Degroot v. Winter , 261 Mich. 660 ( 1933 )

Plaintiff had judgment for $5,000 damages against both defendants, who are physicians, for negligent malpractice. The principal claim of error is that defendants were entitled to a directed verdict. The contention requires the testimony to be viewed most favorably to plaintiff.

June 6, 1930, plaintiff, 71 years old, broke his right leg between knee and hip. On the same day, at the Zeeland Hospital, Dr. Boone, assisted by Dr. Ten Have, applied a Thomas splint, with traction by means of adhesive tape bandages and pulleys and weights. The medical witnesses agreed that a fracture should be reduced as soon as the general condition of the patient will permit. Dr. Boone testified that he reduced the fracture at the first treatment, but, under Dr. Ten Have's statement that the fracture was not reduced until July 10th, to his knowledge, the point became an issue of fact.

The medical witnesses agreed that proper local practice demanded X-ray photographs of the bone both before and after reduction of the fracture. None was taken until June 19th, when the bandage slipped and the weights came off. It was found that the ends of the bones overlapped some inches. Dr. Boone testified that he put the ends back into position and again applied traction, but he took no X-ray photograph to determine the result. Other physicians testified that the sense of touch is inadequate to reduce such a fracture in the fleshy part of the leg.

There was some testimony that X-ray photographs were not taken at the first treatment because plaintiff was in a state of shock. The medical charts introduced by defendants contained no evidence of shock. The testimony upon it was rather general. The jury could draw an inference that, if the shock was not sufficient to prevent reduction of the fracture, if it was reduced, it did not excuse the omission of X-ray examinations. And physicians testified that, while shook might require delay not exceeding a week or 10 days in reducing a fracture, X-ray examinations are imperative, especially when there is available a movable apparatus for them, as there was at Zeeland Hospital.

From June 19th to July 22d, Dr. Boone was on vacation, leaving plaintiff in care of Dr. Ten Have, with instructions to call Dr. Winter in case of difficulty. Dr. Winter was consulted on July 10th. Plaintiff was taken in an ambulance to Holland Hospital, which some doctors state was a bad thing to do. No X-ray examination was made to determine the condition of the leg before Dr. Winter began treatment. Dr. Winter pulled the leg into alignment, on a Hawley table, and, under fluoroscope, applied a body cast, and an X-ray was taken which showed the ends of the bone in excellent apposition but with a space between them. The cast remained until August 29th, when swelling developed, the cast was removed and a yucca-board splint, which furnishes neither immobilization of leg nor traction, was applied and remained, with one renewal, to November 1st, when defendants were relieved of further care of the case and plaintiff was taken to his home.

An X-ray photograph, taken August 27, 1930, disclosed the ends of the bones overlapping, with no evidence of healing nor the formation of bony union. A photograph, taken December 3, 1931, pictures the ends of the fracture overlapping three or four inches and considerable bony union, which however was not hard at the time of trial. The ends could be felt by external examination and plaintiff has a restricted use of the leg.

The medical witnesses agreed that in such fractures the normal action of the muscles of the upper leg is to pull the fractured ends out of position and cause them to overlap. To overcome this strain and to tire the muscles, proper practice requires that immobility be attempted and traction be applied, by means of splint and weights or a cast and that it be maintained to the time of healing. To this there is the exception that, because a patient so treated is confined to bed, complications may develop, affecting his general health and it is good practice, if necessary, to sacrifice treatment of the leg to treatment of the patient. When the exception applies is a matter of judgment of the attending physician, but, of course, the judgment is to be exercised fairly and be based upon the condition of the patient.

Defendants claim the fracture was seasonably and properly reduced and that plaintiff's general health so deteriorated by confinement in bed that, in the exercise of good practice, they determined it necessary to remove the cast and build up the patient's general condition by giving him the better posture, freedom and exercise possible in a wheel chair. The testimony was in dispute as to plaintiff's physical condition and whether abandonment of traction on the leg was justified. It was conclusive that defendants did not pursue the customary and proper local practice of making X-ray examinations before and after reduction of the fracture. It raised issues of fact upon when the fracture was reduced and whether defendants were negligent in failing to maintain appliances to produce immobility and traction a proper length of time or their abandonment was nonactionable error of judgment, if error.

It is argued, however, that no harm came to plaintiff from the treatment, if improper, because no bony union or substance was found while he was under defendants' care, and, consequently, earlier reduction, periodical X-ray observations, and continuous traction would not have affected the result.

