Daniel v. McNamara, Docket No. 305

• Decision Date: 27 March 1968
• Docket Number: Docket No. 305,No. 1,1
• Parties: Ora Lee DANIEL, Plaintiff-Appellant, v. J. M. McNAMARA, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 339

159 N.W.2d 339

10 Mich.App. 299

Ora Lee DANIEL, Plaintiff-Appellant, v. J. M. McNAMARA, Defendant-Appellee.

Docket No. 305.

Court of Appeals of Michigan, Division No. 1.

March 27, 1968.

Released for Publication July 1, 1968.

Samuel Charfoos, Detroit, for appellant.

Moll, Desenberg, Purdy, Glover & Bayer, Detroit, for appellee.

Before LESINSKI, C.J., and GILLIS and LEVIN, JJ.

GILLIS, Judge.

This is a malpractice action. Plaintiff, Ora Lee Daniel, while in her home turned her ankle and suffered a tri-malleolar fracture of her left ankle on April 7, 1960. She was taken to the Highland Park General Hospital by the police and defendant, Dr. J. M. McNamara, was assigned to the case. Only plaintiff's left ankle was injured.

Approximately 2 days later the defendant applied a short leg cast extending over the heel of the left foot leaving the toes exposed. During the next 6 or 7 weeks the plaintiff made several complaints to hospital personnel and to the defendant to the effect that she was in pain and uncomfortable. The exposed toes were checked regularly and indicated no discloration or abnormality. At the end of this period, in accord with instructions from the defendant, the plaintiff returned to the hospital in order to have the injured leg X-rayed to determine whether the fracture had healed sufficiently to allow removal of the cast. A hospital orderly, George Bailey, cut the cast into two segments and removed it. The orderly deposited the cast in the trash can. Plaintiff testified that after the cast was removed she discovered the back of her heel was a reddish brown and appeared swollen and inflamed. Before she left the hospital and shortly after the X-rays had been completed, the orderly removed the two segments of the cast from the trash can and reapplied them to plaintiff's leg, taping them in place.

During the next few days, plaintiff complained that the cast was very uncomfortable and rubbed against her swollen left heel. Defendant examined the X-rays and advised plaintiff by telephone to remove the cast. After she did so, plaintiff noted that the heel was swollen and appeared to be draining. It was subsequently determined that the heel had become ulcerated. Thereafter, the defendant performed three separate skin grafts to the heel, each of which involved the removal of skin from the plaintiff's thigh. The heel did not satisfactorily respond and remained in the sensitive and discolored condition.

Plaintiff's action claimed damage resulting from the ulcerated condition of the heel, its subsequent aggravation by the hospital orderly and from the third skin graft, which plaintiff contends was improperly performed.

At the conclusion of plaintiff's proofs, the trial court directed a verdict against the plaintiff. To summarize, plaintiff alleged three instances of malpractice: (1) improper construction and application of the cast and subsequent treatment of the affected area; (2) the improper actions of the orderly in removing the two sections of the cast from the trash can and reapplying same too tightly to plaintiff's leg; and (3) improper performance of the third skin graft operation.

On a motion for directed verdict, the question is not one of the preponderance of the evidence introduced by the plaintiff, but whether plaintiff has presented sufficient evidence to go to a jury on a material question of fact, which, if determined in plaintiff's favor, would entitle her to a judgment.

'On this review of a directed verdict against plaintiff the proofs and reasonable inferences therefrom must be viewed in the light most favorable to plaintiff.' Humenik v. Sternberg (1963), 371 Mich. 667, 669, 124 N.W.2d 778, 779.

Our view of the entire record in this light has led us to the conclusion that the trial court was correct in its ruling as to the first two issues and in error as to the third skin graft operation.

It is not disputed that plaintiff's ulcerated condition occurred while the cast was on her leg. Plaintiff's medical experts testified that they were unable to discover anything in particular in the cast that could have caused the ulcer. On cross-examination, Dr. Lawrence Katz, a witness produced by the plaintiff, testified:

'Q. Did you examine the parts of the cast also, doctor?

'A. Yes.

'Q. Where did you get the parts of the cast?

'A. The patient brought them with her.

'Q. Will you tell us what you found upon examination of the cast?

'A. There were no ridges or deformities of the cast to explain the cause for the ulceration. The heel of the cast was softened as a result of pressure which the patient had apparently applied on it during the six weeks she wore the cast, but there were no rough edges which would push into the patient. The cast was, as I remember, a foam rubber padded cast.'

Both Dr. Katz and Dr. Chauncey Jack Hipps, another medical expert produced by plaintiff, testified it was proper medical practice to apply a cast to a fracture of this nature.

