*1 although comment deserves facts and in this decision way affects in no it
case. the Helm- agreement between
The oral Kain, the consider- forms
kamps and addendum, wherein no-lien for the
ation payments to make the Helmkamps agreed contract, consti- the construction
due under debt answer for the agreement
tutes of another, the Statute and was within
of 82-2-1-1. IND.CODE
Frauds. § the Statute no issue raised, could such issue nor Frauds was Fordeck. The Statute raised
have been ordinarily available an issue
of Frauds agreement parties to the only those those in may apply, and the statute them, may not be invoked
privity with Am. strangers. parties or by third Frauds, 576, 578.
Jur.2d Statute §§ by a creditor invoked Neither can Further, in Id. 579. parties. one of § case, agreement between the oral performed Kain had been
Helmkamps and Thus, Helmkamps. for all of
by the stated, issue no Statute reasons Frauds in this case. existed only make observations I make these not be construed
it clear that our validity upon such an conferring any of Frauds the Statute agreement had
oral applicable as an issue available appropriate facts.
under
Patty and Jack Jo CULBERTSON Culbertson, Appellants, Below,
Plaintiffs MERNITZ, Appellee- B.
Dr. Roland Below.
Defendant
No. 25A03-9111-CV-344. Indiana, Appeals
Court
Third District.
May
(bulging of the bladder vagina) into the cervicitis. He also discovered that she had multiple fibroid tumors of the uterus. Mernitz perform recommended that he a Marshall Marchetti Krantz - - (MMK) eryosurgery on the tip infected "Cryosurgery the cervix. freezing, case, this freezing would be thе end of Record, p. the cervix." 61. An MMK in- suspension volves a bladder pull proper bladder back into its position. Mrs. Culbertson elected the MMK and cryosurgery, performed and both Dr. Mernitz. After surgery, Mrs. Cul- bertson's cervix vaginal adhered to her wall. She surgeon, saw another per- who Patrick Warr, M. O'Brien and Alastair J. formed a total hysterectomy, abdominal bi- Steers Rogers, Sullivan MceNamar& India- salpingo oophorectomy lateral and another napolis, appellants. for MMK to correct this condition. Subse- quently, she and her brought husband Baeverstad, Suedhoff, Mark W. Hunt malpractiсe against medical action Dr. Mer- Eilbacher, Wayne, Borror & appel- Fort for nitz. The disposed trial court of the action lee. by granting summary judgment in Dr. Mer- nitz's appeal. favor and the Culbertsons STATON, Judge. Patty appeal Jo and Jack Culbertson I. summary judgment of a in favor of Dr. Roland B. Mernitz in their medical mal- Failure to Inform practice action, raising following three argue The Culbertsons the trial issues for our review: dismissed Count II of I. Whether the properly trial court complaint. provides their II Count rele- granted summary judgment dismissing part: vant II Count complaint Culbertsons' alleged malpraсtice due 2. That Defendant failed to make rea- risks, sonable
to failure to inform disclosure facts rele- alterna- tives, surgery. after-effects of vant to the decision which Plaintiff was required concerning to make the sur- II. properly Whether the trial court gery. granted summary judgment dismissing comрlaint Count IV of the Culbertsons' 3. That Defendant failed to inform alleged loss of consortium. Plaintiff as to the alternatives to sur- III. Whether the trial gery, surgery, court erred inherent risks of and the
denying the Culbertsons' Motion possible surgery. after-effects Strike and/or remand the decisions of Record, II, p. 8. As to Count the Medical the Medical Review Panel. Review Panel concluded: I reverse on Issues and II and affirm The Panel determines that Defendant on Issue III. Plaintiff, Patty did not advise Culbert
Patty son, Jo went to see Dr. complication Culbertson Ro- of cervical adhe- land B. Mernitz in complain- Marсh of 1988 vagina; sion to the the Panel further ing leakage of uncontrollable urine and dis- determines that such non-disclosure does charge vagina. examining from the After comply not constitute a failure to with Culbertson, Mrs. Mernitz appropriate determined that standard of as such compliсation is not considered a risk of cystocele her condition was due to a mild argues that Mernitz Dr. patient standard. disclosure requiring surgery such wrongly decid- patient. prudent adopted the has not Indiana ed and Record, p. Therefore, Mernitz standard. duty to make has a A prop- argues that *3 rele facts material of disclosure reasonable erly entered. to medical consent to decision to the vant v. Christiansen Spencer treatment. invita - Dr. Mernitz's We decline 1091, 1090, N.E.2d Ind.App., 549 (1990), to reconsider tion Griffith. the adopted has Indiana denied. fact issue of transfer "prudent that an Thus, we conclude in in care of patient" standard cervical risk of the as to whether remained cases; physician the ie. consent formed This material. vagina the to adhesion a reason which risks those disclose must not does jury which for the question is a materi consider patient would prudent ably materiality, testimony as to expert require undergo or to whether a decision al in might re testimony be expert although procedure. medical particular forego a extent and the existence establish quired to Ind.App., 577 v. Jones risk.1 The 264, pending. 