Sutter v. Biggs, 43

• Decision Date: 08 February 1966
• Docket Number: No. 43,43
• Citation: 139 N.W.2d 684,377 Mich. 80
• Parties: Rita SUTTER, Plaintiff and Appellant, v. Raymond A. BIGGS, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 684

139 N.W.2d 684

377 Mich. 80

Rita SUTTER, Plaintiff and Appellant, v. Raymond A. BIGGS, Defendant and Appellee.

No. 43.

Supreme Court of Michigan.

Feb. 8, 1966.

Kelman, Loria, Downing & Craig, Detroit, for plaintiff and appellant.

Ward, Plunkett, Cooney, Rutt & Peacock, Detroit, for defendant and appellee; Robert E. Plunkett and Charles T. McGorisk, Detroit, of counsel.

Before the Entire Bench, except KAVANAGH, C. J.

SMITH, Justice.

In this action for medical malpractice, plaintiff appeals from a $7,500 judgment rendered in her favor, claiming that the jury was precluded by the trial judge from considering her full measure of damages. She seeks a new trial as to damages only.

In 1940, when plaintiff was a 10-year-old girl defendant doctor removed her appendix. It was claimed by plaintiff, but denied by defendant, that at the same time defendant also removed her right fallopian tube and ovary without parental authority or consent. In 1959, when plaintiff had to be operated on by another doctor for removal of a cyst on her left fallopian tube, it was then first discovered that her right fallopian tube and ovary were missing. The only other surgery she had between 1940 and 1959 was a tonsillectomy. Claiming fraudulent concealment of 1940 facts constituting her cause of action, plaintiff filed this suit February 19, 1960. Plaintiff sought damages not only for the alleged 1940 loss of her right ovary and fallopian tube but also for loss of ability to bear children occasioned by her 1959 surgery in which her left, or remaining tube was removed. She also claimed damages for 'emotional pain and suffering resulting therefrom.'

Medical testimony was offered to show basic functions of female reproductive organs which are the subject of this lawsuit. Each female is born with (except in rarest instances) 2 tubes and 2 ovaries, identified by position in the pelvic region as either left or right. In the mature female, these fallopian tubes conduct ova from the ovaries to the uterine tube where it may be fertilized. Testimony was presented to show that a woman with only 1 ovary is just as fertile as a woman with both ovaries, provided she has both fallopian tubes. If 1 tube and ovary are removed, a woman is said to be 'almost as fertile' as one who has tubes and ovaries on both sides. But a woman, like plaintiff, who has 1 ovary but no fallopian tube cannot become pregnant.

In support of plaintiff's theory that her inability to bear children after the 1959 surgery was a 'direct and proximate result' of defendant's 1940 act, plaintiff adduced the following medical testimony of somewhat dubious value:

'Q. All right. It is then known to you that people do--women do develop parovarian cysts during their lifetime?

'A. It happens.

'Q. And it happens frequently enough so that there is considerable surgery of that nature in the removal of cysts. Is that not right?

'A. That is correct.

'Q. It would be something that any osteopathic surgeon should be aware of. Is that not correct?

'A. Any physician should.

'Q. Any physician should be aware that this is likely to occur, that is possible to occur?

'A. Huh huh.' (Emphasis supplied.)

Plaintiff says this testimony shows that 'Rita Sutter [plaintiff], like any woman, could develop a cyst requiring surgery. If the cyst encroaches upon a Fallopian tube, the tube's blood supply can be severed thereby killing the tube. When Dr. Biggs wrongfully excised Rita Sutter's right Fallopian tube, he created a risk known to hime as an osteopathic physician, that Rita Sutter could be rendered incapable of bearing children.' (Emphasis supplied.)

The trial court, however, refused plaintiff's requests for instructions bearing upon plaintiff's claim for damages for loss of ability to bear children and consequent emotional suffering. Also, plaintiff's counsel was not permitted to argue this damage claim to the jury. The court did instruct the jury that plaintiff was entitled to recover damages for loss of her reserve tube. That part of its instruction was basically adequate, is not properly in issue here, hence need not be discussed.

The trial court instructed the jury as follows:

'I am going to instruct you right now that the fact that this woman is unable to bear children is not a proximate result of any negligence that you might find this defendant was guilty of. * * * After he did this act this woman was very capable of bearing children. All of the testimony in this case says so.'

