Ballance v. Dunnington

• Decision Date: 03 January 1928
• Docket Number: No. 28.,28.
• Citation: 217 N.W. 329,241 Mich. 383
• Parties: BALLANCE v. DUNNINGTON.
• Court: Michigan Supreme Court

241 Mich. 383

217 N.W. 329

BALLANCE

v.DUNNINGTON.

No. 28.

Supreme Court of Michigan.

Jan. 3, 1928.

Error to Circuit Court, Berrien County; Charles E. White, Judge.

Action by William Ballance against Ruel N. Dunnington. Judgment for plaintiff, and defendant brings error. Reversed, and new trial granted.

Argued before the Entire Bench.

Alvah P. Cady, of Benton Harbor, L. M. Ford, of Chicago, Ill., and L. W. Harrington, of Grand Rapids, for appellant.

Charles W. Gore, of Benton Harbor (Victor M. Gore, of Benton Harbor, of counsel), for appellee.

WIEST, J.

This action was brought to recover damages for alleged malpractice by a physician in the use of the X-ray.

Plaintiff stepped on a needle and it broke off in his foot. Defendant treated him and, plaintiff claims, so burned his foot in a negligent use of X-ray as to cause him great pain and suffering and the ultimate loss of his right foot, by necessary amputation, about eight inches above the ankle. A jury awarded plaintiff $15,000 damages. Defendant reviews by writ of error.

At the close of plaintiff's proofs defendant moved for a verdict in his favor. The court denied the motion. The motion was in the nature of a demurrer to the evidence and, in reviewing the denial, we must accord the testimony verity and give it probative value within the limits of every reasonable inference the jury could draw therefrom. We find no error in the denial of the motion. At the close of the proofs defendant again moved for a directed verdict. The motion was denied. We think the evidence presented an issue of fact for the jury.

At the trial long hypothetical questions were asked expert witneses by plaintiff's attorney, and counsel for defendant allege error in overruling their objections thereto. It is insisted that the questions did not state scientific facts essential to be considered in giving an opinion. The experts seemed able to answer without the particular factors asserted, and, we think, the assumed facts in the questions justified the rulings. A hypothetical question was asked one expert and he was requested to state whether or not, in his opinion, the exposure of plaintiff's foot to the X-ray in the manner indicated was proper or improper. The expert answered, ‘I would say it is highly improper.’

The court overruled the following objection:

‘The question invades the province of the jury, that the question is too long and improper to be understood by this jury. That it assumes scientific facts not in evidence without which it is impossible to intelligently answer the question.’

The standard of care, skill, and diligence required of an X-ray operator is not fixed by the ipse dixit of an expert, but by the care, skill, and diligence ordinarily possessed and exercised by others in the same line of practice and work in similar localities. We pass the form of the question and the nature of the answer and hold there was no reversible error, for the reason that the question was based on the testimony of plaintiff relative to the period he was exposed to the X-ray, and which, if true (and had to be accepted as true by the expert), stated an exposure for a period even the merest tyro would know was improper, and every witness, including defendant, said such a dosage would have been improper. Defendant denied any such dosage.

It should be remembered that an expert witness, in answering a hypothetical question, must accept as true every asserted fact stated therein, but the jury cannot consider the answer of the expert unless they find the evidence establishes the truth of all such asserted facts. If the hypothetical question goes beyond the evidence, it defeats itself and affords an excellent opportunity for argument before the jury to that effect. In considering a challenged hypothetical question we can give no thought to the weight of the testimony, for, if there is any competent testimony supporting the asserted facts, the question goes to the jury.

Plaintiff's case rested upon the charge of negligence on the part of defendant in administering an excessive dosage and depended in the main upon his own testimony. The doctrine res ipsa loquitur is not recognized in this state, and therefore proof of the burn was no proof of defendant's negligence. Plaintiff had the burden of showing that he suffered an X-ray burn, occasioned by an overdosage or exposure of his foot, and that such happened because defendant failed to exercise the reasonable and ordinary care, skill, and diligence possessed by others in the same line of practice and work in similar localities.

The evidence discloses that X-ray burns do occasionally occur in the ordinary course of exposure and in spite of the highest diligence and skill to prevent them; the reason being that persons of a certain type and temperament are susceptible to a burn while persons of a different type and temperament, under the same circumstances, will not suffer a burn. It also appears that this idiosyncrasy cannot be determined before or during the time of exposure, but is manifested only by subsequent developments. Plaintiff assumed the risk of a burn from a proper exposure to the X-ray, and defendant incurred the liability to respond in damages if the burn was occasioned by his negligence.

There exists for the guidance of the operator of an X-ray machine certain formula. Plaintiff claimed his foot was exposed to the X-ray for two hours and a half except for short intermissions. The X-ray, in this instance, was not for treatment, but to locate the needle in plaintiff's foot and to assist the defendant in an operation for its removal. Defendant claimed the foot was exposed to the X-ray but a new seconds at a time and altogether about five minutes, and that, while plaintiff was in his operating room about two hours and a half, he was performing an operation on the foot to remove the needle, and did not require and did not use the X-ray except as above stated.

It is strenuously insisted, in behalf of defendant, that plaintiff's testimony relative to the time his foot was exposed to the ray should not have carried that question to the jury, because it was a physical impossibility for plaintiff to have had knowledge on the subject. The credit to be given the testimony of plaintiff relative to the time his foot was exposed to the ray rested with the jury, and we may not hold it of no probative value.

Defendant moved for a new trial alleging, among other grounds, error by the trial judge in making the following statement in the presence of the jury...