*1 79; (1967), Parker E. Stover v. GMC Truck Sales 235 N. 2d 475, 777, 778; City Indianapolis App. E. 2d N. 228, 1966), 700; Schilling 247 Ind. 213 N. E. Hoffman v. 168, App. 887; Ritter 134 Ind. 186 N. E. 2d Daw Mayor, etc., al, supra; Wiltrout, Wright, et son, et al v. Indi 3, 2524, p. 293, Practice, ana and cases Vol. cited. appellee’s Motion to Dismiss is sustained and this
cause is dismissed.
Reported in
Note. —
Meier v. Combs 26, 1970. Rehearing denied Filed October December 769A136. [No. denied March Transfer 1971.] Pearlman, Jr., Louis Dickson, Lafayette, Brent E. for appellant. Ball, Ball, Eggleston, King
C. G. Bumbleburg, Lafay- & ette, appellee. by appeal J. This is an from a sum-
White, mary judgment damage for the defendant in a suit. physician (M.D.)
defendant is a licensed and his motion for premised undisputed on the fact that years suit was commenced than more two after the cause of action following accrued. contends He it is barred statute: *2 any damages, brought “No action of kind for whether in tort, upon professional contract or services rendered or which rendered, should brought, have been shall be com- any
menced or maintained in of the courts of this State against physicians, dentists, surgeons, hospitals, sanitar- iums, others, years unless said action is filed within two act, neglect from the date of complained omission or (Emphasis added.) of.”1 Plaintiff-appellee contends that there is a issue of damages material fact as to whether this action for is “based upon professional services rendered”. May 7,
The action arises out of events which occurred on 1958, under-graduate an when student at Purdue University. Defendant at that time was Medical Director of University the Purdue Student Health Service. complaint merely, “Complaint denominated allegations
Damages”. pertinent legal of its Paragraph I are: day May, 1958, “1. That on 7th of the Defendant COMBS, M.D., conspiracy LOYAL W. D. and with one Frank Sandefur, Jones, James one A. Sell and one Donald E. pursuant conspiracy, Plaintiff, to said forced under violence, accompany of force and
threat said Frank D. Sandefur, Marion, and Donald James A. Sell Jones E. Indiana, Sandefur, Frank D. A. where James Sell and Don- caused Plaintiff to be ald E. Jones confined in the Veterans Hospital. deprived liberty Plaintiff was of his “2. That and con- aforesaid, against Hospital, as express fined in said his desire, his and without consent.” wish and being 1, (1968 Burns Ch. Ind. Acts Stat. Ann. Repl.) §2-627. Virtually allegations repeated legal same are Para- graph except non-parties II that the named are characterized agents co-conspirators. as defendant’s rather than his Paragraph paragraphs II’s 2 read as rhetorical and follows: day May, 1958, “1. That the 7th the Defendant M.D., agents COMBS,
LOYAL
fur,
under
Frank
W.
his
D. Sande-
Plaintiff,
Jones,
James A. Sell and Donald E.
forced
violence,
accompany
and
threat of force
said
Sandefur,
D.
Frank
James
Sell and Donald E. Jones to
A.
Indiana,
Marion,
Sandefur,
the said Frank D.
where
James
A. Sell
in the Veterans
Donald E. Jones caused Plaintiff to
and
be confined
Hospital.
liberty
deprived
and con-
“2. That Plaintiff was
of his
Hospital,
aforesaid,
express
fined in said
wish
desire,
and
and without his consent.”
legal Paragraphs
I and
paragraphs
Rhetorical
damage.
allegations
prayer
injury
II
identical
legal
damages.
paragraph
$250,000.00
is for
each
paragraphs
of answer which
also includes
The record
*3
years
within two
plead
not accrue
cause of action did
that the
replies
the action and
that
of
of the commencement
the causes
mind at the time
plaintiff was of unsound
continuously thereafter
for
and
action accrued
alleged
years.
incompetence
serve
This
would
than four
more
running
limitations2 but
of the 1881 statute of
not
toll
quoted
statute.3
1941
supported
for
is
motion
defendant’s
evidentially by
Plaintiff
filed a re-
the defendant’s affidavit.
