Sutter v. Biggs
Sutter v. Biggs
Opinion of the Court
In this action for medical malpractice, plaintiff appeals from a $7,500 judgment rendered in her favor, claiming that the jury was precluded by the trial judge from considering her full measure of damages. She seeks a new trial as to damages only.
In 1940, when plaintiff was a 10-year-old girl defendant doctor removed her appendix. It was claimed by plaintiff, but denied by defendant, that at the same time defendant also removed her right
Medical testimony was offered to show basic functions of female reproductive organs which are the subject of this lawsuit. Each female is born with (except in rarest instances) 2 tubes and 2 ovaries, identified by position in the pelvic region as either left or right. In the mature female, these fallopian tubes conduct ova from the ovaries to the uterine tube where it may be fertilized. Testimony was presented to show that a woman with only 1 ovary is just as fertile as a woman with both ovaries, provided she has both fallopian tubes. If 1 tube and ovary are removed, a woman is said to be “almost as fertile” as one who has tubes and ovaries on both sides. But a woman, like plaintiff, who has 1 ovary but no fallopian tube cannot become pregnant with child.
In support of plaintiff’s theory that her inability to bear children after the 1959 surgery was a “direct and proximate result” of defendant’s 1940 act, plaintiff adduced the following medical testimony of somewhat dubious value:
“A. It happens.
“Q. And it happens frequently enough so that there is considerable surgery of that nature in the removal of cysts. Is that not right?
“A. That is correct.
“Q. It would be something that any osteopathic surgeon should be aware of. Is that not correct?
“A. Any physician should.
“Q. Any physician should be aware that this is likely to occur, that is possible to occur?
“A. Huh huh.” (Emphasis supplied.)
Plaintiff says this testimony shows that “Bita Sutter [plaintiff], like any woman, could develop a cyst requiring surgery. If the cyst encroaches upon a fallopian tube, the tube’s blood supply can be severed thereby killing the tube. When Dr. Biggs wrongfully excised Bita Sutter’s right fallopian tube, he created a risk known to him as an osteopathic physician, that Bita Sutter could be rendered incapable of bearing children.” (Emphasis supplied.)
The trial court, however, refused plaintiff’s requests for instructions bearing upon plaintiff’s claim for damages for loss of ability to bear children and consequent emotional suffering. Also, plaintiff’s counsel was not permitted to argue this damage claim to the jury. The court did instruct the jury that plaintiff was entitled to recover damages for loss of her reserve tube. That part of its instruction was basically adequate, is not properly in issue here, and hence need not be discussed.
The trial court instructed the jury as follows:
“I am going to instruct you right now that the fact that this woman is unable to bear children is not a proximate result of any negligence that you
The trial court then explained in essence that the second operation in which plaintiff’s left, or remaining, tube was removed was the intervening cause, concluding on this point that “In the opinion of this court it is not a foreseeable consequence that this woman was as a result of losing one ovary, which left her with another one which was perfectly capable of enabling her to have children—that 20 years later, or some 19 years later, she should suffer some kind of an interference that would deprive her of that power.” In its essential reasoning, the instruction is correct.
The general rule, expressed in terms of damages, and long followed in this State, is that in a tort action, the tort-feasor is liable for all injuries resulting directly from his wrongful act, whether foreseeable or not, provided the damages are the legal and natural consequences of the wrongful act, and are such as, according to common experience and the usual course of events, might reasonably have been anticipated. Remote, contingent, or speculative damages are not considered in conformity to the general rule. Van Keulen & Winchester Lumber Co. v. Manistee & Northeastern Railroad Co., 222 Mich 682; Woodyard v. Barnett, 335 Mich 352; and Fisk v. Powell, 349 Mich 604. See, also, McLane, Swift & Co. v. Botsford Elevator Co., 136 Mich 664; and Cassidy v. Kraft-Phenix Cheese Corp., 285 Mich 426.
