Bryant v. Biggs, 39

• Decision Date: 05 September 1951
• Docket Number: No. 39,39
• Citation: 331 Mich. 64,49 N.W.2d 63
• Parties: BRYANT v. BIGGS et al.
• Court: Michigan Supreme Court

Page 63

49 N.W.2d 63

331 Mich. 64

BRYANT v. BIGGS et al.

No. 39.

Supreme Court of Michigan.

Sept. 5, 1951.

Gvazda & Shere, Detroit, Walter M. Nelson, Detroit, of counsel, for plaintiff and appellant.

Ward & Plunkett and Maxwell L. Sargent, Detroit, for defendants and appellees.

Before the Entire Bench.

CARR, Justice.

Plaintiff administratrix brought suit in circuit court to recover damages from the defendants on the ground that they, as osteopathic physicians and surgeons, negligently and improperly treated her decendent, and that his death occurred as a result. The declaration filed alleged that prior to January 19, 1944, Mr. Bryant was suffering from an ailment for which he sought alleviation or cure, and that for such purpose he consulted defendant Neilson who recommended that the patient undergo surgery and referred him to the defendant Biggs. On January 20, 1944, Mr. Bryant entered a hospital and on the 23rd of January following he underwent a surgical operation known as a thyroidectomy which was performed by defendant Biggs allegedly at the direction of defendant Neilson. Plaintiff further asserted in her pleading that defendants were negligent in failing to make proper examinations and tests prior to the operation for the purpose of determining whether the patient was able to withstand the thyroidectomy, in failing to give proper pre-operative medication and treatment, and in performing the operation under the existing circumstances with reference to Mr. Bryant's condition at the time. The alleged cause of action was based on the theory that the death of the patient, which occurred on the day following the operation, was occasioned by improper methods and lack of due and proper care on the part of the defendants.

Plaintiff averred in her pleading that it was the duty of the defendants Neilson and Biggs to 'attend plaintiff's decedent in a skillful and careful manner, to use those methods of examination, diagnosis, and surgery which are usually prescribed and used in the art and profession of osteopathic medicine and surgery for same purposes and to use and avoid failing to use methods, tests, and laboratory means which might result in grievous injury to the plaintiff's decedent; and to carefully examine and test plaintiff's decedent, including basal metabolism laboratory tests, cardiograph, and X-ray treatment before undertaking surgery upon the plaintiff's decedent's body, and to use proper care, attention, medication, and treatment prior to the surgical operation for the purpose of properly preparing the plaintiff's decedent for surgical operation so as to reduce the risks thereto involved.' In answer to the declaration defendant Biggs admitted the performance of the operation and his duty to attend plaintiff's decedent in a skillful and careful manner, and 'to use the methods prescribed by the profession of osteopathy.' He further averred that such duties were fully performed by him. He denied that a basal metabolism test, cardiograph, or X-ray treatment, were necessary to a proper diagnosis of the plaintiff's decedent's condition, and alleged that 'the usual care, attention, medication and treatment was given to plaintiff's decedent prior to the surgical operation.' Defendant Neilson by his answer denied any participation in the operation, by direction or otherwise.

The proofs offered by plaintiff on the trial indicated that Mr. Bryant had been suffering for several years from a thyroid condition. He consulted a physician of the allopathic school, who testified to examining him and advising as to the procedure deemed proper by the witness. It does not appear that the patient attempted to follow the advice given him. The witness also testified to what he considered to be the usual treatment of the ailment from which the patient was suffering. His statements indicate that he had reference to the methods and procedure of his own school of practice. He did not claim any knowledge with reference to osteopathy or the methods, or the degree of care and skill, customarily followed and exercised by osteopathic practitioners in the community or similar communities. He expressed no opinion as to the alleged negligent conduct of the defendants.

