Jones v. Porretta

• Decision Date: 01 May 1987
• Docket Number: 76798 and 76829,Docket Nos. 75113
• Citation: 428 Mich. 132,405 N.W.2d 863
• Parties: Alfred D. JONES and Martha Ann Jones, Plaintiffs-Appellees, v. Charles A. PORRETTA, M.D., Defendant-Appellant. Ronald E. DZIURLIKOWSKI and Mary Ann Dziurlikowski, Plaintiffs-Appellees, and Cross-Appellants, v. Dr. Thomas MORLEY, M.D. South Oakland Anesthesia Associates, P.C., E. Kucherenko, C.R.N.A., and William Beaumont Hospital, a Michigan nonprofit corporation, Jointly and Severally, Defendants-Appellants and Cross-Appellees.
• Court: Michigan Supreme Court

Page 863

405 N.W.2d 863

428 Mich. 132

Alfred D. JONES and Martha Ann Jones, Plaintiffs-Appellees, v. Charles A. PORRETTA, M.D., Defendant-Appellant.

Ronald E. DZIURLIKOWSKI and Mary Ann Dziurlikowski, Plaintiffs-Appellees, and Cross-Appellants, v. Dr. Thomas MORLEY, M.D. South Oakland Anesthesia Associates,

P.C., E. Kucherenko, C.R.N.A., and William Beaumont

Hospital, a Michigan nonprofit corporation, Jointly and

Severally, Defendants-Appellants and Cross-Appellees.

Docket Nos. 75113, 76798 and 76829.

Supreme Court of Michigan.

Argued Oct. 8, 1986.

Decided May 1, 1987.

Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen and Bartnick by Monica Farris Linkner, Detroit, for plaintiffs-appellees.

Cheryl L. Chandler, Schureman, Frakes, Glass & Wulfmeier, Detroit, for defendant-appellant.

Gromek, Bendure & Thomas by Daniel J. Wright, Detroit, for plaintiffs-appellees and cross-appellants.

Kohl, Secrest, Wardle, Lynch, Clark and Hampton by Michael L. Updike, Farmington Hills, for defendants-appellants and cross-appellees Morley and South Oakland.

Michelle A. Thomas, Sullivan, Ward, Bone, Tyler, Fiott and Asher, P.C., Detroit, for defendants-appellants and cross-appellees William Beaumont Hosp. and E. Kucherenko, C.R.N.A.

Charles A. Nelson, Jackson, amicus curiae.

Michelle A. Thomas, Sullivan, Ward, Bone, Tyler, Fiott and Asher, P.C., Detroit, amicus curiae.

BOYLE, Justice.

We granted leave in these cases to resolve the question whether it is error in a medical malpractice action for the trial court to instruct the jury that a doctor or surgeon is not a guarantor of results. In Dziurlikowski, we hold that the instruction given was erroneous, and we reverse the jury's verdict and remand the case for a new trial. We affirm the jury's verdict in Jones because we find that the guarantor instruction was balanced by the duty of care instruction and was not erroneously given in the context of the case.

We note that the instructions at issue in these two cases are not identical. In Jones, the instruction stated:

"No physician can be required to guarantee results, but the law demands that they [sic] bring and apply to the case at hand that degree of skill and care, knowledge and attention ordinarily possessed and exercised by other orthopedic surgeons in the same specialty under like circumstances."

In Dziurlikowski, the instruction was more extensive and included the statement that an adverse result is not, of itself, evidence of negligence:

"The difficulties and uncertainties in the practice of medicine and surgery are such that no one can be required to guarantee results and all the law demands is that the individuals involved bring and apply to the case in hand that degree of skill, care, knowledge and attention ordinarily possessed and exercised by practitioners of the medical profession under like circumstances. The mere fact that an adverse result may occur following surgery is not in itself evidence of negligence."

The differences in these instructions require a distinct analysis in each case. Jones raises the issue of the propriety of the "no guarantor of results" language when coupled with amplifying language properly defining in affirmative terms the duty of care of a physician to a patient. The instruction in Dziurlikowski combines the "no guarantor" and affirmative duty of care language used in Jones with an additional phrase: "The mere fact that an adverse result may occur following surgery is not in itself evidence of negligence." Thus, the issue in Jones is simply whether, read as a whole, the instruction correctly described the standard of care in a traditional medical malpractice case. The issue in Dziurlikowski, however, is more complex. Due to the nature of this case, we are required to determine whether, in a case where circumstantial evidence of negligence is raised by the proofs, such an instruction, coupled with a statement that an adverse result is not of itself evidence of negligence, interfered with the factfinder's understanding of permissible inferences.

