Zanzon v. Whittaker, 55.

• Decision Date: 02 January 1945
• Docket Number: No. 55.,55.
• Parties: ZANZON v. WHITTAKER.
• Court: Michigan Supreme Court

310 Mich. 340

17 N.W.2d 206

ZANZON

v.WHITTAKER.

No. 55.

Supreme Court of Michigan.

Jan. 2, 1945.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County; George B. Murphy, judge.

Malpractice suit by Herman Zanzon against Alfred H. Whittaker. Judgment for defendant, and plaintiff appeals.

Affirmed.

Before the Entire Bench.

Clarence T. Wilson, and Walter M. Nelson, both of Detroit (George Stone, of Detroit, of counsel), for plaintiff and appellant.

Humphreys Springstun, Moll, Desenberg & Purdy, and Harold S. Knight, all of Detroit, for defendant and appellee.

NORTH, Chief Justice.

This is a damage suit for malpractice. The trial court, at the conclusion of all the proofs, directed a verdict in favor of defendant. Plaintiff has appealed.

Plaintiff suffered a transverse comminuted fracture of the humerus of his right arm. He went to a physician who hospitalized plaintiff and attempted to set the fractured bone. The physician's effort was unsuccessful, and twice within a period of 4 days thereafter this physician reset the fractured bone. On the following day, March 12, 1935, plaintiff went to defendant, Doctor Whittaker, who recommended an open reduction. The next day this operation was performed at a hospital by Doctor Whittaker. The Doctor kept in touch with plaintiff, and some weeks later told plaintiff there was not enough callous formation to form a union, and advised another operation with a bone graft to be taken from plaintiff's right leg. On June 19, 1935, defendant again operated on plaintiff who was then in a hospital for that purpose. Throughout the operation plaintiff was under a general anaesthetic and had no knowledge of what happened during that period.

In performing the operation of June 19th it was necessary to securely attach the graft taken from plaintiff's right tibia to the severed parts of the broken bone in plaintiff's arm. Defendant planned to accomplish this by use of four ivory screws, two of which would be inserted above the break in the fractured humerus and two below. To insert these ivory screws and accomplish the purpose desired it was necessary that defendant should use a steel drill to bore four holes through the graft bone and into the humerus in which the screws could be set. This was accomplished as to three of the ivory screws, but in boring the fourth hole the steel drill was broken. A portion of the drill about an inch and a half long which extended through the graft bone and into the humerus was allowed to remain. In doing this, according to the testimony, defendant used his judgment in determining whether it would be better for the patient and the success of the operation to remove the broken portion of the steel drill, or to allow it to remain in the bone and serve the purpose of an ivory screw which otherwise would have been used. In this connection it should be noted that the undisputed testimony of expert witnesses produced in the case is that for the purpose of fixation of a graft bone to an injured member other means than ivory screws are used, and that such practice is deemed proper. Sometimes beef bone plugs are used for screws, and sometimes steel fasteners similar to staples, nails or screws are used. We think the record by uncontradicted evidence sustains the trial judge, who stated: ‘It is a question largely of the judgment of the operating surgeon what he would use-whether he would use beef bone screws, ivory screws or steel screws.'

After the June 19th operation plaintiff continued under defendant's care. Plaintiff testified such care continued until the spring of 1940. Defendant from time to time dressed the injured member and applied different types of slings or casts to hold the arm in place. Plaintiff suffered from pain, and by December following the operation a small sinus had developed from which pus was discharged, and which apparently had been discharging for a short time. Later this discharging sinus became somewhat larger. Plaintiff testified the opening became about the size of a dime. He also testified that in the fall of 1936 defendant suggested another open reduction operation, but such operation was not performed.

In September 1940, pus having continued to exude intermittently from the sinus and the arm being swollen and painful, the plaintiff when taking a bath felt something sharp sticking out at the site of the sinus. With a pair of tweezers he removed the discovered object and found it to be the piece of the broken steel drill. In the following December one of the ivory screws also came out from the site of the incision. Soon thereafter the condition of plaintiff's arm improved in that the pus drainage gradually subsided and after some weeks entirely ceased. Full normal use of the arm has not been restored. There is testimony that the type of injury plaintiff suffered is difficult of successful treatment. At the time of the trial plaintiff could move his elbow and had some function of the fingers, etc. However, his control of his fingers was impaired and he could not operate a typewriter as he had been able to do prior to the injury. Nor could plaintiff use his right arm in doing anything that required normal physical strength.

In brief the theory upon which plaintiff seeks to recover damages is that defendant negligently failed to secure a union of the parts of the broken bone at the time he first operated on plaintiff and that following this first operation defendant was guilty ‘of the negligence and carelessness and the inadequate treatment and after care of plaintiff,’ and substantially the same claim is made as to lack of care after the operation of June 19, 1935, and plaintiff also alleges that in...