*1 Michigan Reports. v. TASSIE. PERRI Locality— Surgeons Physicians a Standards of 1. —Medical Departure —Evidence. liability plaintiff In of a defendant for mal- establish order average practice of practice departure from the because'of locality appendectomy, plaintiff furnish incident to an must locality for the from which evidence of medical standards jury provide find failed could that defendant to expected law of the course of treatment which the him. Experts of 2. Qualifications —Cross-Examination. Witnesses — expert practice presenting permit in is The usual witnesses to challenges opposing qualifications counsel who witness to this cross-examine on before the witness is to asked opinions. state his Competency Experts 3. Same — — Discretion Court. question expert competency anof witness is for court to determine and he must within decide the limits of a fair experience supposed discretion whether the expert had such opinion as to make his value. Opinion i. Evidence — Evidence. Opinion may given by not one who has no experience. or Physicians Surgeons Malpractice—Expert — Witness— Qualifications. In action to damages malpractice recover ap- incident to pendectomy, of trial refusal court either to strike or to caution give weight no of doctor who had been admitted upwards prior State of 35 appearance expert trial, practiced witness at for short intervals numerous other communities other States and foreign countries, not operation but had an or years, had never witnessed community in- volved, practiced except had not as a consultant some held, attorneys, reversible error. Photographs—Changes. 6. Evidence — order that a be admissible in evidence, there should be a identity substantial person, plaee thing photo- v. Tassie. case are to consider which the graphed and that photo- impossible, to obtain difficult, if it and since change must not change place, such has taken graph before *2 carefully identity and should destroyed the substantial have to render the brought attention pointed out and admissible. photograph op Photographs Admissibility Court. cot —Discretion 7. Same — admissibility within photograph of a judge. the discretion of Opera- Apter op Photograph Subsequent Scar Incision 8. Same — tion —Instructions. appendectomy, taken after Photograph of for incision scar performed in the incision operation which a second thereafter held, in- malpractice for elongated, admissible in action appendectomy jury were that it was where instructed cident to operation length of incision at to show time not admissible plain- by been taken of defendant and during the trial of the case. tiff’s abdomen part. Butzcel, dissenting in
Chandler, JJ., Wiest and Wayne; (Clyde J. Sub- Appeal I.), Webster 54, 55, Nos. Calen- January 3, (Docket mitted 3, 1940. 40,926, Nos. Decided June 40,927.) dar by Helen Perri Roceo actions case Separate Tassie, individually Dr. N. Perri against Ralph as the Saratoga business doing proprietor for for malprac- Hospital, damages alleged General and appeal. for trial Ver- tice. Cases consolidated filed plaintiffs. for Remittiturs plaintiffs. dicts Re- appeals. for Defendant plaintiffs. Judgments versed with trial. new Nelson, for plaintiffs. M.
Walter Purdy & Desenberg Barbour, Douglas, {Neal for defendant. of counsel), Fitzgerald, Michigan Reports. (dissenting part). Helen Roceo and J. Butzel, separate Ralph brought against N. actions malpractice. They charged Tassie for failed required physicians to meet the standard of care performing Detroit and similar communities appendectomy on Mrs. in that the Perri, improperly performed, that he did not close and suture wound, the postoperative and that he was derelict duty in his care. The cases were separate judg- for consolidated trial but verdicts and respective plaintiffs. ments were rendered brought The cases are here review on record. one private hospital city Defendant conducted a professionally, of Detroit. Mrs. Perri visited him complaining sharp pains right of recurrent in her hard-working side. She was rather robust, woman, *3 living mother 11 children, the the 8 of whom were at ap- trial. time Defendant advised that an pendectomy promptly, and she entered hospital purpose. The declaration al- leges appendix, order that in to remove the defendant unnecessarily long made an and harmful incision in the median line her abdomen and that he “did insufficiently wholly close the said incision and did neglect bind and hold suture, close, the same and up did fail to sew the abdomen or close the incision plaintiff, although plaintiff and made was hospital
in the exclusive care and of defendant immediately following opera- a month the said completed opera- said tion, defendant never the said up tion, sewed the said incision or closed the said plaintiff inquired concerning and when wound, her condition and endeavored to consult defendant knowing well said thereon, statements to be false recklessly making and or them untrue without in fact, foundation said defendant advised that it complete of no was use avail to the said Tassib. plaintiff was af- because the said incision and close shortly die, and internal cancer would with an flicted or should have well knew defendant all of which said cruelly misleading and said untrue, and was known plaintiff give neglected and refused defendant neglected required aftercare and and usual for or her.” It is treat care refused defend-, hernia resulted that a ventral claimed alleged neglect. ant’s at no saw her
