Jones v. Bloom

• Decision Date: 30 August 1972
• Docket Number: No. 11,11
• Citation: 200 N.W.2d 196,388 Mich. 98
• Parties: Jennifer JONES, by her Next Friend, Hazel O'Banner, Plaintiff- Appellant, v. Herbert BLOOM and Myron Kaufman, individually and as co-partners d/b/a Bloom Associates, Defendants-Appellees.
• Court: Michigan Supreme Court

Page 196

200 N.W.2d 196

388 Mich. 98

Jennifer JONES, by her Next Friend, Hazel O'Banner Plaintiff- Appellant, v. Herbert BLOOM and Myron Kaufman, individually and as co-partners d/b/a Bloom Associates, Defendants-Appellees.

No. 11.

Supreme Court of Michigan.

Aug. 30, 1972.

[388 Mich. 100] Balfour Peisner, Detroit, for plaintiff-appellant.

Matheny, Schureman & Frakes, Detroit, for defendants-appellees.

Before the Entire Bench.

SWAINSON, Justice.

On March 27, 1964, Jennifer Jones, aged 10, was taken by her mother, Hazel O'Banner, to see Dr. George Logwood, the family dentist. Dr. Logwood informed Mrs. O'Banner that Jennifer needed oral surgery and referred her to defendants' clinic. On Saturday, March 28, 1964, Mrs. O'Banner and Jennifer went to defendants' clinic between 8:00 and 8:30 A.M. They were asked by the receptionist if they had an appointment and they replied that they did not. The receptionist informed them that the clinic was quite busy and that they would not be able to take Jennifer until after lunch. Mrs. O'Banner was then given a white piece of paper to fill out, which she did. She returned the paper to the receptionist.

Plaintiff and her mother then went to a friend's house in the neighborhood, where they remained until approximately 11:15 A.M. Jennifer said she was hungry, and they stopped at a restaurant about a block from the clinic where Jennifer had a hamburger, a coke, and custard cream pie. They finished eating about 12:45 P.M., and walked back to the clinic. Jennifer was called by the receptionist at approximately 1:50 P.M. Mrs. O'Banner testified that when Jennifer was taken from the reception room to the room where the extractions were to be performed, she was crying and shaking and very agitated. She testified that Jennifer was not given any examination and that neither her blood pressure nor her temperature was taken. The only question the doctor asked upon first seeing Jennifer was why she was crying.

An injection of methol hexitol was administered by Dr. Attenson, in order to induce general anesthesia. Two teeth were removed by Dr. Attenson, which took one and one-half to two minutes. After the extractions, Jennifer suffered a cardiac arrest and stopped breathing. Resuscitative measures were instituted immediately and plaintiff's heart was started again. It was not until evening that Jennifer was transferred to Sinai Hospital by ambulance. She remained in a coma for ten weeks. Jennifer suffered permanent brain damage, impaired functioning of her arms and legs, body tremors, and a speech defect. Defendants do not dispute the fact that Jennifer sustained extensive damage.

Plaintiff's complaint, filed on February 27, 1969, alleged malpractice on the part of defendants in administering to plaintiff a general anesthetic after she had ingested a meal and, alternatively, that no premedication was administered prior to the anesthetic, which caused plaintiff to remain over-excited and induced her to go into shock brought on by the general anesthetic.

At the trial, plaintiff's attorney attempted to cross-examine Dr. Attenson by reading excerpts from textbooks which Dr. Attenson testified he recognized as authoritative. It is conceded that Dr. Attenson had not relied upon these textbooks as authority for answers to previous questions, and the trial court, relying on previous Michigan Supreme Court decisions, refused to permit such cross-examination. The jury returned a verdict of no cause of action. In view of the importance of the issue involved, we granted leave to appeal prior to decision by the Court of Appeals. 384 Mich. 760.

Plaintiff lists 13 issues on appeal. The key issue is whether the trial court committed reversible error in refusing to allow plaintiff's counsel the right to use standard medical textbooks in cross-examining an expert witness when the expert witness recognized the textbooks as authoritative. The other issues, which will be considered together, concern whether the trial court made prejudicial rulings so as to unfairly prejudice plaintiff and to require a new trial?

