Veselenak v. Smith

• Decision Date: 07 December 1982
• Docket Number: No. 11,Docket No. 65534,11
• Citation: 327 N.W.2d 261,414 Mich. 567
• Parties: Anna VESELENAK and Steve Veselenak, Plaintiffs-Appellees, v. Sidney E. SMITH, Defendant-Appellant, and Kong C. Choi and McLaren General Hospital, Defendants. Calendar
• Court: Michigan Supreme Court

Page 261

327 N.W.2d 261

414 Mich. 567

Anna VESELENAK and Steve Veselenak, Plaintiffs-Appellees, v. Sidney E. SMITH, Defendant-Appellant and Kong C. Choi and McLaren General Hospital, Defendants.

Docket No. 65534.

Calendar No. 11.

Supreme Court of Michigan.

Argued Dec. 1, 1981.

Decided Dec. 7, 1982.

John W. Conlin, Allen J. Philbrick, Conlin, Conlin & McKenney, Ann Arbor, for plaintiffs-appellees.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C. by John P. Jacobs, Detroit, for defendant-appellant.

Baxter & Hammond by Michael D. Wade, Grand Rapids, for amicus Michigan Defense Trial Counsel, Inc.

FITZGERALD, Chief Justice.

This is an unusual medical malpractice action. It owes its uniqueness to a jury award of $350,000 for exemplary damages. Thus, the issue before us is whether the availability of ordinary damages for mental distress makes exemplary damages for injury to feelings redundant.

I

In 1972, Anna Veselenak was referred to defendant Dr. Sidney Smith, a general surgeon, for gastrointestinal bleeding and diverticulosis. Surgery was performed. Her condition proved chronic and, in August 1974, Mrs. Veselenak returned to Dr. Smith's office complaining of increased abdominal pain and bloody stools. Arrangements were made to admit her to McLaren General Hospital. When she was admitted approximately one week later, her condition had deteriorated significantly. Emergency surgery was performed by Dr. Smith, assisted by defendants Dr. Choi and Dr. Nobel, a surgical resident employed by defendant McLaren General Hospital.

During the surgical procedure, numerous hemostats or clamps were used. One was not retrieved. It remained in Mrs. Veselenak's abdominal cavity until September, 1976, when it was removed by other physicians whom she consulted.

After Mrs. Veselenak's discharge from McLaren General, she embarked on a two-year course of treatment with Dr. Smith. She complained increasingly of abdominal pain, diarrhea, and inability to sleep or eat. Dr. Smith assured and reassured her that this symptomatology was not inconsistent with normal post-operative progress after such major surgery. He prescribed medication for the pain.

Finally, in October 1975, Dr. Smith prescribed abdominal x-rays to demonstrate to Mrs. Veselenak that she did not have cancer and thus counter her increased depression. These x-rays revealed the presence of a 6 1/2-inch-long hemostat. Confirmatory x-rays were taken a month later. The radiologist immediately notified Dr. Smith by phone, letter following.

Dr. Smith testified that he informed Mrs. Veselenak of the presence of the hemostat two days later. This both Mrs. Veselenak and her daughter (who was present at every appointment) emphatically denied. They testified that they were advised in August 1976 of the presence of a small hemostat and that immediate removal was unwise.

Dr. Smith further testified that he wished to treat conservatively in order to observe what effects, if any, the hemostat was having on Mrs. Veselenak's health. He continued her regimen of pain medication.

The surgeon who recovered the hemostat in September, 1976, testified that he would have counseled immediate removal after discovery in late 1975. He noted that the hemostat had perforated her small bowel, causing a chronic if localized infection, and was protruding into her kidney. He stated that she soon would have died had the hemostat not been removed and that, following the 1976 surgery, she made a normal recovery.

The jury (after a lengthy emotion-charged trial) returned verdicts in favor of plaintiffs totaling $420,000. Plaintiff Anna Veselenak was awarded $10,000 each from Dr. Choi and McLaren General Hospital. In addition, the jury awarded her $15,000 for compensatory and $350,000 for exemplary damages from Dr. Smith. Plaintiff Steve Veselenak received nothing on his claim for loss of consortium as to Dr. Choi and McLaren General Hospital, but prevailed as to Dr. Smith in the amount of $35,000. Dr. Smith (hereinafter defendant) appeals the jury verdicts against him.

