Heins v. Synkonis

• Decision Date: 28 January 1975
• Docket Number: No. 1,Docket No. 19017,1
• Citation: 227 N.W.2d 247,58 Mich.App. 119
• Parties: Hazel HEINS, Plaintiff-Appellee, v. Joseph P. SYNKONIS and Riverside Osteopathic Hospital, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 247

227 N.W.2d 247

58 Mich.App. 119

Hazel HEINS, Plaintiff-Appellee, v. Joseph P. SYNKONIS and Riverside Osteopathic Hospital Defendants-Appellants.

Docket No. 19017.

Court of Appeals of Michigan, Division No. 1.

Jan. 28, 1975.

Released for Publication April 1, 1975.

Robert E. Dice, Dice, Sweeney & Sullivan, P.C., Detroit, for defendants-appellants.

Ripple & Chambers, Detroit, for plaintiff-appellee.

Before BASHARA, P.J., and DANHOF and VanVALKENBURG, ^* JJ.

BASHARA, Presiding Judge.

This suit was instituted by plaintiff for the recovery of damages for malpractice against Dr. Synkonis. Plaintiff further contended that defendant Riverside Osteopathic Hospital (hereinafter referred to as Riverside) was liable under the theory of agency by estoppel. A jury verdict awarded plaintiff $50,000 against defendants jointly and severally. It is from this judgment that defendants appeal.

Plaintiff suffered a minor fall, injuring her right shoulder. Plaintiff received conservative treatment from a physician, but when there was no improvement in her condition, she sought the advice of Dr. Synkonis who, on Wednesdays, had an out-patient practice at defendant Riverside. Defendant Dr. Synkonis and Dr. Ketter diagnosed plaintiff's condition as adhesive capsulitis and recommended surgery. ¹ Plaintiff was informed by Dr. Synkonis that there would be considerable pain after the operation, and that she would have to engage in postoperative therapy.

The surgical procedure, known as forced manipulation, was performed. Plaintiff complained of excruciating pain upon regaining consciousness. Her shoulder was not X-rayed at this time to determine if there were any complications. On this same day Dr. Synkonis ordered plaintiff to begin therapy, which was continued for the next six days. During the entire therapeutic procedure plaintiff continued to complain of excruciating pain. On the sixth day after the operation, an X-ray of plaintiff's from a dislocated shoulder. from a disclocated shoulder.

Dr. Synkonis testified during the course of plaintiff's proofs that the dislocation could have occurred during surgery or the subsequent therapy. He further stated that sound medical practice required that an X-ray be taken before discharge or whenever complications were suspected after surgery. The only further expert testimony offered by plaintiff was as to damages.

At the close of plaintiff's proofs, defendants moved for a directed verdict arguing that there had been no expert testimony that Dr. Synkonis had violated any medical standards with respect to the diagnosis, the surgical procedure or the postoperative treatment. This motion was denied, as was defendant's motion for a judgment notwithstanding the verdict or a new trial.

Upon reviewing a motion for a directed verdict, all the facts and reasonable inferences must be viewed in the light most favorable to plaintiff. Daniel v. McNamara, 10 Mich.App. 299, 159 N.W.2d 339 (1968).

It is well recognized in Michigan that expert testimony is required to show that a doctor has violated the standard of care required unless the injury is of such a character that laymen could find negligence. Roberts v. Young, 369 Mich. 133, 119 N.W.2d 627 (1963), Marchlewicz v. Stanton, 50 Mich.App. 344, 213 N.W.2d 317 (1973).

Defendant Dr. Synkonis himself, testifying during plaintiffs proofs, set forth a standard of care necessary in this cause. His testimony was verified by Dr. Heliotis, who testified on behalf of defendants. Plaintiff testified that although she was warned there would be some postoperative pain, she complained of continued and excruciating pain over the entire six-day period. We further note that Dr. Synkonis himself testified that the X-ray was ordered by a resident of the hospital after Dr. Synkonis was prepared to discharge plaintiff. He testified that he did not suspect any complications, even after examining her on at least two different occasions after surgery.

Under these circumstances, we hold that there was a question of fact from which a jury could find that Dr. Synkonis violated the standard of medical practice in not X-raying plaintiff's shoulder for six days. The judge was correct in denying defendant's motions.

The second issue presented is whether the trial court erred in holding defendant, Riverside, vicariously liable for the negligence of Dr. Synkonis who simply used its facilities.

Plaintiff argues, citing Howard v. Park, 37 Mich.App. 496, 195 N.W.2d 39 (1972), that defendant hospital was liable to plaintiff since an agency by estoppel had been created.

An examination of Howard v. Park, Supra, discloses that there are three elements necessary to find an agency by estoppel:

"'(First) the person dealing with the agent must do so with belief in the agent's authority and this belief must be a reasonable one; (second) such belief must be generated by some act or...