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Remenderfer v. Williams12/2/1999
FOR PUBLICATION
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
Defendant-Appellant, Kathleen Lynn Bemenderfer, M.D. (Bemenderfer), appeals the trial court's denial of her motion for partial summary judgment on the issue of damages in favor of the Plaintiffs-Appellees, Lois Emogene Williams (Williams), as Personal Representative of the Estate of Hoy Sturgeon, Deceased, and Lois Emogene Williams, as Administratrix of the Estate of Dorothy L. Sturgeon, Deceased.
Bemenderfer's motion for partial summary judgment was initially granted by the Honorable John F. Hanley on July 26, 1996. On October 30, 1996, Williams filed a petition requesting certification for interlocutory appeal. On January 1, 1997, the Honorable Thomas J. Carroll assumed responsibility for Marion County Superior Court No. 6. At an unrecorded hearing on February 10, 1997, Judge Carroll indicated to the parties that he disagreed with the trial court's previous order granting summary judgment and therefore, he would not grant the petition for certification but he would entertain a motion by Williams to reconsider the grant of summary judgment. On February 21, 1997, the trial court granted Williams' motion to reconsider and vacated the prior order granting Bemenderfer's motion for partial summary judgment. On July 21, 1998, the parties entered into an agreed Final Judgment preserving for appeal the issue of the denial of Bemenderfer's motion for partial summary judgment regarding the appropriate measure of damages.
We affirm the trial court's denial of Bemenderfer's motion for partial summary judgment.
ISSUES
The following issues are raised by Bemenderfer:
1. Whether the trial court erred in denying Bemenderfer's motion for partial summary judgment which requested that the amount of damages recoverable by the Estate of Dorothy L. Sturgeon be limited to Dorothy L. Sturgeon's (Dorothy) medical, hospital, funeral, burial, and administrative expenses, where Dorothy no longer had a surviving spouse or dependent next of kin. 2. Whether the trial court erred in denying Bemenderfer's motion for partial summary judgment which requested that the amount of damages recoverable by the Estate of Hoy Sturgeon for the loss of his wife's consortium be limited to the three (3) days from the date of Dorothy's surgery to the date of her death.
FACTS AND PROCEDURAL HISTORY
Dorothy consulted with Bemenderfer regarding unexplained post-menopausal vaginal bleeding. Bemenderfer recommended a laparoscopy, a gynecological diagnostic procedure, which was performed at the Indiana Surgery Center, on December 21, 1992. Following the surgery, Dorothy experienced pain and vomiting and was brought by ambulance to Community Hospital on December 23, 1992. At the hospital it was discovered that Bemenderfer had punctured Dorothy's colon during the laparoscopy causing feces to invade her abdominal cavity. Emergency surgery was performed; however, Dorothy died the next day.
Dorothy was 76 years old at the time of her death. Her husband, Hoy Sturgeon (Hoy) was 82 years old and was suffering from Alzheimer's and Parkinson's disease. Dorothy had cared for her husband in their home prior to her death, and after her death Hoy entered a nursing home. This nursing home care cost Hoy in excess of $100,000.00, which eroded his life savings. In the nursing home, Hoy refused to eat and lost 33 pounds in the first three months. Because of his condition, Hoy was unable to fully comprehend Dorothy's death, and spent his days wandering the halls of the nursing home searching for his wife and calling out her name. Hoy died on April 9, 1995. Lois Emogene Willia
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