(1968
2-601,
Repl.)
2-602 and 2-603.
§§
Stat. Ann.
Burns
Ind.
2.
provides
persons
part
that
under
of the 1881 Act and
is also a
2-605
§
years
may bring
legal
their actions within two
after
disabilities
disability is removed.
(1968 Repl.)
Ann.
§2-627.
The 1941 statute is Burns Ind. Stat.
3.
apply
supra,
2-605,
which tolls the 1881 statute does
to the 1941
statutory
although
exceptions,
(§ 2-627)
statute,
an
there
as to which
are no
judicially
exception
concealment has
fraudulent
been
declared.
for
891;
Guy
(1956),
101,
Blank
N.
236 Ind.
138
E. 2d
Burd v. McCul
v. Schuldt
Community
159;
Hospital
lough (1954),
Fed.
Indi
2d
v.
217
App. 333,
562,
302,
399;
anapolis
(1968), 143
240 N. E. 2d
Dec
Ind.
Ind.
1968),
Ostojic
(7th
Brueckmann
Cir.
Plaintiff, student, university president’s had been to the May 7, 1958, demanding a week office about before to see alleged ring involving President Hovde to discuss an narcotics faculty members, class, hypnosis of students bizarre sexual activities, agitated etc. His emotional state aroused concern requested report these matters to the Dean of May Arrangements Men’s Officeon were made psychologist defendant and a clinical to be there with the plaintiff Dean. The ap- three of them talked with when he peared. From the interview the defendant made a determina- obviously tion that was “an disturbed individual *4 suffering from hallucinations and with distinct indications of tendency demanding paranoidal specialized pro- immediate psychiatric diagnosis fessional and and treatment.” Defend- plaintiff go if he (Indiana) ant asked would to Marion to report to the authorities there the reported matters he had to consented, sent him home plaintiff defendant the Dean. When campus telling police come get clothes, him would that to his transportation to and furnish him later to his residence plaintiff that he purposely not tell did Marion. Defendant Hospital in to Administration to taken the Veteran’s was pro- was that did wish His stated reason Marion. Defendant, however, agitated plaintiff in his state. made voke arrangements Hospital authorities at Marion with the V.A. campus police to trans- plaintiff’s admission and with for they there, is port There no evidence that him did.4 judicial There is was taken obtain commitment. action entry hospital plaintiff’s physical into the how evidence of actually accomplished. There no sworn denial of the was plaintiff’s complaint allegation he was confined that “against express and his wish desire without consent.” his allegation himself, supported plaintiff, has not that Since evidentiary material, cannot taken or other it as affidavit true, but it is sufficient raise doubts. same is true of allegations transported plain- that those the conclusional who hospital accomplished physical to the admittance tiff agents. co-conspirators or defendant’s were judge’s quote prius opinion now the learned nisi from We granted summary judgment:5' rendered at the time he hand, “In the circumstances at clear that de- plaintiff the of rendered services to fendant gone May 7, of the president Plaintiff had to the 1958. office university president. and demanded see the He obviously agitated mind, in an state of and it seems was layman apparent to a even that he have been mentally Since the was a Purdue ill. Student and was the head of Purdue Student the defendant Health Service, defendant was called to come to the office of complaint persons named in 4. is evidence There de- campus police agents co-conspirators who trans- fendant’s ported plaintiff. requirement opinion accept fulfillment of the 5. We granting summary judgment. their reasons Harris trial courts state v. Young Christian Assoc. 250 Ind. Women’s 237 N. E. 14 Ind. Dec. 242. 247. *5 did, plaintiff. Dean the of Men to examine the This he talking twenty diagnosing himto for fifteen to minutes and being mentally dangerous. him ill and He then made arrangements hospital. to him to have taken a mental person ill, a doctor is called to When examines decide whether a is him, ill, determines him that he is sends hospital, require very a say it would a strained construction to professional has not that he rendered services. “Having question professional answered the of whether rendered, question: services were come we to the second plaintiff’s upon action cause of In such services? connection, plaintiff professional contends that if services rendered, they were ceased when the defendant had com- diagnosis, pleted acting phy- and that he was as a arranged sician when he