Bryson v. Stone

• Court: Court of Appeal of Michigan
• Writing for the Court: FITZGERALD
• Citation: Bryson v. Stone, 190 N.W.2d 336, 33 Mich.App. 512 (Mich. App. 1971)
• Decision Date: 19 May 1971
• Docket Number: No. 2,Docket No. 9136,2
• Parties: John R. BRYSON, Administrator of the Estate of William Dover Bryson, Deceased, Plaintiff-Appellee, v. Sanford STONE et al., Defendants-Appellants

Page 336

190 N.W.2d 336

33 Mich.App. 512

John R. BRYSON, Administrator of the Estate of William Dover Bryson, Deceased, Plaintiff-Appellee, v. Sanford STONE et al., Defendants-Appellants.

Docket No. 9136.

Court of Appeals of Michigan, Division No. 2.

May 19, 1971.

Leave to Appeal Denied Aug. 3, 1971.

Released for Publication Oct. 8, 1971.

Richard A. Kitch, Kitch, Suhrheinrich & Bess, Detroit, fordefendants-appellants.

Albert Lopatin, Lopatin, Miller, Bindes & Freedman, Detroit (Michael H. Feiler, Detroit, of counsel), for plaintiff-appellee.

Before J. H. GILLIS, P.J., and FITZGERALD and T. M. BURNS, JJ.

FITZGERALD, Judge.

On February 23, 1968, William D. Bryson filed a malpractice suit against Dr. Sanford Stone, individually and doing business as Fairwood General Hospital; Gertrude Stone, the doctor's wife and co-owner of the hospital; Fairwood Medical Center; and Dr. Ben Droblas, a hospital staff member. Plaintiff claimed that he went to the defendant hospital in September, 1965, for treatment of his injured right foot and ankle, that he was hospitalized and unnecessary tests were performed upon him, that during two subsequent hospitalizations unnecessary surgery called cervical sympathectomy was performed on both sides of his neck, and that he was not informed of the proposed surgery and did not consent to it.

Count I of the complaint alleged negligence and Count II alleged breach of an implied contract. Plaintiff sought damages of $300,000 plus interest and costs.

The defendants denied liability and raised as affirmative defense the statute of limitations and the plaintiff's consent. Further, the defendants averred that the complaint was inadequate and insufficient and failed to allege a cause of action.

On November 21, 1969, the day the jury trial commenced, defendants filed a suggestion of the death of Dr. Stone on October 24, 1969. At the conclusion of a lengthy trial, the jury returned a verdict of $56,000 against the estate of Dr. Sanford Stone and Gertrude Stone and found no cause of action as to Dr. Droblas, the hospital staff member.

The defendants' motions for no cause of action, judgment notwithstanding the verdict, a new trial and a remittitur were denied February 9, 1970. Application for a delayed appeal followed and was granted. Subsequent to the trial, William D. Bryson died and John R. Bryson, administrator of his estate, was substituted as plaintiff appellee.

Additional facts will be stated during the discussion of the complex issues. Issues will be dealt with Seriatim.

I DID THE TRIAL COURT ERR IN DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT?

The defendants claim that a complaint sounding in malpractice is insufficient unless it reflects (1) what plaintiff contends is the applicable standard of practice required of the defendants; and (2) the specific manner and form in which the defendant is alleged to have violated that standard, citing Simonelli v. Cassidy (1953), 336 Mich. 635,59 N.W.2d 28. They claim that plaintiff's complaint is insufficient as a matter of law because it sets forth conclusionary propositions as to the tests, surgery, and information supplied when it should set forth specifically how the defendants violated the standard of practice with respect to the tests, surgery, and information supplied.

Plaintiff urges that the pleadings did state exactly what defendants should have done and how they violated the standard of care in the community because the complaint alleges that the surgeries were unnecessary and should not have been performed. They claim further that defendants failed to inform William Bryson of the surgeries and obtain his consent thereto, which defendants should have done.

Defendants' chief reliance is placed on Simonelli, supra, a malpractice case in which the trial court had held that the declaration did not state a cause of action. On appeal the Supreme Court affirmed.

Count I of the plaintiff's declaration in that case had alleged that the defendant was employed by the plaintiff to examine, diagnose, and treat 'a certain malady which existed on the left side of the neck of plaintiff's wife;' that defendant 'induced * * * plaintiff's wife to undergo an operation for said malady;' that he 'did operate' and 'did cut the carotid artery;' and that the 'defendant * * * did fail to properly diagnose the condition of plaintiff's wife and so unskillfully and negligently conducted himself in the treatment and surgery of plaintiff's wife' that she was permanently injured.

