Marchlewicz v. Stanton, Docket No. 14408

• Decision Date: 01 November 1973
• Docket Number: No. 2,Docket No. 14408,2
• Parties: Stanley MARCHLEWICZ, Plaintiff-Appellant, v. James B. STANTON, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 317

213 N.W.2d 317

50 Mich.App. 344

Stanley MARCHLEWICZ, Plaintiff-Appellant, v. James B. STANTON, Defendant-Appellee.

Docket No. 14408.

Court of Appeals of Michigan, Division No. 2.

Nov. 1, 1973.

Rehearing Denied Dec. 7, 1973.

Released for Publication Dec. 28, 1973.

Leave to Appeal Denied April 18, 1974.

John C. Frakes, Jr., Matheny, Schureman, Frakes & Glass, Detroit, for plaintiff-appellant.

Lopatin, Miller, Bindes & Freedman, Michael H. Feiler, Liberson, Fink, Feiler, Crystal & Burdick, Detroit, for defendant-appellee.

Before R. B. BURNS, P.J., and V. J. BRENNAN and VanVALKENBURG,* JJ.

V. J. BRENNAN, Judge.

Plaintiff, Stanley Marchlewicz, appeals from a judgment of the Macomb County Circuit Court entered upon a jury verdict of no cause for action. Plaintiff contends that reversible error was committed by the trial judge when he entered the jury room during their deliberations and when he instructed the jury on contributory negligence. Defendant, Dr. James B. Stanton, has filed a cross appeal alleging that the trial court erred in denying his motion for directed verdict.

In May of 1968, plaintiff sought the professional services of defendant, a Board certified orthopedic surgeon, in relation to pain he was suffering in his right hip. After an examination, defendant diagnosed plaintiff's condition as arthritic degenerative change of the head of the right femur. Defendant recommended and plaintiff consented to the performance of a cup arthroplasty. ¹ The operation was performed in June of 1968, without any apparent complications. A physical therapy program for plaintiff was begun but he missed many of the sessions. The pain continued after the operation and pain medication was prescribed by defendant. Some improvement in plaintiff's condition was noted but during the eleven months following the operation plaintiff did not regain the proper functioning of his leg. Therefore, in May of 1969, plaintiff consulted another doctor who suggested that a revision of the cup arthroplasty might be needed. In August of 1969, a revision was performed by Dr. William H. Harris of Boston.

Plaintiff brought this action against defendant in two counts. The first count alleged negligence or malpractice in the treatment of plaintiff, including negligence in the diagnosis, surgery and aftercare, and negligence in failing to properly inform plaintiff as to the consequences of such an operation. The second count alleged breach of contract of employment.

At the close of all the proofs, defendant moved for a directed verdict. The trial judge denied his motion and it is from this ruling that defendant prosecutes his cross-appeal.

In Michigan, the testimony of experts is required to establish that a doctor has breached the standard of care required of him. If such testimony is not adduced, no question is presented for the jury's determination. Lince v. Monson, 363 Mich. 135, 108 N.W.2d 845 (1961); Burton v. Smith, 34 Mich.App. 270, 191 N.W.2d 77 (1971); Daniel v. McNamara, 10 Mich.App. 299, 159 N.W.2d 339 (1968). In the case at bar, plaintiff had the depositions of Dr. William H. Harris and Dr. Glenn B. Carpenter read into the record. These depositions, when read in the light most favorable to plaintiff, do not contain any statement indicating that Dr. Stanton failed to follow the accepted standard of care either in the diagnosis and treatment of plaintiff or in the eleven months subsequent thereto. Plaintiff attempted to show that the revision was made necessary by the fact that in the original arthroplasty the acetabulum (hip socket) was not reamed out to a depth sufficient to allow proper placement of the cup. The statements of both doctors were to the contrary. The plaintiff also attempted to show that defendant was negligent in allowing eleven months to pass without altering the treatment program. Dr. Harris, in his deposition, however, stated that it was his experience that almost a year was needed before it could be determined that an arthroplasty was not working out. No other medical testimony on this issue was presented. Under these circumstances, we hold that the trial judge erred in submitting the issue of whether defendant was negligent in his treatment of the plaintiff to the jury. There was no expert testimony presented to support plaintiff's contention that defendant breached the standard of care required of him.

Defendant next contends that count II of plaintiff's complaint is redudant in that it sets forth the same theory as that pleaded in count I, but couched in contract rather than tort language. Defendant further asserts that even if count II properly pleads breach of contract, the proofs failed to establish any jury question. Defendant's contentions in this regard are without merit. In Guilmet v. Campbell, 385 Mich. 57, 69, 188 N.W.2d 601, 606--607 (1971), a contract and negligence action against a doctor, our Supreme Court, in affirming the trial court's denial of defendant's motion for judgment notwithstanding the verdict, stated:

'What was said, and the circumstances under which it was said always determines whether there was a contract at all and if so what it was. These matters are...