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Trower v. Jones





Appeal from the Circuit Court of Douglas County; the Hon. Frank W. Lincoln, Judge, presiding.


Rehearing denied December 19, 1986.

Plaintiffs brought a medical malpractice action in the circuit court of Douglas County seeking damages from defendant doctor. The jury returned verdicts in favor of the doctor, and the court entered judgment on the verdicts. Because plaintiffs on appeal raise questions concerning the admissibility of certain evidence and the sufficiency of all the evidence, a detailed description of the facts follows.

Plaintiffs, Cindy R. Connour and Donald E. Connour, filed a two-count complaint in the circuit court of Douglas County against defendant, Grant A. Jones, M.D. Count I alleged that Dr. Jones was negligent in his medical treatment of Cindy and sought damages. Count II alleged that as a result of Dr. Jones' negligent treatment of Cindy, Donald suffered the loss of Cindy's society and sought damages. Following the dissolution of plaintiff's marriage, the caption was amended to change the name of Cindy R. Connour to Cindy R. Trower. The following testimony was elicited at trial.

Cindy testified that she was married to Donald on June 5, 1977, and divorced on June 5, 1984. After describing her work history, Cindy stated that Dr. Jones was her family physician.

While at work on March 3, 1981, Cindy began experiencing nausea and pain in her abdomen. She was vomiting and suffering from diarrhea. Cindy left work, and she was eventually taken to Dr. Jones' office in Arthur. Cindy explained her symptoms to Dr. Jones' nurse and to Dr. Jones himself. Dr. Jones examined Cindy by pressing on her stomach and listening to her heart. Dr. Jones asked Cindy if she was taking any drugs, and she responded that she takes birth control pills. Cindy was asked by Dr. Jones to give him a urine specimen, but she was unable to do so. Cindy stated that she was given a shot and a prescription for medicine. Cindy was told that she was suffering from a virus which would run its course in 48 hours. The prescription was filled, and Cindy took the medicine as directed.

On March 4, 1981, Cindy did not return to work because her symptoms persisted. She went to Jarman Hospital to receive a shot which was approved by Dr. Jones. Cindy was still unable to produce a urine specimen.

On March 5, 1981, Cindy's condition worsened, and she did not return to work. In the afternoon a urine specimen was delivered to Dr. Jones' office.

On March 6, 1981, Cindy did not return to work. In the evening the pain in her abdomen became more severe. Cindy was taken to the emergency room at Jarman Hospital where Dr. Sands performed a vaginal examination and a pelvic examination. Cindy had a bloody vaginal discharge, and Dr. Sands told her that he thought she might have an ectopic pregnancy. Cindy was admitted to Jarman.

On March 7, 1981, Cindy's symptoms persisted. Dr. Jones visited her in the hospital and told her that her pregnancy test was positive. Dr. Jones examined Cindy's stomach and listened to her heart. No other tests or examinations were performed that day.

From March 8, 1981, to March 13, 1981, the date of Cindy's discharge from Jarman, Dr. Jones visited her on a daily basis. Other than pressing on her stomach and listening to her heart, Dr. Jones performed no tests or examinations. On March 10, 1981, Joyce Martin, Dr. Jones' assistant, performed a vaginal examination. On different occasions, Cindy was told by Dr. Jones that her pregnancy test had been positive and then negative. No physicians other than Dr. Jones visited her during her hospitalization. On March 11, 1981, Cindy told Dr. Jones that her symptoms had become less severe and that she wanted to go home. On March 13, 1981, Cindy was discharged and given a prescription, which was filled and taken as directed.

On March 19, 1981, Cindy's symptoms persisted, and she visited Dr. Jones at his office. Dr. Jones pressed on Cindy's stomach and listened to her heart but performed no other tests or procedures. Cindy was given a prescription which was filled and taken as directed.

Cindy visited Dr. Jones' office again, but could not recall the date or details of the visit.

On April 2, 1981, Cindy visited Dr. Jones at his office. Cindy told Dr. Jones that she was weak and had been vomiting. No tests or examinations were performed. Dr. Jones released Cindy to return to work.

