Howell v. Carpenter

19 Mich. App. 233 (1969) 172 N.W.2d 549

HOWELL
v.
CARPENTER

Michigan Court of Appeals.

Application for leave to appeal filed December 23, 1969.

Craig & Fieger; Goodman, Eden, Robb, Millender, Goodman & Bedrosian; and Ashley Gorman, for plaintiffs.

Caplan & Barsky for defendants Clarence J. Carpenter, M.D., and Carpenter Hospital.

Before: LESINSKI, C.J., and T.M. BURNS and KELLEY,^[*] JJ.

KELLEY, J.

Plaintiffs Rae E. Howell and James Howell brought an action alleging fraud and misrepresentation, malpractice, assault and battery and breach of contract against Clarence J. Carpenter, M.D., Stephanos G. Cocorelis, M.D., and Carpenter Hospital, a Michigan corporation. Plaintiff James Howell's claim is derivative, arising out of Mrs Howell's claim.

After a lengthy nonjury trial, the court made detailed findings and entered judgment against all three defendants. Subsequently the judgment was set aside as to Carpenter Hospital. Dr. Carpenter has appealed. Plaintiffs have cross-appealed the dismissal of their cause of action against the codefendant, Carpenter Hospital, and also an order striking a portion of their complaint.

In making findings the trial judge thoroughly reviewed the evidence. A urologist testified for the plaintiffs. Based in part on this expert testimony, the trial court concluded that the defendant doctors undertook to perform an operative procedure which was unnecessary under the facts then existing; that the prevailing standard of care required them to warn plaintiff wife of potential dangers and consequences of the operative procedures and to obtain her informed consent, and further required them to obtain more information than was available to them by an examination of X-rays, medical records and history; that they failed to inform themselves fully of her medical history and treatment before the operative procedure; that the procedures used by defendants in the eventual diagnosis of a present existing hydronephrosis did not meet the prevailing standard of care; and that that standard of care would not have called for a procedure as radical as that employed, specifically an operation producing a higher insertion of the ureter in the right kidney than had existed before the operation, and an angulation of the ureter, which changes caused a stasis contributing to the formation of a calculus and to the ultimate loss of the kidney. The court further found that because the plaintiff had not consented to this operation, defendant doctors had committed an assault and battery upon her person, that defendant Carpenter had breached his contract with the plaintiff wife when he relinquished control to defendant Cocorelis without her authorization, and also when he absented himself from the operation and later from the State of Michigan while plaintiff wife was undergoing postoperative treatment.

As cross-appellants, plaintiffs claim error on the part of the trial court in striking from their complaint certain averments concerning defendant hospital, in excluding consideration of evidence regarding these averments, and in determining no cause of action as to defendant hospital.

Examination of the evidence and of plaintiffs' third amended complaint compels the conclusion that the trial court committed no error.

Affirmed. No costs, neither party having prevailed in full.

All concurred.

NOTES

[*] Circuit Judge, sitting on the Court of Appeals by assignment.