*1 DeGROOT v. WINTER. Expert Opinion.
1. Evidеnce — Expert general exception evidence is out of carved ,t0' usually confining facts, witness relation of and is accom- plished by hypothetical questions. means of Malpractice—Witness’ 2. Same — Inadmissible on Conclusion Ultimate Issue. Although properly medical permitted express was. opin- ion as to whether physicians guilty defendant were malpractice, it permit give was error to him to his conclu- sion plaintiff’s ultimate issue of whether condition re- solely malpractice. sulted from 3. Same. may When result or malpractice, not be occasioned ex- port medical permitted witness invades when go beyond stating could, did, it in saying result. occasion North, Read, Butzel, dissenting. JJ.,
Appeal Ottawa; Miles J. (Fred T.), Sub- mitted June 17, 1932. No. (Docket 143, Calendar No. Decided March 36,621.) 1, 1933.
Case Dick DeGroot against William G. Winter and another for malpractice. Verdict and judgment for plaintiff. Defendants appeal. Reversed. Carl E. (Leo W. and Clare E. Hoffman Hoffman Hoffman, for of.counsel), plaintiff.
Diehema, Ten Cross & Gate and L. W. Harrington (Douglas, Barbour, Desenberg & of coun Schaeffer, sel), defendants. for admissibility On evidence as death, to cause of disease injury, see annotation in L. 1915A, 1056, R. A. 1068. Winter. DeGroot judgment for (dissenting). had Plaintiff
Fead, J. are against defendants, who damages both $5,000 *2 prin- malpractice. negligent The physicians, for entitled cipal were that defendants claim of error is requires the The contention verdict. directed plaintiff. favorably testimony to viewed most be to. right years plaintiff, 71 broke his old, June 6,1930, day, hip. leg at the the knee and On same between Hospital, Ten Dr. Dr. assisted Boone, Zeeland applied splint, with a Thomas Have, traction pulleys tape bandages means of adhesive weights. agreed frac- that a The medical witnesses general condi- reduced as soon as the ture should permit. patient will Dr. Bоone testified tion treatment, the fracture at first that he reduced Have’s that the frac- Dr. Ten but, under statement July knowl- until to his 10th, ture was not reduced point edge, became issue fact. agreed proper local
The medical witnesses X-ray photographs practice bone demanded after reduction of fracture. both before and bandage until when 19th, None was taken June weights slipped It was found that and the came off. overlapped Dr. inches. the ends of the bones some put posi- he back into Boone testified that ends X-ray again applied but he took no trаction, tion and physi- photograph to determine the result. Other inadequate that the sense of touch cians testified fleshy part such a fracture in the to reduce leg. X-ray photo-
There was some graphs taken at first were not treatment because plaintiff in a state of shock. The medical charts contained no defendants evidence of introduced testimony upon general. The it was rather shock. if draw an inference that, the shock could Michigan Reports. prevent was not sufficient reduction frac- ture, if it was it did not reduced, excuse the omission X-ray physicians еxaminations. And testified might require delay exceeding that, while shock days reducing X-ray a week or 10 a fracture, imperative, especially examinations are when there apparatus for is available a movable them, as there Hospital. was at Zeeland July
From June 19th to Dr. Boone 22d, was on leaving plaintiff vacation, in care Ten of Dr. Have, with instructions to call Dr. Winter in case of diffi- culty. July Dr. Winter was consulted on 10th. Plaintiff was taken an ambulance to Holland Hos- pital, thing which some doctors state was a bad X-ray do. No examination was made to determine *3 leg began the condition of the Dr. before Winter pulled align- leg treatment. Dr. Winter into Hawley fluoroscope, on a ment, table, and, under applied body X-ray a cast, and an was taken which apposition the ends of the bone in showed excellent space but with a between them. The cast remained August swelling developed, until when 29th, the cast yucca-board splint, was removed and a which fur- leg* neither nishes immobilization of nor traction, applied was and with one remained, renewal, to November when 1st, defendants were relieved of plaintiff further of the care case and taken was his home. X-ray photograph, August
An 27, 1930, taken dis- overlapping, closed the ends of the bones with no healing bony evidence of nor the formation of union. photograph, pictures A taken 3, December overlapping ends of the fracture three or four bony inches and union, considerable which however was not hard at the time trial. The ends could be DeGroot v. Winter. plaintiff re-’ by a and has examination external felt leg. of the use stricted agreed frac- such medical witnesses upper of the muscles of the normal action
