Planned Parenthood of Northwest Indiana, Inc. v. Vines

Decision Date14 September 1989
Docket NumberNo. 37A03-8805-CV-143,37A03-8805-CV-143
Citation543 N.E.2d 654
PartiesPLANNED PARENTHOOD OF NORTHWEST INDIANA, INC. and Nurse Debra Pasternak, Defendants-Appellants, v. Anita VINES and Timothy Vines Plaintiffs-Appellees.
CourtIndiana Appellate Court

Richard A. Hanning, Eichhorn, Eichhorn & Link, Hammond, for defendants-appellants.

William J. Cunningham, Hilbrich, Cunningham & Schwerd, Highland, for plaintiffs-appellees.

GARRARD, Presiding Judge.

Planned Parenthood of Northwest Indiana, Inc. and Nurse Debra Pasternak (collectively "Planned Parenthood") appeal a jury verdict in favor of Anita and Timothy Vines. A jury in the Jasper Circuit Court awarded Mrs. Vines $50,000 on her claim of negligence in the insertion of an intrauterine device (IUD) and awarded Mr. Vines $10,000 for lost consortium.


Anita had a history of unusual menstrual activity and in fact had experienced what seemed to her to have been several menses during her first pregnancy. 1 After the birth of that child, her menstrual cycle was particularly irregular and several months were "skipped." At the time in question Anita and Timothy were enduring some measure of marital difficulty and she did not then desire to have any more children. After exhausting her supply of oral contraceptives, Anita visited Planned Parenthood on August 22, 1984. She had recorded her last menses on August 8.

While at the clinic on that initial visit, the need for Anita to switch from birth control pills to other methods was discussed. After information gathering, consultation and a physical examination, Nurse Pasternak told Anita to return during her next menses at which time the IUD could be inserted. Anita declined Pasternak's offer of condoms or spermicidal foam opting, instead, to abstain from sexual activity while awaiting the insertion of the IUD.

Anita did not menstruate during the month of September; however, with the onset of what appeared to be a typical menstrual flow on October 22, she made an appointment to return to Planned Parenthood for the IUD insertion on October 24. After a cursory examination, Nurse Pasternak placed the IUD in Anita's uterus. Anita was informed that following insertion of an IUD, vaginal bleeding continuing beyond the typical menstrual time period was not uncommon.

Anita experienced some vaginal bleeding over the course of the next two weeks. She alleges that she twice called the clinic only to be assured that this bleeding was not unusual. The bleeding worsened, Anita "passed a clot" and after fainting was taken to the Munster Community Hospital emergency room on November 10, 1984. Anita was diagnosed as having had an incomplete abortion. Her regular gynecologist, Dr. Walter P. Urbanski, attended to her while there in the hospital. He performed an emergency D & C and recovered the IUD with what was later identified as placental matter entangled therewith. Dr. Urbanski released Anita from the hospital three days later and thereafter released her to return to her waitressing duties one month later.

The Vines filed suit in the spring of 1985 against Planned Parenthood and Mary Doe, Nurse. Nurse Pasternak was subsequently identified and was formally named as a party defendant. The Vines' claim for relief as against Planned Parenthood proceeded presumably upon the theory of respondeat superior. The case went to trial on February 2, 1988 and resulted in a verdict in the Vines' favor. This appeal ensued.

Additional facts will be supplied where necessary.


Planned Parenthood asserts that the trial court committed six 2 reversible errors, rephrased as follows:

1. Refusing to direct a verdict in the defendants' favor as to Timothy Vines' consortium claim on the grounds that the Vines were not consorting before or at the time of Anita's hospitalization;

2. Entering judgment on a jury verdict based upon the allegedly inherently improbable testimony of the plaintiff;

3. Entering judgment on the motion despite the plaintiffs' failure to establish the standard of care required of a nurse practitioner;

4. Allowing the plaintiffs' standard of care expert to respond to a hypothetical question based neither on facts in evidence nor reasonable inferences therefrom;

5. Omitting a tendered instruction regarding the possibility of a spontaneous miscarriage, modifying an instruction relating Nurse Pasternak's duty of care, and modifying the defendants' instruction concerning a patient's obligation to provide accurate and complete information to, and follow instructions from, her health care provider; and

6. Failing, when confronted by a verdict awarding excessive damages, to enter final judgment on the evidence for the amount of the proper damages, grant a new trial or grant a new trial subject to remittitur as authorized in Indiana Rules of Procedure, Trial Rule 59(J)(5).