Further, to render a wrongdoer liable in damages in a tort action where the connection is not immediate between the injurious act and the consequences, such nearness in the order of events and closeness
Under facts adduced in this case, it is too tenuous a proposition to say that the element of damages in dispute, inability to bear children, et cetera, is a legal and natural consequence of defendant’s wrongful act. At best, the damages are contingent and, therefore, barred under the general rule above recited. The testimony showed, as plaintiff’s summary indicates, that, having already lost her reserve tube,
Affirmed. Costs to appellee.
See Dunn v. Easley (1963), 42 Ala App 51 (151 So 2d 791); Lopez v. Price (1958), 145 Conn 560 (145 A2d 127); and Rivers v. Leitman (CA 4, 1963), 317 F2d 102.
Concurring Opinion
(concurring). Michigan cases which have considered the question whether a defendant’s act is to be deemed a proximate cause of a plain
If defendant’s negligent act did not directly cause the injury for which plaintiff seeks recovery but, instead, it subjected plaintiff to an increased exposure to the risk of occurrence of another event which did occur and did cause plaintiff’s injury, then defendant’s negligent act is a proximate cause of the injury and defendant may be held liable therefor if defendant should have foreseen that some such injury might be caused by such other event.
Such a formulation provides a consistent rationale for a variety of cases in which there are one or more intervening events between defendant’s negligent act and the particular injury for which plaintiff is seeking recovery. Thus it explains Patterson v. Detroit, L. & N. R. Co. (1885), 56 Mich 172, where
Most of our eases which consider the issue of proximate cause say that for it to be found, the injury complained of must have been a “probable” consequence of defendant’s negligent act. If “probable” means, as it undoubtedly does, “more likely than not”,
• It is against this background of the law as I consider it to be in Michigan that we must view the facts of this case of Sutter. A jury has found that defendant Biggs, a doctor, was guilty of actionable negligence in excising plaintiff’s right fallopian tube and ovary
As I view the record facts and our law, plaintiff’s claim is not encompassed within even the broad scope of the decisions discussed above, the holdings of which are summarized in the formulation of our concept of proximate cause set forth in the forepart of this opinion. There is nothing in the record before us upon which to base a finding that Dr. Biggs’ negligence in excising plaintiff’s right fallopian tube subjected plaintiff to an increased exposure to the risk that her left fallopian tube would have to be excised for any reason. Thus plaintiff failed to establish a causal connection between defendant’s negligence and the event, excision of her left fallopian tube, which rendered plaintiff barren.
On the record made in this case, for plaintiff to prevail in her attempt to recover damages from defendant for her barrenness, we would have to hold that because defendant’s negligence may have exposed plaintiff to an increased risk of barrenness, in that she no longer had a right fallopian tube to rely upon as a reserve in the event she subsequently lost her left tube, when barrenness actually did eventuate, defendant was liable therefor even though his negligence was in no way causally related to the ultimate event, loss of the remaining tube, which produced barrenness. Such a holding would carry us far beyond any Michigan case I have found, and probably would have a profoundly un
The extent to which a defendant properly should be liable for his negligence is a troublesome problem which merits further attention by judges and by scholars. While I am not entirely satisfied that a defendant whose negligence exposes his victim to increased risk of future injury upon the occurrence of an event independent of defendant’s negligence should escape liability for such future injuries when they in fact occur, I am not yet persuaded that it would be consistent with sound policy and conducive to just results to sanction the enormously expanded vistas of liability which would be opened if plaintiff Sutter’s theories were accepted..
Although plaintiff cannot, on the record made in this case, recover damages for her barrenness, I agree with my Brother Smith that she was entitled to recover damages for the loss of a “reserve” fallopian tube. The evidence presented clearly established that the female reproductive system is provided with two fallopian tubes and that, if one is lost, fertility is maintained unimpaired by the functioning of the other. As long as a woman has both
By wrongfully excising Miss Sutter’s right fallopian tube, defendant deprived her of her fertility reserve provided by nature. For this, he may be held liable in damages. The situation is, of course, unusual, simply because there are not many instances in which the body is provided with two means of performing the same function, either of which will completely fulfill that function in the absence of the other. A situation somewhat analogous to the loss of one fallopian tube is the loss of one eye, and in such a case the language used by some courts indicates that the jury, in determining damages, may consider the fact that plaintiff has been deprived of a reserve eye.