On April 3, 1981, Cindy did not return to work because her symptoms persisted. She was taken to visit Dr. James Laidlaw of Christie Clinic, who performed a rectal examination and a pelvic examination. Dr. Laidlaw inserted a syringe into Cindy's vagina and withdrew some green pus.

Cindy was immediately admitted to Mercy Hospital. Her attending physician at Mercy was Dr. Laidlaw. While at Mercy, an ultrasound examination, a pelvic examination, and an operation were performed. Cindy was told that the operation was a colostomy. Cindy described the colostomy as a procedure in which bags were attached to the outside of her body to collect discharge from her upper intestinal tract. Cindy described the procedures she had to take to care for the colostomy. Cindy was in Mercy for approximately three weeks. Although some of her symptoms persisted, she began to feel better. After being discharged from Mercy, Cindy was unable to return to work or to do housework.

On May 12, 1981, Cindy returned to Mercy to have the colostomy reversed. She remained under the care of Dr. Laidlaw and Dr. Fischer. Cindy described the procedures performed on her in preparation for the colostomy closure. The colostomy closure was performed on May 23, 1981, and Cindy was discharged from Mercy on May 30, 1981. Some of Cindy's symptoms persisted. She was feeling like herself again within two weeks of her discharge. Cindy visited Dr. Laidlaw on several occasions after her discharge.

During April 1982, Cindy returned to Mercy Hospital where her left fallopian tube and ovary were removed. Her recovery period lasted six to eight weeks, during which time she was very sore.

Since her illness, Cindy has been unable to conceive a child. She is no longer experiencing the difficulties she had in March 1981, and she is no longer under any limitations.

On cross-examination Cindy admitted that she was a little "fuzzy" on some of the details of her first visit to Dr. Jones' office. She also admitted telling Dr. Jones that she was feeling better towards the end of her hospitalization at Jarman. Cindy also discussed notes she had taken of her illness. She also answered questions about her marriage and divorce and about her work history during and subsequent to her illness.

On redirect examination, Cindy stated that she returned to work for a short period of time in July 1981 under Dr. Laidlaw's orders.

Donald Connour testified regarding his marriage to, and divorce from, Cindy. He also testified that during Cindy's hospitalization at Jarman, she would sometimes indicate that she was feeling better, but she would sometimes be so sick that she could not talk to him. He testified that he had to assume more household responsibilities during Cindy's illness and that her illness placed a strain on their marriage. Cindy was back to normal mid-1982.

On cross-examination Donald stated that he was 20 and Cindy was 16 when they were married. He also testified that Cindy appeared to feel better on some days following her discharge from Jarman and that she even said so.

Jane Trower, Cindy's mother, testified as to Cindy's medical history. She stated that Cindy appeared ill on every occasion she visited her at Jarman. Also, Cindy "didn't look good" after her release from Jarman. Cindy gradually returned to her normal self within one year of her second surgery at Mercy.

Lawrence Trower, Cindy's father, testified that Cindy appeared sick during her hospitalization at Jarman. She was pale and looked as if she was losing weight and nauseated. Cindy began looking better eight to nine months later.

Harold Loy, the plant supervisor at Cindy and Don's place of employment, testified as to Cindy's work habits and job duties prior to March 1981 and the events of March 3, 1981, when Cindy became ill at work. Loy testified that Cindy returned to work on July 13, 1981, and left again on March 3, 1982. She returned again on August 8, 1983, and left again on May 5, 1984. When Cindy returned, she was unable to perform her job duties as well as she had prior to March 1981.

Helen Hood, Cindy's aunt, recalled the events of March 3, 1981, when she took Cindy to Dr. Jones' office.

Bonnie Ray, Cindy and Don's former next-door neighbor, testified that prior to March 1981 Cindy appeared healthy. During the first few days of Cindy's illness, she appeared pale, thin, and weak. When Ray visited Cindy at Jarman, "she seemed better than what she was when she was at home." After returning home from Jarman, ...

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