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12/08/75 HOWELL v. OUTER DRIVE HOSPITAL

December 8, 1975

HOWELL
v.
OUTER DRIVE HOSPITAL



Appeal from Wayne, Richard D. Dunn, J.

Leave to appeal applied for.

Bronson, P. J., and V. J. Brennan and D. E. Holbrook, Jr., JJ. Bronson, P. J., concurred. D. E. Holbrook, Jr., J. (concurring in part, Dissenting in part).

SYLLABUS BY THE COURT

Opinion of the Court

1. Trial -- Complaints -- Contract Claims -- Negligence Claims -- Restatement -- Jury.

A claim in a civil complaint which alleged a contract between a doctor and his patient to perform proper and necessary medical care in executing a surgical operation but which merely restated an included negligence claim that was rejected by a jury was properly stricken by a trial court from the jury's consideration.

2. Trial -- Arguments of Counsel -- Prejudice -- Preserving Question.

A claim on appeal that a defense counsel's final argument was prejudicial and mischaracterized the plaintiff's theory of the case was not upheld where no curative instructions were requested at trial, plaintiff's counsel indicated he was satisfied with the instructions as given, and the trial court properly informed the jury that the arguments of counsel were not to be considered as evidence.

3. Negligence -- Trial -- Instructions to Jury -- Presumptions -- Manifest InJustice -- Preserving Question.

Absent manifest inJustice, the propriety of a trial court's refusal to instruct a jury that the circumstances of a decedent's death in a hospital following minor surgery raised a presumption of negligence on the part of the defendant doctor and the defendant hospital is not properly preserved for appeal where plaintiff's counsel did not object to the trial Judge's failure to give those instructions.

4. Negligence -- Medical Malpractice -- Informed Consent -- Instructions to Jury -- Testimony -- Standards.

A trial court may not give an "informed consent" instruction to a jury in a medical malpractice action where there is no testimony to show that the information given by the doctor to the patient regarding the proposed treatment failed to conform to the standards of the medical profession.

5. Witnesses -- Medical Witnesses -- Cross-Examination -- Authoritativeness -- Judicial Notice.

The use of a medical text to cross-examine a medical witness is properly prohibited where the witness was not asked if he recognized the text as authoritative and the court did not take ...


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