tures the leg position pull out the fractured ends tois overlap. To strain and overcome this cause them requires practice proper muscles, to tire the immobility attempted applied, be and traction be splint weights that it or a cast and means healing. is To this there maintained to the time of patient exception con- so treated is that, because may develop, affecting complications bed, fined to necessary, good practice, general if health and it is leg of the of the to treatment to sacrifice treatment patient. exception applies a matter of When the attending physician, course, judgment but, of fairly judgment and be based to be exercised patient. the condition seasonably claim the fracture was Defendants plaintiff’s general properly reduced and that that, confinement bed health so deteriorated good practice, they determined in the exercise of up necessary pa- to remove the cast and build general giving him condition the better tient’s posture, possible in wheel freedom and exercise dispute plaintiff’s chair. The was physical condition and whether abandonment leg justified. It was traction on the conclusive *4 pursue сustomary did not that defendants making X-ray proper practice examinations local and after reduction the fracture. raised before It upon when the fracture was reduced issues of fact negligent failing defendants were to and whether maintain appliances produce immobility and trac- length proper of time or their tion a abandonment judgment, if was nonactionable error error. argued, plain-
It is however, that no harm came improper, tiff from the if no treatment, because bony union or substance found while he was consequently, under care, defendants’ earlier and, periodical X-ray reduction, observations, and con- tinuous traction would not have affected the result. bony
The record does print disclose when union shown of December 1931, started, as photograph August 27, defendants took no after 1930. There was medical that failure to promptly a reduce fracture and to retain the ends apposition delayed a cause union, defendants’ failure to treat the ease accordance proper practice produced with the have could the re- Consequently sult. could have found, under testimony, that defendants’ failure to follow proper practice delayed caused the union.
It is further contended that in of this fractures largely sort the outcome is a matter of chance and plaintiff good ordinarily the result was as expected proper practice. could be from Under the may overlap perma- best treatment the bone nently and be opera- weakened. In at least fact, without precise alignment hardly expected tion, to be much is considered an less excellent result. Never- proper practice theless, the failure to use is an in- patient right vasion as he is entitled to whatever chances such treatment holds. And when physician departs judgment from it he hazards the jury upon injury departure of a whether the worked patient competent to the when there is medical testi- mony that it could have done "so and better possible proper result was treatment. denying The court did not err in the motion for directed verdict. *5 DeGteoot v. Winter.. following question
Complaint of the is made answer: * * * your you in whether or not I will ask
“Q. opinion that hone condition of as medical man the X-ray Blodgett Hos- the as disclosed taken at pital, by apply was to traction either due the failure weight the use of cast? or *' * * say “A. I that would condition was X-ray in found was due to traction absence of ’’ and immobilization. objection, upon proper agree that, Counsel under De inadmissible have been would decided. 258 Mich. since 293, v. Winters, Haan objection proper made, contends Plaintiff which Case, overrule DeHaan and applied us to also asks general rule that evidence of of the of the an invasion ultimate fact is jury. applied phys- general well rule is settled is within the realm of effect which
ical lay knowledge, causes, application its tо the cause of but injury much has been disease, attended death, judicial opinion. apply it Some courts confusion permit modifica- rule of while others its thumb, as a expert opinion where would be tion circumstances finding L. A. A, the fact. R. aid pp. p, 11R. L. 613. 667; C. J. C. 1068,note; court conceived that the In the DeHaan this Case question the ultimate called for an malpractice of defendant. So case, issue ruling. in accord with the How I am still confined, applies of counsel that to the the concession ever, present rule needs fur situation indicates discussing ther consideration. Without whethеr the injury as stated the above answer is cause I or ultimate do not think fact, an intermediate *6 incompeteney opinion he of evidence thereof should an made inflexible rule this State. require
Prior
of this court do not
decisions
such
ruling.
