Terre Haute Regional Hosp., Inc. v. El-Issa
| Decision Date | 26 November 1984 |
| Docket Number | EL-ISS,M,No. 1-1283A403,1-1283A403 |
| Parties | TERRE HAUTE REGIONAL HOSPITAL, INC. and Hospital Corporation of America, Defendants-Appellants, v. Sa'dD., Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
John D. Nell, Wooden, McLaughlin & Sterner, Indianapolis, for defendants-appellants.
Frederick Wm. LaCava, Maureen E. O'Brien, Hall, Render, Killian, Heath & Lyman, Indianapolis, for amicus curiae: (The Indiana Hosp. Ass'n, Inc.).
Eric A. Frey, Wolfe, Frey, Hunt & Olah, Phillip I. Adler, Terre Haute, John M. Baumunk, Brazil, for plaintiff-appellee.
This is an appeal of a final judgment entered by the Clay Circuit Court on August 23, 1983, in the amount of $400,000 following a jury verdict in favor of the appellee in that amount.
We reverse.
Doctor Sa'd El-Issa is a board certified surgeon with an unlimited license to practice Doctor El-Issa testified that between 1975, when he joined the active staff at Regional, and 1980, he performed five to ten fiberoptic bronchoscopies each year. In 1979 and 1980, Dr. El-Issa received continuing education credits for short courses in fiberoptic bronchoscopy and other endoscopic procedures. 2 In March 1980, following this training, he requested privileges in endoscopic procedures at Regional. In June 1980, Dr. El-Issa filed an application for reappointment to Regional's active staff for the two year period July 1, 1980 to June 30, 1982. This application also contained a request for various privileges including some endoscopic privileges. It is the manner in which Regional dealt with these two requests for privileges which caused Dr. El-Issa to institute this suit.
medicine in Indiana. During the entire period in question, Dr. El-Issa was a member of the active staff at Terre Haute Regional Hospital (Regional) in Terre Haute, Indiana. 1 Regional is a private for-profit corporation whose sole shareholder is Hospital Corporation of America (HCA)
Essentially, Dr. El-Issa argues that the bylaws of the Medical and Dental Staff of Regional, which set out the procedures for dealing with requests for privileges, constitute a contract the breach of which entitles him to damages. Regional, on the other hand, argues that the issue of whether the bylaws form a legally enforceable contract was not properly before the trier of fact. Alternatively, Regional and HCA raise numerous arguments attacking the judgment. Additional facts will be developed below.
The appellants raise numerous issues in their brief. Due to our resolution of this appeal, we need only discuss the following issues:
1. Was the issue of whether the bylaws of the Medical and Dental Staff form a legally enforceable contract properly before the jury.
2. Whether the bylaws of the Medical and Dental Staff form a legally enforceable contract between the hospital and individual members of its staff.
3. Whether there was sufficient evidence presented at trial to support a finding by the jury that the hospital failed to substantially comply with the bylaws.
4. Whether there was sufficient evidence to support a finding by the jury that the injury suffered by the appellee was caused by the appellants' failure to substantially comply with the bylaws.
Regional and HCA argue initially that they were denied a fair trial because the jury was instructed on a theory of breach of contract when that theory was not included in the pleadings, pretrial contentions of the parties, or an amendment pursuant to Indiana Rules of Procedure, Trial Rule 15(B). If the appellants are correct in their contention, the judgment must be reversed and no further discussion is necessary. Thus, it is essential that we resolve this issue first.
Doctor El-Issa's two count complaint and the contentions he filed with the court prior to trial consist largely of factual allegations that Regional and HCA violated the bylaws. In neither document did Dr. El-Issa delineate the specific theory or theories on which he predicated recovery. 3 Thus, the breach of contract theory was properly presented to the jury only if the parties tried that issue by implied consent.
