Abbe v. Woman's Hospital Ass'n

• Decision Date: 23 August 1971
• Docket Number: Docket No. 8149,No. 2,2
• Citation: 35 Mich.App. 429,192 N.W.2d 691
• Parties: Milton ABBE, Administrator of the Estate of Margaret Abbe, Deceased, Plaintiff-Appellant, v. WOMAN'S HOSPITAL ASSOCIATION a/k/a McLaren General Hospital and Thomas Eickhorst, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 691

192 N.W.2d 691

35 Mich.App. 429

Milton ABBE, Administrator of the Estate of Margaret Abbe Deceased, Plaintiff-Appellant, v. WOMAN'S HOSPITAL ASSOCIATION a/k/a McLaren General Hospital and Thomas Eickhorst, Defendants-Appellees.

Docket No. 8149.

Court of Appeals of Michigan, Division No. 2.

Aug. 23, 1971.

Rehearing Denied Oct. 8, 1971.

Released for Publication Dec. 30, 1971.

Duane S. van Benschoten, van Benschoten & van Benschoten, Saginaw, for plaintiff-appellant.

McAra & Palmer, Flint, for McLaren General Hosp.

Cline & Cline, Flint, for Thomas Eickhorst.

Before DANHOF, P.J., and BRONSON and O'HARA, ^* JJ.

O'HARA, Judge.

This is an appeal of right from two jury verdicts of no cause of action. Plaintiff is the personal representative of the estate of his deceased wife. The action was brought under the Wrongful Death Act, M.C.L.A. § 600.2922 (Stat.Ann.1971 Cum.Supp. § 27A.2922). As to defendant Eickhorst, an M.D., the action is what is commonly called malpractice. As to defendant hospital, it sounds in tort for the negligent performance of those duties owing a patient from a hospital.

The deceased, 26 years old, was a patient of defendant doctor. He did a biopsy of a lump on her breast. It was determined to be malignant. The doctor immediately performed a radical mastectomy. The operation was completed at 4:07 p.m. The decedent was taken directly to an operative recovery room. At 4:45 p.m., the operating surgeon examined her. It is disputed whether he came to the recovery room in response to a call to his home from the attending nurse, or whether he, in fact, came back on his own. In any event, the patient, who according to the record was, prior to the surgery, an otherwise healthy young woman, died at 3:03 a.m. the next morning without regaining consciousness.

On the day of the surgery, the doctor again came to the recovery room about 7:30 p.m. in the company of another physician. Again at about 9 p.m., he was back in the recovery room and left. About an hour later the patient's blood pressure dropped dramatically. An intern was called, Dr. Eickhorst not being immediately locatable. By 11:20 or so, it became apparent that the patient's condition was rapidly deteriorating. A resident physician was summoned. As best we can determine from the record, Dr. Eickhorst was located soon thereafter and from midnight on he was with another physician at his patient's side until her death. A post-mortem examination was conducted by a pathologist, who wrote up a report which became part of the hospital records. It was thereafter offered as an exhibit on trial. The judge, while permitting plaintiff's counsel to cross-examine the authoring pathologist concerning the report, refused to admit it as an exhibit. We set it forth as offered:

'Final Anatomic Diagnoses

'1. Recent left radical mastectomy with sutured incision for carcinoma of left breast with left axillary lymphnode metastasis (McLaren Hospital Surgical Pathology #S--67--5389).

'2. Cerebral edema and early changes of cerebral hypoxia.

'3. Acute pulmonary edema and hyperemia, marked.

'4. Struma lymphomatosa and small follicular adenoma (2 cm.) of thyroid.

'EGM/pc.

'Cause of Death:

'See above anatomic diagnoses.

'E. G. Murphy, M.D.

'Pathologist

'Microscopic Examination

'Brain: Sections of the brain show early histologic changes, most notable in the cerebral cortex. Grossly, there was slight to moderate edema and microscopically there would appear to be slightly decreased density of the finely fibrillar background of the cerebral cortex. It is noted that there is slight swelling of cytoplasm of some astrocytes.

'The early changes noted in the cerebral cortex are consistent with changes due to hypoxia of whatever etiology.

'Comment: Although the histologic alterations present in the cerebral cortex are consistent with early changes due to hypoxia, there is nothing specific present to indicate the etiology of the apparent hypoxic changes. Possibly only a careful review of the clinical events and course of the patient can afford an adequate explanation.

'EGM/pc

'E. G. Murphy, M.D.

'Pathologist'

Before we discuss the issue of the admissibility of the foregoing, and the effect of the ruling barring its admissibility, we deem it advisable to dispose of certain other issues.

In all, plaintiff specified sixteen assignments of error. Some are identical as to both defendants. Some are limited to one or the other. Some do not specify as to which defendant the claimed error applies. We have examined them with extreme care. The fact that we do not write separately as to each one should not suggest that we have not considered them.

We dispose of the assignments of error as to defendant Eickhorst as follows: He is what may be designated as a general surgeon. He does not fall within the category which must be judged by the standard of specialists in specific areas of the practice of medicine. Rather, his liability must be determined on the basis of any deviation from the standard of professional competence, and theexercise thereof, in his community or communities sufficiently similar thereto to constitute a proper basis for the expression of qualified expert opinion testimony as to that standard. The Supreme Court spoke to this question in Lince v. Monson (1961), 363 Mich. 135, 108 N.W.2d 845. In this case, as in Monson, 'There was no medical testimony that defendants' treatment and handling of the case was not in accord with standard and usual practice of skilled doctors in the community.' (Monson, supra, p. 139, 108 N.W.2d p. 847).

A number of the claims of error relate to asserted liability of the doctor for acts which were in fact performed by the hospital through its employees. We decline to accept plaintiff's proffered premise of the doctor's vicarious liability growing out of a sort of agency concept between the doctor and the hospital.

Plaintiff requested an instruction as to contributory negligence. We do not agree with his contention that he was entitled to the requested instruction 'to remove from your deliberations any consideration of any fault, negligence, or contributory negligence on the part of either Milton Abbe or his wife Margaret Abbe * * *.'

Part of the basis for the instruction as briefed by plaintiff rested upon his apprehension that the jury, and we quote the brief, 'might have thought that it was awfully dumb' that neither of them knew the difference between a nurse anesthetist and an anesthesiologist. ¹ In support of the request, plaintiff relies on Podvin v. Eickhorst (1964), 373 Mich. 175, 128 N.W.2d 523. The reliance is misplaced. In that case two defense counsel, in their opening statements, 'referred to plaintiff's automobile accident in terms which openly invited the jury to find that his (plaintiff's) injuries were attributable Solely to his own fault.' (Podvin, supra, p. 181, 128 N.W.2d p. 526, emphasis supplied). ...