Heins v. Synkonis , 58 Mich. App. 119 ( 1975 )

58 Mich. App. 119 (1975) 227 N.W.2d 247

HEINS
v.
SYNKONIS

Docket No. 19017.

Michigan Court of Appeals.

Decided January 28, 1975.

Ripple & Chambers, P.C., for plaintiff.

Dice, Sweeney & Sullivan, P.C. (by Robert E. Dice and Jack E. Vander Male), for defendants.

Before: BASHARA, P.J., and DANHOF and VAN VALKENBURG,^[*] JJ.

BASHARA, P.J.

This suit was instituted by plaintiff for the recovery of damages for malpractice against Dr. Synkonis. Plaintiff further contended that defendant Riverside Osteopathic Hospital (hereinafter referred to as Riverside) was liable under the theory of agency by estoppel. A jury verdict awarded plaintiff $50,000 against defendants jointly and severally. It is from this judgment that defendants appeal.

Plaintiff suffered a minor fall, injuring her right shoulder. Plaintiff received conservative treatment from a physician, but when there was no improvement in her condition, she sought the advice of Dr. Synkonis who, on Wednesdays, had an out-patient practice at defendant Riverside. Defendant Dr. Synkonis and Dr. Ketter diagnosed plaintiff's condition as adhesive capsulitis and recommended surgery.^[1] Plaintiff was informed by Dr. Synkonis that there would be considerable pain after the operation, and that she would have to engage in postoperative therapy.

The surgical procedure, known as forced manipulation, was performed. Plaintiff complained of excruciating pain upon regaining consciousness. Her shoulder was not X-rayed at this time to determine if there were any complications. On this same day Dr. Synkonis ordered plaintiff to begin therapy, which was continued for the next six days. During the entire theraputic procedure plaintiff continued to complain of excruciating pain. On the sixth day after the operation, an X-ray of plaintiff's shoulder disclosed that she was suffering from a dislocated shoulder.

Dr. Synkonis testified during the course of plaintiff's proofs that the dislocation could have occurred during surgery or the subsequent therapy. He further stated that sound medical practice required that an X-ray be taken before discharge or whenever complications were suspected after surgery. The only further expert testimony offered by plaintiff was as to damages.

At the close of plaintiff's proofs, defendants moved for a directed verdict arguing that there had been no expert testimony that Dr. Synkonis had violated any medical standards with respect to the diagnosis, the surgical procedure or the postoperative treatment. This motion was denied, as was defendant's motion for a judgment notwithstanding the verdict or a new trial.

Upon reviewing a motion for a directed verdict, all the facts and reasonable inferences must be viewed in the light most favorable to plaintiff. Daniel v McNamara, 10 Mich. App. 299; 159 NW2d 339 (1968).

It is well recognized in Michigan that expert testimony is required to show that a doctor has violated the standard of care required unless the injury is of such a character that laymen could find negligence. Roberts v Young, 369 Mich. 133; 119 NW2d 627 (1963); Marchlewicz v Stanton, 50 Mich. App. 344; 213 NW2d 317 (1973).

Defendant Dr. Synkonis himself, testifying during plaintiffs proofs, set forth a standard of care necessary in this cause. His testimony was verified by Dr. Heliotis, who testified on behalf of defendants. Plaintiff testified that although she was warned there would be some postoperative pain, she complained of continued and excruciating pain over the entire six-day period. We further note that Dr. Synkonis himself testified that the X-ray was ordered by a resident of the hospital after Dr. Synkonis was prepared to discharge plaintiff. He testified that he did not suspect any complications, even after examining her on at least two different occasions after surgery.

Under these circumstances, we hold that there was a question of fact from which a jury could find that Dr. Synkonis violated the standard of medical practice in not X-raying plaintiff's shoulder for six days. The judge was correct in denying defendant's motions.

The second issue presented is whether the trial court erred in holding defendant, Riverside, vicariously liable for the negligence of Dr. Synkonis who simply used its facilities.

Plaintiff argues, citing Howard v Park, 37 Mich. App. 496; 195 NW2d 39 (1972), that defendant hospital was liable to plaintiff since an agency by estoppel had been created.

An examination of Howard v Park, supra, discloses that there are three elements necessary to find an agency by estoppel:

"``"[First] the person dealing with the agent must do so with belief in the agent's authority and this belief must be a reasonable one; [second] such belief must be generated by some act or neglect of the principal sought to be charged; [third] and the third person in relying on the agent's apparent authority must not be guilty of negligence."'" 37 Mich. App. 500-501.

Howard v Park, supra, is distinguishable from the case at bar. In Howard, the Court, in finding the defendant hospital liable, relied on the three factors, two of which are not present in this case. There the doctor, who was the sole proprietor of the hospital, referred plaintiff to the defendant doctor and plaintiff was billed by defendant hospital with the doctor's name on its stationery. The only factor common to both Howard, supra, and this case is that the treatment occurred at defendant's hospital.

The sole factor that defendant Riverside's facilities were used by defendant Dr. Synkonis to treat plaintiff was not a sufficient act by Riverside to create any appearance that Dr. Synkonis was its agent. We, therefore, hold that plaintiff could not reasonably infer that Dr. Synkonis was an agent of Riverside. Thus, defendant Riverside is released from any liability to plaintiff.

The third issue is whether the jury award of $50,000 to plaintiff was excessive and contrary to the great weight of the evidence. We note that plaintiff's damages can be based on two sources. First, the extra amount of pain and suffering caused by the failure to discover and remedy the dislocation; and second, the permanent injury, if any, caused by this delay.

Where it has been alleged that the verdict was excessive, the standard on review has been whether the verdict shocks judicial conscience, or whether there was evidence sufficient to support the verdict. Haidy v Szandzik, 46 Mich. App. 552; 208 NW2d 559 (1973). Pain and suffering has also been held to be a proper consideration of the jury when awarding damages for a medical malpractice action. Daniel v McNamara, 10 Mich. App. 299; 159 NW2d 339 (1968).

In all candor, it might be possible to postulate that a different jury may have reached a verdict in a lesser amount. We cannot say, however, that the verdict in the instant action was such to shock our judicial conscience. We, therefore, hold that the jury in awarding plaintiff $50,000 in the instant action was not unsupported by the evidence.

Reversed in part and affirmed in part.

No costs since neither party has prevailed in full.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

[1] Dr. Synkonis and Dr. Ketter were associates at the time of the injury. However, at the time of trial Dr. Ketter was deceased and was not a party to this action.