Harvey v. Silber

• Decision Date: 11 February 1942
• Docket Number: No. 24.,24.
• Citation: 300 Mich. 510,2 N.W.2d 483
• Parties: HARVEY v. SILBER et al.
• Court: Michigan Supreme Court

300 Mich. 510

2 N.W.2d 483

HARVEY

v.SILBER et al.

No. 24.

Supreme Court of Michigan.

Feb. 11, 1942.

Action by Sidney S. Harvey, administrator of the estate of Garfield Harvey, deceased, against Albert J. Silber and another as executors of the last will and testament of Bernhard Friedlaender, deceased, and another, to recover damages for malpractice. From a judgment for plaintiff, defendants appeal.

Affirmed.Appeal from Circuit Court, Wayne County; Henry G. Nicol, judge.

Before the Entire Bench.

Humphreys Springstun, of Detroit, for appellants Silber and Rothman.

Douglas, Barbour, Desenberg & Purdy, of Detroit, for appellant Edward G. Minor.

Walter M. Nelson, Harry Cohen, and John Sklar, all of Detroit, for appellee.

BUSHNELL, Justice.

Plaintiff's intestate, Garfield Harvey, was taken to the Highland Park General Hospital shortly after midnight on , Sunday, March 14, 1937, where it was found he had a gunshot wound on the right side of his back just above the hip. First aid was administered and the late Dr. Bernhard Friedlaender, one of the staff surgeons a the hospital, attended Harvey about 8 a. m. It fairly appears from the record that Doctor Friedlaender thought he felt the bullet through the skin on the right side of Harvey's abdomen.

Three X-rays were taken. Defendant, Dr. Edward G. Minor, chief of the X-ray department of the hospital, testified that he never saw the deceased, nor did he take the X-ray pictures himself. He saw the wet X-ray plates some time during Sunday morning, March 14th, just after they came out of the dark room. It was his opinion at the time that these plates showed the presence of a bullet in the soft structure just below the skin surface and to the left of the median line, in the anterior portion of the left side of the abdomen. The X-ray plates were received in evidence and show the letter ‘R’ thereon, which had been scratched over the letter ‘L’. Doctor Minor was asked:

‘Q. What was your purpose in changing that right to the left? A. Due to the fact that Dr. Friedlaender disagreed on my diagnosis, and his clinical findings were such that I took his word that there might be some confusion in the markings.’

When asked whether Doctor Friedlaender made a special request that the markings be changed, Doctor Minor replied: ‘I do not know whether he said just exactly that they be changed but he insisted that the bullet was on the right side. After all, I am just the X-ray man and he is the physician. He has that patient. That conversation took place on the morning when the man was in the hospital.’

Doctor Minor was asked:

‘Q. Did you make a careful examination of this plate prior to your conversation with Dr. Friedlaender? A. When it was brought from the dark room while wet I looked at it and said, ‘There is the bullet in the lower left quadrant.’ He was present. That is all there was. It did not last over two minutes. I did not look at that plate again that day. The next time I took a look at that plate was the next day. I knew there was a bullet there, and it was reported to the stenographer. That report was made on Monday.'

The report just referred to reads: ‘Films were made of the abdomen. These show presence of a bullet in the soft structures right at the median line and approximately just below the skin surface. It occupies a position in the anterior portion of the right lower quadrant.’

There was also introduced in evidence a subsequent report signed by Doctor Minor, dated June 22, 1937, which reads: ‘Further study of the films of March 14, 1937 was made of the abdomen in the two planes. These show presence of a bullet in the soft structures just below the skin surface and to the left of the median line. It apparently occupies a position in the anterior portion of the left side of the abdomen just below the skin surface.’

Harvey died at 6:35 p. m. on Sunday, March 14th, about 18 hours after the shooting. Dr. Paul A. Klebba, Wayne County Medical Examiner and physician to the coroner for the last 17 years, performed the autopsy on the body of the deceased on March 15th, and made the following notes: ‘That a bullet entered the body at the right back-Right back, and that the bullet took a course from the back forward, from the right to the left, and that the bullet proper was found in the abdominal cavity in the upper left quadrant, and I made a note to refer to my chart on location and description of wounds, which show the approximate entrance of the bullet and the approximate point on the body where the bullet was found. And looking at the chart, it says that the approximate entrance was in the right back to the right of the lumbar spine, which is the small of the back, and in a position at the point of entrance about four inches to the right of the spinal column in the small of the back just a little above the belt line. The bullet went from the back forward and from the right side of the body to the left side of the body, and was found in the left abdominal cavity. That would be below the ribs on the left side, to the left of the medial line, forward medial line, below the left nipple about eight inches.’

He testified: ‘Taking the entrance, the point of entrance and the point of finding the bullet, it would have to make several perforations because you do not have one coil on top of the other, you have your coils of the bowel one on top of the other and in front and behind. I do not know how many perforations there were because I did not dissect the entire bowel to determine the number of perforations. I would consider from six to twenty or thirty perforations. It might go through both sides of the same section of the bowel. If he was a normal man and the bullet took the course I found from the point of entrance to the point where I found it, it would perforate only the intestines.’

Doctor Klebba said he found blood in the abdomen sufficient to cause death, and that, in his opinion, the cause of death was an internal hemorrhage following a bullet wound through the abdomen. In answer to the question propounded by plaintiff's counsel as to the probability of checking and ultimately stopping hemorrhages by suturing the perforations in the intestines, he said such operation ‘would have a tendency to preserve life.’

On cross-examination, he gave as his opinion that, under the usual and ordinary practice of a surgeon of average skill, a man who is in a state of shock should not be operated on until condition has subsided.

Plaintiff produced as an expert, Dr. Maxim P. Melnik, who testified that: ‘The usual and standard practice in this community or similar communities of ordinary surgeons and physicians is to have immediate surgical intervention, that is, operation, in order to check any bleeding or hemorrhage caused by the wound. * * * as I said, the operation is the only thing that stops the hemorrhage, and by stopping the hemorrhage one has a chance to save one's life. * * * The probability is that his life could have been saved by immediate operation when the patient was in fairly good condition, was fairly good.’

At the time Harvey was shot, Doctor Melnik was a student in the Medical Department of Wayne University. He graduated in 1938, served one year as an intern at Providence Hospital, and has practiced ever since in Detroit. It is claimed the court erred in admitting the testimony of Doctor Melnik because he was only a medical student in 1937 when Harvey was shot. It is admitted that the local practice of treatment of gunshot wounds has not changed since 1937.

In Perri v. Tassie, 293 Mich. 464, 292 N.W. 370, the court held that opinion evidence may not be given by one who has no knowledge or experience of the medical standards in the community. See authorities therein cited.

However, the testimony of Doctor Melnik in the instant case was admissible under the authority of People v. Thacker, 108 Mich. 652, 66 N.W. 562, wherein the court quoted the views expressed by Mr. Justice Campbell in People v. Millard, 53 Mich. 63, 18 N.W. 562. In the Thacker case, Doctor Dean gave opinion testimony on arsenic poisoning although he had never treated a person who had been poisoned or had ever seen one treated by another physician. He had, however, studied medicine for four years and had spent one year in the hospital under the instructions of the hospital physician. The court held that,...