In the record presented to this Court there is a complete absence of any testimony that the defendant failed to exercise his professional judgment in accord with the standard of care of medical physicians in the community or similar communities in which he practiced, at the time he applied the cast and up to the time the cast was removed. Absent such showing, no question was presented for the jury's consideration. As the Supreme Court held in Lince v. Monson (1961), 363 Mich. 135, 140, 141, 108 N.W.2d 845, 847--848:

'In a case involving professional service the ordinary layman is not equipped by common knowledge and experience to judge of the skill and competence of that service and determine whether it squares with the standard of such professional practice in the community. For that, the aid of expert testimony from those learned in the profession involved is required. As this Court said in Zoterell v. Repp, 187 Mich. 319 (330), 153 N.W. 692, 696:

"As to those matters of special knowledge strictly involving professional skill and attention, unskillfulness, negligence, or failure to do that which ought to be done must be shown by the testimony of those learned in such matters.'

"In conduct, like that of a surgeon, resting upon judgment, opinion, or theory, the ordinary rules for determining negligence do not prevail. Luka v. Lowrie, 171 Mich. 122, 136 N.W. 1106, 41 L.R.A.N.S., 290; The Tom Lysle, D.C. (W.D.Pa.), 48 F. 690; Brown v. French, 104 Pa. 604; Williams v. Le Bar, 141 Pa. 149, 21 A. 525. One reason for the rule is that when one acts according to his best judgment in an emergency, he is not chargeable with negligence. Luka v. Lowrie, supra; Staloch v. Holm, 100 Minn. 276, 111 N.W. 264, 9 L.R.A.N.S., 712; Williams v. Poppleton, 3 Or. 139; 30 Cyc., p. 1587; Sherwood v. Babcock, 208 Mich, 536, 175 N.W. 470.

"In order to submit a case of alleged malpractice to the jury, the plaintiff must produce medical testimony to the effect that what the attending physician or surgeon did was contrary to the practice in that or similar communities, or that he omitted to do something which was ordinarily done in that or similar communities.' Delahunt v. Finton, 244 Mich. 226 (229, 230), 221 N.W. 168, 169.'

Plaintiff's argument at trial was a perplaintiff asserts that the heel was not being circumstantial showing that the ulcerated condition would not have occurred but for some negligence on the part of the defendant doctor. The plaintiff, in effect, argued the doctrine of Res ipsa loquitur.

In order to obviate unnecessarily lengthening this opinion, it will suffice to refer the bench, the bar and counsel for the litigants to the succinctly written opinion by Justice Black in Skeffington v. Bradley (1962), 366 Mich. 552, 115 N.W.2d 303. Therein lies the Michigan view on this issue.

'What's in a name? That which we call a rose

By any other name would smell as sweet.' Shakespeare ¹

While we have apparently not adopted the rule Res ipsa loquitur in this State, we have consistently applied its principles and again in the interest of brevity we refer the reader to Higdon v. Carlebach (1957), 348 Mich. 363, 374, 375, 83 N.W.2d 296.

At trial, as in this Court, plaintiff urged that the following language from Higdon v. Carlebach, supra, at p. 374, 83 N.W.2d p. 302, allowed him to go to the jury on the basis of the unfavorable result standing alone:

'The exception so adopted will apply to cases where healthy and undiseased parts of the body requiring no treatment are injured, during the professional relationship, under circumstances where negligence may legitimately be inferred.'

The quotation ends with 'as in these Higdon Cases.'

In that case, Sandra Higdon, during the course of dental treatment by defendant-dentist, suffered a laceration of her tongue which required sutures and subsequent hospitalization. The dentist was using an electrically driven disc to prepare a place for a band between Sandra's teeth. During the procedure the tongue was cut. Plaintiff claimed she did not move. Defendant contended she had involuntarily jerked her head causing the tongue to contact the disc. Thus an either-or proposition was propounded--either the patient jerked or the defendant slipped.

Justice Black, writing for four justices, neither accepted nor rejected the doctrine of Res ipsa loquitur but merely applied the rule of circumstantial evidence to which our courts have been committed. Under the facts of this case,

'It was unnecessary for the plaintiffs to show that it was not good professional practice (in the locality) for a dentist to cut deeply * * * into a patient's tongue while working on that patient's teeth.' Higdon v. Carlebach, supra, p. 377, 83 N.W.2d p. 303.

Indeed the cases cited in this opinion deal with injuries to innocent portions of the anatomy during professional treatment of other portions but the rule is not necessarily so limited. Justice Carr, writing for the remaining four members, stated that under this set of...