262 N.W. 409 | Mich. | 1935
This is an action against two doctors to recover damages for alleged malpractice in the treatment of a fracture of plaintiff's right leg just below the knee.
Defendant Canfield was plaintiff's family physician and was called to reduce the fracture and care for the injured leg, and defendant Van Ark was asked by Dr. Canfield to assist. Defendant Canfield was the physician in attendance but, on two occasions subsequent to the day of the injury to the leg, defendant Van Ark was called into consultation by Dr. Canfield. *564
At the trial evidence was introduced, tending to show acts of malpractice on the part of the defendant Canfield in the absence of defendant Van Ark. Each defendant, while serving with the other, was answerable for his own conduct and also for that of the other which he observed or, in the exercise of reasonable vigilance, should have noticed. Want of skill or care on the part of Dr. Canfield, in the absence of Dr. Van Ark, could not be charged against the latter. For their joint acts of commission or omission both defendants were liable, but any such act by one, in the absence of the other, unless concerted, could not be attributed to the nonparticipant.
The trial judge had this in mind when he instructed the jury as follows:
"I now instruct you that as a matter of law, if a verdict is found for the plaintiff against Dr. Van Ark, it must be based on his acts and conduct, and the results thereof, in treating and caring for plaintiff on one or more of the three occasions when Dr. Canfield was present; namely, the day of the accident, at the hospital, when the Thomas splint was put on; secondly, the day when the doctor visited the plaintiff at his home, September 27th, as I recall when a small basswood splint was put inside of the Thomas splint; and thirdly, the day when Dr. Van Ark, following consultation with Dr. Canfield, put on the plaster of paris cast.
"On the other hand, in determining the case against Dr. Canfield, the jurors will consider not only his acts and conduct on the three occasions when, first, the Thomas splint was applied, second, when the two doctors visited plaintiff at his home September 27th, and third, when Dr. Van Ark put on the cast, but will also consider the acts and conduct, the whole course of treatment, in fact, of and by Dr. Canfield, from the time when he first was called, throughout *565 his connection with the case, whether or not Dr. Van Ark was present."
The jury returned the following verdict:
"Our verdict is in favor of the plaintiff on the terms of $6,000 damages, $4,000 on Mr. Wilson Canfield and $2,000 on Bert Van Ark."
The court asked if the jury found both defendants guilty of negligence and was informed that such was the case and that the total damages of plaintiff amounted to $6,000. Thereupon the court instructed the jury as follows:
"You will retire to your jury room for reconsideration of your verdict. If you find both of these defendants guilty of negligence, you will return a verdict in one sum against both defendants for the total amount of plaintiff's damages. If you find, — I will read it again, — if you find both of these defendants guilty of negligence, you will return a verdict in one sum against both defendants for the total amount of plaintiff's damages. I think that is clear. You will return to your jury room, gentlemen."
After a time the jury returned with a verdict in favor of plaintiff for the sum of $6,000 against both defendants.
The jury, by the first and rejected verdict, evidently found Dr. Canfield guilty of malpractice, not only jointly with, but separately from Dr. Van Ark, in awarding damages of $4,000 against Dr. Canfield, and $2,000 against Dr. Van Ark.
For joint malpractice a single-sum verdict could be returned but for the malpractice of Dr. Canfield alone, no such verdict was permissible. This was not an instance of two persons, by their joint tort, starting a train of consequences.
The judgment was manifestly erroneous as to Dr. Van Ark. *566
The evidence covered both joint and several liability of defendants. The first verdict may be said to have found both defendants guilty of malpractice but clearly indicated, by separated assessment of damages, culpability of Dr. Canfield in which Dr. Van Ark was not a participant. The second verdict ignored separation of joint and several culpability of the defendants and held Dr. Van Ark liable to respond in damages for malpractice of Dr. Canfield in which he was not a participant.
The judgment against Dr. Van Ark is reversed and a new trial granted, with costs to him.
POTTER, C.J., and NELSON SHARPE, NORTH, FEAD, BUTZEL, BUSHNELL, and EDWARD M. SHARPE, JJ., concurred.