260 N.W. 99 (Mich. 1935), 92, Zoski v. Gaines

Docket Nº92
Citation260 N.W. 99, 271 Mich. 1
Opinion JudgeBUSHNELL, Justice.
Party NameZOSKI v. GAINES et al.
AttorneyChas. A. Svenson and Harry Cohen, both of Detroit (Samuel Shimans and John Sklar, both of Detroit, of counsel), for plaintiff. Wm. Rolston Brown, of Detroit, and Rodgers & Dunn, of Grand Rapids, for defendants.
Judge PanelPOTTER, C.J., and NORTH, NELSON SHARPE, FEAD, WIEST, BUTZEL, and EDWARD M. SHARPE, JJ., concur.
Case DateApril 08, 1935
CourtSupreme Court of Michigan

Page 99

260 N.W. 99 (Mich. 1935)

271 Mich. 1

ZOSKI

v.

GAINES et al.

No. 92

Supreme Court of Michigan

April 8, 1935

Action by Tony Zoski, a minor, by his next friend, Paul Zoski, against Claude Gaines and others. From a judgment for plaintiff in part, he appeals, and defendants cross-appeal.

Affirmed.

Page 100

[271 Mich. 3] Appeal from Circuit Court, Wayne County; Robert M. Toms, Judge.

Argued before the Entire Bench.

Chas. A. Svenson and Harry Cohen, both of Detroit (Samuel Shimans and John Sklar, both of Detroit, of counsel), for plaintiff.

Wm. Rolston Brown, of Detroit, and Rodgers & Dunn, of Grand Rapids, for defendants.

BUSHNELL, Justice.

In September, 1927, Tony Zoski was a 9 1/2 year old normal boy, in the fourth grade of his school. There being some suspicion of infected tonsils, he was taken by a visiting nurse to the city physician and later sent to the Shurly Hospital. At the same time there was delivered to the hospital a written memorandum from the city physician requesting the removal of the boy's tonsils and adenoids. The boy went to the hospital on Saturday, September 24, 1927, accompanied by his 15 year old brother Theodore, where his tonsils were removed by Dr. Gaines, an associate of Dr. Shurly. Neither the city physician, Dr. Shurly, Dr. Gaines, nor any one acting for them, obtained the consent of either parent to operate. They did not know their son was in the hospital until Theodore, apparently frightened by Tony's appearance on his return from the operating room, reported the facts. The father, who appears in this action as next friend, immediately went to the hospital[271 Mich. 4] and remained with the boy until about 9:30 p. m. On Sunday morning he returned, discovered blood on the floor near Tony's bed, dried blood on his face, and a bump on his forehead between the eyes. Tony claims he became frightened during the night because of bleeding from his throat, and when the nurse failed to respond to his cries, tried to get out of bed, struck his head against another bed, and then lost consciousness. The father went home to dinner at 1 o'clock on Sunday when Tony said he was feeling better, returning about three, and remained until 9 o'clock. He came back early Monday morning, dressed Tony, who was still weak, and took him home in a taxi.

The record does not disclose any medical attention being required at home for the boy, although he was apparently slow in regaining his strength and suffered from headaches. On the morning of either the 2d or 10th of October (the father claiming the 2d and the hospital records showing the 10th), it was discovered that Tony had become blind. He was immediately again taken to the Shurly Hospital, where he was kept under observation for about six weeks and examined by members of the staff. Drs. Neff, Gaines, Bullock, Hewitt, Parker, and others were called in as consultants, in an attempt to ascertain the cause of the blindness. Dr. Walter Parker,

Page 101

according to the records, agreed with the diagnosis of others and noted on the medical chart, 'that if vision does not recover in ten days following onset, recommend sub-temporal decompression.' The father, although requested by Dr. Shurly, refused to consent to the operation required to remove the intra-cranial pressure, which was thought to be the cause of the blindness, and the boy has since remained completely blind. Neither the headaches nor [271 Mich. 5] any other impairment of any bodily function afterwards appeared.

Plaintiff's claim for damages is predicated upon two theories: First, that the operation being unauthorized by the parents, or either of them, was in law an assault and battery for which damages may be assessed; second, that the blindness is the result of the unauthorized operation and should be considered by the court as a factor in determining the amount of damages.

The trial court found that the operation was unlawful and the defendants were therefore guilty of an assault, but that the blindness which developed after the operation could not be traced back to such operation; that the operation could not be considered as having either a causal or precipitating relationship to the blindness, and plaintiff was therefore not entitled to recover any damages for such blindness. The court allowed damages for the unlawful assault in the amount of 6 cents, but in a supplemental opinion changed the damages from 6 cents to $600.

Plaintiff appeals, alleging seven grounds of error, which may be grouped as follows:

1. Where the infant's representative neglects to file demand for jury trial within the time required by the rule, should the infant be denied a jury trial?

2. Where the defendants at all times retained in their sole possession all charts and data relative to treatment and operation upon the infant, symptoms, subsequent history, X-rays, diagnosis, and care, should application by infant for examination of defendants and for charts and records prior to trial under court rule 41, be quashed?

[271 Mich. 6] 3. Were defendants guilty of assault and battery by reason of the unauthorized operation upon plaintiff?

4. Was there sufficient causal relationship between operation, the postoperative care, and blindness to entitle plaintiff to damages therefor?

