Perri v. Tassie

• Decision Date: 03 June 1940
• Docket Number: January Term.,Nos. 54,55,s. 54
• Citation: 293 Mich. 464,292 N.W. 370
• Parties: PERRI v. TASSIE (two cases).
• Court: Michigan Supreme Court

293 Mich. 464

292 N.W. 370

PERRI

v.TASSIE (two cases).

Nos. 54, 55, January Term.

Supreme Court of Michigan.

June 3, 1940.

Actions, consolidated for trial, by Ellen Perri and Rosso Perri, respectively, against Dr. Ralph N. Tassie for malpractice. Judgments for plaintiffs, and defendant appeals.

Judgments set aside, and cases remanded for a new trial.

BUTZEL, CHANDLER, and WIEST, JJ., dissenting in part.Appeal from Circuit Court, Wayne County; Clyde I. Webster, judge.

Argued before the Entire Bench.

Douglas, Barbour, Desenberg & Purdy, of Detroit (Neal Fitzgerald, of Detroit, of counsel), for appellant.

Walter M. Nelson, of Detroit, for appellees.

BUSHNELL, Chief Justice.

I am of the opinion that a new trial should be granted. For the reasons stated by Mr. Justice BUTZEL the trial court erred in refusing either to strike the testimony of Dr. Carter or to instruct the jury that the opinion expressed by him was entitled to little or no weight. I do not agree, however, that the court erred in holding the photograph admissible.

This court said in Pruner v. Detroit United Railway, 173 Mich. 146, 139 N.W. 48, 50: ‘In photographs there should be a substantial identity in the person, place, or thing photographed and that which the jury are to consider in the case. It is difficult, and often impossible, to obtain a photograph of the scene of the accident at or about the time of the accident, but, having in mind the object sought, the assisting of the jury by knowledge of the locality to judge the conduct of the parties with reference to the issue raised, the only practical rule would seem to be that the changes must not be such as to destroy the substantial identity. The changes should be carefully pointed out and brought to the jury's attention. With these safeguards, the subject must be left largely to the discretion of the trial judge, and, while in the instant case the court might very properly in his charge have called the jury's attention more particularly to the changes, still we cannot say that his failure so to do was prejudicial error under the circumstances of this case.’

The admissibility of a photograph in evidence is largely within the discretion of the trial judge. Amedeo v. Railway Co., 215 Mich. 37, 55, 183 N.W. 929. We have approved the use of photographs of the scene taken sometime after the accident in negligence cases. This was done in Pearce v. Rodell, 283 Mich. 19, 276 N.W. 883. See the instruction by the trial court as to the use of such photographs by a jury at page 28 of that opinion in 283 Mich., at page 887 of 276 N.W.

In Davis v. City of Adrian, 147 Mich. 300, 110 N.W. 1084, the photograph of an ulcerated sore was held properly admitted where the jury had been instructed as to the consideration to be given to the accompanying testimony. In this case the objection was made that the sore resulted from improper treatment rather than from the injury upon which the cause of action was based.

In Beardslee v. Columbia Township, 188 Pa. 496, 502, 41 A. 617, 618,68 Am.St.Rep. 883, the court said: ‘* * * the only practicable rule would seem to be that the changes must not be such as to destroy the substantial identity, and that the changes, whatever they are, must be carefully pointed out and brought to the jury's attention. This would have to be the course pursued if a view were allowed to the jury at the trial, and no other appears practicable in regard to plans, photographs, or other substitutes for a view. With these safeguards the subject must be left largely to the discretion of the trial judge.’ See also Rogers v. City of Detroit, 289 Mich. 86, 286 N.W. 167.

Counsel was informed, in the presence of the jury, that the picture was not admissible to show the length of the incision at the time defendant operated and the jury was aware that the photograph was taken after a second operation and during the trial of the case. The rights of the defendant were amply safeguarded by these statements of the court.

We are unable to hold that the admission of the photograph of the scar on Mrs. Perri's abdomen was an abuse of discretion.