have the taken to the Hospital. He Y.A. claims that the cause of action for false anything imprisonment is not based on that defendant did rendering professional services, something quite in but on separate apart and professional after occurred services were over. attempted analogy has an “Plaintiff drawn between hypothetical doctor, a this case and treat case where a called to gratuitously patient, patient a hits the in the mouth. argues, quite correctly, He that an action for assault and battery arising profes- upon therefrom is not based go I hypothesize services. would even sional farther and examining doctor, patient, pro- the case of a a female who upon a assault, sexual assault ceeds make her. The sexual though examination, it arises as a result even of the is not any way part professional (at a of the in doctor’s services by generally accepted standards), least and therefore an upon upon professional it not based action based services. analogy me that “But it seems to does not hold when apply Hitting patient it to the instant we case. in a making mouth, a sexual assault patient, custom- a female normally professional part a of the is not services Sending physician. arily after a patient rendered a hospital to a diagnosed part been ill is professional he has a such case, the In this diag- services. defendant made a medical plaintiff, mentally decided he ill, nosis of the sent cerned with whether by was and then hospital. the a mental him to We of course not con- wrongful, whether action was but with part it was services rendered plaintiff. the doctor It seems to me that clearly is.” arriving foregoing quo- at the conclusions he did In opinion, judge from his we believe the made a choice tation conflicting inferences. between (5th 1963) 322
In Sheets v. Burman Cir. F. summary granted malprac had in a court district grounds physician the action case tice by lapse plaintiff appealed. The of time services barred moved to were rendered Indiana. doctor Louisiana *6 year, briefly Mis moved to one returned to Indiana then summary reversing sissippi the the was filed. In where suit said, judgment at Appeals of Fifth the Court of the Circuit 278: “In order for the court issue 56, disputed questions fact
under be Rule there must undisputed conflicting to be drawn facts from inferences which, plaintiff against moving the party, if the allow settled would Stanley Scroggins Guy Construction to recover. v. Co., Gretna 1961, Ave. Cir., 374; 5 297 2d Braniff v. Jackson F. Ferry, 1960, Inc., Cir., claim 5 280 2d 523. A F. may by applicable barred limitations statute procedure. by summary judgment properly disposed of If, however, Ayers Davidson, there is a timely 1960, Cir., 5 F. 2d v. 285 disputed issue as to whether suit was factual brought present be allowed must Reynolds Hud- point. on this R. Tobacco evidence son, Cir., 1963, J. Co. v. (Emphasis added.) 5 314 F. 776.” at [and 280] dispute is a as to when before us there “In case relationship The defendant contends doctor-patient ended. terminated, 1950, the latest in when moved it at that was urges exist continued to Mrs. Sheets Louisiana. Burman an examination of her. 1954, Dr. made until when conflicting which can be drawn There inferences from left one that Dr. Burman Indiana for admitted facts Mrs. at once year, then examined Sheets least on but added.) (Emphasis return.” recognize of demarcation lines between evi
We facts, inferences, facts), underlying dentiary ultimate (or facts conclusions of fact and conclusions of law are so blurred, indistinct, anything ap and undefinable that unanimity legal proaching opinion proper as to the any particular classification instance is unattainable.6 But plaintiff’s plausible the mere fact that counsel is able make a argument pro that this action the rendition of services, clearly fessional indicates that at there is least doubt, merely speculative, is more than that the undis puted testimony only of the defendant can lead to the conclu sion reached the court. In Wozniczka v. McKean 471, 215, App. 401, N. E. 2d Ind. Dec. summary said: “A case is not we one be decided on judgment where, though disputed, the basic facts are not good parties may disagree faith nevertheless about infer v. Deister7 Mayhew ences to be drawn from the In facts.” quoting Mortgage Company from Greenebaum Town and “ deciding Garden Associates,8 we said: ‘In whether there is case, an in a issue material fact all doubts must re party asking summary solved judgment’ for a (Our emphasis.) quoted following We there also from Barron and Holtzoff :9 “ summary who moves for ‘One has the burden *7 demonstrating clearly genuine of of fact. there is no issue Any to doubt as existence the of such an issue is against presented hearing resolved is him. evidence at the liberally party of opposing construed in favor the the given and he is the benefit of all