Village
At
Portland,
first
v.
blush, Jones
of
(16
437), upon
jury
conclusion as is the witness.”
are
from which
to draw a
Also, it is evident from the
answer of
witness
basing
opinion
and the
cited
cases
that he
upon
history
which
the case
had been
him
told
by plaintiff,
already
which he had
related and which
incompetent.
only
this court had held
The
relevant
point
City Lansing,
in the cited case of
Dundas
(5
Rep. 457),
Such of the rule contain no of elements danger justice. approval, to Without fervent this upon shadowy court commented opinion line an between what of did cause and what could have People MacGregor, caused a condition in v. 178 Mich. v. Pless, and Cord 216 Mich. 33, 43, physicians permitted express opin- which ion were an upon injury. of cause death Also, disposed, well known that witnesses, so have difficulty impressing no with their corn Railway, tentions. See Hull v. 158 Mich. 682, 686. seeking оbey A fair witness, rules evidence, equal should have an chance with one who resorts to subterfuges. foreign
Nor does the modification introduce ele-
important
ment into our law of
In
evidence.
cases as
proving
laymen
permitted
of mils,
as the
even
are
express
opinion
competency
an
of of testator.
experts
Handwriting
may give
opinion
their
of the
authenticity of documents. And there are numerous
opinion
cases where
evidence
causes and effect
261
People v.
are:
sanctioned,
have been
a few of which
Foley,
Rogers
Youngs, 252 Mich.
We hold that connection between the where the specialized cause and condition is a matter of knowl- edge laymen generally, not within the information of expert may opinion express possible, probable, or actual if cause the condition the testi- competent. exception, mony like Such be otherwise parent ought rule of thumb. to be a rule, application many evidence, its rules other Like judgment depend upon necessarily must particular it is circumstances, and undеr court question be so sometimes that the conceivable discretion. sound to rest close as misunderstanding, perhaps a few there be Lest opinion in Mr. on Justice Wiest’s in comment words profes- I assume that be said. case should this ex- between the the distinction with sion is familiar stating pression a witness and his an with the foundation fact, as a his conclusion evidence, in each case which be laid must *8 I that the them. also'assume and do not discuss so patient’s issue is whether bar knows that the solely by malpractice, because caused condition is although only part damages were recoverable disability rule in the DeHaan so caused. The sanctity age, effect vested has no such of Case authority rights, support in this or subse- State, judicial application quent to circumstances as should confining proper court from deter its this indicating proper exceptions sphere it. and competent. testimony at bar was DeG-root v. Winter. with the other in connection We discover no error expert testimony. prejudicial error do we find Nor of court remarks or counsel. alleged jury, prin-
Error is on to the instructions cipally by way wresting of short from statements charge isolating and them. As whole, charge amply presented the contentions of defend- protected rights. Only ants and their one instruc- special tion needs mention: charging,
After in effect, that where there is more approved than one method of treatment, the attend- physician, ing good faith in the and exercise ordinary knowledge, may care, and exercise skill, judgment adopt approved one best of such being guilty negligence, although without methods might another method claimed to be suc- more court said: cessful, “Provided, of course, he follows the method usually average and treatment followed
physician possessing exercising degree knowledge, possessed skill and and exercised physicians in that and similar localities.” The record contained certificate of the circuit judge stenographer’s to the effect that the minutes are incorrect and that the court read to the instruction as follows: “Provided, of course, that he one follows usually
methods and treatment followed,” etc. practice permits filing We know of no which of such certificate in contradiction of the bill ex- ceptions signed. as settled However, portions whole instructiоn, as well from other charge, the by it is incredible that the was misled appears
the clause as it in the record. In view of the word “the” context, before “method” ordi- *9 “ ” as instruction narily and the a would be heard as by correct. would be received evidence, mortality admitted were The tables withdrawn undisclosed, were for reason but, some jury. tables are The from consideration expectancy life jury may find conclusive, and the age, physical medical condition, from opinion, say cannot own observation. We
and their verdict excessive. was plaintiff up to testi- brief references Tbe for set length quoted mony at and different suit in a Probably the pamphlets better evidence. not in from the files the brief practice to strike would be printed, but we think situa- a new one order and repetition against by warning met tion be printing plaintiff by denying the brief. costs for except Judgment with affirmed, costs should above. JJ., concurred with J. Fead, Btttzel,
North
malpractice
April
case
in a
4, 1932,
J.
