Templin v. Erkekedis
| Decision Date | 25 March 1949 |
| Docket Number | 17790. |
| Citation | 84 N.E.2d 728,119 Ind.App. 171 |
| Parties | TEMPLIN v. ERKEKEDIS. |
| Court | Indiana Appellate Court |
Appeal from Porter Circuit Court; Walter M. Chrisman, Judge.
Oscar C. Strom and William S. Spangler, both of Gary, for appellant.
David P. Stanton, of Gary, for appellee.
This is an appeal from a judgment for damages in favor of appellee against appellant, a physician, for alleged malpractice during the course of a physical examination.
Appellee's complaint alleged, in substance, that she consulted appellant, a duly licensed and practicing physician and surgeon, for the purpose of having him diagnose the cause of a rash or skin eruption upon her neck and chest; that in the course of appellant's examination of her he ruptured her hymen by means of a bi-valve speculum; that appellant was negligent, careless and failed to exercise the degree of care and skill required in the making of such examination and in the repture of the hymen. Such negligence, among other things, consisted of the following acts of omission and commission: (1) It was not necessary to rupture the hymen to diagnose appellee's condition; (2) appellant failed to ascertain appellee's marital condition and that in the exercise of due care it was reasonably necessary, before damaging such membrane, that he learn of such status; (3) appellant carelessly and negligently failed to observe the membrane was intact and not ruptured; that had he exercised due care he would have observed the undamaged character of said membrane and would have been able to avoid rupturing same.
It then avers that as a result of such act appellee suffered pain physical anguish, mental and emotional disturbance; that she has suffered special damage because she is of Greek extraction and it is a custom of that nationality to place great stress and importance upon the loss of such characteristic; that the loss of such characteristic materially lessens the opportunity of plaintiff to intermarry with a person of her own extraction. Answer of admission and denial under the rules.
Prior to the trial appellant filed his verified supplemental petition asking the court to require appellee to submit to a physical examination. This petition is as follows:
'The defendant shows further that the plaintiff can be examined without harm or pain to herself, by a physician who is a specialist and that the fact that plaintiff has made subject in her complaint the nature of her said condition, and the very nature of her action itself does constitute a waiver by the plaintiff of her present condition that such an examination is an invasion of the privacy of her person, which the plaintiff does now assert as a reason for refusal to comply with her agreement for a physical examination.
'Petitioner shows also that the very character of the plaintiff's cause of action involves intimate information concerning the plaintiff's person; that she will be required to prove her case, to testify concerning such subjects and having commenced her action with such claims and contentions and by reason of the intimate subject matter of the cause, the plaintiff cannot be embarrassed by a physical examination and the same would not constitute an invasion of the privacy of the plaintiff's person.
'The defendant shows that a refusal by the Court to permit him to have a professional disinterested witness physician examine the plaintiff as to the contentions in her complaint and discover the present conditions concerning which the plaintiff has made allegations and concerning which she will testify, will prevent the defendant from obtaining information concerning the very subject matter of this action and will constitute an abuse of the right of the defendant to have investigated the facts concerning which only the plaintiff can otherwise have knowledge and will prevent the defendant from interposing a full defense in this action.
'In order that the Court may be fully advised in the premises and as to the importance of the defendant's request and as to whether or not such an examination may be conducted without pain, harm or embarrassment to the plaintiff, and as to whether or not such an examination could disclose facts concerning the plaintiff's condition, a hearing should be had on this Petition, with evidence introduced so that the Court may be fully advised concerning the same.'
The court overruled this petition without hearing evidence. Trial to a jury resulted in verdict in favor of appellee for $2500. Judgment accordingly. From that judgment appellant prosecutes this appeal, assigning several errors. In view of the conclusion we have reached, it is only necessary to consider the assigned error that the trial court erred in overruling appellant's supplemental motion for an examination of appellee.
In support of this assignment appellant makes two contentions (1) The trial court erred in denying his supplemental petition, filed before trial, to require appellee to submit to a physical examination, when the alleged injury and the nature and extent thereof could only be discerned by objective findings of expert medical examiners, and such examination could have been made without danger to appellee's health, or the infliction of serious pain; (2) the trial court abused its discretion in arbitrarily denying his request to submit evidence in support of his supplemental petition to require appellee to submit to such examination which petition alleged the evidence to be submitted thereunder would show such examination could be made without pain, harm, injury or embarrassment to appellee.
Appellee asserts the question of whether such a...
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Templin v. Erkekedis, 17790.
...119 Ind.App. 17184 N.E.2d 728TEMPLINv.ERKEKEDIS.No. 17790.Appellate Court of Indiana, in Banc.March 25, Appeal from Porter Circuit Court; Walter M. Chrisman, Judge. Action by Helen Erkekedis against David B. Templin, a physician, for alleged malpractice during course of a physical examinati......