I Facts

In Jones, the plaintiffs claimed that the defendant doctor had breached the standard of care in his diagnosis and treatment of an injury to Mr. Jones' leg and ankle. Mr. Jones, a diabetic, sustained his injury while at work when he slipped on some oil and fell. After an x-ray was taken by the plant doctor, Mr. Jones was advised that he had a sprain and that he should rest for five days. After a week, Mr. Jones, still unable to walk, contacted his personal physician, who took x-rays, diagnosed a fracture to the left leg, and referred the plaintiff to defendant, Charles Porretta, M.D., an orthopedic surgeon.

Dr. Porretta reviewed the x-rays and, concurring in the diagnosis of a fracture, applied a short-leg walking cast to the left foot and told Mr. Jones to remain off the leg for forty-eight hours and then to move about on the leg. Five weeks later, the defendant removed the cast and further x-rayed the leg and foot.

About six weeks later, Mr. Jones was continuing to experience discomfort and again consulted with Dr. Porretta, who ordered more x-rays. These revealed a second fracture, but the leg was not recast. A short time later, the plaintiff returned to the defendant's office, where Dr. Porretta gave Mr. Jones permission to return to work. Six months later, Mr. Jones returned to Dr. Porretta's office after continuing to experience difficulty with his left foot. The defendant discussed surgical alternatives with the plaintiff, but Mr. Jones declined in view of his diabetic condition, which made surgery hazardous. Dr. Porretta then prescribed a corrective shoe.

Mr. Jones consulted with two other doctors about the problems with his left foot and leg, and a brace was prescribed. The problems continued, however.

During this time, Mr. Jones developed a callus on his right foot, which he claimed resulted from the need to bear his weight almost entirely on his right leg. The plaintiff consulted a podiatrist, who found an additional fracture on the left heel bone during routine x-rays of both feet. Treatment was undertaken for the callus, but it later became infected and two toes had to be amputated from Mr. Jones' right foot. Mr. Jones was unable to return to work and is permanently disabled.

The plaintiffs, in their complaint, claimed that the defendant had breached the standard of care in several regards: in failing to take the appropriate x-rays of the injured left ankle and leg, in failing to properly perform a reduction of the fractured bones before applying the cast, in failing to apply a proper cast, in failing to order no weight-bearing, in failing to conduct a proper and thorough examination when the defendant first saw Mr. Jones, and in failing to refer Mr. Jones to a specialist or to request a consultation.

The defense presented by Dr. Porretta was that, even if the second fracture had been discovered, the treatment would have been the same as that prescribed in this case. The defendant further argued that Mr. Jones' diabetes and its complications (diabetic neuropathy and Charcot's joint) were the proximate cause of the plaintiff's injuries and damage.

At the close of proofs (and after giving the standard jury instruction on professional negligence, SJI 30.01), the court, over the plaintiffs' objections, added the instruction at issue in this case.

The jury returned a verdict for the defendant and the plaintiffs moved for a new trial on the basis of the additional instruction. The court denied the motion and plaintiffs appealed in the Court of Appeals.

The Court of Appeals agreed with the plaintiffs that the additional instruction was a deviation from a standard jury instruction and was erroneously given in this case. It then reversed the jury's verdict on the basis of the presumption of error requiring reversal set down by this Court in Javis v. Ypsilanti Bd. of Ed., 393 Mich. 689, 227 N.W.2d 543 (1975). ¹ The Court noted, however, that it would not have so held if an objection had not been raised, 138 Mich.App. 241, 360 N.W.2d 181. The defendants appealed in this Court. The application was held in abeyance pending the Court's decision in Moody v. Pulte Homes, 423 Mich. 150, 378 N.W.2d 319 (1985). After that decision, we granted leave to appeal.

In Dziurlikowski, the plaintiffs, Ronald and Mary Ann Dziurlikowski, claimed that the defendants, Dr. Thomas Morley, M.D., South Oakland Anesthesia Associates, P.C., Elizabeth Kurcherenko, C.R.N.A., and William Beaumont Hospital had breached the standard of care by failing to follow proper procedures in the giving of anesthetic to the plaintiff husband.

Mr. Dziurlikowski was admitted to William Beaumont Hospital suffering from bleeding ulcers. While in the hospital, he underwent recommended surgery, during which the doctors also found it necessary to remove his gall bladder. This additional complication extended the anticipated length of the surgery from approximately two hours to approximately four hours.

After the surgery, Mr. Dziurlikowski experienced difficulty with movement in his right arm and underwent physical therapy. His condition was diagnosed as a brachial plexus palsy, and at the time of trial he was still unable to use his arm as before.

The plaintiffs claimed that the injury was caused by the anesthesiology team which, they alleged, had failed either to properly position his arm on the operating table or to notice that his arm had been moved during the surgery. The defendants argued that there was no negligence and that brachial plexus palsy was a relatively rare and unfortunate but occasionally unavoidable consequence of extended anesthesia.

At trial, the testimony of several experts was presented, and during the cross-examination of one of the defendants' experts, counsel for the plaintiffs attempted to impeach the testimony by the use of an article in the journal Anesthesiology. The witness testified that the periodical was a...