Tomei v. Bloom Associates, Inc.

• Citation: 255 N.W.2d 727,75 Mich.App. 661
• Decision Date: 17 May 1977
• Docket Number: Docket No. 27901
• Parties: Claire TOMEI and Frank Tomei, her husband, Plaintiffs-Appellees, v. BLOOM ASSOCIATES, INC., a Mich. Professional Corp., Herbert J. Bloom, an Individual, and Myron Kaufman, an Individual, jointly and severally, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 727

255 N.W.2d 727

75 Mich.App. 661

Claire TOMEI and Frank Tomei, her husband, Plaintiffs-Appellees, v. BLOOM ASSOCIATES, INC., a Mich. Professional Corp., Herbert

J. Bloom, an Individual, and Myron Kaufman, an

Individual, jointly and severally,

Defendants-Appellants.

Docket No. 27901.

Court of Appeals of Michigan.

May 17, 1977.

Released for Publication July 20, 1977.

Harvey, Kruse & Westen by Mark D. Shoup, Detroit, for defendants-appellants.

Walter J. Goldsmith, Birmingham, for plaintiffs-appellees.

Before D. E. HOLBROOK. P. J., and G. N. BASHARA, Jr. and WILLIAM F. HOOD, ^* JJ.

D. E. HOLBROOK, Presiding Judge.

Plaintiffs, Claire Tomei and Frank Tomei, her husband, brought an action in the Wayne County Circuit Court against Doctors Kaufman and Bloom and Bloom Associates, alleging medical malpractice. On November 20, 1975, a jury returned a verdict in favor of Claire Tomei in the amount of $260,000 and in favor of Frank Tomei in the amount of $15,000. Defendants brought timely motions for directed verdict, remittitur, judgment notwithstanding the verdict and new trial. All these motions were denied and defendants now appeal as of right.

There is little dispute as to the basic factual setting involved in the instant case. Plaintiff Claire Tomei was referred to defendant Dr. Kaufman by her family dentist on August 5, 1968. The defendant, an oral surgeon, performed surgery on the plaintiff in order to remove an impacted lower molar. The defendant used a bone bur, a type of dental drill, to perform this operation on plaintiff. During the procedure, part of the bur broke off and remained embedded in plaintiff's jaw. Defendant did not realize that this had occurred.

Plaintiff had no immediate problems following the surgery. Approximately two years later, however, plaintiff woke up one morning with a toothache. The next day plaintiff began to experience numbness in her lower left jaw. Mrs. Tomei then sought treatment from her family dentist who removed the lower left second molar.

Unfortunately, the numbness continued and plaintiff returned to defendant's office. Defendant Dr. Bloom, an associate of Dr. Kaufman, then took a panarex X-ray of plaintiff's mouth and detected a foreign object in her lower left jaw. Dr. Bloom then made arrangements with plaintiff to have the object removed at Sinai Hospital.

Plaintiff, confused and upset, sought the advice of her family physician, who advised her to get an additional opinion. Plaintiff then chose to have the surgery performed by Dr. Reaume, another oral surgeon, and plaintiff's expert witness at trial. Dr. Reaume was able to remove the object; however, plaintiff continues to experience numbness in her lower left lip and chin. Dr. Reaume testified that there is a 90 per cent chance that this condition is permanent. The foreign object removed did, in fact, turn out to be a piece of broken bone bur.

Defendants initially contend that a directed verdict should have been given because there was no evidence at trial that there was a violation of the standard of care expected of an oral surgeon. Our review of this contention is limited. Caldwell v. Fox, 394 Mich. 401, 231 N.W.2d 46 (1975). There was testimony adduced at trial that, particularly when viewed favorably to the plaintiff, could establish a breach of the duty of care. Dodd v. Secretary of State, 390 Mich. 606, 213 N.W.2d 109 (1973). The defendant admitted in a deposition that was read to the jury that the bur broke off in the plaintiff's jaw and that he failed to discover this fact. Expert testimony introduced at trail indicated that it would be prudent practice procedure to inspect the bone bur after an operation of this sort. Defendant himself testified that it is a basic concept of normal practice to check dental equipment after working in a patient's mouth to see if that equipment is still intact. There was sufficient evidence to indicate that defendant breached the standard of care expected of an oral surgeon. Daniel v. McNamara, 10 Mich.App. 299, 159 N.W.2d 339 (1968), Winchester v. Chabut, 321 Mich. 114, 32 N.W.2d 358 (1948). See, Anno., Malpractice : Liability of Physician, Surgeon, Anesthetist, or Dentist for Injury Resulting from Foreign Object Left in Patient, 10 A.L.R.3d 9 (1966).

