Haase v. DePree

• Decision Date: 24 May 1966
• Docket Number: No. 456,No. 3,456,3
• Citation: 3 Mich.App. 337,142 N.W.2d 486
• Parties: Barbara A. HAASE, Plaintiff-Appellant, v. Dr. H. E. DePREE, Defendant-Appellee. Cal
• Court: Court of Appeal of Michigan — District of US

Page 486

142 N.W.2d 486

3 Mich.App. 337

Barbara A. HAASE, Plaintiff-Appellant, v. Dr. H. E. DePREE, Defendant-Appellee.

Cal. No. 456.

Court of Appeals of Michigan, Division No. 3.

May 24, 1966.

Lewis R. Williams, Jr., Williams & Scheuerle, Paw Paw, for appellant.

Thompson Bennett, Paulson, Bennett & Palmer, Kalamazoo, for appellee.

Before HOLBROOK, P.J., and BURNS and McGREGOR, JJ.

HOLBROOK, Presiding Judge.

This is an action for malpractice brought against defendant, a medical physician and surgeon. The plaintiff filed an amended count 2 to which defendant filed a motion for summary judgment. The trial judge granted the summary judgment and from the order dismissing count 2 of the complaint, plaintiff appeals. The facts are undisputed and appear to be as follows:

Plaintiff's amended count 2 claims damages for alleged malpractice. She claims that as a result of a thoracic aortogram performed by defendant that she lost circulation in her right arm and hand, which required its amputation just above the elbow. Plaintiff asserts that amended count 2 was intended to sound in Res ipsa loquitur. The only allegations pertaining to claimed negligence of the defendant in amended count 2, are contained in paragraphs 7, 9, and 10 and are set forth in the footnote. ¹

In considering the allegations of plaintiff in count 2, we find in paragraph 7 it is alleged that plaintiff's arteries were in an intense and unusual degree of spasm and that she was experiencing pain during the diagnostic procedure; in paragraph 9, that defendant persisted in his effort to perform the thoracic aortogram for three hours and in paragraph 10, that immediately after the surgical procedure, the blood circulation in the right arm and hand of plaintiff did cease, all of which was a direct and proximate result of negligence on the part of defendant in performing and continuing to perform the aforesaid thoracic aortogram and negligence on the part of defendant in the manner in which said thoracic aortogram was performed which resulted in the amputation of plaintiff's right arm just above the elbow.

Plaintiff does not allege any specific act of defendant as being negligent, nor that the procedure was performed in a manner contrary to or at variance with generally accepted methods of performing a thoracic aortogram by physicians and surgeons in the community or similar communities. Nor does the plaintiff set forth the accepted method of practice and procedure, in such a case.

Only general allegations of negligence are contained in count 2 and are not therefore sufficient under the ruling as laid down in the case of Simonelli v. Cassidy (1953), 336 Mich. 635, 59 N.W.2d 28. See, also, GCR 1963, 111.1(1).

Unless plaintiff's count 2 may be sustained because sounded in Res ipsa loquitur, it must fall. We turn to Prosser on Torts (3d ed), Negligence: Proof, p. 206, for enlightenment concerning its acceptance, purpose, and possible application to the case at hand, and find stated on pp. 217, 218 as follows:

'One type of circumstantial evidence, concerning which there has been much difference of opinion, is that which is given the name of Res ipsa loquitur. The Latin phrase, which means nothing more than 'the thing speaks for itself,' is the offspring of a casual word of Baron Pollock during argument with counsel in a case in 1863 in which a barrel of flour rolled out of a warehouse window and fell upon a passing pedestrian. In its inception the principle was nothing more than a reasonable conclusion, from the circumstances of an unusual accident, that it was probably the defendant's fault. It soon became involved, however, in cases of injuries to passengers at the hands of carriers, with the aftermath of an older decision which had held that the carrier had the burden of proving that it had not been negligent. The two principles, one concerned with the sufficiency of circumstantial evidence, the other of the burden of proof, gradually became confused and intermingled; and from the fusion there developed an uncertain 'doctrine' of res ipsa loquitur, which has been the source of so much trouble to the courts that the use of the phrase itself has become a definite obstacle to any clear thought, and it might better be discarded entirely. It is nevertheless accepted and applied by all of our courts, including those of South Carolina, which purport to reject it by name, Michigan, which formerly did so, and Pennsylvania, which purports to limit its application to cases in which the defendant has voluntarily undertaken some responsibility.

'The statement of this doctrine most often quoted is that of Chief Justice Erle in 1865;

"There must be reasonable evidence of negligence; but where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.' * * *

'The requirement that the occurrence be one which ordinarily does not happen without negligence is of course only another way of stating an obvious principle of circumstantial evidence: that the event must be such that in the light of ordinary experience it gives rise to An inference that some one must have been negligent. On this basis res ipsa loquitur has been applied to a wide variety of situations, and its range is as broad as the possible events which reasonably justify such a conclusion. * * *' (Emphasis supplied.)

There may be justification for the statement by Prosser that Michigan has accepted the so-called res ipsa loquitur rule or a modification of it by reason of two recent decisions. Mitcham v. City of Detroit (1959), 355 Mich. 182, 94 N.W.2d 388; Gadde v. Michigan Consolidated Gas Company (1966), 377 Mich. 117, 139 N.W.2d 722. However, its application is limited as stated by Mr. Justice Adams in the Gadde case, on pp. 123--126, 139 N.W.2d p. 725 as follows:

'Whether Michigan has or has not a doctrine of Res ipsa loquitur, in spite of many attempts to clarify the situation, continues to perplex the legal profession. The use of the rule elsewhere has been such as to move Prosser to say:

"The Latin catchword is an obstacle to all clear thinking. It is the illegitimate offspring of a chance remark of an English judge eighty-six years ago, hybridized with the carrier's burden of proof. There is no case in which it has been anything but a hindrance.' Prosser, Res Ipsa Loquitur in California, 37 Cal.L.Rev. 183, 234.

'The doctrine of Res ipsa loquitur is generally held to involve some or all of the following conditions:

'1. The event must be of a kind which ordinarily does not occur in the absence of someone's negligence.

'2. The event must have been caused by an agency or instrumentality within the exclusive control of the defendant.

'3. The event must not have been due to any voluntary action or contribution on the part of the plaintiff.

'4. Evidence of the true explanation of the event must be more readily accessible to the defendant than to the plaintiff. * * *

'Formal adoption of the doctrine of Res ipsa loquitur, whomsoever's version might be chosen, would add little to the jurisprudence of this State or to the attainment of justice. This is not to in any way overrule our past decisions or to say that in some cases, even possibly this one, the facts will not permit nice, neat, classification under this or that version of the doctrine. Whether they do is not the consequential issue. The doctrine is merely an uncertain blend of more fundamental concepts of law. Our concern is with the proper application of such concepts from the larger fields of negligence and evidence.

'Recently Justice Souris had occasion, in reviewing the doctrine of assumption of risk, to vie against unnecessary compartmentalization of the law. Felgner v. Anderson, 375 Mich. 23, 133 N.W.2d 136. He concluded that the traditional concepts of contributory negligence and duty of care sufficiently embrace the doctrine of assumption of risk, making retention of that doctrine redundant. Felgner v....