Abbe v. WOMAN'S HOSPITAL ASSOC.

35 Mich. App. 429 (1971) 192 N.W.2d 691

ABBE
v.
WOMAN'S HOSPITAL ASSOCIATION

Docket No. 8149.

Michigan Court of Appeals.

Decided August 23, 1971.

van Benschoten & van Benschoten, for plaintiff.

McAra & Palmer, for defendant Woman's Hospital Association.

Cline & Cline (by Earl J. Cline and Walter P. Griffin), for defendant Thomas Eickhorst.

Before: DANHOF, P.J., and BRONSON and O'HARA,^[*] JJ.

O'HARA, J.

This is an appeal of right from two jury verdicts of no cause of action. Plaintiff is the personal representative of the estate of his deceased wife. The action was brought under the wrongful death act, MCLA § 600.2922 (Stat Ann 1971 Cum Supp § 27A.2922). As to defendant Eickhorst, an M.D., the action is what is commonly called malpractice. As to defendant hospital, it sounds in tort for the negligent performance of those duties owing a patient from a hospital.

The deceased, 26 years old, was a patient of defendant doctor. He did a biopsy of a lump on her breast. It was determined to be malignant. The doctor immediately performed a radical mastectomy. The operation was completed at 4:07 p.m. The decedent was taken directly to an operative recovery room. At 4:45 p.m., the operating surgeon examined her. It is disputed whether he came to the recovery room in response to a call to his home from the attending nurse, or whether he, in fact, came back on his own. In any event, the patient, who according to the record was, prior to the surgery, an otherwise healthy young woman, died at 3:03 a.m. the next morning without regaining consciousness.

On the day of the surgery, the doctor again came to the recovery room about 7:30 p.m. in the company of another physician. Again at about 9 p.m., he was back in the recovery room and left. About an hour later the patient's blood pressure dropped dramatically. An intern was called, Dr. Eickhorst not being immediately locatable. By 11:20 or so, it became apparent that the patient's condition was rapidly deteriorating. A resident physician was summoned. As best we can determine from the record, Dr. Eickhorst was located soon thereafter and from midnight on he was with another physician at his patient's side until her death. A postmortem examination was conducted by a pathologist, who wrote up a report which became part of the hospital records. It was thereafter offered as an exhibit on trial. The judge, while permitting plaintiff's counsel to cross-examine the authoring pathologist concerning the report, refused to admit it as an exhibit. We set it forth as offered:

"Final Aanatomic Diagnoses

"1. Recent left radical mastectomy with sutured incision for carcinoma of left breast with left axillary lymph node metastasis (McLaren Hospital Surgical Pathology #S-67-5389).

"2. Cerebral edema and early changes of cerebral hypoxia.

"3. Acute pulmonary edema and hyperemia, marked.

"4. Struma lymphomatosa and small follicular adenoma (2 cm.) of thyroid.

"EGM/pc.

"Cause of Death:

"See above anatomic diagnoses.

"E.G. Murphy, M.D. "Pathologist

* * *

"Microscopic Examination

* * *

"Brain: Sections of the brain show early histologic changes, most notable in the cerebral cortex. Grossly, there was slight to moderate edema and microscopically there would appear to be slightly decreased density of the finely fibrillar background of the cerebral cortex. It is noted that there is slight swelling of cytoplasm of some astrocytes.

* * *

"The early changes noted in the cerebral cortex are consistent with changes due to hypoxia of whatever etiology.

"Comment: Although the histologic alterations present in the cerebral cortex are consistent with early changes due to hypoxia, there is nothing specific present to indicate the etiology of the apparent hypoxic changes. Possibly only a careful review of the clinical events and course of the patient can afford an adequate explanation.

"EGM/pc. "E.G. Murphy, M.D. "Pathologist"

Before we discuss the issue of the admissibility of the foregoing, and the effect of the ruling barring its admissibility, we deem it advisable to dispose of certain other issues.

In all, plaintiff specified 16 assignments of error. Some are identical as to both defendants. Some are limited to one or the other. Some do not specify as to which defendant the claimed error applies. We have examined them with extreme care. The fact that we do not write separately as to each one should not suggest that we have not considered them.

