Skeffington v. Bradley, s. 43

• Decision Date: 18 May 1962
• Docket Number: Nos. 43,A,s. 43
• Citation: 366 Mich. 552,115 N.W.2d 303
• Parties: Margaret Christina SKEFFINGTON, Plaintiff, Appellant, v. Robert M. BRADLEY, M. D., Defendant, Appellee. Francis Joseph SKEFFINGTON, Plaintiff, Appellant, v. Robert M. BRADLEY, M. D., Defendant, Appellee. pril Term, 44, April Term.
• Court: Michigan Supreme Court

Page 303

115 N.W.2d 303

366 Mich. 552

Margaret Christina SKEFFINGTON, Plaintiff, Appellant, v. Robert M. BRADLEY, M. D., Defendant, Appellee.

Francis Joseph SKEFFINGTON, Plaintiff, Appellant, v. Robert M. BRADLEY, M. D., Defendant, Appellee.

Nos. 43, April Term, 44, April Term.

Supreme Court of Michigan.

May 18, 1962.

Mansour, Leech & Leech, Flint, for plaintiffs and appellants.

Moll, Desenberg, Purdy, Glover & Bayer, Detroit, Cline & George, Flint, for defendant and appellee.

Before the Entire Bench.

BLACK, Justice (for affirmance).

The assembled and settled rules written most recently in Lince v. Monson, 363 Mich. 135, 108, N.W.2d 845 require affirmance of these judgments for the defendant medical doctor. Plaintiffs' allegation of malpractice is not supported by medical testimony showing or tending to show that what the defendant did or omitted doing was contrary to customary practice by reputable members of the medical profession practicing under similar conditions. Neither do their presented cases admit consideration of exceptions characterized generally by professional conduct 'so gross as to be within the comprehension of laymen' (see annotation 141 A.L.R. 5 and treatment of such exceptions in Lince, pp. 141, 142, 108 N.W.2d 845). And it is not claimed, as in Stewart v. Rudner, 349 Mich. 459, 84 N.W.2d 816, that the defendant contracted with either plaintiff, one being the doctor's patient and the other her husband, to provide specific medical treatment.

We have held, in Zoterell v. Repp, 187 Mich. 319, 330, 153 N.W. 692, 696 (quoted and followed in Lince, supra):

'As to those matters of special knowledge strictly involving professional skill and attention, unskillfulness, negligence, or failure to do that which ought to be done must be shown by the testimony of those learned in such matters.'

Later, in Delahunt v. Finton, 244 Mich. 226, 230, 221 N.W. 168 (likewise followed in Lince, supra), it was held that a case of alleged medical malpractice cannot be submitted for jury determination in the absence of qualified testimony showing or tending to show that what the defendant physician or surgeon did 'was contrary to the practice in that or similar communities, or that he omitted to do something which was ordinarily done in that or similar communities.'

The most persuasive reason for this legally necessitous rule was considered at length in Professor McCoid's contribution to the recent 'Symposium on Professional Negligence' which appears in Volume 12 of Vanderbilt Law Review, pp. 535-824. Turning to page 608 of the reference we find this helpful exposition:

'The 'preferred position' granted by the courts to the medical profession (and to other professions) may be in recognition of the peculiar nature of the 'professional' activity. The qualified practitioner of medicine has undertaken long years of study to acquire knowledge of man, his body and its illnesses and the means of combatting such ailments, coupled with an intensive training of the senses and mind of the physician to respond to stimuli in a manner best described as 'to healing art.' A large measure of judgment enters into the practice of this art. That judgment should be free to operate in the best interests of the patient. If the 'judge' is himself to be judged by some outsider who relies on after-acquired knowledge of unsatisfactory results or unfortunate consequences in reaching a decision as to liability, the medical judgment may be hampered and the doctor may become hesitant to rely upon his developed instinct in diagnosis and treatment. If, on the other hand, the doctor knows that his conduct is to be evaluated in terms of what other highly trained medical practitioners would have done or would accept as competent medical practice, he is more likely to pursue his own judgment when he is confident of the diagnosis and line of treatment, and is more likely to provide good medical service for his patient. While no absolute proof of the deterring effect of a non-professional standard of conduct is available, the concern expressed by doctors at the growing number of malpractice claims and some statements of hesitancy to engage in free use of medical judgment support this conclusion.'

One's consulted and treating physician is not a warrantor of cure or of accurate diagnosis. He is responsible in damages for unfortunate results when and only when it is shown, the case being non-exceptional as noted above, that he has departed from that standard of care which is known as customary medical practice and is attested by professional testimony. Here, there being no such testimony, plaintiffs have established only that the defendant, an obstetrician who had satisfactorily delivered, one after the other, 2 babies for the plaintiff husband and wife, mistook shortly after the second birth a swiftly spreading malignancy of ultimately fatal nature* for the condition known as 'milk leg' which commonly follows pregnancy. That is not sufficient to make a...