motion favorable inferences ” might reasonably be drawn from (244 which the evidence.’ 451, 16 521.) 2d at Ind. at N. E. Dec. McKean, supra, spoke v. In Wozniczka we the of trial postpone to court’s discretion consideration of a motion for judgment summary until after trial a when in doubt as to majority dissenting opinions the 6. Block See v. Fruehauf App. 70, Division Ind. 252 Trailer 146 N. E. 2d 19 Ind. Dec. 489. App. 111, 448, 451, 244 N. 144 Ind. E. 2d 16 7. 520 Dec. (1969). (7th 1967) 8. 9. 3 F. 347 Cir. (WRIGHT ED.) PRACTICE and FEDERAL PROCEDURE 138, 1235. § genuine Neither this a of material fact exists.10 whether issue speculative a a court nor trial court should seize mere necessary doubt to to understand and decide avoid the work summary questions presented by or a motion for by summary judgment. granting appeal an Con from the recognize versely, however, neither court should hesitate merely summary judg the doubt because existence summary judgment appears to ment or the affirmance of litigation terminating expeditious the be most means which may seem to be of doubtful merit. dispute plaintiff’s is based cause of action to whether years prior
on than two services rendered more should submitted commencement of this action be Procedure, jury (B) TR 42 Indiana Rules of trial. (C) sep- and TR 42 court to submit this the trial authorize court, prior arate merits if the for trial on the issue trial good discretion, in the exists exercise of finds that cause sound separate for such trial. suggestion the limita- that since would also add
We (Burns 2-627) im- on tion statute which defendant relies holding incompetents poses a harsh rule in infants competent responsibility adults it should same standard of strictly invoke defendants who it. be construed given “professional term narrowest services” should interpretation. possible who receive benefits Defendants highly non-professional de- statute are favored over professions. In our fendants and over defendants of other opinion, held an should not to be action (for “professional purpose rendition of of bar- services” ring statute) the rendition of some service unless except legally by, or cannot be rendered under the surgeon of, physician, dentist, supervision a licensed is an integral part of the cause of action. and essential Inc., Johnson, (4th Howard 323 F. 2d Cir. See Williams 1963). *8 apparent as a on the merit of the This is not intended comment 11. abstractly. speaking ease. We The is reversed and the cause remanded for fur- proceedings ther opinion. inconsistent with this JJ., Sharp, concur; Pfaff and
Hoffman, J., opinion. P. dissents with
DISSENTING OPINION Hoffman, agree am majority P.J. I unable to with the opinion following for the reasons: That any
1. no issue material fact exists. 2. An erroneous interpretation 116, of Acts ch. 1, p. 328, Anno., 2-627, Replace- Stat. Burns’ 1967 § § ment. appeal
This summary judgment arises from a in favor of defendant-appellee. presented
The upon summary judg- evidence which the ment was pleadings answer, entered (complaint, included special replies), plaintiff’s interroga- answer and answer to tories, party examination, defendant, defendant’s affidavit of summary judgment a motion for response and a thereto. plaintiff, response, directs the court’s attention to certain discovery statements made defendant in his de- position, response interrogatories, answer of doing certain statements in defendant’s affidavit. In so appellant attacking the motion for on grounds 1) two appellant, unsoundness of mind of 2) showing doctor-patient relationship that no existed. ground present first question can no of fact because appellant admits that before, he was of unsound mind May and after ground present
The second question can of fact because doctor-patient relationship appli- was not material to the malpractice cation of the limitations, 2-627, statute of supra. This Act makes no mention of relationship. such application of the statute of limitations turns the un- *9 ambiguous phrase upon, professional “based services ren- relationship required bring doctor-patient A to dered.” is not malpractice a the cause action within of limita- statute Morriss, tions. Merchants Bank National F. 2d 363 1959). (1st. Cir. physician may professional
