Sutter v. Biggs

Smith, J.

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 *84fallopian tube and ovary without parental authority or consent. In 1959, when plaintiff had to be operated on by another doctor for removal of a cyst on her left fallopian tube, it was then first discovered that her right fallopian tube and ovary were missing. The only other surgery she had between 1940 and 1959 was a tonsillectomy. Claiming fraudulent concealment of 1940 facts constituting her cause of action, plaintiff filed this suit February 19, 1960. Plaintiff sought damages not only for the alleged 1940 loss of her right ovary and fallopian tube, but also for loss of ability to bear children occasioned by her 1959 surgery in which her left, or remaining, tube was removed. She also claimed damages for “emotional pain and suffering resulting therefrom.”

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:

*85“Q. All right. It is then known to you that people do—women do develop parovarian cysts during ■their lifetimef

“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 *86might find tbis defendant was guilty of. * * * After he did this act this woman was very capable of bearing children. All of the testimony in this case says so.”

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 *87in the relation of cause and effect must subsist, so that the influence of the injurious act would predominate over that of other causes, and concur to produce the consequences or be traceable to those causes. Woodyard v. Barnett, supra.

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,* it was thought possible that plaintiff, like any other woman, could develop a cyst upon the remaining tube which could require surgery, that is, if the cyst were gross enough to encroach seriously upon the blood supply. The testimony also showed that cysts are frequently treated successfully without the necessity of total excision of the tube. In the case before us, therefore, plaintiff’s loss of ability to bear children was not a legal and natural consequence of defendant’s act, but, within the meaning of the rule, was contingent, that is, contingent upon the possibility that plaintiff could develop a cyst on her remaining tube which could require excision of the tube itself.

Affirmed. Costs to appellee.

Dethmers, Kelly, and O’Hara, JJ., concurred with Smith, J.

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.