I. THE MICHIGAN RULE

The first Michigan case dealing with this issue of reading textbooks to the jury was People v. Hall, 48 Mich. 482, 490--491, 12 N.W. 665, 669 (1882). Defendant Hall had been tried and convicted of murder. On appeal, the Supreme Court reversed. The Court held that it was improper to read medical books to the jury. Justice Campbell, speaking for the Court, stated:

'We observe that resort was had to reading medical books to the jury, the record not showing, however, what matters were thus laid before them. If this was anything it was evidence, and probably evidence which was used with some effect. The practice is not permissible. Scientific or expert testimony must be given by living witnesses who can be cross-examined concerning their means of knowledge and can explain in language open to general comprehension what is necessary for the jury to know. * * * The cases must be very rare in which any but an educated physician could understand detached passages at all, or know how much credit was due to either the author in genral or to particular parts of his book. If jurors could be safely trusted with the interpretation of such books, it is hard to see on what principal living witnesses would be required. Scientific men are supposed to be able by their study and experience to give the general results accepted by the scientific world, and the extent of their knowledge is tested by their personal examination. But the continued changes of view brought about by new discoveries in most matters of science, and the necessary assumption by scientific writers of some technical knowledge in their readers, render the use of such works before juries--especially in detached portions and selected passages--not only misleading but dangerous. The weight of authority as well as of reason is against their reception.'

Thus was stated the rule that medical textbooks could not be read to a jury as direct evidence. The rule was at that time accepted by all states except Alabama. ¹ However, the reasoning used in Hall, which concerned reading extracts to the jury on direct examination, was applied in later cases to varying fact situations.

The next Michigan case to deal with this issue was Pinney v. Cahill, 48 Mich. 584, 12 N.W. 862 (1882). This has long been cited as one of the leading cases on the subject. Cahill had hired plaintiff's horse and the animal became sick and died. Plaintiff filed suit for damages. The Supreme Court affirmed the jury's verdict in favor of defendant. Plaintiff's expect witness, a veterinary surgeon, stated that colic (from which the horse died) was caused by over-driving and feeding when the animal was too warm; that all works of good authority spoke of it, and that Modern Horse Doctor was a work of that kind. Defendant, over plaintiff's objection, introduced a statement from the book tending to discredit plaintiff's expert's statement. The trial court held that this was not error. The Supreme Court stated (pp. 586--587, 12 N.W. p. 863):

'The rule is acknowledged in this State that medical books are not admissible as a substantive medium of proof of the facts they set forth. But the matter in question was not adduced with any such view. The witness assumed to be a person versed in veterinary science; to be familiar with the best books which treat of it and among others with the work of Dodd. He professed himself qualified to give an opinion to the jury from the witness stand on the ailment of the plaintiff's horse and its cause, and the drift of his opinion was to connect the defendant with that ailment. He borrowed credit for the accuracy of his statement by referring his learning to the books before mentioned and by implying that he echoed the standard authorities like Dodd. Under the circumstances it was not improper to resort to the book, not to prove the facts it contained, but to disprove the statement of the witness and enable the jury to see that the book did not contain what he had ascribed to it. The final purpose was to disparage the opinion of the witness and hinder the jury from being imposed upon by a false light. The case is a clear exception to the rule which forbids the reading of books of inductive science as affirmative evidence of the facts treated of. Ripon v. Bittel, 30 Wis. 614; 2 Whart. Ev. § 666.'

Two factors of this decision are significant: First, the Court stated, 'The final purpose was to disparage the opinion of the witness and hinder the jury from being imposed upon by a false light.' Thus, the Court recognized that the attempt to discredit the witness was a legitimate purpose in the use of textbooks. Second, the Court said: 'The case is a clear exception to the rule which forbids the reading of books of inductive science as affirmative evidence of the facts treated of.' By stating that this was 'a clear exception,' the Court recognized that there could be other exceptions to the rule.

In Marshall v. Brown, 50 Mich. 148, 15 N.W. 55 (1883), plaintiff had sued defendant, a druggist, for negligence in giving her sulphate of zinc instead of Epsom salts. She recovered at her first trial and the Supreme Court reversed. On retrial, she again recovered a verdict, and the Supreme Court again reversed. The Court stated (p. 150, 15 N.W. p. 56):

'One error occurred, however, which it is impossible to overlook. It was decided in People v. Hall, 48 Mich. 482, 12 N.W. 665, that it was not competent to read professional books to the jury as evidence. The decision had not been made when this case was tried the second time; if it had been the error now complained of would, probably, not have been committed.

'On the cross-examination of Dr. Wood, a witness for the defendant, he was asked if he was acquainted with a certain book. He replied that he had heard of it but had not read it. He was then asked whether it was considered good...