Yaney by Yaney v. McCray Memorial Hosp., 3-1085A284

• Decision Date: 13 August 1986
• Docket Number: No. 3-1085A284,3-1085A284
• Citation: Yaney by Yaney v. McCray Memorial Hosp., 496 N.E.2d 135 (Ind. App. 1986)
• Parties: Lon YANEY, a minor child, by his parents, James YANEY and Jean Yaney, individually, Plaintiffs-Appellants, v. McCRAY MEMORIAL HOSPITAL, Kenneth Gunkle, Defendants-Appellees, and Nancy Wilson, M.D., (Defendant Below).
• Court: Indiana Appellate Court

Page 135

496 N.E.2d 135

Lon YANEY, a minor child, by his parents, James YANEY and Jean Yaney, individually, Plaintiffs-Appellants, v.McCRAY MEMORIAL HOSPITAL, Kenneth Gunkle, Defendants-Appellees and Nancy Wilson, M.D., (Defendant Below).

No. 3-1085A284.

Court of Appeals of Indiana Third District.

Aug. 13, 1986.

Ronald L. Sowers, Sowers, Larson, Riebenack & Connolly, Bruce N. Stier, Logan & Stier, Fort Wayne, for plaintiffs-appellants.

Mark Baeverstad, Hunt, Suedhoff, Borror & Eilbacher, Fort Wayne, for appellees McCray Memorial Hosp. and Kenneth Gunkle.

Richard R. McDowell, Hill, Fulwider, McDowell, Funk & Matthews, Indianapolis, for defendantNancy Wilson, M.D.

HOFFMAN, Judge.

The appellants, Lon Yaney and his parents, James and Jean Yaney, appeal the grant of summary judgment in their negligence action against the appellee McCray Memorial Hospital.The Yaneys argue that there are factual and legal issues that make the summary judgment improper.

The standard for review of summary judgments is well known.Summary judgment is proper when the pleadings and discovery, together with the affidavits and testimony, liberally construed in favor of the non-moving party, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.Ind. Rules of Procedure, TrialRule 56(C);Creighton v. Caylor-Nickel Hosp., Inc. (1985), Ind.App., 484 N.E.2d 1303.Although there may be genuine disputes over certain facts, a fact is material, and thus precludes summary judgment, when its existence facilitates the resolution of an issue in the case.Id.With this standard in mind, the following are the facts contained in the record.

On August 14, 1981, Lon Yaney, then nine years old, fell from his bicycle while at a park where he was camping with his family.The resulting blow to his head knocked him unconscious for several minutes, and according to his mother, when he came to he was disoriented, unstable on his feet and complained of a headache.

Lon's parents took him to McCray Memorial Hospital in Kendallville, Indiana.The Yaneys were met in the emergency room by Dr. Nancy Wilson¹ and Kenneth Gunkel, an emergency medical technician employed by the hospital.Mrs. Yaney described what had happened and gave Lon's medical history to Gunkel who also took Lon's temperature while Dr. Wilson began an examination.Dr. Wilson observed Lon's external physical signs and ordered x-rays, which showed that there was no fracture.Based on this information the doctor diagnosed a cerebral concussion and told Mrs. Yaney that Lon would be all right.Mrs. Yaney was given a mimeographed head injury sheet that listed various warning signs of serious head injuries.She was told to return if any of the signs appeared.

The Yaneys returned to the park and put Lon to bed.By the next morning, August 15, Lon's condition had worsened and he was exhibiting several of the symptoms listed on the head injury sheet.Mrs. Yaney called the hospital and ultimately spoke with Dr. Wilson.Dr. Wilson still did not feel that the situation was serious, but told Mrs. Yaney she could bring Lon back in.

At the hospital, the Yaneys were met by Dr. Wilson and taken to an examination room.Mrs. Yaney testified that during this visit she did not not see anyone at the hospital except Dr. Wilson.The doctor re-examined Lon and again told Mrs. Yaney that Lon's condition was not serious.

Shortly after returning to the campground Lon's condition became seriously worse.This time his parents took him to a hospital in Fort Wayne.Enroute Lon began convulsing and at one point his breathing had stopped.By the time they arrived Lon was essentially comatose.He was diagnosed as having an epidural hematoma and emergency surgery was performed to relieve the pressure of the bleeding within his skull.The record reveals that since this incident Lon has had various problems that were allegedly caused by the delayed treatment.

In addition to these essentially uncontroverted facts, the record reveals a substantial question as to what diagnostic procedures were employed at McCray Memorial Hospital.Specifically, the Yaneys claim that neither the hospital employees nor Dr. Wilson ever took Lon's vital signs.There was expert testimony that taking vital signs, that is measuring blood pressure, pulse, respiration and temperature, is standard practice in head injury cases, because the information is an important part of correctly diagnosing a serious injury.

On appeal the Yaneys raise three issues.Restated, these are:

(1) whether the taking or not taking of vital signs is a genuine issue of material fact;

(2) whether the hospital employee's failure to take vital signs and the failure to recognize that Dr. Wilson should have taken the vital signs were separate negligent acts that proximately contributed to Lon's injuries; and

(3) Was the taking of vital signs a ministerial act for which the hospital is liable?

The record clearly reveals a genuine factual issue as to whether Lon's vital signs were taken.In addition to Mrs. Yaney's testimony that vital signs were not taken, Dr. Wilson and Kenneth Gunkel both testified that they did not remember the incident at all; however, the portion of Lon's hospital chart where the information should have been recorded was left blank.Also Dr. Wilson testified, in response to a hypothetical question, that she always took the vital signs of her patients in the emergency room.Therefore, in order to test the materiality of this issue, it will be provisionally accepted as fact that vital signs were not taken.

The Yaneys' second issue is premised on a claim that the hospital had a separate and independent duty to ensure that the care Dr. Wilson provided did not fall below acceptable medical standards.

The rule in Indiana has long been that a hospital is generally not liable for the medical negligence of the doctors on its staff, since by law doctors are considered to be independent contractors.Iterman v. Baker(1938), 214 Ind. 308, 15 N.E.2d 365.However, an exception, of...