McPhee v. Bay City Samaritan Hospital

Burns, J. Plaintiff appeals a judgment granting defendant Jones’ motion for a directed verdict. Plaintiff’s cause of action against the defendant Bay City Samaritan hospital was dismissed with prejudice upon plaintiff’s motion. This case is fundamentally a malpractice action against Doctor Culver M. Jones who on March 14, 1957, removed a substantial portion of plaintiff’s thyroid gland. Plaintiff’s complaint alleged that Doctor Jones violated his duty to “use sufficient care, caution and skill in the performance of the thyroidectomy operation on plaintiff so as not to cut, sever, injure, or destroy any portion of the laryngeal nerve.” Prior to the date of the thyroidectomy plaintiff had a woman’s normal voice. During the operation appellee noted that plaintiff’s laryngeal nerves were normal in appearance. After the operation plaintiff and others noticed that her voice was hoarse, rough, or harsh and much different than it had been before the operation. Doctor Jones was informed of the change and he advised her that it would clear up. However, the condition allegedly persisted to the date of the trial — almost 9 years. Plaintiff consulted Doctor Adam Gamón who diagnosed her problem as *570 laryngeal nerve paralysis. This diagnosis was confirmed by doctors at the Henry Ford hospital and the University of Michigan hospital. Plaintiff’s complaint against appellee consisted of 4 counts: negligence, fraudulent concealment, breach of warranty, and assault and battery. Although the trial judge considered and discussed each one of these theories in directing a verdict for appellee, the litigants have primarily confined their arguments on appeal to the issues premised upon the trial court’s finding of a lack of evidence regarding the applicable standards of care. A treating physician is responsible in damages for unfortunate results when it is shown that he has departed from that standard of care which is known as customary medical practice. Skeffington v. Bradley (1962), 366 Mich 552; Zoterell v. Repp (1915), 187 Mich 319. The burden of proving that standard of care is upon the complainant, and such proof must come, in most cases, with the aid of expert testimony from those learned in the profession. Lince v. Monson (1961), 363 Mich 135; Skeffington v. Bradley, supra. Doctor Jones, who had performed “more than a hundred” thyroidectomies prior to plaintiff’s operation, certainly was qualified to testify regarding the requisite standard of professional practice in the community. He stated that although the laryngeal nerves are within the field of operation in a thyroidectomy, the nerves “can be avoided and should be avoided.” Without belaboring the point, we hold that the appellee’s own testimony was, for the purpose of this case, sufficient evidence tending to show the standard of care to be exercised and that the plaintiff could rely on this testimony in attempting to establish a prima facie case. We also find that there was expert testimony tending to show a violation of appellee’s duty to avoid *571 injuring plaintiff’s laryngeal nerves. Plaintiff’s expert witness, Doctor Gamón, admittedly did not couch his opinion of defendant’s culpability in the most desirable, explicit manner, but nevertheless the following excerpts of his testimony clearly indicate the doctor’s belief that plaintiff’s paralysis was caused by injury inflicted by appellee during the thyroidectomy: “Q. [Attorney for plaintiff] As a result of a complete physical examination did you arrive at any impression of the diagnosis as far as these various complaints were concerned? “A. My impression was she had a thyroidectomy with recurrent laryngeal nerve paralysis and hoarseness which I felt accounted for her strangling. # & * “Q. [Attorney for appellee] The reason you suggested that chest X ray was you felt it could have been a deviation of trachea? Is that correct? ■ “A. I wondered if there was something deviating the trachea to cause this hoarseness, laryngeal nerve paralysis to be certain it was nothing different from what I originally thought, the thyroidectomy caused it, * * * “Q. It is my understanding the reason you have at least concluded there was a severance of the nerve during the operation was due to the fact she had had a thyroidectomy and this causes most of the paralysis of the nerve. “A. I did not indicate severance — I meant injury or damage to the nerve — yes.” (Emphasis supplied.) The trial court was unduly concerned with the absence of testimony regarding the existence of a “severance” or “cut” of the nerves in question. A “severance” or “cut” did not have to be shown to support plaintiff’s complaint, the relevant portion of which is quoted above, if expert testimony tended *572 to show that appellee’s treatment contributed to the paralysis. Since Doctor Gamón testified that there was injury attributable to the operation conducted by appellee, the weight to be accorded that testimony should have been evaluated along with other proofs by the jury. The trial court should not have taken this function from the jury by directing a verdict against the plaintiff on this aspect of the case. • The trial court was correct, however, in holding that there was no jury question regarding appellee’s alleged failure to obtain plaintiff’s “informed consent.” Whether a surgeon before operating should advise his patient of all possible results, thereby permitting him to intelligently give or withhold consent to the operation, seems to be determined with reference to the general practice customarily followed by the medical profession in the locality. Roberts v. Young (1963), 369 Mich 133 (99 ALR2d 1330); Miles v. Van Gelder (1965), 1 Mich App 522. Although plaintiff testified that the doctor did not explain anything to her concerning the thyroidectomy prior to the operation, there is nothing in the record showing that it was customary practice to discuss the possibility of injuring the laryngeal nerves. The appellee did testify that a patient is told “what to expect in the way of results,” but when the result is in the nature of the unexpected and caused by an allegedly negligent act, as in this case, the lack of “informed consent” cannot be proximately related to plaintiff’s damage. Reversed and remanded for a new trial. Neither party prevailing in full, no costs. Holbrook, P. J., and J, H. Gjllis, J., concurred.