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 |
OPINION TEXT STARTS HERE
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.
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:
When asked whether Doctor Friedlaender made a special request that the markings be changed, Doctor Minor replied:
Doctor Minor was asked:
The report just referred to reads:
There was also introduced in evidence a subsequent report signed by Doctor Minor, dated June 22, 1937, which reads:
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:
He testified:
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:
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...
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