The trial judge overturned this because "the testimony of the plaintiff's experts could not be considered by the jury as worthy of belief regarding the standards of actual private practice of the physicians in the Detroit area during the time periods in question". In reinstating the verdict, this Court relied on Wood v Vroman, 215 Mich. 449, 465, 466; 184 N.W. 520 (1921), which said a specialist is "obligated to bring to the discharge of his duty that degree of skill and knowledge possessed by physicians who are specialists in the light of present day scientific knowledge". This Court then said:
Thus if a foreign object is left within the body of a patient on whom an operation has been performed, to his injury, laymen may properly decide the question of negligence without the aid of experts. Wood v Vroman, 226 Mich. 625 [ 198 N.W. 228 (1924)]; LeFaive v Asselin, 262 Mich. 443 [ 247 N.W. 911 (1933)]; Taylor v Milton, 353 Mich. 421 [ 92 N.W.2d 57 (1958)]. However, the rule applicable in most cases of malpractice was well summarized in Zoterell v Repp, 187 Mich. 319, 330 [153 N.W. 692 (1915)], as follows:
The latter is "* * * obligated to bring to the discharge of his duty that degree of skill and knowledge possessed by physicians who are specialists in the light of present day knowledge. * * *" ( Wood v. Vroman, 215 Mich. 449, 465, 184 N.W. 520.) Accordingly, the standard of care in this case is that owed to a patient by the community of neurosurgeons.
If in an action for damages for malpractice it appears that the conduct charged against the medical practitioner was of such character as to not require expert testimony submission of the question at issue to the jury is proper without evidence from other practitioners. Thus if a foreign object is left within the body of a patient on whom an operation has been performed, to his injury, laymen may properly decide the question of negligence without the aid of experts. Wood v. Vroman, 226 Mich. 625; LeFaive v. Asselin, 262 Mich. 443; Taylor v. Milton, 353 Mich. 421. However, the rule applicable in most cases of malpractice was well summarized in Zoterell v. Repp, 187 Mich. 319, 330, as follows:
"And it is the province of the jury to draw the legitimate inferences from the established facts in this character of cases. Marx v. Schultz, 207 Mich. 655 (19 NCCA 976); Wood v. Vroman, 215 Mich. 449. The Wood Case was a malpractice case, and it was said by Mr. Justice [NELSON] SHARPE, speaking for the Court (pp 461, 462): "`The plaintiff was not required to prove to an absolute certainty that the infection was caused by the introduction of the germs in the pus. He was required to establish facts from which such an inference might fairly have been drawn by the jury.'
In other jurisdictions action is permitted on the theory that the physician, whether hired by the employer or not, is a third party within the contemplation of their workmen's compensation act. Seaton v. United States Rubber Co. (1945), 223 Ind. 404, 61 N.E.2d 177; Pawlak v. Hayes, 162 Wis. 503, 156 N.W. 464, L. R. A. 1917A, 392; Huntoon v. Pritchard, 280 Ill. App. 440, affirmed in 371 Ill. 36, 20 N.E.2d 53; White v. Matthews, supra; Wood v. Vroman, 215 Mich. 449, 184 N.W. 520. See also, Smith v. Golden State Hospital, 111 Cal.App. 667, 296 P. 127; Hoffman v. Houston Clinic (Tex. Civ. App.), 41 S.W.2d 134; and Hoehn v. Schenck, 221 App. Div. 371, 223 N.Y. S. 418; Parchefsky v. Kroll Bros., 267 N.Y. 410, 196 N.E. 308, 98 A. L. R. 1387; Baker v. Wycoff, 95 Utah 199, 79 P.2d 77.
Plaintiffs claim that the judgments should be sustained even if we hold the claimed expert lacked the necessary qualifications, because the conduct charged, if true, was such that "even the merest tyro would know was improper." (WIEST, J., in Ballance v. Dunnington, 241 Mich. 383 [57 A.L.R. 262]). While we have generally insisted that the plaintiff in a malpractice suit produce competent evidence by experts that the defendant's acts were not in accordance with the recognized standards of practice of the profession in the same or similar communities ( Miller v. Toles, 183 Mich. 252 [L. R. A. 1915 C, 595]; Wood v. Vroman, 215 Mich. 449; Czajka v. Sadowski, 243 Mich. 21; Rytkonen v. Lojacono, 269 Mich. 270; Rubenstein v. Purcell, 276 Mich. 433), expert testimony has been dispensed with where no question of skill or judgment, or of practice beyond the knowledge of laymen is involved. Ballance v. Dunnington, supra; LeFaive v. Asselin, 262 Mich. 443. See, also, Paulen v. Shinnick, 291 Mich. 288.
He could answer what is or what is not proper practice or the correct diagnosis under the circumstances. Brewer v. Ring, 177 N.C. 476, 99 S.E. 358; Wood v. Vroman, 215 Mich. 449, 184 N.W. 520; Laughlin v. Christensen, 8 Cir., 1 F.2d 215; National Automobile Ins. Co. v. Industrial Acc. Comm., 132 Cal.App. 373, 22 P.2d 568; Thomason v. Hethcock, 7 Cal.App.2d 634, 46 P.2d 832; Updegraff v. Gage-Hall Clinic, 125 Kan. 518, 264 P. 1078; Schamoni v. Semler, 147 Or. 353, 31 P.2d 776; McCoy v. Clegg, 36 Wyo. 473, 257 P. 484; Bockoff v. Curtis, 241 Mich. 553, 217 N.W. 750; Darling v. Semler, 145 Or. 259, 27 P.2d 886. See, also, Boyce v. Brown, Ariz., 77 P.2d 455; 4 Wigmore on Evid., 2d Ed., 454, 455, to a similar effect.
Nor is the treatment another physician would have used under the circumstances the test. Wood v. Vroman, 515 Mich. 449, 465. The rule is firmly established that defendant was bound to use the degree of diligence and skill which is ordinarily possessed by the average of the members of the profession in similar localities.
However, the court found that there was no malpractice; that the collection from the doctor was a gratuity, inasmuch as he had not been responsible; that the fact that a declaration alleging malpractice had been filed in the case against the doctor was not conclusive, and that the amount allowed for compensation was not affected at all by the unwarranted settlement for malpractice. Likewise, in Wood v. Vroman, 215 Mich. 449, recovery was based upon malpractice in treating a condition which did not arise out of the worker's employment. The loss of the eye did not result from treatment of the injury received in the course of employment, but from the subsequent removal of a small ulcer discovered by defendant during his examination.