Podvin v. Eickhorst
| Decision Date | 01 June 1964 |
| Docket Number | Nos. 134-137,s. 134-137 |
| Citation | 128 N.W.2d 523,373 Mich. 175 |
| Parties | Donald H. PODVIN, Plaintiff and Appellant, v. Thomas N. ELCKHORST, Defendant and Appellee. Donald H. PODVIN, Plaintiff and Appellant, v. Ernest P. GRIFFIN, Jr., Donald R. Bryant, and Raymond S. Van Harn, Defendants and Appellees. Donald H. PODVIN, Plaintiff and Appellant, v. Thomas C. LINDMAN, Defendant and Appellee. Donald H. PODVIN, Plaintiff and Appellant, v. Hira E. BRANCH and Ralph E. Dawson, Defendants and Appellees. |
| Court | Michigan Supreme Court |
Van Benschoten & Van Benschoten, Saginaw, Bahls & Mohl, Lapeer, Walter J. Barkey, Flint, for plaintiff and appellant.
Cline & George, Earl J. Cline, Flint, for Thomas N. Eickhorst, Raymond S. Van Harn, Hira E. Branch and Ralph E. Dawson, Moll, Desenberg, Purdy, Glover & Bayer, Detroit, Clayton C. Purdy of counsel for Thomas N. Eickhorst, Raymond S. Van Harn, Hira E. Branch and Ralph E. Dawson.
James M. Pearson, Flint, for Ernest P. Griffin, Jr. and Donald R. Bryant.
Before the Entire Bench.
This appeal is from judgment of no cause of action entered on juty verdicts in four consolidated cases against seven doctors in which plaintiff sought damages for injuries he claimed resulted from their medical malpractice. In one of the cases, the trial judge instructed the jury to return a verdict in favor of defendant Van Harn.
Plaintiff had been injured in an automobile accident and hospitalized in a Lapeer hospital. His physicians in Lapeer, after determining by X-ray that plaintiff's spine was dislocated, transferred him to St. Joseph Hospital in Flint where there was available suitable equipment for the treatment of such injuries and where surgeons would be available to perform a laminectomy if necessary. All of the events upon which plaintiff bases his claims against defendants occurred following his transfer to St. Joseph Hospital.
Many claims of error are urged upon us in this appeal. Several relate to the trial judge's charge to the jury, including the claim that the court erred in refusing a request for instruction that plaintiff was not guilty of contributory negligence; several relate to his conduct of the trial, specifically his alleged interference with and restriction upon plaintiff's cross-examination of defendants and their witnesses, his restrictions upon the examination of plaintiff's expert witnesses, and his comments made in ruling upon objections to plaintiff's attempted use of hospital records in the examination of medical witnesses. Plaintiff also asserts as error the trial judge's direction of a verdict in favor of Dr. Van Harn on the ground that factual issues had been framed by the evidence which plaintiff was entitled to have determined by the jury rather than as a matter of law by the trial judge. We need consider only three of the claims of error: (1) The trial judge's comments concerning the probative worth of hospital records; (2) the refusal of the trial judge to instruct the jury, as plaintiff requested that he do, that the case presented no issue of contributory negligence; (3) the trial judge's instruction directing the jury to return a verdict favorable to Dr. Van Harn.
Plaintiff's case was based in substantial part upon the theory that the defendants failed to render adequate and timely surgical services to him after his arrival in St. Joseph Hospital with the consequence that his condition progressed to the point of near complete paralysis from the waist to the toes and that defendants negligently failed to perform a laminectomy during the period when wuch an operation could have prevented paralysis or at least minimized it. As against some of the defendants, plaintiff's claim was that they negligently assumed plaintiff had been paralyzed instantly in the accident and that they negligently failed to discover his progressive paralysis notwithstanding notations upon plaintiff's hospital records from which they could have determined that plaintiff was not paralyzed upon admission to the hospital. As against one of the other defendants plaintiff claimed that he failed to attend the plaintiff adequately during the time plaintiff was under his professional care, plaintiff relying again almost exclusively upon hospital records to prove that that doctor saw plaintiff only twice in the first six days of his hospitalization in Flint, an assertion the defendant doctor met only by his own testimony of more frequent attendance upon plaintiff during said period. In these respects and in others plaintiff's case depended squarely upon the weight to be given by the jury to the entries made upon his hospital records. As in many medical malpractice actions, this plaintiff also depended upon the medical records for effective examination of his own expert witnesses, and the probative value of their opinion testimony necessarily depended to a large extent upon the weight the jury gave to the medical records upon which such opinion testimony was based.
C.L.1948, § 617.53 (Stat.Ann. § 27.902), 1 permitted business entires of any act, transaction, occurrence or event to be admitted in evidence as proof of such act, transaction, occurrence or event and it expressly provided that the lack of an entry thereof could be received as evidence that no such act, transaction, occurrence or event in fact had taken place. Under our practice at the time of the trial of these consolidated cases, as reflected by that statutory provision (by virtue of Court Rule No. 1, § 3 (1945)), plaintiff was entitled to use his medical records as evidence not only of the happening of events recorded thereon but he was also entitled to rely upon such records as evidence of the non-occurrence of certain events in the absence of any record thereof.
Notwithstanding plaintiff's right to use his hospital records in such fashion, the trial judge commented during the course of trial regarding plaintiff's reliance upon hospital records in such fashion that the jury could not escape the belief that where there was conflict between testimonial evidence and the record evidence relied upon by plaintiff, the testimonial evidence should be accepted as true and, further that the medical records were not of much value because they were merely 'what somebody recorded as a fact' as distinguished from actual fact. No useful purpose would be served in setting forth the various comments made by the trial judge in passing upon objections to plaintiff's attempted use of such records. It is sufficient to note only that the gratuitous comments made disparaged the records in the presence of the jury, thereby depriving plaintiff of his right to have the jury determine, unaffected by...
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Siirila v. Barrios
...217 N.W.2d 37 (1974), for analysis of the use of hospital records. In construing a predecessor statute, 10 in Podvin v. Eickhorst, 373 Mich. 175, 170--180, 128 N.W.2d 523 (1964), we held that the statute permitted plaintiff 'to use his medical records as evidence not only of the happening o......
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...v. Snyder, 89 Mich.App. 38, 41, 279 N.W.2d 322 (1979), lv. den. 407 Mich. 867 (1979). Plaintiff's reliance on Podvin v. Eickhorst, 373 Mich. 175, 128 N.W.2d 523 (1964), is misplaced. That case was a medical malpractice action in which defense counsel repeatedly referred to plaintiff's negli......
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Davis v. Weiskopf, 81-944
...upon contract, the existence of which is a prerequisite to an action for medical malpractice or negligence. See Podvin v. Eickhorst (1964), 373 Mich. 175, 128 N.W.2d 523; Easter v. Lexington Memorial Hospital, Inc. (1981), 303 N.C. 303, 278 S.E.2d 253; Lyons v. Grether (1977), 218 Va. 630, ......
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People v. Wichman
...369 Mich. 214, 217, 119 N.W.2d 530; Wieghmink v. Harrington (1936), 274 Mich. 409, 414, 264 N.W. 845. Compare Podvin v. Eickhorst (1964), 373 Mich. 175, 180, 181, 128 N.W.2d 523; Washburn v. Lucas (1964), 373 Mich. 610, 619, 620, 130 N.W.2d 406; People v. Reece (1968), 9 Mich. App. 108, 155......