The trial court then explained in essence that the second operation in which plaintiff's left, or remaining, tube was removed was the intervening cause, concluding on this point that 'In the opinion of this Court it is not a foreseeable consequence that this woman as a result of losing one ovary, which left her with another one which was perfectly capable of enabling her to have children--that 20 years later, or some 19 years later, she should suffer some kind of an interference that would deprive her of that power.' In its essential reasoning, the instruction is correct.

The general rule, expressed in terms of damages, and long followed in this State, is that in a tort action, the tortfeasor is liable for all injuries resulting directly from his wrongful act, whether foreseeable or not, provided the damages are the legal and natural consequences of the wrongful act, and are such as, according to common experience and the usual course of events, might reasonably have been anticipated. Remote contingent, or speculative damages are not considered in conformity to the general rule. Van Keulen & Winchester Lumber Co. v. Manistee and Northeastern Railroad Co., 222 Mich. 682, 193 N.W, 289; Woodyard v. Barnett, 335 Mich. 352, 56 N.W.2d 214; and Fisk v. Powell, 349 Mich. 604, 84 N.W.2d 736. See, also McLane, Swift & Co. v. Botsford Elevator Co., 136 Mich. 664, 99 N.W. 875, and Cassidy v. Kraft-Phenix Cheese Corp., 285 Mich. 426, 280 N.W. 814.

Further, to render a wrongdoer liable in damages in a tort action where the connection is not immediate between the injurious act and the consequences, such nearness in the order of events and closeness in the relation of cause and effect must subsist, so that the influence of the injurious act would predominate over that of other causes, and concur to produce the consequences or be traceable to those causes. Woodyard v. Barnett, supra.

Under facts adduced in this case, it is too tenuous a proposition to say that the element of damages in dispute, inability to bear children, et cetera, is a legal and natural consequence of defendant's wrongful act. At best, the damages are contingent and, therefore, barred under the general rule above recited. The testimony showed, as plaintiff's summary indicates, that, having already lost her reserve tube,* it was thought possible that plaintiff, like any other woman, could develop a cyst upon the remaining tube which could require surgery, that is, if the cyst were gross enough to encroach seriously upon the blood supply. The testimony also showed that cysts are frequently treated successfully without the necessity of total excision of the tube. In the case before us, therefore, plaintiff's loss of ability to bear children was not a legal and natural consequence of defendant's act, but, within the meaning of the rule, was contingent, that is, contingent upon the possibility that plaintiff could develop a cyst on her remaining tube which could require excision of the tube itself.

Affirmed. Costs to appellee.

DETHMERS, KELLY and O'HARA, JJ., concurred with SMITH, J.

SOURIS, Justice.

Michigan cases which have considered the question whether a defendant's act is to be deemed a proximate cause of a plaintiff's injury have given only abstract, and often varying, guidelines as to when a fact finder legitimately may determine that a negligent act in a chain of acts leading to plaintiff's injury is a proximate, that is, a liability-predicating, cause. Considering those decisions which have given the widest scope to the concept of proximate cause, the rule in Michigan, in its most liberal form, may be stated thusly:

If defendant's negligent act did not directly cause the injury for which plaintiff seeks recovery but, instead, it subjected plaintiff to an increased exposure to the risk of occurrence of another event which did occur and did cause plaintiff's injury, then defendant's negligent act is a proximate cause of the injury and defendant may be held liable therefor if defendant should have foreseen that some such injury might be caused by such other event. ¹

Such a formulation provides a consistent rationale for a variety of cases in which there are one or more intervening events between defendant's negligent act and the particular injury for which plaintiff is seeking recovery. Thus it explains Patterson v. Detroit, L. & N. R. Co. (1885), 56 Mich. 172, 22 N.W. 260, where plaintiff, whose passage was blocked by defendant's train across the highway, was permitted to recover damages resulting from his having missed another train because of the delay. It explains why a defendant who negligently injures plaintiff is also liable for further injuries done to plaintiff by the malpractice of a seemingly competent physician engaged to treat the injury. See Reed v. City of Detroit (1896), 108 Mich. 224, 65 N.W. 967. It explains the basis for liability of a negligent defendant for the aggravation of plaintiff's injury by a subsequent accident to plaintiff, as when a plaintiff with an injured leg slips and falls, increasing the injury to the leg. See Stahl v. Southern M. R. Co. (1920), 211 Mich. 350, 178 N.W. 710. It explains why a defendant who, in the course of a vehicular accident, negligently exposes plaintiff to the risk of being struck by other vehicles, is liable to plaintiff for injuries incurred when plaintiff is so struck. See Bordner v. McKernan (1940), 294 Mich. 411, 293 N.W. 889; Maddux v. Conaldson (1961), 362...