Delahunt v. Finton

• Decision Date: 01 October 1928
• Docket Number: No. 98.,98.
• Citation: 244 Mich. 226,221 N.W. 168
• Parties: DELAHUNT v. FINTON.
• Court: Michigan Supreme Court

244 Mich. 226

221 N.W. 168

DELAHUNT

v.FINTON.

No. 98.

Supreme Court of Michigan.

Oct. 1, 1928.

Error to Circuit Court, Jackson County; James A. Parkinson, Judge.

Action by Patrick F. Delahunt against Walter L. Finton. Judgment for defendant, and plaintiff brings error. Affirmed.

Argued before the Entire Bench. Richard Price and Don T. McKone, both of Jackson, for appellant.

Lodge & Brown, of Detroit, and John F. Henigan, of Jackson, for appellee.

POTTER, J.

Plaintiff sued defendant for malpractice. There was verdict and judgment for defendant. Plaintiff brings error, assigning 54 reasons for reversal grouped under five heads.

Plaintiff claims he employed defendant to advise him as to his condition; that defendant made a partial examination, and stated to him it would be necessary to administer an anesthetic to complete the examination; that plaintiff went to the hospital in Jackson to have the examination completed, and, without his consent, defendant, while plaintiff was under the influence of an anesthetic, operated on him. In so doing defendant passed a filiform bougie through the urthral passage into the bladder. This was to be followed by a metal sound to dilate the urethral strictures, of which plaintiff complained. This filiform bougie looped in the bladder and could not be withdrawn and, confronted with this condition, defendant, after consulting his associates, operated on plaintiff and removed the bougie.

Plaintiff's claim is that defendant wrongfully operated without his consent and that the loss of the bougie was due to carelessness. Defendant claims he was employed to operate; that the looping of the bougie in plaintiff's bladder was an unforeseen contingency, resulting in such an exergency as to endanger the life and health of plaintiff; and that, acting on his best judgment, after consultation with his associates, he operated in the emergency, and cannot be held liable in damages.

Plaintiff claims the court erred in his instructions concerning a surgical emergency. It is settled that a surgeon may lawfully perform, and it is his duty to perform, such operation as good surgery demands, in cases of emergency, without the consent of the patient. Luka v. Lowrie, 171 Mich. 122, 136 N. W. 1106,41 L. R. A. (N. S.) 290,Pratt v. Davis, 224 Ill. 300, 79 N. E. 562,7 L. R. A. (N. S.) 609,8 Ann. Cas. 197. In so doing he is not liable for an honest error in judgment. Luka v. Lowrie, 171 Mich. 122, 136 N. W. 1106,41 L. R. A. (N. S.) 290,Williams v. Poppleton, 3 Or. 139. 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.) 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, 171 Mich. 122, 136 N. W. 1106,41 L. R. A. (N. S.) 290;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. 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. Sherwood v. Babcock, 208 Mich. 536.¹ Defendant's negligence cannot be presumed, but must be affirmatively proved. Grand Rapids & Indiana R. R. Co. v. Judson, 34 Mich. 506;Brown v. Congress & Baker Street Railway Co., 4. Mich. 153, 13 N. W. 494. The jury determines and disposes of disputed questions of fact. We cannot presume error. Manning v. Bresnahan, 63 Mich. 584, 30 N. W. 189;Bond v. McMahon, 94 Mich. 557, 54 N. W. 281.

Every presumption is in favor of the validity and regularity of the proceedings in the court below. Turnbull v. Richardson, 69 Mich. 400, 37 N. W. 499. Some of plaintiff's requests might well have been given. But the court covered the case in a correct and complete charge, and where this is done a judgment will not be reversed for failure to give specific instructions preferred by the parties. We think the charge of the court on the question of the existence of an emergency warranted by the law and the facts and that the determination of the jury is final.

The plaintiff alleges the court erred in submitting the question of what constituted malpractice. Malpractice, in its ordinary sense, is the negligent performance by a physician or surgeon of the duties devolved and incumbent upon him on account of his contractual relations with his patient. 26 Cyc. 121; 30 Cyc. 1546. The charge of the court quoted the language of 30 Cyc. 1546. It substantially followed the rule of Sherwood v. Babcock, 208 Mich. 536, 175 N. W. 470,Luka v. Lowrie, 171 Mich. 122, 136 N. W. 1106,41 L. R. A. (N. S.) 290, and The Tom Lysle (D. C.) 48 F. 690. We find no error in the charge given by the trial court on this subject.

Plaintiff alleges the court erred in striking out the testimony of Moses Jacobson, who...