Wiest,
present
against
counsel
Winter, in which
defendant
question,
argued
parties
represented
the identical
it was error
do
court held that
this
thing my
Win
now sanctions. DeHaan
Brother
fully
question
was then
Expert evidence is an carved confining general a witness out usually accomplished and is facts, relation of questions. hypothetical means guilty Upon the of whether defendants were issue ex- malpractice omission commission *10 v. Winter. 671 DeGroot pert give opinion Upon could and did evidence. plaintiff’s ultimate issue of whether condition re- solely malpractice, expert sulted from should give not have, hut did his conclusion as а fact, necessarily malpractice, dispute. following’ and in may may by aWhen result not be mal- occasioned practice, an medical witness invades the province permitted go beyond of the when stating saying did, that it that it oc- could, private casion the result. Such an judgment is but the competent of the witness and not evidence. alleged malpractice Whether the could occasion the complained only. result of was one of science malpractice Whether did occasion such result was controversy, therefore, not one of mere and, thе facts are admitted not in science. When dispute, question, may if answered, be considered one of science. But when a result could have been by occasioned one of two or causes, more the ulti- mate fact of which cause occasioned the result is by jury, for determination and a medical ex- pert conflicting not, in case evidence, invade province testify that the result by only. was in fact occasioned one cause stability. Buies evidence should have The rule early violated in this case was announced this repeatedly supported by weight сourt, followed, authority, injustice, kept has led no and has experts invading medical jury and should be maintained. My Brother’s overrules v. Hitchcock
Burgett,
People
38 Mich. 501;
v. Hare, 57 Mich. 505;
Village
v.
(16
Jones
Portland, Mich. 598
L. R.
437);
A.
In re Harris’ Estate,
mate issue was whether ultimate issue bar the a fall. In the case at plaintiff’s disability mal- was caused whether practice. Railway, 417, it was said 92 Mich.
In Lacas
opinion testimony:
of medical
*11
given
the above-
to
in answer
“The
showing
proper,
the char-
question
quoted
as
was
produсed
might
have
which
the cause
acter of
in
question
injury.
the case
not, as was
The
did
(16
Village
L. R.
“Admission of medical respect nesses in to their to the cause invading insured’s condition held erroneous as province jury. “Expert permitted not be to invade express opinion toas ultimate facts.” The court stated:
“ prevailing general ‘The rule is to this State question proper, for it the effect that such a permits case, the witness decide the whole nothing except leaves for the to do believe disbelieve witness and render its verdict ac- * * *’ cordingly. Eclipse
“In Iowa, Lumber Co. v. Davis, 1349, (195 343), N. W. this court ‘But it said: well-recognized an cannot be pеrmitted express on the ultimate question jury, determined to be which * * * must inhere in the verdict.’ *12 “In v. Budde National Travelers Asso- Benefit (169 769), Iowa, 184 ciation, this court said: 1219, 1226 N. 766,W. expert may
‘Of an course, not ex- press opinion produced an toas what in the kink the was, in bowel, substance, as asked Dr. for Smith, precisely jury that was what determine, the were to * * * subject expert and not the evidence.’ Railway (137 “In Co., 156 Iowa, Sever 664, 668 1200), [N. S.] 44 L. 938, N. W. R. A. 937, court, this many citing after cases, said in reference to medical testimony: many ‘These and cases which others .might sharp be draw cited distinction between a question calling by expert opinion for an an as to might might injury what or not have caused an and calling opinion one for an toas what in fact did ” cause it.’ 261
674 Light Co., Edison “In v. Des Moines Martin Also 364), (106 court this 359, N. 739 W. Iowa, 724, experts accepted while that, ‘It an rule said: may may testify may opinion or as to in their what given not result or condi have been the cause permissible give their not for them to tion, it is which as to the ultimate fact the * ** organized to determine.’ 562, Manilla, Iowa, “In Sachra Town of 200), in fact court said: (95 this ‘What N. W. jury, question injury for is a wound or causes a might might it is a not have caused but what or testimony.’ expert matter quote line of from our unbrokеn further “To unduly opin- subject extend this would on cases foregoing definite cases announce The ion. for obtained this State which has certain many years. It announced in scores has been great majority understood is well cases It is on sound reason- based and bar. of the bench justice. completely ing in It is works substantial system jurisprudence. harmony with our may highly im- kind, it become “In a case this enlighten jury upon expert portant an shall subjects technical or scientific character. of a may expert permitted, under certain circum- be express whether, an stances, arising judgment, conditiоn, a certain a scientific may brought field, have been about from technical expert may per- causes, certain never be but mitted to invade the and ex- press any opinion as to ultimate to be de- facts jury. This termined rule has so often been announced and other courts that this further dis- unnecessary.” cussion seems impressed by reasoning