Mrs. Perri testified that defendant operation, during first week after time only during she the entire month while a few times hospital. stated that the seventh in his She operation, day following removed the a nurse clamps im- and almost incision, from the site of open mediately felt beneath thereafter she the wound bandages, to hold back with her that she had organs bulging until Tas- abdominal hands the approximated edges of the incision sie’s assistant tape. of four weeks she At end with adhesive permitted go and was able walk to home her with the assistance two members automobile family. in bed she home, After about a month went complaining office, that her stomach to defendant’s was out. ’’ told her that She claims that defendant years for the condition to would take about two it five or more visits within a short She made six heal. period hospital. left About two
after she the Thompson repaired A. the hernia Dr. Alfred later, *4 bringing parts by opening the various the wound and proper together sutures. plaintiffs. in- denied the claims He
Defendant daily, he Mrs. Perri that he saw sisted necessary although to insert wound it was closed the drainage that he no tube, made statements suturing wound was because effect that needless any rate the from cancer was imminent and at death 468 Michigan Reports. 293 prevent healing, cancer would and that the hernia part. did not result from fault on his ’ Plaintiffs counsel admitted in court that there was complaint no because the mid-line al- incision, though “appendi- their medical witness testified that strictly appendicitis, performed citis, is not in the spot line,” median but “it is over the McBurney’s spot, the abdomen called between the prominent hips.” and the umbilicus bone in the judgments Defendant assails on various grounds. competent expert He contends that evi malpractice wanting. dence Plaintiffs claim judgments should be sustained even if we expert necessary qualifi hold the claimed lacked the charged, cations, because the conduct if true, was tyro even such that the merest would know was im ’’ proper. Dunnington, (Wiest, J., in Ballance v. 241 262]). [57 gener Mich. A. R. L. we While have ally plaintiff malpractice insisted that the in a suit produce competent by experts that the de recog fendant’s acts were not accordance with the practice profession nized standards (Miller same or similar communities v. Toles, 183 [L. Mich. 252 R. A. 1915 C, 595]; Wood v. Vroman, Czajka 449; Sadowski, Mich. 21; Rytkonen Lojacono, 270; Rubenstein v. expert testimony 433), Purcell, has dispensed question judg with where no of skill or beyond lay ment, or of Dumnngton, supra; men is involved. Ballance v. LeFaive v. Mich. 443. Asselin, See, also, Paulen Shinnich, 291 Mich. 288.
While that defendant admitted that he patient did not at all suture wound because the anyway might cancer would die be sufficient experts justify without the aid of con- malpractice, clusion we do now deter- *5 469 Perm Tassie. plaintiffs proof mine, in relied the main on operation and in aftercare were not accordance with professional community, standards of the and they sought produce medical on the sub- ject. jury were instructed to find for defendant they if were unable to determine the usual and ordi- nary practice produced. from the evidence The ex- perts for who testified defendant were in unanimous departure their conclusion that there was no from average practice. must, therefore, ~We determine plaintiffs whether furnished evidence of the locality medical for standards from which the pro- could that defendant find failed to expected course of vide the treatment which the law of him. plain- Defendant claims that Dr. John E. C. Carter, ’ expert, qualifica-
tiffs medical sole did not have the expert, permit of an and tions testimony that it was error to
to remain or record, at least the disregard give should have been cautioned to weight permitted testify little He it. practice surgery in Detroit and similar com- graduated Trinity
munities. Dr.
Carter
College,
Canada,
Medical
Toronto,
was admitted
surgery Michigan
in
in
medicine
years
places
spent
upper
He
two
at various
peninsula Michigan;
from there he went to Chi-
cago,
practiced
spent
months;
for or 8
where he
he
N.
Perth,
in British
D.,
6 months
months
East
year
one
then
Africa,
Alliance, Neb.,
considerable
places
in Mexico. From
time
various
there he
year,
Neb.,
to Blue
about a
then
Hill,
went
Following
to Mexico for some time.
that,
he returned
year
practiced
and a
Ainsworth, Neb.,
half,
at
Sidney,
for 6 months at each
at Cordon and
Neb.,
place;
for 6
other
Nebraska
Potter and
towns
years;
Colorado;
time
and some
or 7
Reports.
Michigan
*6
Michigan. After
he returned
1929,
Louisiana.
finally
living
settled
he
communities,
in several
he
that
Michigan,
He testified
in 1932.
Ferndale,
any
whatso
never attended or witnessed
vicinity;
city
not
he was
or its
ever
of Detroit
although
acquainted
any
did
he
there,
doctors
physician
once had a casual
with whom
know one
except
practiced,
a con
as
conversation; he never
attorneys,
no
had
and he
some
sultant to
operations
years.