Our court set out the parameters of implied consent to litigation of issues not raised prior to trial in Indianapolis Transit System, Inc. v. Williams, (1971) 148 Ind.App. 649, 269 N.E.2d 543, trans. denied. The pleadings, contentions of the parties and pretrial orders set out only a preliminary guide to the conduct of trial. Either party may, at any time, demand strict adherence to those issues raised prior to the commencement of trial. If the trial court permits the introduction of an issue not raised prior to trial, an objecting party is entitled to a reasonable continuance in order to prepare to meet the newly raised issue. However, where the trial has ended without objection, the evidence actually presented controls. Ayr-Way Stores, Inc. v. Chitwood, (1973) 261 Ind. 86, 91, 300 N.E.2d 335, 339; Svetich v. Svetich, (1981) Ind.App., 425 N.E.2d 191, 193, trans. denied; Urbanational Developers, Inc. v. Shamrock Engineering, Inc., (1978) 175 Ind.App. 416, 431, 372 N.E.2d 742, 751, trans. denied. The jury may then be properly instructed on any theory of recovery which the evidence supports.
This broad principle is not without its boundaries however. New issues cannot be interjected under the pretense that the evidence is relevant to an already pleaded issue. Svetich, at 194. A party will not be deemed to have impliedly consented to the trial of an unpleaded issue unless he has been given some notice of the existence of that issue. Svetich, at 194; Elkhart County Farm Bureau Co-op Association, Inc. v. Hochstetler, (1981) Ind.App., 418 N.E.2d 280, 285. 4 Thus, we must determine whether Regional and HCA were aware that a new theory of recovery, based on breach of contract, was being brought into the trial.
Regional and HCA were given notice several times during the course of trial that a new theory of recovery based on breach of contract was being litigated. At the outset of the trial, the trial court gave a series of preliminary instructions as required by Indiana Rules of Procedure, Trial Rule 51(A). One of those instructions informed the jury that the plaintiff was contending that the violations of the bylaws constituted a breach of, or interference with, his contract with the hospital. This instruction was given to the parties on the first day of trial, but they were not read to the jury until two days later. Neither defendant objected to the reading of this instruction. In fact, the affidavit of the trial judge indicates that both parties acquiesced to the giving of Preliminary Instruction No. 3. See Supplemental Record at 4. Thus, at this early stage in the trial, Regional and HCA were aware that a breach of contract theory was being presented.
The possibility of pursuing a breach of contract theory of recovery was also broached during the voir dire examination of potential jurors. Doctor El-Issa's attorneys questioned potential jurors concerning the possibility of the bylaws constituting a contract, the violation of which would be a breach. Affidavit of Trial Judge, Supplemental Record at 4. The defendants did not object to this line of questioning. Thus, Regional and HCA were again given notice that a contract theory was going to be litigated during trial.
The breach of contract theory was again injected into the litigation after Dr. El-Issa's case-in-chief. At the close of El-Issa's case-in-chief Regional and HCA moved for judgment on the evidence. During arguments on the motion, Dr. El-Issa contended that breach of contract was a recognizable theory in the case. Regional and HCA argued that no contract theory was included in the pleadings or contentions of the parties. In addition, they informed the court that they were not consenting to the trial of the contract theory. No other affirmative action was taken by the appellants. 5
It is clear that Regional and HCA had notice that a contract theory of recovery was being injected into the litigation by Dr. El-Issa. They did not object or seek a continuance to meet the unpleaded theory. The breach of contract theory was, therefore, tried by implied consent. Regional and HCA cannot now complain that the jury should not have been instructed on that issue.
The appellants next argue that, even if the contract theory was properly before the jury, the bylaws do not form a contract. In this regard, the defendants raise three sub-issues. First, they argue that the bylaws should not be held to be a contract. Second, Regional and HCA contend that they did not manifest their assent to be bound by the bylaws as a contract. Finally, they assert that there is a lack of mutuality of obligation and, consequently, the bylaws cannot be a binding contract. An appellate court of this state has never before discussed this important issue. It is necessary, however, to consider a procedural matter first.
Technically, Regional has waived any argument that the bylaws of the Medical and Dental Staff do not constitute a contract between the hospital and members of its staff. The trial judge instructed the jury as follows:
"Plaintiff's Instruction No. 6
I instruct you, members of the jury, that the relationship between a hospital corporation and a member of the hospital's medical staff concerning the member's reapplication for privileges is based on contract. The by-laws which have been adopted by the hospital form the contractual relationship between the hospital and the members of the medical staff.
Before determining whether to exercise its authority in curtailing or limiting the clinical privileges of a member of the staff, it is necessary that the hospital follow such by-law provisions.
I instruct you that where a particular procedure, including procedural safeguards, is spelled out by the by-laws, this...
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