Fogel v. Sinai Hospital of Detroit

2 Mich. App. 99 (1965) 138 N.W.2d 503

FOGEL
v.
SINAI HOSPITAL OF DETROIT.

Docket Nos. 343, 344.

Michigan Court of Appeals.

Decided December 20, 1965. Rehearing denied January 28, 1966.

Lipton, Papista & Garfinkle (Donald Garfinkle, of counsel), for plaintiffs.

Ward, Plunkett, Cooney, Rutt & Peacock (John D. Peacock, of counsel), for defendant.

QUINN, J.

Plaintiffs brought these actions to recover damages allegedly arising from the negligence of defendant. Helen Fogel claimed damages for personal injuries, pain, suffering, and disability; her husband, David, claimed damages for hospital and medical expenses for Helen and for loss of consortium. Judgments entered on jury verdicts for plaintiffs, and the trial court denied defendant's motions for judgments non obstante veredicto or for new trial. Defendant appeals from denial of these motions.

Defendant claims the trial court erred in not granting its motion for directed verdict made on the basis plaintiffs had failed to establish a prima facie case; that the trial court erred in submitting the question of permanent injuries to the jury, in permitting the mortality tables in evidence, and in permitting certain medical bills in evidence.

October 15, 1961, Helen Fogel fell at home and was taken to defendant hospital for care and treatment. She was then 79 years of age. X-rays disclosed no fractures and her doctor ordered that she be encouraged to walk. By November 1, 1961, Helen Fogel was walking some and she continued to do so thereafter. Late in the evening of November 5, 1961, she signalled for a nurse to assist her to the bathroom. A nurse's aide appeared and assisted plaintiff as requested in spite of plaintiff's warning that one aide was not capable of doing so. On the way to the bathroom, plaintiff slipped, the aide could not hold her and plaintiff fell. Her hip was fractured in the fall, and these actions were to recover the damages arising therefrom.

Defendant's first allegation of error is based on its contention that since there was no evidence of the skills usually exercised by hospitals in the Detroit area in the care of patients, no standard of care was established, and no breach of duty was shown. Defendant's position in this regard arises from the fact that plaintiffs pleaded that defendant owed a duty to treat Helen Fogel according to such a standard; it is not supported legally. As stated in 2 Harper and James, Law of Torts, at p 966:

"Except for malpractice cases (against a doctor, dentist, et cetera), there is no general rule or policy requiring expert testimony as to the standard of care, and this is true even in the increasingly broad area wherein expert opinion will be received."

In Lince v. Monson (1961), 363 Mich. 135, 139, the Michigan Supreme Court succinctly stated the standard in the following language:

"In the ordinary negligence case a question is presented whether an ordinary, careful and prudent person would have done as defendant did under the circumstances."

The record here presented a jury question on defendant's negligence and it was not error to deny defendant's motions for directed verdict and for judgments non obstante veredicto.

Defendant next claims the trial court erred in failing to give defendant's requested charge that there was no evidence of permanent injury in the case. Defendant relies on Kethledge v. City of Petoskey (1914), 179 Mich. 301, as authority for its position that permanency of injury is a medical question and there must be competent medical testimony of permanency before that question can be submitted to a jury. On the facts of Kethledge, it may be so read. It involved a 17-year-old and the claimed permanent injury involved damage to ligaments around the elbow. In reversing the trial court for submitting the question of permanent injury to the jury, the Supreme Court said (p 311):

"We are of the opinion that the above instructions were erroneous (these instructions dealt with the question of permanent injury), for the reason that there was no evidence in the case from which the jury should have been permitted to find that the plaintiff was permanently injured."

Here, Helen Fogel was 79 when she broke her hip, prior medical reports indicated demineralization, at the time of trial, three years later, she still could not move the leg involved nor walk on it. This is evidence of permanency and the requested charge was properly denied.

This holding eliminates from consideration defendant's first claim of error with respect to receiving the mortality tables in evidence, namely: their use is improper absent permanent injury. Defendant next claims it was error to admit the tables because Helen Fogel was not in reasonably good health at the time of the accident. It was disputed whether or not she was in reasonable health. In this situation, the tables are admissible and are to be used by the jury if it determines the issue of reasonable health favorably to the one offering the tables. Norris v. Detroit United Railway (1916), 193 Mich. 578.

Defendant's final allegation of error is that certain medical bills were allowed in evidence without proper foundation being laid as to their necessity and reasonableness. There is no question that the law requires such a foundation, and that foundation was not laid here. This was error, but it is not reversible error. If the bills were before this Court, an appropriate reduction of the judgments could be made. The bills are not part of the record and this Court has no basis for correcting this error.

The trial court is affirmed, with costs to appellees.

LESINSKI, C.J., and WATTS, J., concurred.