I concur in the conclusion reached by Mr. Justice BUTZEL that the judgments in both cases should be set aside and they should be remanded for a new trial.

SHARPE, POTTER, NORTH, and McALLISTER, JJ., concurred with BUSHNELL, J.

BUTZEL, Justice (dissenting).

Rocco and Helen Perri brought separate actions against Dr. Ralph N. Tassie for malpractice. They charged that he failed to meet the standard of care required of physicians in Detroit and similar communities in performing an appendectomy on Mrs. Perri, in that the operation was improperly performed, that he did not properly close and suture the wound, and that he was derelict in his duty as to post-operative care. The cases were consolidated for trial but separate verdicts and judgments were rendered for the respective plaintiffs. The cases are brought here for review on one record.

Defendant conducted a private hospital in the city of Detroit. Mrs. Perri visited him professionally, complaining of recurrent sharp pains in her right side. She was a rather robust, hard-working woman, the mother of eleven children eight of whom were living at the time of the trial. Defendant advised that an appendectomy be performed promptly, and she entered his hospital for that purpose. The declaration alleges that in order to remove the appendix, defendant made an unnecessarily long and harmful incision in the median line of her abdomen and that he ‘did insufficiently close the said incision and did wholly neglect to suture, close, bind and hold the same and did fail to sew up the abdomen or close the incision he had made in plaintiff, and although plaintiff was in the exclusive care and in the hospital of defendant for a month immediately following the said operation, said defendant never completed the said operation, sewed up the said incision or closed the said wound, and when plaintiff inquired concerning her condition and endeavored to consult with defendant thereon, well knowing the said statements to be false and untrue or making them recklessly without any foundation in fact, said defendant advised that it was of no use or avail to complete the said operation and close the said incision because plaintiff was afflicted with an internal cancer and would shortly die, all of which said defendant well knew or should have known was cruelly misleading and untrue, and said defendant neglected and refused to give this plaintiff the required and usual aftercare and neglected and refused to properly care for or treat her.’

It is claimed that a ventral hernia resulted from defendant's alleged neglect.

Mrs. Perri testified that defendant saw her at no time during the first week after the operation, and only a few times during the entire month while she was in his hospital. She stated that on the seventh day following the operation, a nurse removed the clamps from the site of the incision, and almost immediately thereafter she felt the wound open beneath the bandages, and that she had to hold back with her hands the bulging abdominal organs until Dr. Tassie's assistant approximated the edges of the incision with adhesive tape. At the end of four weeks she was permitted to go home and was able to walk to an automobile with the assistance of two members of her family. After about a month in bed at home, she went to defendant's office, complaining that her stomach was ‘out.’ She claims that defendant told her that it would take about two years for the condition to heal. She made five or six more visits within a short period after she left the hospital. About two years later, Dr. Alfred A. Thompson repaired the hernia by opening the wound and bringing the various parts together with proper sutures.

Defendant denied the claims of plaintiffs. He insisted that he saw Mrs. Perri daily, that he properly closed the wound although it was necessary to insert a drainage tube, that he made no statements to the effect that suturing the wound was needless because death from cancer was imminent and at any rate the cancer would prevent healing, and that the hernia did not result from any fault on his part.

Plaintiffs' counsel admitted in court that there was no complaint because of the midline incision, although their medical witness testified that ‘appendicitis, strictly appendicitis, is not performed in the median line,’ but ‘it is performed over the spot in the abdomen called McBurney's spot, between the umbilicus and the prominent bone in the hips.’

Defendant assails the judgments on various grounds. He contends that competent expert evidence of malpractice was wanting. Plaintiffs claim that the judgments should be sustained even if we hold the claimed expert lacked the necessary qualifications, because the conduct charged, if true, was such that ‘even the merest tyro would know was improper.’ Wiest, J., in Ballance v. Dunnington, 241 Mich. 383, 217 N.W. 329, 330, 57 A.L.R. 262. While we have generally insisted that the plaintiff in a malpractice suit produce competent evidence by experts that the defendant's acts were not in...