Hobbs v. Tierney

495 N.E.2d 217, 1986 Ind. App. LEXIS 2739
CourtIndiana Court of Appeals
DecidedJuly 16, 1986
Docket1-1185A297
StatusPublished
Cited by4 cases

This text of 495 N.E.2d 217 (Hobbs v. Tierney) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hobbs v. Tierney, 495 N.E.2d 217, 1986 Ind. App. LEXIS 2739 (Ind. Ct. App. 1986).

Opinions

NEAL, Judge.

STATEMENT OF THE CASE

Plaintiff-appellant, Diana Hobbs (Hobbs), appeals from an adverse judgment entered by the Hancock Circuit Court following a jury trial based on her complaint filed against William J. Tierney, M.D. (Dr. Tier-ney) alleging medical malpractice.

We affirm.

STATEMENT OF THE FACTS

The facts most favorable to the judgment are as follows. Dr. Tierney is a specialist in general surgery which encompasses surgical procedures throughout the abdominal cavity. He is certified by the American Board of Surgery and is a member of several professional organizations. His educational background and training consists of medical school, a one-year internship, and five years of Specialty Training in Surgery. In his general surgery training, Dr. Tierney was exposed to gynecological surgery which deals with diseases of women. Dr. Tierney was exposed to the area of obstetrics, which deals with the care of an expectant mother, in medical school and in his internship, but he was not extensively trained nor did he generally practice in the area of obstetrics. Both general surgeons and obstetrician-gynecologists are qualified to perform gynecological surgery after their training. In Dr. Tierney's practice in Anderson, Indiana, he was experienced in gynecological surgery.

On July 14, 1980, Hobbs was examined by her family physician, L.P. Musngi, M.D. (Dr. Musngi), who ordered a blood test to determine whether Hobbs was pregnant. The test was sent to St. John's Hospital for processing.

Later that evening Hobbs experienced pain in the lower right quadrant of her pelvic region and went to the emergency room at St. John's Hospital. In the emer-geney room Hobbs complained of her pain, nausea, and a missed menstrual period. Two separate urine tests to detect pregnancy were then administered, one testing positive and one testing negative. Based on her symptoms at the time, Dr. Tierney, the general surgeon on call, was summoned to the emergency room to further evaluate Hobbs' condition.

Dr. Tierney received report of Hobbs' complaints and symptoms, took her medical history, which revealed a prior pelvic inflammatory disease, and performed a physical examination which was inconclusive in diagnosing her condition. He was informed that the more accurate blood test to determine pregnancy had already been administered by Dr. Musngi and was being processed by the hospital at that time. In his admitting diagnosis, Dr. Tierney noted a possible ectopic pregnancy, a possible normal intrauterine pregnancy, and a possible recurrent pelvic inflammatory disease. Hobbs was then admitted to the hospital for further testing and observation. An intravenous antibiotic was administered to Hobbs overnight to alleviate her pain and possible pelvic inflammatory disease.

On the 15th, the following day, the blood test taken by Dr. Musngi was complete and registered positive. Dr. Tierney had ordered an ultrasound study on Hobbs in order to locate the pregnancy, but the [219]*219study revealed little diagnostic value. Meanwhile, Hobbs' painful condition for which she was admitted had rapidly improved. Although surgical and other diagnostic procedures were available to help Dr. Tierney locate the pregnancy, he decided not to use them since Hobbs' condition was improving, and they posed significant risks to Hobbs herself and the possible normal intrauterine pregnancy. Hobbs remained under supervision in the hospital until the 17th when she requested to be discharged.

Prior to being discharged, Dr. Tierney told Hobbs that she was pregnant, but that she may have an ectopic pregnancy. Dr. Tierney had seen Dr. Musngi in St. John's Hospital during the time Hobbs was there and informed him that Hobbs may have an ectopic pregnancy. Hobbs was discharged back to Dr. Musngi and told to make an appointment with him within the week for further observation. Dr. Tierney did not communicate with Dr. Musngi after Hobbs was discharged, nor did he follow up on her condition.

Hobbs went to see Dr. Musngi after she was discharged, but on August 5, she sought the services of Dr. Copeland, an obstetrician-gynecologist, to help her during her pregnancy. Later, on August 8, Hobbs presented herself to Dr. Copeland complaining of pain and some bleeding. Dr. Copeland testified that Hobbs told him that her pregnancy may be ectopic. After examination, Dr. Copeland immediately scheduled her for surgery and removed a ruptured ectopic pregnancy. Hobbs subsequently brought this suit against Dr. Tier-ney for medical malpractice.

ISSUES

The following issues have been raised in this appeal:

I. Whether the court erred by refusing plaintiff's tendered Final Jury Instruction Nos. 4, 7 and 10.
II. Whether the court erred by failing to exclude certain testimony of Sprague H. Gardiner, M.D.

DISCUSSION AND DECISION

Issue I: Jury Instructions-Standard of Care of a Specialist.

In Hobbs' first issue, she argues that by denying her tendered jury instructions numbered 4, 7, and 10, the jury was not instructed on the appropriate standard of care of the specialty involved. In determining whether refusing the tendered instructions was error, Hobbs correctly cites Shull v. B.F. Goodrich Co. (1985), Ind. App., 477 N.E.2d 924, 926, trans. denied, which states that we will consider: "(1) whether the tendered instruction is a correct statement of the law, (2) whether there is evidence in the record to support the giving of the instruction, and (8) whether the substance of the tendered instruction is covered by other instructions which were given." The second test is actually a sufficiency of the evidence question, id., and in the case at bar, the first and second tests are interrelated. In other words, if there is sufficient evidence to support the instructions given which are otherwise a correct statement of the law, there was no error. In reviewing the sufficiency of the evidence, we review the evidence and reasonable inferences therefrom, which, when viewed in the light most favorable to the proponent, support the jury's verdict on the theory contained in the instructions. Id.

At trial the jury was instructed on the standard of care of a doctor as a specialist. When holding himself out as a specialist, the standard care of a physician or surgeon in Indiana which is owed to his patients is the following:

"The degree of skill and care required of the physician or surgeon who is employed because he is a specialist, is that degree of skill and knowledge which is ordinarily possessed by physicians and surgeons who devote special attention to the ailment, its diagnosis and treatment, in similar localities."

Worster v. Caylor (1953), 231 Ind. 625, 630, 110 N.E.2d 337, 339, overruled on other grounds; Dolezal v. Goode (1982), Ind. App., 433 N.E.2d 828, 881, trans. denied; [220]*220Bassett v. Glock (1977), 174 Ind.App. 439, 368 N.E.2d 18, 22; see Adkins v. Ropp (1937), 105 Ind.App. 331, 14 N.E.2d 727; Baker v. Hancock (1902), 29 Ind.App. 456, 64 N.E. 38. Reflecting this statement of the law, Dr.

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Hobbs v. Tierney
495 N.E.2d 217 (Indiana Court of Appeals, 1986)

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Bluebook (online)
495 N.E.2d 217, 1986 Ind. App. LEXIS 2739, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hobbs-v-tierney-indctapp-1986.