The amount of damages to award for the loss of the reserve against barrenness, provided by the possession of two fallopian tubes, is, of course, difficult to assess. Such difficulty, however, is not enough to preclude plaintiff from recovery.
“The injured party has consented to enter into no relation with the wrong-doer by which any hazard of loss should be incurred; nor has he received any consideration, or chance of benefit or advantage, for the assumption of such hazard; nor has the wrong-doer given any consideration, nor assumed any risk, in consequence of any act or consent of his. The injured party has had no opportunity to protect himself by contract against any uncertainty in the estimate of damages; no act of his has contributed to the injury; he has yielded nothing by consent; and, least of all, has he consented that the
“The law does not require impossibilities; and cannot, therefore, require a higher degree of certainty than the nature of the case admits. And we can see no good reason for requiring any higher degree of certainty in respect to the amount of damages, than in respect to any other branch of the cause. Juries are allowed to act upon probable and inferential, as well as direct and positive, proof. And when, from the nature of the case, the amount of the damages cannot be estimated with certainty, or only a part of them can be so estimated, we cau see no objection to placing before the jury all the
“In the adoption of this course it will seldom happen that the court, hearing the evidence, will not thereby possess the means of forming a satisfactory judgment whether the damages are unreasonable, or exorbitant; and, if satisfied they are so, the court have always the power to set aside the verdict and grant a new trial.” Allison v. Chandler (1863), 11 Mich 542, 553-556.
In this case, the trial judge’s charge adequately instructed the jury that it could award plaintiff damages for the loss of a reserve tube, of which loss defendant’s negligence was the undoubted cause, but that it could not award damages for plaintiff’s barrenness, which defendant did not proximately cause. Under the law as it now exists, plaintiff was entitled to no more.
Affirmed. Costs to defendant.
Cf. Payne, Foresight and Remoteness of Damage in Negligence, 25 Mod L Bev 1, 12 (1962) :
“Ulterior harm is a convenient term to describe harm caused or aggravated by some contingency which occurs after the event which the defendant ought to have foreseen and guarded against and which [contingency] is causally independent of that event. * * * The
principle running through the eases seems to be that a defendant is liable for ulterior harm only if the wrongful state of affairs brought about by his negligence exposes the plaintiff to a special risk of injury from the sort of contingency which causes the ulterior harm. The common sense notion underlying this rule is that of causal potency; the defendant’s negligence renders the plaintiff specially vulnerable to harm from the sort of contingency which occurs and therefore is the cause of it.”
And see Tozer v. Michigan C. R. Co. (1917), 195 Mich 662, 666, and Baker v. Michigan C. R. Co. (1912), 169 Mich 609, 618, 619, as quoted in LaPointe v. Chevrette (1933), 264 Mich 482, 491.
See, e.g., Price v. Neyland (1963), 115 DC App 355, 359 (320 F2d 674, 678).
In the balance of this opinion I shall refer only to the fallopian tube.
See Lopez v. Price (1958), 145 Conn 560 (145 A2d 127); Dunn v. Easley (1963), 42 Ala App 51 (151 So 2d 791); Rivers v. Leitman (CA 4, 1963), 317 F2d 102. The situation is not precisely analogous, since some aspects of vision, e.g., depth perception and peripheral vision, are impaired when one has only one eye, while this record discloses that a woman with but one fallopian tube is as fertile as a woman with two.
Dissenting Opinion
(dissenting). Plaintiff prevailed in her claim that the defendant wrongfully removed her right fallopian tube in 1940 when she was 10 years of age. She also prevailed in her claim that defendant fraudulently concealed his action until it was discovered in 1959. Had there been no fraudulent concealment, plaintiff’s claim would have accrued long before it did. Upon such accrual, her damages would have been the loss of a reserve tube.
