it was normal during this pregnancy, and having some cervicitis from our examination. We know that girls who start having relations at a younger age and with different men often tend to get cancer of the cervix. We knew she had a tendency towards diabetes; we knew she had high blood pressure; and we knew she was obese; women who have this tend to get cancer of the uterus. So, here we have a patient who has a problem, and really just arose, that we are going to leave in this large, scarred uterus, and the only safe thing for her to have done was to have that uterus taken out at that time, it was the only medically feasible thing to be done at that time was to take her uterus out. It possibly could have been sewed up and save, this is possible, but it would have been a much greater risk than what we did, much greater.

Q. Did you consult with Dr. Stoller at that point?

A. Yes, I did.

Q. And whether he concurred in your decision?

A. Yes, he did.'

Following a brief consultation in the operating room, Sheehan removed Offutt's uterus.

ISSUES.

Offutt presents the following issues for our consideration:

1. Whether it was error for the trial court to deny a request for new trial based on newly discovered evidence.

2. Whether the trial court erred in making the following evidentiary rulings:

(A) Permitting the testimony of a nurse regarding the effects of certain drugs and hospital procedures for obtaining signatures on consent forms.

(B) Sustaining Sheehan's objection to Offutt's question about what would happen if no consent forms were used or signed.

(C) Refusal to permit questions regarding the division of monies received by Sheehan's partner.

(D) Admission into evidence of certain medical records.

3. Whether the verdict was contrary to law.

4. Whether the trial court erred in refusing to rule on Offutt's petition to proceed in forma pauperis.

I.

It is Offutt's first argument that evidence which was discovered after trial was so material that it was error for the trial court to deny a new trial based on such evidence. Offutt asserts that she was unable, through due diligence, to discover the new evidence before trial, and that said evidence was promptly presented to the court upon its discovery.

The new evidence urged by Offutt is the testimony, by affidavit, of Nancy Lee Tedford (Tedford), who was a nurse's aide at the hospital where and when Offutt's operation took place. Although Tedford was not in the operating room, we note the following excerpts of her affidavit regarding a conversation between Tedford, Sheehan, and Lou Wilson, a nurse:

'1. She is not related by blood or marriage of Hattie Offutt, any member of Hattie Offutt's fmaily, or to James M. Redwine or Arthur Griffith or any member of their families;

4. She reported to work August 12, 1971, and went to B--2 where she worked for awhile until she received a call to go to O.B. on the third floor;

7. The first thing she noted was the patient's name, Hattie Offutt, which was the name of a girl she had gone to school with years before. She noted that the patient had never been married, had had two (2) children, and was twenty-six (26) years old;

9. She then went back to the utility room by the kitchen, an E. Gregg Sheehan and Mrs. Wilson were there. At this time, the other nurse's aide was in the delivery room getting it ready. At this time Mrs. Wilson said, 'We are going to take her to surgery.' Your affiant asked, 'What for?' Mrs. Wilson said, 'Gregg wants to take her down to surgery for a hysterectomy and to deliver that baby.' Your affiant said, 'Isn't she too young for a hysterectomy?' and Sheehan said, 'Lady, that's your tax money down there, you already paid for two (2) of them, and that's the third one and there will be no more.' Your affiant said, 'I don't know about that being my tax money.' At which time Mrs. Wilson said, 'Oh, Tedford, you're so naive.'

11. . . . The next day, July 3, 1974, at approxiamtely 11:00 o'clock p.m., Kathleen told your affiant that Hattie had lost the case at which time your affiant authorized Kathleen to tell Hattie her name and what your affiant knew about the matter;

12. On July 4, 1974, Hattie Offutt called your affiant at home at about 7:00 o'clock p.m. and asked your affiant if she would testify and if she would talk to her attorney, James Redwine;

13. At approximately 10:00 o'clock p.m. July 4, 1974, Attorney James Redwine called your affiant and discussed the matter and set an appointment for 8:00 o'clock a.m. July 5, 1974. This was the first contact that your affiant has ever had with Attorney James Redwine;'

Offutt contends that inasmuch as her theory of recovery was intentional tort, the above evidence clearly requires a new trial.

It has been often stated by the courts of this State that

'An application for a new trial, made on the ground of newly discovered evidence, must be supported by affidavit and such affidavit or affidavits must contain a statement of the facts showing (1) that the evidence has been discovered since the trial; (2) that it is material and relevant; (3) that it is not cumulative; (4) that it is not merely impeaching; (5) that it is not privileged or incompetent; (6) that due diligence was used to discover it in time for trial; (7) that the evidence is worthy of credit; (8) that it can be produced upon a retrial of the case; and (9) that it will probably produce a different result. Cansler v. State (1972), 258 Ind. 565, 281 N.E.2d 881; Tungate v. State (1958), 238 Ind. 48, 147 N.E.2d 232. In deciding whether a piece of newly discovered evidence would produce a different result the presiding judgment may properly consider the weight which a reasonable trier of fact would give it and, while so doing, may also evaluate its probable impact on a new trial in light of all the facts and circumstances shown at the original trial of the case.' Emerson v. State (1972), 259 Ind. 399, 287 N.E.2d 867, 871, 872.

Other cases establish that there is a strong presumption that the evidence could have been discovered prior to trial Trout v. Summit Lawn Cemetery Association, Inc. (1974), Ind.App., 312 N.E.2d 498, 500, and that every such motion should be received with caution and carefully scrutinized. Kelly v. Bunch (1972), 153 Ind.App. 407, 287 N.E.2d 586, 588; Shaw v. Shaw (1973), Ind.App., 304 N.E.2d 536, 541; Anderson v. State (1928), 200 Ind. 143, 148, 161 N.E. 625.

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