Defendants, in a cross-appeal, state the following additional question: 'Where a city physician without first obtaining the parent's consent, issues a formal order to a private hospital to operate and the operation is performed in reliance upon that order and without any knowledge upon the part of the hospital authorities or the operating surgeon of such lack of consent, may the latter properly assume that the city physician had obtained the necessary consent before issuing the order for the operation?'

Rule 33, Michigan Court Rules of 1933, formerly rule 33 of 1931, and Circuit Court Rule 39, provides for a written demand for trial by jury, either attached to or noted upon the declaration, or, as would have been required prior to the 1931 rule, filed with the clerk within ten days after the issue is joined in the...

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18 practice notes
  • 155 S.E.2d 108 (N.C. 1967), 523, Sharpe v. Pugh
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • June 20, 1967
    ...of Columbia, says: '(T)he general rule is that the consent of the parent is necessary for an operation on a child. Zoski v. Gaines, 271 Mich. 1, 260 N.W. 99; Moss v. Rishworth, Tex.Com.App., 222 S.W. 225; Rogers v. Sells, 178 Okl. 103, 61 P.2d 1018; Browning v. Hoffman, 90 W.Va. 568, 111 S.......
  • 139 N.E.2d 25 (Ohio 1956), 34737, Lacey v. Laird
    • United States
    • Ohio United States State Supreme Court of Ohio
    • December 12, 1956
    ...death under the death act because the father's consent was not obtained.' But it must be noted that in the later case of Zoski v. Gaines, 271 Mich. 1, 2, 260 N.W. 99, the same court, to some extent, modified the rule stated in the Bakker case, although the court did not expressly overrule i......
  • 491 N.W.2d 633 (Mich.App. 1992), 111082, In re Rosebush
    • United States
    • Michigan Court of Appeal of Michigan (US)
    • November 19, 1992
    ...operates on a patient without consent, the physician has committed a battery and may be required to respond in damages. Zoski v. Gaines, 271 Mich. 1, 9-10, 260 N.W. 99 (1935); Young v. [195 Mich.App. 681] Oakland Gen. Hosp., 175 Mich.App. 132, 139, 437 N.W.2d 321 (1989); Banks v. Wittenberg......
  • 299 N.W. 723 (Mich. 1941), 320, Hallett v. Michigan Consol. Gas Co.
    • United States
    • Michigan Supreme Court of Michigan
    • September 2, 1941
    ...court has heretofore considered a petition filed under Rule 41 with subpoena duces tecum as a ‘ petition for discovery.’ Zoski v. Gaines, 271 Mich. 1, 260 N.W. 99. Rules 40 and 41 should be liberally construed to the end that justice will be furthered rather than obstructed by their use. Th......
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17 cases
  • 491 N.W.2d 633 (Mich.App. 1992), 111082, In re Rosebush
    • United States
    • Court of Appeal of Michigan (US)
    • November 19, 1992
    ...operates on a patient without consent, the physician has committed a battery and may be required to respond in damages. Zoski v. Gaines, 271 Mich. 1, 9-10, 260 N.W. 99 (1935); Young v. [195 Mich.App. 681] Oakland Gen. Hosp., 175 Mich.App. 132, 139, 437 N.W.2d 321 (1989); Banks v. Wittenberg......
  • 139 N.E.2d 25 (Ohio 1956), 34737, Lacey v. Laird
    • United States
    • United States State Supreme Court of Ohio
    • December 12, 1956
    ...death under the death act because the father's consent was not obtained.' But it must be noted that in the later case of Zoski v. Gaines, 271 Mich. 1, 2, 260 N.W. 99, the same court, to some extent, modified the rule stated in the Bakker case, although the court did not expressly overrule i......
  • 155 S.E.2d 108 (N.C. 1967), 523, Sharpe v. Pugh
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • June 20, 1967
    ...of Columbia, says: '(T)he general rule is that the consent of the parent is necessary for an operation on a child. Zoski v. Gaines, 271 Mich. 1, 260 N.W. 99; Moss v. Rishworth, Tex.Com.App., 222 S.W. 225; Rogers v. Sells, 178 Okl. 103, 61 P.2d 1018; Browning v. Hoffman, 90 W.Va. 568, 111 S.......
  • 263 N.W. 877 (Mich. 1935), 40, Paull v. McBride
    • United States
    • Supreme Court of Michigan
    • December 10, 1935
    ...reasonable conclusions from the proofs, but they may not arrive at their verdicts by processes of guess or conjecture. Zoski v. Gaines, 271 Mich. 1, 260 N.W. 99, and Black v. Texas Co., 247 Ill.App. [273 Mich. 668] There being no evidence of the negligence of defendants or either of them, t......
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1 books & journal articles
  • The doctor will see you for the last time now: physician-assisted suicide in Massachusetts.
    • United States
    • Suffolk University Law Review Vol. 46 Nbr. 1, February - February 2013
    • February 1, 2013
    ...(describing twelve-year-old boy who decided to stop futile cancer treatment). (126.) See Zoski v. Gaines, 260 N.W. 99, 99 (Mich. 1935); Perry v. Hodgson, 148 S.E. 659, 659 (Ga. 1929) (requiring parent's informed consent for leg operation on child); Moss v. Rishworth, 222 S.W. 225, 225 (Tex.......

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