The record does not disclose when the bony union shown by the print of December 3, 1931, started, as defendants took no photograph after August 27, 1930. There was medical testimony that failure to promptly reduce a fracture and to retain the ends in apposition is a cause of delayed union, and that defendants' failure to treat the case in accordance with the proper practice could have produced the result. Consequently the jury could have found, under the testimony, that defendants' failure to follow proper practice caused the delayed union.

It is further contended that in fractures of this sort the outcome is largely a matter of chance and the result to plaintiff was as good as ordinarily could be expected from proper practice. Under the best treatment the bone may overlap and be permanently weakened. In fact, at least without an operation, precise alignment is hardly to be expected and much less is considered an excellent result. Nevertheless, the failure to use proper practice is an invasion of the right of the patient as he is entitled to whatever chances such treatment holds. And when a physician departs from it he hazards the judgment of a jury upon whether the departure worked injury to the patient when there is competent medical testimony that it could have done so and that a better result was possible from proper treatment.

The court did not err in denying the motion for directed verdict.

Complaint is made of the following question and answer:

"Q. * * * I will ask you whether or not in your opinion as a medical man the condition of that bone as disclosed by the X-ray taken at the Blodgett Hospital, was due to the failure to apply traction either by weight or by the use of a cast?

"A. * * * I would say the condition that was found in that X-ray was due to absence of traction and immobilization."

Counsel agree that, upon proper objection, the testimony would have been inadmissible under DeHaan v. Winters, 258 Mich. 293, since decided. Plaintiff contends proper objection was not made, and also asks us to overrule the DeHaan Case, which applied the general rule that opinion evidence of an ultimate fact is an invasion of the province of the jury.

The general rule is well settled as applied to physical causes, the effect of which is within the realm of lay knowledge, but its application to the cause of death, disease, or injury has been attended by much confusion of judicial opinion. Some courts apply it as a rule of thumb, while others permit its modification in circumstances where expert opinion would be of aid to the jury in finding the fact. L.R.A. 1915 A, 1068, note; 22 C. J. p. 667; 11 Rawle C. L. pp. 583, 613.

In the DeHaan Case this court conceived that the question called for an opinion upon the ultimate issue of the case, the malpractice of defendant. So confined, I am still in accord with the ruling. However, the concession of counsel that it applies to the present situation indicates that the rule needs further consideration. Without discussing whether the cause of the injury as stated in the above answer is an intermediate or ultimate fact, I do not think the incompetency of opinion evidence thereof should be made an inflexible rule in this State.

Prior decisions of this court do not require such ruling. At first blush, Jones v. Village of Portland, 88 Mich. 598 (16 L.R.A. 437), upon which the DeHaan ruling was planted, would seem to be controlling, but closer examination demonstrates that it is not in point. The medical opinion of the cause of the injury there condemned stated the cause as a fall on the sidewalk, a physical fact provable by lay witnesses. The syllabus reads:

"It is error to permit a witness to testify to his conclusion based upon facts in evidence before the jury from which they are as competent to draw a conclusion as is the witness."

Also, it is evident from the answer of the witness and the cases cited that he was basing his opinion upon the history of the case which had been told him by plaintiff, which he had already related and which this court had held incompetent. The only relevant point in the cited case of Dundas v. City ofLansing, 75 Mich. 499 (5 L.R.A. 143, 13 Am. St. Rep. 457), was that a physician cannot testify to what his patient told him of the cause of the injury to prove such disputed fact.Tice v. Bay City, 78 Mich. 209, also cited, had no relevant point.

The general rule has a proper application to facts and causes and conditions and connections within the knowledge and experience of laymen and which the jury is competent to appraise. But because the purpose of the opinion evidence is to aid the jury, when the inquiry is in a realm outside the ken of laymen, the rule should have such application as will permit expert opinion to serve its purpose. So, where the condition, the various possible causes and their effect upon the condition are outside lay knowledge and are peculiarly within the realm of expert learning and experience, especially where they rest in opinion evidence or the ultimate fact must be found from a balancing of opinions, it is reasonable that qualified experts be permitted to aid the jury by their opinions of the cause of injury.