The trial court denied defendant's motions for a new trial and for a remittitur. The Court of Appeals affirmed in an unpublished opinion per curiam. We granted leave to appeal and directed the parties to include among the issues to be briefed whether exemplary damages should be recoverable in a malpractice or negligence action. 411 Mich. 973 (1981).

II

Defendant argues that exemplary damages should not have been recoverable in this case. Defendant's argument proceeds along two lines. First, defendant cites Kelly v. Chillag, 381 F.2d 344 (CA 4, 1967), and Noe v. Kaiser Foundation Hospitals, 248 Or. 420, 435 P.2d 306 (1967), for the proposition that concealment of malpractice from a patient by the physician who committed the malpractice is a censurable lack of candor but not sufficient to justify the award of punitive damages. Second, defendant argues that a medical practitioner, as a healer, should not be subject to any charges of malice arising out of the doctor-patient relationship. This policy argument is based on the idea that no physician is presumed to be a malicious adversary of his patient.

We agree that exemplary damages should not have been awarded, but not for the reasons defendant offers. The argument that concealment, standing alone, is not sufficient to support an award of exemplary damages is unpersuasive. Kelly v. Chillag, supra, cites no authority and has been cited by none. Noe, supra, does not involve concealment in the face of a clear duty to disclose, a state of facts which the jury in the instant case may have found and which the evidence adduced at trial clearly supports. The argument that recitation of the Hippocratic oath should raise a conclusive presumption of good faith, thus insulating physicians from any charges of malicious conduct arising out of the physician-patient relationship, flies in the face of legal accountability.

As the analysis which follows will make clear, we hold that exemplary damages should not have been awarded in this case because we conclude that the award of exemplary damages for injury to feelings is duplicative of the award of ordinary damages for mental distress and anguish. We perceive no principled reason for allowing a double recovery for the same injury. As a result of our decision on this issue, we find it unnecessary to reach the issue stated in the grant of leave to appeal. We reverse the judgment of the Court of Appeals and remand for a new trial limited to the question of the amount of ordinary damages plaintiffs suffered as a result of defendant's malpractice. Winchester v. Meads, 372 Mich. 593, 599, 127 N.W.2d 337 (1964). In light of our disposition of this case, we do not address defendant's other arguments.

III

This Court has grappled with the problem of allowing or of disallowing the award of exemplary (formerly called punitive) damages in numerous cases over the last 120 years. Although systematic development of this area may seem to be the exception, ¹ certain consistent principles have emerged.

In 1868, after a discussion of the policy reasons supporting the award of exemplary damages, the Court concluded that the only "proper application of damages beyond those to person, property or reputation, is to make reparation for the injury to the feelings of the person injured". Detroit Daily Post Co. v. McArthur, 16 Mich. 447, 453 (1868). Nevertheless, the rationale persisted that punishment was a legitimate basis for the award of these unusual damages for injury to feelings. It was finally interred by two cases written by Justice Cooley. In Watson v. Watson, 53 Mich. 168, 18 N.W. 605 (1884), and in Stilson v. Gibbs, 53 Mich. 280, 18 N.W. 815 (1884), Justice Cooley examined the classic common-law arguments opposing the award of exemplary damages for purposes of punishment, found them convincing, and articulated the idea that exemplary damages are merely a class of compensatory damages. These two "rules" summarized by the phrase "compensation for injury to feelings", retain their vitality today. Kewin v. Massachusetts Mutual Life Ins. Co., 409 Mich. 401, 295 N.W.2d 50 (1980); Ray v. Detroit, 67 Mich.App. 702, 242 N.W.2d 494 (1976).

A close reading of the early exemplary damages cases also suggests that these unusual damages may have been used to supply a remedy for mental injury not otherwise recognized. Actual damages compensated for economic loss, but not for non-economic loss. In addition, the award of actual damages seemed to preclude the award of additional compensation for non-economic loss. Warren v. Cole, 15 Mich. 265 (1867); Hyatt v. Adams, 16 Mich. 179 (1867). ² Assuming actual damages were not provable but mental injury certain, exemplary damages became available to compensate the injured party. Fay v. Swan, 44 Mich. 544, 7 N.W. 215 (1...