Johnson v. Caldwell

• Decision Date: 10 October 1963
• Docket Number: No. 44-45,44-45
• Citation: 371 Mich. 368,123 N.W.2d 785
• Parties: Alberta JOHNSON, Plaintiff and Appellee, v. G. L. CALDWELL, M. D., Defendant and Appellant. Nathaniel JOHNSON, Plaintiff and Appellee, v. G. L. CALDWELL, M. D., Defendant and Appellant.
• Court: Michigan Supreme Court

Page 785

123 N.W.2d 785

371 Mich. 368

Alberta JOHNSON, Plaintiff and Appellee, v. G. L. CALDWELL, M. D., Defendant and Appellant.

Nathaniel JOHNSON, Plaintiff and Appellee, v. G. L. CALDWELL, M. D., Defendant and Appellant.

No. 44-45.

Supreme Court of Michigan.

Oct. 10, 1963.

Zeff & Zeff, Detroit, for plaintiffs and appellees; Edward Grebs, Detroit, of counsel.

Cronin & Cronin, Detroit, for defendant and appellant; Burton H. Cronin, Detroit, of counsel.

Before the Entire Bench.

O'HARA, Justice.

On review here is the order of the trial court denying motions for new trials and for judgments non obstante veredicto.

The judgments are upon a consolidation of 2 suits for trial. One is by Nathaniel Johnson for loss of consortium and for expense incurred by him for medical services rendered to his wife. The other is by the wife, Alberta Johnson, in her own name, for pain, suffering and permanent injury to her nervous system.

The declarations initiating the actions, as originally filed on January 27, 1959, both contained single counts. Both were trespass actions alleging negligence on the part of defendant doctor. Each claimed damages of $20,000.

To these declarations were filed answers on February 13 and 17, 1959, respectively. Each answer specified that it was filed subject to a 'Special Defense' contained therein. The defense was the statute of limitations and the particular limitation cited was P.A.1915, No. 314, ch. 9, § 13, subd. 3, as amended by P.A.1951, No. 21 (C.L.S.1956, § 609.13 [Stat.Ann.1959 Cum.Supp. § 27.605]), which provides that:

'3. Actions * * * for malpractice of physicians * * * shall be brought within 2 years from the time the cause for action accrues, and not afterwards.' ¹

Each answer is accompanied by a demand for trial by jury. The list of calendar entries shows a 'Reply to Special Defense' filed February 19, 1959, and a 'Praecipe for Causes Ready for Trial (No. 110,184)' filed February 20, 1959.

Thereafter a substitution of attorneys was made and amended declarations were filed on motion and order granting leave so to do. The amended declarations were in 2 counts filed May 4, 1961. Count one was designated 'Trespass on Case'; Count 2, 'Assumpsit.' The ad damnum clauses were both increased to $50,000. To these amended declarations the only responsive pleading shown in either appendix is a 'Demand for Bill of Particulars.' The answer to this demand is entitled in appellant's appendix 'Answer to Interrogatories.' No further reference is made to the amended declarations containing the assumpsit count in any pleading. The pretrial statement contains only this reference thereto:

'Defendant also claims that the statute of limitations has run on the plaintiffs' claim.'

From what is before us in the appendices it is difficult to ascertain what appellant's claim, as set forth in the third statement of questions involved, actually means:

'3. Did the Court err in permitting plaintiffs to change their theory of the case after the proofs were in from malpractice to contract?

'Plaintiffs and appellees say, 'No.'

'Defendant and appellant says, 'Yes."

The list of calendar entries shows an order entered on May 12, 1961, granting motion for leave to amend declarations. No objection thereto is listed as having been made.

Both the tort and assumpsit counts, apparently, were properly before the court at the beginning of the trial. At the close of plaintiffs' cases defendant moved for a directed verdict in the following terms:

'MR. CRONIN: The defendant at this time moves for a directed verdict in his favor for the following reasons:

'There has been no evidence presented in this case to bring it within the fraudulent concealment statute. Moreover, the pleadings do not contain an allegation of fraudulent concealment. It is not pleaded in the pleadings. There is no allegation of fraudulent concealment in the pleadings that could toll the operation or running of the regular statute.'

The court made the following ruling:

'THE COURT: The motion for directed verdict is denied, but I will grant the motion as to striking the count on malpractice. I am not striking the assumpsit count. That has six years to run.' (Emphasis supplied.)