A render services without doctor-patient relationship. physician of a existence When a operates wrong rendering person, on the services, doctor-patient relationship but no is in existence. by opposition plaintiff
No affidavits were filed in to the summary judgment. presented motion for No were facts to the trial court to show that the defendant was not render- ing professional physician a the acts services as when com- plained being performed. only appears were denial in pleading. Procedure, 56(E), provides,
Ind. Rules of Trial TR in pertinent part, as follows: “When a sup- motion for and made ported rest provided rule, party may in this an adverse not allegations pleading, the mere or of his denials by but response, provided his affidavits or otherwise rule, specific showing must set forth facts that there is a respond, issue for trial. If he does not so summary judgment, appropriate, if shall be entered summary judgment may challenged
him. by Denial of be motion to correct errors after a final or order is entered.” appellee employed The record before us reveals that was University Purdue were duties “to see to such nec- * * * essary hospitalization particular case, as the for the protection of such student and all others with whom he had might appeared expected associate, or require.” be to to Ful- filling defendant-appellee plaintiff- these duties examined mind, appellant, who unsound and found that it was necessary hospitalize protection him for his pro- and the might tection of others whom he expected with had associate. addition discloses uncontradieted evidence verbally
being mind, threatened plaintiff-appellant of unsound faculty. and members of the shoot certain students physician here) to be hos- (appellee caused then doing pitalized. so are The facts or his stated reasons disputed. can drawn from No reasonable inference rendering pro- physician was facts other than that such clearly within the falls services such action fessional malpractice statute of limitations. must be from the evidence
The inferences be drawn conjecture. speculation or not mere inferences and reasonable to be able to person’s seems The mere fact counsel *10 worthy belief, argument, plausible superficially of make a speaks of which to counsel but no basis well forms genuine a fact here whether or not issue of material decide arguments TR not evidence under exists. Counsel’s summary ruling supra, on a motion for to be considered when judgment. in the record There is not a scintilla of evidence acting pro- capacity physician in a other than placed him in appellant examined fessional when he hospital. (5th opinion Cir. majority v. Burman cites Sheets prin- supports the 1963), well-known 322 F. 2d applied in case that “there ciple a to be conflicting questions disputed fact or inferences of must be which, undisputed facts if settled from be drawn moving With party, allow the to recover.” would clearly However, agree. the facts of Sheets show that I issue fact to when statute of there was began 2-627, supra) run. In instant case (§ limitations limitations, dispute to when the statute is no there began applicable, to run. if “professional majority opinion the term misconstrues 2-627, supra. only requires in The statute as used
services” upon professional question in services the act rendered or the to render failure such services. Professional acting capacity services means that is in duly as a physician. licensed The test whether some other might person render the same service. The statute extends “physicians, dentists, surgeons, hospitals, sanitariums, or others.” physician rendering engaged
A first aid although might services same fireman, rendered policeman, boy scout, guard, any person. life mother or other person may A sick home, be confined in the as well as a hospital, and treatment, yet receive identical this does not hospital mean that the provisions does not fall within the might the statute because others render a similar or com- parable service. interpretation of the statute as set majority forth in the effect,
opinion, in
nullifies the statute
exception
with the
surgical procedures.
very specialized
Such action is not
judiciary
province of the
solely
within the
but is vested
Legislature.
I
affirm the
of the trial
would
court.
Reported in
Note. — City Company *11 Life Insurance Bolerjack, Kansas et
Administratrix al. petition rehearing Filed October 969A168. No [No. filed.]