In Count II plaintiff said it was the duty of defendant 'to take proper care and precautions to avoid a sudden blocking off of the blood to the head by the cutting of the carotid artery, to take proper precautions and make proper preparations in the event it would be necessary to block off the carotid artery;' and that said defendant was negligent in that he failed to carry out those duties, all of which resulted in injury to plaintiff's wife.

Plaintiff claimed that an action for malpractice is based upon facts peculiarly within the knowledge of the defendant and that it would be impossible for the plaintiff to allege with any degree of particularity the wrongful acts committed by the defendant as well as those things which he should have done.

The Supreme Court unanimously rejected plaintiff's position, and held that the allegations did not constitute a sufficient statement of facts to establish a cause of action. Specific omissions noted by the court were the plaintiff's failure to allege what was the proper way to operate or that the cutting of the artery itself was negligent, the failure to state the type of disease or malady involved, the accepted method of diagnosing it, and the proper treatment when discovered.

The rule established in the Simonelli case puts a heavy burden on the plaintiff in a malpractice suit. However, the plaintiff herein has met the burden in paragraph number 4 of his complaint, as follows:

'That the said defendants, each and any of them, did breach their duties owed to the plaintiff in the following particulars:

(a). In performing tests upon the plaintiff which were not necessary as a result of the condition for which he came to the defendant hospital for.

(b). In doing surgery to the plaintiff's neck on subsequent hospitalization wherein none of the tests performed or any of the examinations disclosed any basis for the cervical SYMPATHECTOMYS that were done both on the right and the left side.

(c). In failing to inform the plaintiff herein of the surgery that was performed by them, where in fact, the surgery was not necessary.

(d). In failing to obtain the consent of the plaintiff before surgery was performed which in fact, constituted an assault and battery.

(e). In failing to properly inform the plaintiff of the surgery that was going to be performed and in failing to tell him the purpose of this surgery.

(f). In doing surgery on the plaintiff which was not warranted and which was a departure from the standard of practice of this and similar communities, for the plaintiff's condition for which he was hospitalized at the defendants' hospital on three different occasions, did not warrant the cervical sympathectomy on the left or the right side which was performed by the defendants herein through their agents and servants.'

The instant case is distinguishable from the Simonelli case because plaintiff here alleges that no neck malady existed and, therefore, no surgery was necessary. This is not a case of negligently-performed surgery, but rather it is a case where no surgery should have been performed. Plaintiff avers negligence in doing Any surgery on him. See comment on Simonelli in 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), p. 197.

II WERE PLAINTIFF'S PROOFS AT TRIAL AT SUCH VARIANCE WITH HIS PLEADINGS THAT THEY CONSTITUTED A NON-PERMISSIBLE CHANGE IN THEORY?

The defendants argue that the complaint and plaintiff's answers to the interrogatories stated that the unnecessary surgeries were cervical sympathectomies whereas at trial the hospital records showed that the surgeries were a scalene node biopsy and carotid body excision. Further, they point out that by letter dated January 26, 1969, Dr. Lakin, plaintiff's expert medical witness, advised plaintiff's attorney that a right carotid body excision was involved as opposed to a cervical sympathectomy. Plaintiff made no attempt to amend the complaint or to file supplemental answers to the interrogatories. The defendants moved for a mistrial and to strike testimony in part because of the alleged pleading of one cause of action and proof of a different one.

Plaintiff replies that it is merely a matter of nomenclature--not theory of recovery. No matter what surgery was performed or what it was called, it was unnecessary and without the plaintiff's informed consent. Further, plaintiff states that he believed he had had sympathectomies performed and that Dr. Lakin could not determine from a physical examination which procedure was performed since an identical cervical incision is required.

Dr. Lakin's letter of January 26, 1969, reflected a change in opinion based upon review of the defendant hospital's records. After receiving the letter, plaintiff's attorney should have moved for leave to amend the complaint, but he did not do so. GCR 1963, 118.1 allows amendments at trial to conform to the evidence when the court is satisfied that no prejudice would result therefrom. However, no amendment was sought by plaintiff's attorney, who maintains that none was needed and that defendants have shown no prejudice or surprise.

In Denno v. Providence Hospital (1969), 19 Mich.App. 547, 172 N.W.2d 918, this Court reversed a trial court award for the plaintiff. This Court said that permitting plaintiff to change her theory of the cause of action from negligence in failing to put guard rails on the hospital bed to negligence in selection of the bed prejudiced the defense on the...