Issue One

When Planned Parenthood asserts that consortium cannot possibly obtain when the couple is not consorting, it misapprehends the nature of that action. Consortium as a tort was originally based on a husband's claim for lost services, but, as the legal rights of women developed under the pressure of the Married Women's Act and the equal protection doctrine, the claim has come to focus on damages to "the marital relationship and the rights attendant upon it." Prosser and Keeton, The Law of Torts 932 (5th ed. 1984). That is, one is entitled to expect certain rights and benefits upon entry into the marriage relationship and the action is for the recovery "not only for services, society, and sexual relations lost at the date of trial but [also] estimated future loss." 2 Harper, James, and Gray, The Law of Torts 551 (2nd ed. 1986). These rights or expectations attach at marriage and are extinguished only upon death or divorce. Therefore, the fact that a married couple was temporarily separated, goes to the issue of damages but not to a spouse's standing to maintain the action. Prosser and Keeton, The Law of Torts 918, n. 28 (5th ed. 1984).

It is not our role to question the jury's damage calculation beyond a survey of the evidence and inferences therefrom which support such award. Hanas v. Rasmussen (1985), Ind.App., 484 N.E.2d 63, 67, rehearing denied. Despite the fact that the Vines had previously separated and that Timothy Vines provided no financial support to his wife and child during the separation, the jury found that Timothy Vines suffered a loss of consortium in the amount of $10,000. To affirm that determination we can point to the fact that the Vines were together when Anita fainted and had to be rushed to the hospital and that they reconciled their differences following Anita's release from the hospital. Furthermore, there was testimony regarding consortium both in the form of services and society lost for some period of time following Anita's hospital stay. Lastly, we simply note that Anita was pregnant and there has been no suggestion whatsoever that her husband was not the father. Therefore, we will not reverse this damage award.

Issue Two

Planned Parenthood's second argument is that Anita Vines' testimony is simply unworthy of belief. At the outset we note that "[t]he jury, as the trier of fact, must weigh the evidence, draw any reasonable inferences, resolve conflicts in the evidence, determine the credibility of witnesses and decide in whose favor the evidence preponderates." Ferdinand Furniture Co., Inc. v. Anderson (1980), Ind.App., 399 N.E.2d 799, 805. Consequently, our standard of review allows us to overturn a jury's verdict only if there is no evidence on the elements of the plaintiff's claim which will support the verdict. Farm Bureau Ins. Co. v. Crabtree (1984), Ind.App., 467 N.E.2d 1220, 1225, rehearing denied, transfer denied. On such challenges to the sufficiency of the evidence we view the record in a light most favorable to the verdict, do not reweigh evidence, and will not rejudge the credibility of witnesses.

Planned Parenthood has phrased this aspect of its appeal as one involving the "inherent improbability" of the witness' testimony. This is, of course, a covert attack on Anita Vines' credibility. The cases that Planned Parenthood cite only appear contrary to our rule regarding our unwillingness to reweigh evidence and rejudge credibility. Upon closer examination, we find them distinguishable. In Penn v. State (1957), 237 Ind. 374, 146 N.E.2d 240, our supreme court overturned a non-jury conviction for statutory rape where the prosecutrix's uncorroborated testimony that she, the defendant, and the defendant's wife spent several nights in the same bed was found to be so lacking credibility that a reasonable man could not say that the defendant's guilt had been proven beyond a reasonable doubt. In Gaddis v. State (1969), 253 Ind. 73, 251 N.E.2d 658, over two dissents that urged compliance with the rule that evidence is not to be reweighed on appeal, the supreme court reversed a robbery conviction where the victim, the prosecution's sole identification witness, was coerced by threat of imprisonment into identifying the defendant as the perpetrator. The complete lack of circumstantial evidence to support guilt coupled with the compulsion and coercion upon the complaining witness should have injected doubt in any reasonable man's analysis of guilt and, thus, the conviction was reversed. Id. These two criminal cases reflect factual circumstances where the only evidence of guilt was so lacking in probative value (fitness to persuade) that the court determined it was inadequate to surmount the burden of proof beyond a reasonable doubt.

Surely it is within an appellate court's province to engage in such analysis, but the scope of that inquiry must be limited by deference to the constitutional role of the factfinder. The Penn decision succinctly draws this distinction:

If different persons might reasonably arrive at different conclusions from that reached by the trial jury, the verdict will not be set...

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