This consequence of defendant’s act was foreseeable. Dr. Biggs testified:
“Q. Now, Doctor, have you had any experience with so-called ovarian cysts in your surgical experience ?
“A. Yes, I have.
“Q. Have you seen them?
“A. Many times.
“Q. How frequently would you say, Doctor?
“A. Well, a simple cyst, it is not seen every day, but they are quite common. Cysts of the ovary are very common. And cysts such as tubal ovarian cysts, they are seen right along. I mean, the percentage is not high, but we see them. I would say in female surgery which is probably—g-y-n surgery —years ago was more than it is now; but I would say at one time ran as high as probably 70 percent. However, now it is down. I would say it is considerably down. I would say probably it is 25 or 30 percent.
“Q. Have you had experience with so-called par-ovarian cysts yourself?
“A. Yes, I have, on many occasions.
“Q. Have you ever seen one as large as a so-called orange?
“A. Oh, yes,.much larger.”
The testimony of Dr. Adler, under cross-examination by plaintiff’s attorney, was as follows:
“Q. All right. And, if the wall of the fallopian tube has grown right into the wall of the cyst it is entirely possible in removing the cyst to interfere with the,blood supply to the fallopian tube. Is it not?
“A. Only if the cyst was large enough to encroach into the wall of the fallopian tube.
“A. Not necessarily.
“Q. But it is large enough to do that; is it not? I am not saying in every case now. I am saying, is it not possible that an orange-size cyst would be large enough to encroach on the wall of the fallopian tube?
“A. And I Avill have to answer that it would depend on the size of that cyst.
“Q. We already said, orange-size, 2-1/2 to 2-3/4 inches ?
“A. That would not necessarily encroach on the wall of the fallopian tube.
“Q. The question is not Avhether it would necessarily do so. The question is whether it can do so?
“A. I suppose it could.
“Q. All right. And whether or not in removing a parovarian cyst the fallopian tube to AAdiich it is appended is destroyed depends upon whether there is an interference to the blood supply. Is that not right?
“A. You Avill have to give me that question again?
“Q. Well, if there is an interference to the blood supply in the removal of the cyst, so that the tube has no blood supply, then that tube cannot survive; can it?
“The Witness: Your Honor, I don’t think there is any relationship to the blood supply of the tube and the parovarian cyst.
“The Court: All you have to do is say that.
“Q. (By Mr. Downing): If the blood supply to the fallopian tube is interrupted, the fallopian tube cannot survive?
“A. If the blood supply is interrupted, it can’t survive.
“Q. All right. It is then lmoAvn to you that people do—women do develop parovarian cysts during-their lifetime?
“A, It happens.
“A. That is correct.
“Q. It would be something that any osteopathic surgeon should be aware of. Is that not correct!
“A. Any physician should.
“Q. Any physician should be aware that this is likely to occur, that this is possible to occur!
“A. Huh huh.”
From this and other testimony, had it been properly charged by the trial judge, the jury could have found that defendant was responsible for plaintiff’s loss of fertility even though there was an intervening cause.
The extent of a defendant’s responsibility for the consequences of a wrongful act must usually be determined on a case-to-case basis. There are no Michigan cases such as this one, but some Michigan cases are analogous.
In Parks v. Starks, 342 Mich 443, where defendant struck a pillar with his car, rendering the canopy it supported unsafe, there was a time interval between his act of negligence and the time when plaintiff was injured as a result of collapse of the structure. There was also an intervening cause— children who had gone under the canopy and who plaintiff believed to be in danger. The presence of the children precipitated plaintiff’s effort to rescue them which ended in his injury.