I am that, because cunning enough witness to trans- gress a rule of *13 evidence, rule should be leveled grade transgressor. to the the ap- supra, applies Case, either DeHaan or has no DbGroot "Winter. plication applies If at all. it control. it should by applied confining What is meant the rule there proper sphere? sphere? to its is that There What by incompetent. opinion we held the Here, confining applied proper the rule there “to its sphere,” my opinion competent. Brother holds prevails, If this what is the rule from now on? insanity, competency, In cases mental etc., expert passing upon is not the cause but a by In condition evidenced manifestations. the case leg unques- plaintiff’s the condition of at bar, may but the that condition have cause of tioned, by malpractice otherwise, been occasioned or opinion expert an an that was caused mal- practice expert weighing a of evidence expression questions of the result. On of science professional expert, or skill one be an but on a question of fact to whether as one rather than an- produced per- condition, other cause is not he mitted to venture conclusion. subject
Every expert opin- text writer on the weight authority ion evidence states ex- prac- here admitted, cludes such as tically Village supra, cite all Portland, Jones authority leading subject. оn the as pro- “As the evidence rule is intended to against vide the mischief of invasion of the jury, possible a court should as far as ex- judgment inference, clude the conclusion, aof though as to witness the ultimate fact issue, even presented might the circumstances are such war- excluding rant a relaxation of the rule but p. for this circumstance.” 22 C. J. 502. p. In C. J. 666, it is said of an medical witness:
“Statements have also been received from such a witness as to whether certain detailed occurrences *14 261
676 possible probable, or sufficient, natural, abe would death, al- physical or of result, оf a certain cause opinion whether though cannot state the witness actually they produced it”— Village citing, among authorities, Jones other of People Mich. 505. supra, 57 Hare, Portland, Chamberlayne, following Law Modern The § 2495: Evidence, of jury, province of the protection “For expert to be asked general cannot that an it ais contro which is of a fact to existence as decide * * * province upon It evidence.
verted assuming certain what, determine to of the witness they science, mean terms to be true, facts calling the witness is with which trade or art, * * * testifying as witness The skilled familiar. judg not be to declare his will allowed an ment as far in the to how the evidence case estab ** * given All the existence fact. lishes jury.” for the this is Chamberlayne, § Law of 1999: Modern Evidence., protection province “A reasonable except requires adequate case of necessity, forensic the skilled medical observer permitted step not take should be from an- possible nouncing probable causes of observed declaring may properly actual: He results state might injury, what could or have caused the what did so.” following from 3 Jones, Commentаries on (2d Ed.), §1321:
Evidence liberality calling “Whatever be allowed in opinions experts, for such witnesses must not usurp permitted of the court and jury by drawing those conclusions law or fact depends. which the decision of the case Al- DeGroot v. Winter. though, earnestly criticized, this view been has authority. weight It sustained the undoubted practical necessity founded in well is, moreover, as theory; many for in trials would become cases experts express farcical if were allowed to zealous opinions upon very direct issue to be tried.” *15 object questions experts “The of all should be their to оbtain as to the matter of skill or controversy, science which is in and at the same opinions time to exclude their as to the effect of the establishing evidence controverted facts.” (2d Ed.), § on Evidence Jones, Commentaries 1323. Kimbrough Railway (111 In 272 Ill. Co., 499), E.N. the court stated: physician may
“A be asked whether the facts hypothetical question in a are stated sufficient, surgical point medical or to cause view, bring may malady, about a certain condition or or he given whether or not a be asked condition or may malady person of a or could result from and be hypothetical quеs- the facts stated caused tion,"but he should not be asked whether or not such bring did cause and about facts such condition or malady.” my accept postulate I do Brother’s be- that, disregard cause evidence such “there is no real invasion of the functions of the jury.” keep Buies of evidence are intended to ex- pert Suppose witnesses within bounds.
accepts ipse dixit the witness and shifts the ultimate result to his conclusion, then there is an accomplished remedy. invasion without record or principle, long prevailed
In the rule which has so right, judgment in this State is should be with costs to reversed, defendants. J.,C.
McDonald, Clark, Potter, and Sharpe, concurred with Wiest, J. JJ.,