It is hypertechnical to say that an opinion of an ultimate fact is an invasion of the province of the jury in a case where the essential intermediate facts rest in expert opinion and the true relation between them also rests in opinion. In any event, there is no real invasion of the functions of the jury because the jury has the power to disregard opinions, and, like other opinion evidence, their weight rests upon the finding of the jury as to the qualifications and credibility of the witnesses.

Such exceptions of the rule contain no elements of danger to justice. Without fervent approval, this court commented upon the shadowy line between an opinion of what did cause and what could have caused a condition in People v. MacGregor, 178 Mich. 436, and Cord v. Pless, 216 Mich. 33, 43, in which physicians were permitted to express an opinion upon the cause of death or injury. Also, it is well known that expert witnesses, so disposed, have no difficulty in impressing the jury with their contentions. See Hull v. Railway, 158 Mich. 682, 686. A fair witness, seeking to obey the rules of evidence, should have an equal chance with one who resorts to subterfuges.

Nor does the modification introduce a foreign element into our law of evidence. In cases as important as the proving of wills, even laymen are permitted to express an opinion of the competency of testator. Handwriting experts may give their opinion of the authenticity of documents. And there are numerous cases where opinion evidence of causes and effect have been sanctioned, a few of which are: People v. Foley,64 Mich. 148; Rogers v. Youngs, 252 Mich. 420; Logan v.Agricultural Society, 156 Mich. 537; McDonald v. Railway,144 Mich. 379; Holman v. Railway Co., 114 Mich. 208; Smith v.Railway, 155 Mich. 466.

We hold that where the connection between the cause and condition is a matter of specialized knowledge not within the information of laymen generally, an expert may express his opinion of the possible, probable, or actual cause of the condition if the testimony be otherwise competent. Such exception, like the parent rule, ought not to be a rule of thumb. Like many other rules of evidence, its application necessarily must depend upon the judgment of the court under the particular circumstances, and it is conceivable that the question may sometimes be so close as to rest upon sound discretion.

Lest there be misunderstanding, perhaps a few words in comment on Mr. Justice WIEST'S opinion in this case should be said. I assume that the profession is familiar with the distinction between the expression of an opinion by a witness and his stating his conclusion as a fact, and with the foundation which must be laid in each case of opinion evidence, and so do not discuss them. I also assume that the bar knows that the issue is not whether the patient's condition is caused solely by malpractice, because damages were recoverable although only part of the disability was so caused. The rule in the DeHaan Case has no such sanctity of age, effect upon vested rights, support in authority in this State, or subsequent judicial application to circumstances as should deter this court from confining it to its proper sphere and indicating proper exceptions to it. The testimony at bar was competent.

We discover no error in connection with the other expert testimony. Nor do we find prejudicial error in remarks of court or counsel.

Error is alleged on instructions to the jury, principally by way of wresting short statements from the charge and isolating them. As a whole, the charge amply presented the contentions of defendants and protected their rights. Only one instruction needs special mention:

After charging, in effect, that where there is more than one method of approved treatment, the attending physician, in good faith and in the exercise of ordinary care, skill, and knowledge, may exercise his best judgment and adopt one of such approved methods without being guilty of negligence, although another method might be claimed to be more successful, the court said:

"Provided, of course, that he follows the method and treatment usually followed by the average physician possessing and exercising that degree of skill and knowledge, possessed and exercised by physicians in that and similar localities."

The record contained a certificate of the circuit judge to the effect that the stenographer's minutes are incorrect and that the court read to the jury the instruction as follows:

"Provided, of course, that he follows one of the methods and treatment usually followed," etc.

We know of no practice which permits the filing of such certificate in contradiction of the bill of exceptions as settled and signed. However, from the whole instruction, as well as from other portions of the charge, it is incredible that the jury was misled by the clause as it appears in the record. In view of context, the word "the" before "method" ordinarily would be heard as "a" and the instruction as received by the jury would be correct.

The mortality tables were admitted in evidence, but, for some reason undisclosed, were withdrawn from consideration of the jury. The tables are not conclusive, and the jury may find expectancy of life from testimony of age, physical condition, medical opinion, and their own observation. We cannot say the verdict was excessive.

The brief for plaintiff set up references to testimony in a different suit and quoted at length from pamphlets not in evidence. Probably the better practice would be to strike the brief from the files and order a new one printed, but we think the situation may be met by a warning against repetition and by denying plaintiff costs for printing the brief.

Judgment should be affirmed, with costs except as above.

NORTH and BUTZEL, JJ., concurred with FEAD, J.