Plaintiff's principal witness was a physician and surgeon duly licensed as such in the State of Michigan, who was qualified as an expert in his field of practice. He testified to experience on his part in treating thyroid patients. In answer to a hypothetical question based on the history of the case, including the hospital treatment, the witness was permitted to state, over the objection of counsel for defendants, what he considered to be the standard of practice involved in the management of a case of the nature set forth in the hypothetical question. The hospital record indicates that the treatment actually given Mr. Bryant was not in accord with the claim of the witness as to the standard practice. In answer to a specific question he was permitted, over objections, to express the opinion that the failure in the instant case to comply with the standards of practice detailed by him might or could reduce the patient's chance of survival or cause death.

Defendants' objections to the testimony of the witness, and their subsequent motion to strike, were based principally on the claim that the witness did not know the methods of treatment, care, and operation customarily followed by practitioners of osteopathy, or the degree of care and skill customarily employed by ordinary practitioners of such school in the community or similar communities. In this connection the witness testified that he was not familiar with osteopathic schools, and that he had no knowledge as to their teachings other than by hearsay. He had never attended any osteopathic clinics, or discussed with osteopathic physicians and surgeons the question as to what constitutes proper pre-operative or post-operative care. He indicated also that he was not familiar with osteopathic literature, and that he had no knowledge of the fundamental concepts of osteopathy or the osteopathic viewpoints of symptomology.

Following the expert testimony offered in plaintiff's behalf counsel for the defendants moved for directed verdicts. On behalf of defendant Neilson it was claimed specifically that plaintiff's proofs were insufficient to connect him with the acts of omission and commission charged in the declaration as the basis of the cause of action. Both defendants urged that the testimony of plaintiff's expert witness was incompetent because not based on any familiarity with, or knowledge of, the methods and standards of practice of osteopathic physicians and surgeons customarily observed by reputable practitioners of that school in the community and in similar communities. After considering the testimony and listening to the arguments of counsel, the trial judge came to the conclusion that he could not say that the testimony was competent and that it established a prima facie case. He also indicated that the testimony relating to defendant Neilson's connection with the operation, and with the pre-operative and post-operative care and treatment given to the patient, was insufficient to impose liability on him. Verdict in favor of both defendants was directed and judgment entered accordingly. Plaintiff has appealed.

On behalf of appellant it is argued that the testimony of her principal witness, above discussed, should be construed as expressing an opinion on his part that the methods and standards of practice detailed by him were recognized and followed by ordinary practitioners of the osteopathic school, as well as by those of his own school. The claim is made that such testimony was sufficient to require submission of the case to the jury. Defendants contend, as they did in the trial court, that the witness replied to the hypothetical question submitted to him solely from the standpoint of the school of practice to which he belonged, and that his lack of knowledge of the teaching of osteopathy and of the concepts, methods, and standards of practitioners of osteopathy rendered him incompetent to express an opinion on the matter at issue. It is their position that the trial court properly directed a verdict in their favor.

It has been repeatedly held by this Court that the implied contract between a patient and surgeon requires the latter to use the degree of diligence and skill ordinarily exercised by the average of the members of the profession in the same locality or in similar localities, with due consideration to the state of the profession at the time. Miller v. Toles, 183 Mich. 252, 150 N.W. 118 L.R.A.1915C, 595; Rytkonen v. Lojacono, 269 Mich. 270, 257 N.W. 703; Zanzon v. Whittaker, 310 Mich. 340, 17 N.W.2d 206; Nemer v. Green, 316 Mich. 307, 25 N.W.2d 207; Facer v. Lewis, 326 Mich. 702, 40 N.W.2d 457. In the instant case it was the duty of the defendants, as alleged by plaintiff in her declaration, to treat Mr. Bryant's ailment with due and proper care. Stated more specifically, it was their duty to use that degree of care and skill in their handling of the case, and in the treatment given the patient, customarily used in the community or similar communities by ordinary or average practitioners of osteopathy. They were not held to the observance of standards of practice or methods of practice customarily observed by practitioners belonging to other schools devoted to the cure, alleviation, and treatment of human ailments and diseases. It may be noted in this connection that the registration of...