The most difficult and troubling problem involved in this case is the question of proximate cause. Defendants maintain that the jury was allowed to speculate and, assuming arguendo that defendant was negligent and that plaintiff suffered an injury, the proof was insufficient as to this element of malpractice. The problem is complicated by the fact that plaintiff's unfortunate condition did not result until a substantial length of time following the surgery. Again when considering the question of proximate cause and defendants' motion for directed verdict on this issue, we must consider the evidence in a light most favorable to plaintiff. Caldwell v. Fox, supra, Daniel v. McNamara, supra. Plaintiff's expert gave the following testimony:

"Q. (by plaintiff's attorney) Doctor, do you have an opinion as to what caused Mrs. Tomei's numbness?

"A. (Dr. Reaume) Well, at the time I saw her again, following the nerve back she had symptoms of mandibular nerve. The most logical assumption at that time and date was the fact the metallic object was approximately in the nerve situation before it was removed.

"Q. And do you have any cause to change that opinion today?

"A. No, there are no other causes. But I haven't

"Q. But none to change your opinion

"A. No.

"Q. as to the most logical, likely cause?

"A. Right.

"Q. And after the questions that have been asked by you by the attorney for the defendants, have you changed your mind about the testimony that you gave on direct?

"A. No, I haven't changed by mind, not to my knowledge.

"Q. The questions didn't cause you to want to change your answers in any way?

"A. No.

"Q. As to your opinion or causes

"A. No.

"Q. and effects?

"A. No."

Defendants' experts testified that plaintiff's condition was more likely attributable to other causes. The Supreme Court has fully considered proper review of a motion for directed verdict.

"It seems that we must constantly remind those interested in negligence law that a motion by the defendant for a directed verdict presents no question of credibility, also that the trial judge may not select among actual or seeming contradictory statements of a witness given on direct examination and cross-examination what he believes should be applied to the motion. Instead, the movant automatically stipulates that, for the purposes of his motion only, the trial judge may and should apply the submitted evidence in that light which our reports have portrayed steadily since these passages appeared a full century ago in the Van Steinburg Case (Detroit & Milwaukee R. Co. v. Van Steinburg (1868), 17 Mich. 99, 117, 118):

" 'In determining this question, we must look at the case as it appears from the plaintiff's own testimony, unqualified by any which was offered on the part of the defendants, and must concede to him any thing which he could fairly claim upon that evidence. He had a right to ask the jury to believe the case as he presented it; and, however improbable some portions of his testimony may appear to us, we can not say that the jury might not have given it full credence. It is for them, and not for the court to compare and weigh the evidence. For the purposes of any positive instructions which one party may demand upon the evidence, he must concede all that his opponent may claim from it.' " Schedlbauer v. Chirs-Craft Corp., 381 Mich. 217, 229-230, 160 N.W.2d 889, 896 (1968).

See also Viland v. Winslow, 34 Mich.App. 486, 191 N.W.2d 735 (1971) (malpractice action involving dentist), Pippen v. Denison Division of Abex Corp., 66 Mich.App. 664, 239 N.W.2d 704 (1976). The trial court properly denied the motion for a directed verdict.

Defendants also maintain that a new trial is required because it was discovered that a juror's wife attended the trial and had lunch with her husband. Defendants admit that there was no evidence that the wife communicated with her juror husband concerning the instant case. However, defendants contend that a new trial is necessitated because it can be inferred that they did, in fact, discuss the case.

The trial court had instructed the jury on several occasions not to discuss the case. All jurors indicated that they would not. In addition, upon learning of this situation the trial court held a voir dire in order to allow defendants' attorney an opportunity to examine the juror and his wife. The trial court was completely satisfied that there was no reasonable evidence of any wrongdoing. There is no affirmative showing of prejudice nor do these facts clearly establish an inference that juror prejudice occurred. People v. Stanley, 71 Mich.App. 56, 246 N.W.2d 418 (1976). The trial court properly ruled that a new trial was not necessary.

Defendants also allege that the trial court erred in refusing to give defendants' requested instructions. We find this contention meritless. The trial court acted properly within its discretion in giving proper instructions in its own manner. Cody v. Marcel Electric Co., 71 Mich.App. 714, 248 N.W.2d 663 (1976). It is often preferable for the trial court to give the substance of the requested charges in a clear and well-connected manner rather than to read each specific request. Stouffer v. Fletcher, 146 Mich. 341, 109 N.W. 684 (1906).

The jury herein returned an award of $260,000 for Mrs. Tomei and $15,000 for Mr. Tomei. Defendants contend that this amount is clearly excessive and that the trial court abused its discretion by failing to order remittitur. The court did indicate that the jury award was substantially more than the court itself would have granted. We must note that plaintiffs in their complaint only sought damages of $100,000 and $10,000 respectively. A jury may award greater...