Guilmet v. Campbell
| Citation | 385 Mich. 57,188 N.W.2d 601 |
| Decision Date | 07 July 1971 |
| Docket Number | No. 9,J,9 |
| Parties | , 43 A.L.R.3d 1194 Richard A. GUILMET and Dorothy A. Guilmet, Plaintiffs and Appellees, v. Kenneth N. CAMPBELL and Joseph A. Arena, Defendants and Appellants. an. Term. |
| Court | Supreme Court of Michigan |
Condit, Denison, Devine, Porter & Bartush, Richard P. Condit, Bloomfield Hills, for plaintiff-appellees; Charles J. Porter, Bloomfield Hills, of counsel.
Patterson & Patterson, Barrett, Whitfield, Manikoff & White, William P. Whitfield and Robert G. Waddell, Pontiac, for defendants-appellants.
Before the Entire Bench.
This appeal presents a very simple question but it is fraught with great danger to the public weal.
The question is: Was the trial court in error in refusing to grant defendant's motion for a judgment notwithstanding the jury's verdict for the plaintiffs?
The defendants are skilled surgeons who performed a relatively complicated operation on plaintiff Richard Guilmet, and after such operation the plaintiffs suffered very great damages.
The danger attendant upon decision here is that on one hand if we sanction the award of damages to the plaintiffs we may foster suits which threaten the freedom physicians and surgeons must have in the practice of their vital profession, and on the other hand if we deprive these plaintiffs of their award, we not only may do them an injustice but impair the very process by which we seek to administer justice.
The facts and circumstances giving rise to the suit are as follows:
In the fall of 1963 the plaintiff had suffered near fatal bleeding through a peptic ulcer. At that time he was being treated by Dr. Klewicki and it was Dr. Klewicki who recommended the defendant surgeons. In January of 1964 the plaintiff went to see the surgeon '* * * curious about an operation, if I should have one or if I shouldn't have one * * *'. It was never indicated to the plaintiff that he Must have the operation.
Defendant Dr. Campbell testified that prior to the operation the plaintiff was in excellent physical condition and the operation was Not an emergency.
At the first consultation with the defendant, Dr. Campbell, the following conversation took place according to the plaintiff's testimony:
Q. Now what was the nature of the conversation? Did you state your purpose in being there?
A. Yes, I asked Dr. Campbell--I was curious about an operation, if I should have one or if I shouldn't have one. I told him. He knew of my records. I started to tell him about my records. He said, 'I know all about your records.' I said, 'Fine.' He told me, he said, 'Once you have an operation, it takes care of all of your troubles,' and he said, 'You can eat as you want to, you can drink as you want to, you can go as you please.'
Q. This type of operation we are talking about then is a stomach or an ulcer operation, it that right?
A. Yes, it is.
Q. Did you talk with him at all about his familiarily with this type of operation or the extent of the operation?
A. Yes, I did.
Q. What was the conversation as you recall it?
'A. Well, he explained to me how they do this operation, and at that time he told me that him and his associate, Dr. Arena, were specialists, And there was nothing to it at all. It was a very simple operation according to them.
Q. Did he talk at all about whether he had performed these before?
A. Yes, he did.
Q. And what was the conversation along those lines?
A. I asked him how often. He said, 'Very often.'
Q. Any discussion as to complications or problems that may arise, that may result?
A. I asked him about it, how long I'd be out of work. He said, 'Approximately Three to four weeks at the most,' and I asked him about any complications, anything dangerous. He said, 'No, there is no danger at all in this operation.'
Q. Was there any discussion as to where it would take place, how long you'd be convalescing in the hospital?
A. He said 'Beaumont Hospital.' I'd probably be in four to five days and Then I'd be off work maybe another two to three weeks.
Q. You say he was familiar with your background. Was he aware that you were taking various medications, Maalox and things of this nature?
A. Yes, he was.
Q. You had been taking these pills for a number of months, had you not?
A. Yes, I had.
Q. What was the discussion about the future use of medication?
A. Well, he said, 'after this operation, you can throw your pillbox away, your Maalox you can throw away,' and then he come up with an example.
Q. Give the example.
A. The example was that
Q. Was there any conversation with him as to operations he had performed on other individuals who had treated for a while?
A. Yes. He told me, he never mentioned no names. He just told me of a gentleman that he knows treated for an ulcer thirty years and he went in, had this operation, And he is altogether a different man at this time.
Q. Now at the time of the conversation were you back to work?
A. Yes, I was. (Emphasis added)
Following this conversation the plaintiff Richard Guilmet underwent the operation.
The record contains a stark description of the troubles that thereafter befell him.
The record description of the vagotomy reveals activity around and on the esophagus. On March 4, 1964 the day following the operation Dr. Wood--a specialist in thoracic surgery on the staff of Beaumont Hospital examined plaintiff and diagnosed: 'Ruptured esophagus due to surgical trauma in doing the vagotomy with bilateral effusion and mediastinal emphysema and mediastinitis.' Dr. Wood testified that the symptoms displayed by the patient would cause him concern, that the mortality rate from a ruptured esophagus is 50% To 75%.
After the original operation plaintiff went through three subsequent operations for the insertion of tubes to drain excess fluid from his body; he suffered hepatitis which the defendant Dr. Campbell thought was probably caused by one of the many points of blood he had been given; due to plaintiff's constant coughing and vomiting when eating, his weight fell from 170 pounds to 88 pounds and he was unrecognizable; he was unable to sleep due to coughing and only a return to the hospital and insertion of a drainage tube enabled him to sleep; and finally, he is scarred badly from the operations; he is unable to hold down two jobs as he once could; he is physically weak and unable to be athletically or socially active, and Dr. Wood testified that it is not unusual for recurrences of one of his infections as long as 20 years later.
The plaintiffs brought suit for their damages in a two count complaint. One count asserted negligence on the part of the defendants in performing the operation, and the other count charged a breach of contract saying:
At the conclusion of proofs, overruling a defense motion for a directed verdict, the trial court sent the case to the jury and stated in his ruling:
'Turning to the matter of contract, it is true that Plaintiff Richard Guilmet, in his testimony, direct testimony, said that he talked with Dr. Campbell and Dr. Campbell said the operation would take care of all his troubles, and he could do as he pleased afterwards; that it was a simple operation, said that he performed it very often and he would be out of work four weeks and there was no danger.
Now again, this Court would doubt whether those statements were all made, particularly after having listened to the Doctor, and while it is true that the Doctor is not required to guarantee his work, I suppose there is no reason why a medical doctor can't do that if he wishes, as well as any other person, so there is testimony here from which the Jury might reasonably infer that a contract was made to do these things as Mr. Guilmet testified, and I guess Dr. Campbell would be the first to admit that it was far more than four weeks before this man did go back and there must be a great danger involved as a matter of practical fact, and that apparently the Plaintiff, Mr. Guilmet, has not been able to throw away his pill box since he recovered.'
(Emphasis added)
The jury returned a verdict of 'no negligence' on the tort count but awarded the plaintiffs $50,000 on the breach of contract count.
Following this verdict the defendants moved for judgment notwithstanding the verdict, and the trial court denied it.
This decision was affirmed by the Court of Appeals and we granted leave in light of our conviction that it raised questions of the indicated significance to the jurisprudence of this state.
The defendants argue on appeal that 'to...
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