LaBar v. Cooper

• Decision Date: 04 October 1965
• Docket Number: 17,Nos. 16,s. 16
• Citation: 137 N.W.2d 136,376 Mich. 401
• Parties: Henry LaBAR, Plaintiff and Appellant, v. Joseph E. COOPER and Kathleen Deja, Defendants and Appellees. Lois LaBAR, Plaintiff and Appellant, v. Joseph E. COOPER and Kathleen Deja, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 136

137 N.W.2d 136

376 Mich. 401

Henry LaBAR, Plaintiff and Appellant, v. Joseph E. COOPER and Kathleen Deja, Defendants and Appellees.

Lois LaBAR, Plaintiff and Appellant, v. Joseph E. COOPER and Kathleen Deja, Defendants and Appellees.

Nos. 16, 17.

Supreme Court of Michigan.

Oct. 4, 1965.

Doyle, James & Dark, Kalamazoo, for plaintiffs and appellants.

Howard & Howard, Kalamazoo, for defendant and appellee Joseph E Cooper.

Before the Entire Bench.

ADAMS, Justice.

These are husband and wife companion cases for alleged medical malpractice. The claim of injury to Mrs. LaBar arises out of an intermuscular shot which was administered July 30, 1960, in the upper arm, allegedly damaging the radial nerve.

Suits were begun March 27, 1962. Pretrial was completed January 17, 1963. The cases were ready at the November 1963 Term. Plaintiffs requested adjournment to the January 1964 Term which was granted upon stipulation.

The deposition of defendant Joseph E. Cooper was taken on May 16 and May 27, 1963. He testified:

'Q. And Doctor, when you mention shots being given in the upper arm, where is the acceptable place in the upper arm for administering intermuscular shots?

'A. Personally acceptable or medically acceptable?

'Q. Medically acceptable.

'A. Medically acceptable is usually in the upper half of the arm; mostly it is recommended if it must be given in or near the tip of the deltoid muscle. I personally do not adhere to this and haven't for many years. My training was to give intermuscular shot in the glutaneous area since it is much less apt to cause pain and discomfort and there's remote or slight chance of any nerve injury.'

He could not remember giving any orders as to where Mrs. LaBar was to receive the shot. Prior to when she was given it, he had expressed himself, time and again, to the nursing staff about the proper place for administering such a shot.

'The reason for my mentioning it was that even in the doctors' offices in the area, this is, the upper arm is the popular spot to receive injections and having observed many many sore arms and lumps as the result of injections in this area and having been taught, where I was schooled, that this was not the proper or the best place to give them, I frequently expressed my opinion as I was taught and for the reason I've seen many sore arms, I could see no reason for it when the injection could go equally as well in the buttocks.'

Before the doctor's deposition was taken, the plaintiffs' allegations of malpractice had consisted primarily of a charge that defendants negligently injected or caused to be injected a needle in Mrs. LaBar's arm which damaged the left radial nerve, causing nerve palsy and ensuing injuries.

Two weeks before the January 1964 Term was to begin, and some six months after Dr. Cooper was deposed, plaintiffs' attorneys moved to amend the declarations, primarily to charge Dr. Cooper with general acts of negligence in sending Mrs. LaBar to the hospital when he knew the standard of care employed by the nurses was faulty and that shots were administered by them in a dangerous place. The trial judge denied the motions and this Court granted leave to appeal.

I.

The trial judge stated:

'Prior to filing the motions the statute of limitations, both as to malpractice and ordinary negligence, had run. Prior to the effective date of G.C.R. 1963, the motion would have been denied, because of the running of the statute.'

Michigan General Court Rule 118, sections .1 and .4, reads as follows:

'.1 Amendments. A party may amend his pleading once as a matter of course at any time before or within 15 days after a responsive pleading is served or, if the pleading is one to which no responsive pleading is required and the action has not been placed upon the trial calendar, he may amend it at any time before or within 15 days after it is served. Otherwise, a party may amend his pleading only by leave of court or by written consent of the adverse party. Leave shall be freely given when justice so requires. All amendments shall be filed in writing, dated, and numbered consecutively. Unless otherwise indicated therein, an amended pleading shall supersede the former pleading.' (Emphasis supplied.)

'.4 Relation Back of Amendments. Except for the purpose of demanding a trial by jury under sub-rule 508.2, the amendment relates back to the date of the original pleading whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.' (Emphasis supplied.)

GCR 118 is an adoption of Federal Rule 15. The purpose of its adoption is stated by Professor Hawkins and Jason Honigman at 1 Michigan Court Rules Annotated, page 416:

'The relationship between the original pleading and a proposed amendment becomes important when the date of filing the amendment raises a question of limitations. The doctrine of 'relation back' was devised by the courts to associate the amended matter with the date of the original pleading, so that it would not be barred by the statute of limitations. But some restrictions had to be placed upon the doctrine, or claims clearly barred could be resurrected by pleading them in an amendment to an unrelated claim which was not barred. Previous Michigan cases had set this restriction in terms of whether the amended matter involved a new cause of action.

'Sub-rule 118.4 is intended to introduce a more liberal and workable test, borrowed from the Federal Rules. See Committee Comment (5), supra. The test is no longer conceptual, but rather functional. The amendment relates back to the date of the original pleading and, therefore, is not barred by limitations, whenever the claim or defense asserted in the amendment arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. It is thus beside the point that the amendment introduces new facts, a new theory, or even a different cause of action, so long as it springs from the same transactional setting as that pleaded originally. The new test satisfies the basic policy of the statute of limitations, because the transactional base of the claim must still be pleaded before the statute runs, thereby giving defendant notice within the statutory period that he must be prepared to defend against all claims for relief arising out of that transaction.' (Emphasis supplied.)

Defendants place great stress upon their substantive rights by virtue of the statute of limitations, asserting that the Supreme Court lacks the power to change by Court Rule the substantive law. Mr. Justice Black, speaking for the United States Supreme Court, in the case of Tiller v. Atlantic Coast Line Railroad Company, 323 U.S. 574, 581, 65 S.Ct. 421, 424, 89 L.Ed. 465 (1945), said:

'The original complaint in this case alleged a failure to provide a proper lookout for deceased, to give him proper warning of the approach of the train, to keep the head car properly lighted, to warn the deceased of an unprecedented and unexpected change in manner of shifting cars. The amended complaint charged the failure to have the locomotive properly lighted. Both of them related to the same general conduct, transaction and occurrence which involved the death of the deceased. There was therefore no departure. The cause of action now, as it was in the beginning, is the same--it is a suit to recover damages for the wrongful death of the deceased. 'The effect of the amendment here was to facilitate a fair trial of the existing issues between plaintiff and defendant.' Maty v. Grasselli Co., 303 U.S. 197, 201, 58 S.Ct. 507, 509, 82 L.Ed. 745. There is no reason to apply a statute of limitations when, as here, the respondent has had notice from the beginning that petitioner was...