In the case of Stahl v. Southern Michigan R. Co., 211 Mich 350, after plaintiff was injured as the result of negligence of the operator of an interurban car, her injuries were aggravated because of an improper diagnosis by a physician. The physician failed to uncover a hip fracture, While packing
“If the suit case injury was the result of the injuries she received in the railway accident, and her own negligence did not contribute to it, she would be entitled to recover all of her damages against the defendant in this action. This rule is well stated in the recent case of Smith v. Railway Co., 79 Wash 448 (140 P 685), where it is said:
“ ‘If a person receives an injury through the negligent act of another, and the injury is afterwards aggravated, and a recovery retarded through some accident not the result of want of ordinary care on the part of the injured person, he may recover for the entire injury sustained, as the law regards the probability of such aggravation as a consequent and natural result likely to follow from the original injury.’ ”
In the above case there was an intervening cause ■—the doctor’s faulty diagnosis—but nevertheless defendant was held liable for the full extent of plaintiff’s injuries.
In the case of Bordner v. McKernan, 294 Mich 411, where plaintiff’s injuries resulted because he was left in a stalled taxicab at night in the middle of the street, it was held that defendant, having put plaintiff in his predicament, must stand for the damages which occurred as a result of the act of a third person.
An English case, Overseas Tankship, Ltd., v. Morts Dock & Engineering Co., Ltd., [1961] AC 388, [1961] 1 All Eng 404 (100 ALR2d 928), lends clarity to the importance of foreseeability in the law of negligence. In that case appellants allowed furnace oil to escape and spread upon the water. A fire was caused when a spark fell from a dock onto waste in the water, igniting the waste and thereby touching off the fuel oil. The trial judge stated:
Upon appeal to the privy council, the problem was analyzed by Viscount Simonds as follows:
“The essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen. This accords with the general view thus stated by Lord Atkin in M’Alister (or Donoghue) v. Stevenson:
“ ‘The liability for negligence, whether you style it such or treat it as in other systems as a species of “culpa,” is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay.’
“It is a departure from this sovereign principle if liability is made to depend solely on the damage being the ‘direct’ or ‘natural’ consequence of the precedent act. Who knows or can be assumed to know all the processes of nature? But if it would be wrong that a man should be held liable for damage unpredictable by a reasonable man because it was ‘direct’ or ‘natural’ equally it would be wrong that he should escape liability, however ‘indirect’ the damage, if he foresaw or could reasonably foresee the intervening events ivhich led to its being done; cf. Woods v. Duncan.”
Plaintiff would not have been rendered sterile but for the loss of the second fallopian tube. The loss of the second fallopian tube would not have rendered her sterile but for the wrongful removal of the first one. Since plaintiff’s harm can be traced
Dr. Biggs and Dr. Adler testified with regard to the frequency of operations for ovarian cysts and their potential for danger. We cannot say that there is no room for disagreement among reasonable men that the intervening event was not foreseeable. Consequently, I hold that it was a question for the jury to decide whether defendant, an osteopathic physician, could reasonably have foreseen that his removal of plaintiff’s right fallopian tube, due to possibility of loss of the left tube, might result in plaintiff being rendered sterile.
I do not agree with Justice Souris that, by permitting such a question to go to the jury, we would be opening the door to the sort of claim he hypothesizes for loss of a second leg. People walk on two legs. The loss of one is a grievous injury. The testimony in this case was that women can bear children (remain fully functional in this respect) with one fallopian tube. Hence, the loss of but one fallopian tube is of little consequence.
In this respect, I would liken the loss of a fallopian tube to the loss of a kidney. A human being-can survive with one kidney. If a physician wrongfully removes one kidney, is the injured person to be restricted to minimal damages or is recovery by his estate to be so restricted in event of his death because the second kidney was lost from some other cause ?
I would reverse and remand, granting a full new trial rather than simply a new trial on the issue of damages. In Bias v. Ausbury, 369 Mich 378, this Court reversed and granted a new trial limited to the question of damages. However, in this case the issues are so bound up in one another that in fairness to both parties there ought not to be a sever
Plaintiff should have costs.
[1932] AO 562, 580.
[1946] AC 401.
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