258, N.E.2.d transfer end doеs not question the erred the court argue that ques that argue The Culbertsons the there. that conclusion the Panel's accepting whether as to also remain of fact tions did vagina to the adhesion of cervical risk inform failing to negligent Mernitz was disclosed, as the determina need tо be not infection, bleeding, of is a the risks the risk her of materiality of the tion of anesthesia, perfor and bladder from death through ex resolved is not question which she affidavit, that re she states question In an jury ais ation. testimony but pert MMK and undergone the not have would prudent application through solved testimony any than the more by expert require aided ex- issues of which A determination liability case warnings product in a adequacy of case can consent testimony informed pert in an testimony. through expert See resolved physician-patient can be analogy aided be itself, (1988), Ind.App., 528 Co. upon Monsanto patient the Jarrell v. relies relationship The Ind., denied complications possible the physician to describe transfer jury's through the It is reached procedure, the rela- N.E.2d 453. 555 contemplated medical of a to the infor- objective the an standard procedures application of alternative merits of tive expert to witnesses foregoing Sim- the treatment. received from mation from potential harm patient would necessary prudent at trial as a testimony whether expert is determine ilarly, is The аim aware of material. particular not be risk patient, will a jury, the consider like the ap- patient's to a alternatives the individual approximation of potential and feasible risks Too, judgment of a to the infor- subjective likelihood the procedure. plication of his аrising physician. is a fact his complication from he receives particular which mation (D.C.Cir.1972), He relies Canterbury Spence unaware. patient would be which the Accord provide him with physician to upon the 784-787. F.2d figure information, percentage patient" "prudent perhaps with а argues the that Dr. Mernitz complica- develop patients X ("one physician to "list require in a hundred the would standard descriptive tion") potential characterization a or with and unknown every possible known extremely possibility that remote ("there if one of patient is an deсide can that the risk so your ex- develop paralysis Appel- lower may you him or her." material risks is those procedure"). Such of this brief, misapprehends a result argument p. tremities 13. This lee's supplied to the should likewise a whether question information is not The the standard. testimony. jury in the form risk mаterial. patient find a particular would pru- hypothetical question whether the is hand, The unaware is other On the par-A a risk material. patient would find might patient dent importance a the relative re- may even the to know patient want pro- merely ticular particular risk. He upon place a risk, patient not prudent would but if the patient motest and allows the information vides material, physician will the risk found have whether make the failing it. to disclose liable for Similarly, be held it is not surgery undergo | or treatment. physician to may require the the standard While a risk whether dеtermine jury's task to objective any judgment, other some exercise dis- have been should therefore judgment determination, requires the exercise given "materiality" The closed. See particular situation. applied to a when it is understanding the nature background Canterbury, supra, comрlication, is not particular a likelihood procedures had she eryocauterization issue of whether the risk of cervical adhe- vagina Dr. Mernitz ac- sion to the advised of those risks. was material. knowledged present that risks were those IL. although deposition,
in his he did not con- аrgues sider them material. Dr. Mernitz Loss Consortium Mrs. that his failure to inform Culbertson argue The Culbertsons the trial of risks which never materialized did not dismissed Count IV of negligence constitute because these risks complaint, alleges their that as a injury. not of her cause negligence, result of Dr. Mernitz's Mr. Cul- believe thаt the better is that view spousal bertson suffered a loss of consor- espoused by pref An Dr. Mernitz. action argues tium. Dr. Mernitz that because *4 on the doctrine of informed consent is aced loss of consortium is derived from the negligence. based on the tort of Ellis v. spouse's claim and all оther claims had (1988), 826, Ind.App., 528 N.E.2d Smith dismissed, properly the trial court dis- 827, in reh'g denied. To recover an action quarrel missed Count IV. While we do not negligence, plaintiff prove the must for with Dr. Mernitz's characterization of the negligence that the the defendant claim, loss of consortium see Kolkman v. injury caused the which resulted. North (1987), Brewing Corp. Ind.App., Falstaff ern Indiana Public v. Service Co. Stokes 478, 480, denied, 511 N.E.2d we transfer 175, 179, App., reh'g Ind. 493 N.E.2d summary judgment concluded above that presents Certainly, concept denied. that improvidently granted on Count II of special problems some in the contеxt of Therefore, complaint. the the loss of con- consent, negligent informed where the act summary judg- sortium claim also survives physically does not set in motion a chain of ment. injury, in events which ends the but rather unknowing plaintiff acquiesce allows the to II. inherently risky procedure. to How еver, Motion to Strike negli- the end to which the tort of genee aspires is best served when the ele finally argue The that the ment of causation is defined within the denying in trial court erred their Motion to following limits: Opinion of the Medical Review Pan Strike adequate reasonably
