McPhee v. Bay City Samaritan Hospital

• Decision Date: 29 March 1968
• Docket Number: Docket No. 2007,No. 3,3
• Citation: 159 N.W.2d 880,10 Mich.App. 567
• Parties: Helen McPHEE, Plaintiff-Appellant, v. BAY CITY SAMARITAN HOSPITAL, Defendant, and Culver M. Jones, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 880

159 N.W.2d 880

10 Mich.App. 567

Helen McPHEE, Plaintiff-Appellant, v. BAY CITY SAMARITAN HOSPITAL, Defendant and Culver M. Jones, Defendant-Appellee.

Docket No. 2007.

Court of Appeals of Michigan, Division No. 3.

March 29, 1968.

Rehearing Denied May 28, 1968.

Released for Publication July 18, 1968.

Cicinelli, Mossner, Majoros, Harrigan & Alexander, Saginaw, for appellant.

Moll, Desenberg, Purdy, Glover & Bayer, Detroit, for appellee.

Before HOLBROOK, P.J., and BURNS and GILLIS, JJ.

BURNS, Judge.

Plaintiff appeals a judgment granting defendant Jones's motion for a directed verdict. Plaintiff's cause of action against the defendant Bay City Samaritan Hospital was dismissed with prejudice upon plaintiff's motion.

This case is fundamentally a malpractice action against Doctor Culver M. Jones who on March 14, 1957, removed a substantial portion of plaintiff's thyroid gland. Plaintiff's complaint alleged that Doctor Jones violated his duty to 'use sufficient care, caution and skill in the performance of the thyroidectomy operation on plaintiff so as not to cut, sever, injure, or destroy and portion of the laryngeal nerve.'

Prior to the date of the thyroidectomy plaintiff had a woman's normal voice. During the operation appellee noted that plaintiff's laryngeal nerves were normal in appearance. After the operation plaintiff and others noticed that her voice was hoarse, rough, or harsh and much different than it had been before the operation. Doctor Jones was informed of the change and he advised her that it would clear up. However, the condition allegedly persisted to the date of the trial--almost 9 years. Plaintiff consulted Doctor Adam Gamon who diagnosed her problem as laryngeal nerve paralysis. This diagnosis was confirmed by doctors at the Henry Ford hospital and the University of Michigan hospital.

Plaintiff's complaint against appellee consisted of 4 counts: negligence, fraudulent concealment, breach of warranty, and assault and battery. Although the trial judge considered and discussed each one of these theories in directing a verdict for appellee, the litigants have primarily confined their arguments on appeal to the issues premised upon the trial court's finding of a lack of evidence regarding the applicable standards of care.

A treating physician is responsible in damages for unfortunate results when it is shown that he has departed from that standard of care which is known as customary medical practice. Skeffington v. Bradley (1962), 366 Mich. 552, 115 N.W.2d 303; Zoterell v. Repp (1915), 187 Mich. 319, 153 N.W. 692. The burden of proving that standard of care is upon the complainant, and such proof must come, in most cases, with the aid of expert testimony from those learned in the profession. Lince v. Monson (1961), 363 Mich. 135, 108 N.W.2d 845; Skeffington v. Bradley, supra.

Doctor Jones, who had performed 'more than a hundred' thyroidectomies prior to plaintiff's operation, certainly was qualified to testify regarding the requisite standard of professional practice in the community. He stated that although the laryngeal nerves are within the field of operation in a thyroidectomy, the nerves 'can be avoided and should be avoided.' Without belaboring the point, we hold that the appellee's own testimony was, for the purpose of this case, sufficient evidence tending to show the standard of care to be exercised and that the plaintiff could rely on this testimony in attempting to establish a Prima facie case.

We also find that there was expert testimony tending to show a violation of appellee's duty to avoid injuring plaintiff's laryngeal nerves. Plaintiff's expert witness, Doctor Gamon, admittedly did not couch his opinion of defendant's culpability in the most desirable, explicit manner, but nevertheless the following excerpts of his testimony clearly indicate the doctor's belief that plaintiff's paralysis was caused by injury inflicted by appellee during the thyroidectomy:

'Q. (Attorney for plaintiff) As a result of a complete physical examination did you arrive at any impression of the diagnosis as far as these various...