12
Defendant’s counsel-
for 10 or
qualifications
objection
of
of lack
did not raise the
permitted to
state
after the witness had
until
clearly
opinions,
incompetence
was
his
but
prac
brought
The usual
out
cross-examination.
challenges
permit opposing
who
is
counsel
tice
qualifications
on this
cross-examine
witness’
opinions.
is
to state his
before the witness
asked
question
Kimbrough,
People
Defendant claims that
improperly
received
on Mrs.
abdomen
Perri’s
ad
held
evidence. It has been
*7
City
representation (Davis
if
v.
missible
it
a fair
is
300),
reception
that
Adrian,
the.
to the discretion
thereof is left
Rogers City
judge.
It
more question. photograph Plaintiffs claim that the question there was a admissible because length original it incision, of the and that was at least credibility challenge on this admissible including their own wit witnesses, of all the medical except Thompson, At trial, Dr. Dr. Carter. ness, plaintiffs’ counsel stated: operated length as claim that it shows
“Our is he which not the condition but Tassie, left it.” Michigan Reports. replied:
The court purpose. I it is It don’t think admissible length couldn’t admissible show the at the time operated. it is Dr. Tassie I am inclined to think ad- missible.” photo
Thus, trial court satisfied proper opera graph representation of the was not a performed, originally tion as but nevertheless ad unexplained mitted it for some reason. We think photograph taken after second does reliability portray not within fair bounds of original probable length of incision, and there satisfactorily explain it fore would serve to discrepancies of the witnesses particular. changed an ex to such Conditions operation by do not tent since the defendant that we purpose. believe admissible for sym prejudicial upon Its effect the sensibilities pathies jurors of the be overlooked. Under cannot improper in it to exhibit the circumstances, such jured part body v. Hansel itself. Carstens Rep. (1 606); Farrell 426 Am. St. man, Mich. Haze, assigned likely
As will not the other serious errors to discuss them. retrial, arise we decline *8 judgments costs of aside, in both cases are set case and the cases are defendant, the consolidated remanded for a new trial. and Wiest, JJ., Butzel,
Chandler concurred with J. opinion of J. I am a C.
Bushnell, granted. For stated new trial should be the reasons by Mr. erred Justice court Butzel refusing of Car- either strike the Tassie. jury opinion expressed ter or to instruct the by weight. him was entitled to or no I little do not agree, holding however, the court erred in photograph admissible. Railway,
This court said in Pruner v. Mich. 146: photographs “In there should abe substantial
identity person, place, thing photographed jury and that which the are consider the case. impossible, It is photo- difficult,and often to obtain a graph of the of scene the accident at or about the time having object sought, but, accident, in mind the assisting jury by locality the to of the judge parties the conduct of the with reference to only practical the issue raised, the to be that the rule would seem changes destroy must not be such identity. changes the substantial The should be care- fully pointed jury’s brought out attention. safeguards, subject must left With these largely judge, to the discretion of the trial and, while very might properly in the instant case court charge par- have called the attention more ticularly say changes, we cannot that his still prejudicial so to do was under failure error the cir- ’’ cumstances this case. admissibility judge. within the discretion of trial Railway Amedeo Co., 55. 37, We have approved photographs the use scene taken negligence after sometime the accident in cases. This Rodell, was done Pearce See the by instruction the trial court as to the use of such photographs page opinion. 28 of that City photo- Adrian, 300, Davis v. graph of an ulcerated sore held ad- as to the mitted where the instructed given accompanying testi- consideration to be *9 Michigan Reports. mony. objection In ease was made that improper rather than treatment sore resulted injury upon the cause action was from the which based. Township, 496, 188 Pa. Beardslee Columbia Rep. 883), (41 68 Am. the court said: 617,
502 Atl. St. only practicable seem to be that rule would The changes destroy the sub- must not be such identity, changes, whatever and that stantial carefully brought' pointed they and out must be are, to be the This would have attention. to the pursued if allowed a view were course practicable regard appears and no trial, other plans, photographs or other substitutes subject safeguards must these view. With left judge.” trial of the discretion City Rogers Detroit, See, also, jury, presence of informed, Counsel length picture admissible to show the was not that the operated time defendant at the incision of the photograph taken that the was aware during trial of the a second after amply rights safe- were of the defendant case. court. guarded of the these statements the admission hold that are unable to We abdomen was Perri’s on Mrs. of the scar an abuse discretion. by Mr. Justice reached in the conclusion
I concur judgments should be in both cases Butzel they a new remanded should be aside and set trial. JJ., con- McAllister
Sharpe, Potter, North, J. C. Bushnell, curred