Bilicki v. W. T. Grant Co.

170 N.W.2d 30, 382 Mich. 319, 1969 Mich. LEXIS 106
CourtMichigan Supreme Court
DecidedSeptember 3, 1969
DocketCalendar No. 1, Docket Nos. 52,019, 52,020
StatusPublished
Cited by14 cases

This text of 170 N.W.2d 30 (Bilicki v. W. T. Grant Co.) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bilicki v. W. T. Grant Co., 170 N.W.2d 30, 382 Mich. 319, 1969 Mich. LEXIS 106 (Mich. 1969).

Opinions

T. M. Kavanagh, J.

Plaintiffs Joseph F. Bilicki and his wife, Rose, appealed from summary judgment1 granted by the circuit court and the decision of the Court of Appeals affirming the summary judgment. 10 Mich App 612.

All the parties agree to the fact that plaintiffs purchased a parakeet from defendant W. T. Grant Company, February 22, 1961, which had previously purchased it from third-party defendant Beniteau Bird Company. The remaining facts are .taken from the pleadings and depositions filed in the circuit court, particularly the depositions of the three medical experts.. It is from the facts, or lack of facts, adduced from the depositions of’the three doctors that summary judgment was granted.

Plaintiff Rose Bilicki deposed that in February 1961 she purchased a parakeet from defendant store. When she brought the bird home she noticed that he acted sickly in that he just “sat there like he was in sort of a daze.” For the following 3 to 4 weeks she attempted to nurse the bird back to health, but he ate very little, acted listless and, after approximately three weeks, “he couldn’t breathe good. He was gasping for breath.”

. Plaintiff further deposed that at approximately the same time, 3 to 4 weeks after the purchase of [322]*322the'"bird, she became ill, suffered from headaches, loss of appetite, nausea, and had a temperature of 105 degrees. After an unsuccessful attempt by the family physician to treat plaintiff at her home, she was admitted to Ford hospital. She was examined upon her admittance and informed by the examining doctor that she had psittacosis2 and was put in isolation. Fourteen days later she was discharged from Ford hospital, but was still debilitated and “too weak to do much.”

The deposition of plaintiff Joseph F. Bilicki corroborated his wife’s testimony. He additionally deposed that when he took his wife to the hospital the examining doctor, after inquiry as to whether they owned a bird and the taking of X-rays, informed plaintiff that his wife had “parrot fever, which is very rare,” and that she would have to be isolated. Plaintiff related that he contacted the Dearborn health department and, after a delay of a couple of days, was instructed on how to dispose of the bird. He destroyed it according to instructions. The health department picked up the bird the next morning. It subsequently reported that the bird was too decomposed to determine if it was diseased.

Plaintiff further deposed that, approximately three days after his wife’s return from the hospital, he suffered severe headaches and his temperature rose to 103 degrees. He went to Ford hospital and was examined, isolated, and treated “for the same thing as my wife had.” He was released from the hospital after five days but was confined to his home for an additional week.

[323]*323We examine the following depositions given by the three expert medical witnesses^ It was upon these depositions that the circuit court concluded that there was no reasonable medical certainty that the plaintiffs had the disease of psittacosis and granted the summary judgment.

Dr. Frank Cox deposed that he treated plaintiff Rose Bilicki and made a provisional diagnosis of psittacosis. Upon cross-examination, Dr. Cox stated that the symptoms looked for in diagnosing psittacosis were “fever, cough, headache, nose bleed, liver and spleen palpable, and a. history of contact.” While most of these symptoms were admittedly present in plaintiff’s case, Dr. Cox agreed that “In view of the failure of the rise in titer of the psittacosis complement-fixation test, a specific etiologic diagnosis cannot be made and it is thus probable that she had a nonspecific acute respiratory infection rather than psittacosis.” Dr. Cox admitted that the hospital records indicated a final diagnosis of “psittacosis suspected.”

Dr. Edward Quinn deposed that he examined Rose Bilicki several times at the hospital and diagnosed her illness anatomically as “bronchial pneumonia.” Dr. Quinn stated that psittacosis is a viral disease acquired from psittacine birds and that there are two tests to determine the presence of psittacosis— one a sputum test and the other a blood test called the complement-fixation test. He agreed that in the process of doing a serial study of the complement-fixation test, there would be a rising titer in the event of psittacosis. This test was administered to Rose Bilicki, but in the opinion of Dr. Quinn there was no diagnostically significant rise in titer,3 and [324]*324lie concluded that Bose Bilicki did not have psittacosis. Dr. Quinn did admit, however, that he found Rose Bilicki’s spleen was enlarged, which doesn’t normally -happen in pneumonia cases but is a symp- : tom in psittacosis, and that the antibiotics used in treatment might have affected the blood as far as the complement-fixation test'was concerned. When asked if he really wasn’t sure in his own mind whether Rose Bilicki had psittacosis or pneumonia, • Dr. Quinn responded:

“Again, you a,re using the words ‘pneumonia’ and ‘psittacosis’ as though one can distinguish these two, one from the other, as though they are two different conditions. I have tried to repeatedly tell you, sir, that psittacosis is a form of pneumonia.”

, Dr. Quinn further deposed that Joseph F. Bilicki was admitted to the' hospital on April 10, 1961. Both the sputum culture and complement-fixation tests were administered and, upon the negative results of both tests, the final diagnosis of his ailment was “acute respiratory disease.”

Prior to hearing on the motion for summary judgment, plaintiffs filed an’ affidavit of Dr. Edward MacKenzie. The affiant stated that he had read the hospital records and that — based upon these records, the history of contact with a sick bird, and the results of the complement-fixation tests showing the rise and fall in titer4 — he concluded “it would seem that Mrs. Bilicki did in fact have psittacosis.” At the hearing-on. the motion for summary judgment Dr. MacKenzie reaffirmed this conclusion, but further explained :

[325]*325“I examined the patient strictly abstractly. Not my opinion, bnt the opinion that one would form from looking at this record. Not talking to the patient, not having seen the patient, I was exploring the possibilities of the diagnosis having been psittacosis. And, therefore, I said it would, seem. . This is not my opinion, as such.”

Upon questioning by the court, Dr. MacKenzie admitted that he was unable to form his opinion to a degree of reasonable medical certainty.

The circuit court granted summary judgment for the reason plaintiffs’ only medical expert “has not rendered an opinion and says he has none.” The Court of Appeals concluded that, “there is no testimony upon which a finding by a trier of fact in favor of plaintiffs could be justified.” 10 Mich App 612, 616. We disagree.

Reviewing the depositions of the medical experts, we feel that their testimony was inconclusive. The treating physicians candidly admitted that they “were unable to establish a specific etiologic agent” that caused the illness. They also admitted that psittacosis is a form of pneumonia and that the two are symptomatically similar except for the fact that in psittacosis cases the spleen becomes enlarged, whereas in pneumonia cases it does not.

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Bilicki v. W. T. Grant Co.
170 N.W.2d 30 (Michigan Supreme Court, 1969)

Cite This Page — Counsel Stack

Bluebook (online)
170 N.W.2d 30, 382 Mich. 319, 1969 Mich. LEXIS 106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bilicki-v-w-t-grant-co-mich-1969.