Thereupon defendant put in his proofs and when both parties rested, defendant again made a motion for a directed verdict:

'MR. CRONIN: The defendant moves at this time, may it please the court, for a directed verdict in his favor for the following reasons, towit:

'First, there has been no proof offered in respect to a special agreement in this case. There has been no allegation in the pleadings of a special agreement on the part of the doctor, and the statute of limitations has run against this case. The count in respect to malpractice has been dismissed by the court.

'There has been no evidence produced in this case to show any breach of contract under the law of contracts, none whatever. Another ground is because the plaintiff is attempting to change his theory of the case in the middle of a lawsuit. In fact, after he closed his case all the evidence adduced in this case has been on the skill or lack of skill, which is the realm of malpractice, and after the evidence is all in plaintiff may not change his theory of the lawsuit. You can't change the theory in the middle of a lawsuit.'

Following is the court's ruling:

'THE COURT: Let the record show that the count of malpractice has been dismissed by the court because under the law the action must be brought within two years after the malpractice, and it was not brought within the time permitted by statute in this case. It was brought after two years so the court had to exclude the malpractice count, but counsel has a right to go to the jury on the assumpsit or contract count.'

So far as we can determine plaintiffs' change of theory took place at the time the amended declarations were filed--without of-record objection. Early in the direct examination of plaintiff-wife the basis of the contractual relationship was prima facie established and not thereafter challenged. Her testimony was as follows:

'Q. And when you saw Dr. Caldwell was anybody with you?

'A. My husband.

'Q. And at the time you saw Dr. Caldwell, Mrs. Johnson, would you tell us the conversation, or the nature of the conversation that you had with him at that time?

'A. Well, at that time my husband wanted him to treat me prior to my baby, and deliver the baby and treat me afterward, and he agreed that he would.'

We do not think it necessary to consider this allegation of error further. The additional questions raised by appellant are:

(1) The holding that the 6-year limitation of action applied rather than the specific 2-year malpractice statute.

(2) That there was not adduced sufficient evidence to create a jury question on either the tort or contract theory.

(3) The denial of the motion for a directed verdict at the close of plaintiffs' case.

(4) The denial of the motions for a new trial or judgments notwithstanding the verdicts.

We have considered each question raised but we are constrained to agree with the statement in appellant's brief:

'The central question in these cases is the statute of limitations.'

The verdicts, if properly rendered, are well within the range of the evidence on damages. For the husband the jury returned a verdict of $1,400; for the wife $2,600.

The facts and allegations of fact necessary to an understanding of the legal issues are hereinafter set forth.

Plaintiff Alberta Johnson, at the time of her initial consultation with Dr. Caldwell, was 21 years of age. She was in the fourth month of her first pregnancy. On the call to engage Dr. Caldwell she was accompanied by her husband. The professional engagement of Dr. Caldwell for these purposes is not disputed. The date was the latter part of August, 1955. The baby was normally delivered without incident on December 29, 1955. Mrs. Johnson was discharged from the hospital January 2, 1956. In the interim, between birth and discharge, plaintiff-mother testified the doctor visited her in the hospital 'almost every day' and that he examined her before she left the hospital. She testified further that he advised her that she had an infection of the womb. When she arrived at home, she noticed that 'I had something which seemed to be protruding through my vagina.' She returned to the doctor before the 6 weeks after-birth period he had recommended for another examination and complained of the condition. According to plaintiff, the doctor advised her to wait until the 6 weeks were up and he 'would see.' Thereafter she testified that she went back to see him again; that he told her nothing could be done for her condition; that she would have to learn to live with it and take remedial exercise; further, that for 2 years she was in intense pain, unable to have conjugal relations, and that her marriage was imperiled. In 1957 she was admitted to another hospital under the care of a staff physicain because her husband was unemployed; a registered nurse observed her condition and recommended she consult a doctor. After consultation and examination, the doctor performed 2 corrective operations for a prolapsed uterus. After that her condition improved and as of the time of trial she was 'fine.' Significantly for the issue framed in this case, she testified on cross-examination:

'Q. Well, from June, 1956 to February, 1958, you continued to suffer all that time?

'A. That is right.

'Q. And acting on Dr. Caldwell's advice to you that an operation wouldn't do any good you didn't seek any other medical care?

'A. I accepted his word. He says nothing could be done for it.'

Dr. Caldwell, contrariwise, asserts basically that in his opinion the post partum examination did not reveal a prolapsed uterus but rather a relaxed perineum or a sub-invaluted uterus; that it was too early at the time he last examined plaintiff-mother to determine whether the condition was properly...