We dispose of the assignments of error as to defendant Eickhorst as follows: he is what may be designated as a general surgeon. He does not fall within the category which must be judged by the standard of specialists in specific areas of the practice of medicine. Rather, his liability must be determined on the basis of any deviation from the standard of professional competence, and the exercise thereof, in his community or communities sufficiently similar thereto to constitute a proper basis for the expression of qualified expert opinion testimony as to that standard. The Supreme Court spoke to this question in Lince v. Monson (1961), 363 Mich 135. In this case, as in Monson, "There was no medical testimony that defendants' treatment and handling of the case was not in accord with the standard and usual practice of skilled doctors in the community". (Monson, supra, p 139.)

A number of the claims of error relate to asserted liability of the doctor for acts which were in fact performed by the hospital through its employees. We decline to accept plaintiff's proffered premise of the doctor's vicarious liability growing out of a sort of agency concept between the doctor and the hospital.

Plaintiff requested an instruction as to contributory negligence. We do not agree with his contention that he was entitled to the requested instruction "to remove from your deliberations any consideration of any fault, negligence, or contributory negligence on the part of either Milton Abbe or his wife Margaret Abbe * * *".

Part of the basis for the instruction as briefed by plaintiff rested upon his apprehension that the jury, and we quote the brief, "might have thought that it was awfully dumb" that neither of them knew the difference between a nurse anesthetist and an anesthesiologist.^[1] In support of the request, plaintiff relies on Podvin v. Eickhorst (1964), 373 Mich 175. The reliance is misplaced. In that case two defense counsel, in their opening statements, "referred to plaintiff's automobile accident in terms which openly invited the jury to find that his (plaintiff's) injuries were attributable solely to his own fault". (Podvin, supra, p 181, emphasis supplied.) It seems obvious to us that that case is clearly distinguishable from this case, in which no reference to, or claim of, contributory negligence was made. There was no issue as to contributory negligence in the case at bar.

We also reject the claim that the doctor was negligent in failing to explain the difference between a nurse anesthetist and an anesthesiologist. This claim was unsupported by testimony as to the prevailing practice by which defendant was to be judged.

In sum total, the case against the doctor was ably and vigorously presented. It was likewise ably and vigorously defended. The issues were properly submitted to the jury. We find no basis upon which to disturb that verdict.

We now consider the case against the defendant hospital. We find one claim of error to be well-founded and decisionally pivotal. Earlier herein we set forth the contents of the pathologist's findings. It contained evidentiary support of plaintiff's pleaded assertion that death was due to a lack of oxygen. The furnishing of the requisite amount of oxygen was the burden of the hospital. There was competent testimony elicited upon cross-examination that the pathological findings of cerebral edema, hypoxia, hyperemia, and acute pulmonary edema are all causable by a shortage of oxygen and that they could produce death. There was a basis for fair jury inference from the report that all other vital organs were healthy and normal, and ergo that other causes of death were excluded, or were at least excludable.

When the report was offered as an exhibit, the trial judge refused to admit it. Plaintiff's counsel objected and strenuously. He properly preserved the claimed error. His theory of prejudice by the refusal is that as an admitted exhibit, it could have been available to the jury during its deliberations. He argues further that, because of the length of the jury's deliberations, serious questions of liability were of necessity considered, and that the availability of the report for discussion and evaluation might well have produced a different result. We agree.

The exhibit was admissible under the business entry act.^[2] If its admissibility was denied by reason of alleged hearsay (and we cannot determine precisely the ground on which it was excluded), the objection is unmeritorious because its author was present and available for cross-examination. The record shows that early in its deliberations, the jury asked for all the admitted exhibits. The exclusion of this crucial item of evidence as an exhibit was reversibly erroneous.

We advert next to the exclusion of a report of an insurance adjustor presumptively representing the hospital's liability insurance carrier. On oral argument all counsel stated openly, and upon our recorded transcript of argument, that the witness was an agent of the hospital. Examination of the report disclosed it to have included possible admissions against interest. Unfortunately, the cross-examination of the witness concerning this exhibit did wander into a field of conclusionary questions which entailed medical conclusionary answers which were properly excluded. We note the foregoing because of the likelihood of the issue arising again in the event of a new trial.

For the reasons herein set forth, we affirm the jury verdict of no cause of action as to defendant Eickhorst.

We vacate the verdict and judgment of no cause of action as to defendant hospital, and reverse and remand as to it for a new trial.

Proportionate costs may be taxed against the appellee hospital. If need be, that proportioning, absent agreement, may be made by the trial judge.

All concurred.

NOTES

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

[1] In the unlikely event that the Bar and Bench do not know, we note that an anesthesiologist is an M.D. specializing in anesthetics.

[2] MCLA § 600.2146 et seq. (Stat Ann 1962 Rev § 27A.2146 et seq.).