If disclosure could argument Their has no merit. Dr. el. expected person to have caused that correctly points "[alny out that Mernitz to decline the treatment because of the expert by the report reached danger revelation of the kind of risk or panel shall be admissible as mediсal review any subsequently harm, evidence in action - in resulted causation shown, but otherwise not. brought by in a court of the claimant law." 16-9.5-9-9; Dickey Long v. Ind.Code supra n. Were we Canterbury, (1991), Ind.App., view, adopt plaintiffs the Culbertsons' Therefore, affirm the trial court's deni we could recover for an unforeseeable or un- al of the Motion to Strike. Culbertsons' injury the doctor had knowable where patient failed to inform the of the risk of a part, in part, Affirmed in reversed injury which was foreseeable but remanded. occurred; injury the is one never where science, duty unforeseen no GARRARD, J., concurs. If
inform the unknown risk exists. HOFFMAN, J., part, in concurs otherwise, would be held part separate opinion. files dissents liability-he to strict is not. HOFFMAN, Judge, concurring and dis- the We hold that trial court senting. granted summary judgment in favor of Dr. majority's II I concur with the Mernitz on Count of the Culbertsons' of the Cul- affirm the trial court's denial complaint. remand for trial on the strike, respectful- I but any testimony contrary bertsons' motion pan- majority's decision to ly from the therefore, dissent findings; el's trial court's summary entry of entry summary judgment reverse the trial court's in favor of Dr. Dr. Mernitz. judgment in favor of proper. Mernitz was Ellis at 829. See majority Moreover, The cites v. Jones assuming majority even Griffith (1991), Ind.App., 577 N.E.2d trams. applying prudent patient was correct position that support of its pending, the trial court's adopted "prudent patient" Indiana has proper. still As consent cases. standard of care informed notes, majоrity stated Mrs. Culbertson re the cases the in an affidavit that she would not have support upon lied do not such a standard. undergone the MMK had she Rather, simply the cases set out well- bleeding, infec been advised risks physician to make a duty of a established tion, anesthesia, perfor death from bladder material facts rele disclosure of reasonable ation, procedure.2 and failure of the How patient's Payne decision. vant to the ever, none these risks materialized. (1990), Ind.App., Hosp. Marion General Whether or not the risk materialized is 1043, 1046; Russell 549 N.E.2d Revord v. irrelevаnt since the would not have 763, 766; Joy Ind.App., 401 N.E.2d undergone injured the treatment and been *5 29, 39, Ind.App. 177 et al. v. Chau risks; had she been informed of all material Moreover, al 676-677. however, if the unrevealed risk that should otherwise, though court found the Griffith materialize, been made known did not have gen relied on thе Payne both and Revord legal consequence. the omission is without testimony eral rule that (D.C.Cir.1972), Canterbury Spence v. the content of reason required to establish F.2d I would affirm the trial disclosure unless the situation is clear able court's in fa laypersons' compreh ly within the realm vor of Dr. Mernitz. 1050; at Payne ension.1 Revord Furthermore, noted, court Griffith applied the or similar this Court has "same
locality" standard of care in informed con (see, e.g.,
sent cases Ellis v. Smith 826, 828); therefore, Ind.App., 528 N.E.2d adopting court erred in Griffith prudent patient of care. locality or similar stan- Under the same SIMS, Appellant-Defendant, Thomas dard of must disclose physiciаn under those risks a reasonable Indiana, Appellee-Plaintiff. STATE circumstances would have disclosed. similar at 828. As the situation in the instant Ellis No. 32A01-9108-CR-239. clearly lay- outside the realm of case was Indiana, Appeals Court expert testimony persons' comprehension, First District. required to establish whether the dis- May26,1992. reasonable. The medical re- closure was panel found that the risk of cervical view vagina not a material
adhesion to the
risk of the MMK and that the risk was
Mernitz's failure to disclose applicable standard of
not a breach of present
care. The
failed to
noted,
deposition
Joy
that he did
court
2. Dr. Mernitz stated in a
1. As the
unnecessary to discuss the extent of
found it
Mrs. Culbertson of these risks.
advise
exceptions to disclosure.
Id. 177
disclosure or
Ind.App. at