April 4, 1932, in a malpractice case against defendant Winter, in which present counsel represented the parties and argued the question, this court held that it was error to do the identical thing my Brother now sanctions. DeHaan v. Winter,258 Mich. 293. The question was then fully briefed, argued orally by present counsel, considered by the court, and no rehearing was sought. Counsel for plaintiff now urges error in our former holding.
Expert opinion evidence is an exception carved out of the general rule confining a witness to a relation of facts, and is usually accomplished by means of hypothetical questions.
Upon the issue of whether defendants were guilty of malpractice by commission or omission the expert
could and did give opinion evidence. Upon the ultimate issue of whether plaintiff's condition resulted solely from malpractice, the expert should not have, but did give his conclusion as to a fact, not necessarily following malpractice, and in dispute. When a result may or may not be occasioned by malpractice, an expert medical witness invades the province of the jury when permitted to go beyond stating that it could, and in saying that it did, occasion the result. Such an opinion is but the private judgment of the witness and not competent evidence. Whether the alleged malpractice could occasion the result complained of was one of science only. Whether malpractice did occasion such result was in controversy, and, therefore, not one of mere science. When the facts are admitted and not in dispute, the question, if answered, may be considered one of science. But when a result could have been occasioned by one of two or more causes, the ultimate fact of which cause occasioned the result is for determination by the jury, and a medical expert may not, in case of conflicting evidence, invade the province of the jury and testify that the result was in fact occasioned by one cause only.
Rules of evidence should have stability. The rule violated in this case was early announced by this court, repeatedly followed, supported by the weight of authority, has led to no injustice, and has kept medical experts from invading the province of the jury and should be maintained.
My Brother's opinion overrules Hitchcock v. Burgett, 38 Mich. 501; People v. Hare, 57 Mich. 505; Jones v. Village ofPortland, 88 Mich. 598 (16 L.R.A. 437); In re Harris' Estate,247 Mich. 690; DeHaan v. Winter, supra. The present rule is supported by the admitted weight of authority.
In Jones v. Village of Portland, supra, the ultimate issue was whether claimed injuries were caused by a fall. In the case at bar the ultimate issue was whether plaintiff's disability was caused by malpractice.
In Lacas v. Railway, 92 Mich. 412, 417, it was said of medical opinion testimony:
"The testimony given in answer to the above-quoted question was proper, as showing the character of the cause which might have produced the injury. The question did not, as was the case in Jones v. Village of Portland, 88 Mich. 598
(16 L.R.A. 437), call for the opinion of the witness on the whole case. The extent to which the ruling went was to permit a doctor to state whether a cause which it was alleged existed would, in his opinion as a medical man, be sufficient to produce a condition which it was claimed resulted from this cause."
My Brother does not think that the Jones Case excludes an opinion by an expert as to the ultimate fact to be determined by the jury. The Jones Case, in my opinion, is directly to the point, and I am confirmed in this by an examination of the record, and my view of that case is shared by all text writers and digests on the subject of expert opinion evidence, published since that holding.
The present condition of plaintiff's leg is easily traced to the break, but whether the present condition is the result of malpractice or otherwise was an issue of fact for the jury and not of science for medical experts.
In Justis v. Union Mutual Casualty Co., — Iowa, — (244 N.W. 696), the ultimate fact in issue was whether disability of the plaintiff resulted from stomach ulcers or whether his disability was from bodily injuries. That case is directly in point, and I
make liberal quotations therefrom. The court held, quoting syllabus (N.W.):
"Admission of expert testimony by medical witnesses in respect to their opinion as to the cause of insured's condition held erroneous as invading province of jury.
"Expert may not be permitted to invade province of jury and express opinion as to ultimate facts."
The court stated:
" 'The general rule prevailing in this State is to the effect that such a question is not proper, for it permits the witness to decide the whole case, and leaves nothing for the jury to do except to believe or disbelieve the witness and render its verdict accordingly.' * * *
"In Eclipse Lumber Co. v. Davis, 196 Iowa, 1349, 1364
(195 N.W. 337, 343), this court said: 'But it is a well-recognized rule that an expert cannot be permitted to express an opinion on the ultimate question to be determined by the jury, and which must inhere in the verdict.' * * *
"In Budde v. National Travelers Benefit Association,184 Iowa, 1219, 1226 (169 N.W. 766, 769), this court said: 'Of course, an expert may not express an opinion as to what produced the kink in the bowel, as was, in substance, asked Dr. Smith, for that was precisely what the jury were to determine, and was not the subject of expert evidence.' * * *
"In Sever v. Railway Co., 156 Iowa, 664, 668 (137 N.W. 937,938, 44 L.R.A. [N. S.] 1200), this court, after citing many cases, said in reference to medical testimony: 'These cases and many others which might be cited draw a sharp distinction between a question calling for an opinion by an expert as to what might or might not have caused an injury and one calling for an opinion as to what in fact did cause it.' "
Also "In Martin v. Des Moines Edison Light Co.,131 Iowa, 724, 739 (106 N.W. 359, 364), this court said: 'It is an accepted rule that, while experts may testify as to what in their opinion may or may not have been the cause of a given result or condition, it is not permissible for them to give their opinion as to the ultimate fact which the jury is organized to determine.' * * *
"In Sachra v. Town of Manilla, 120 Iowa, 562, 567
(95 N.W. 198,
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April 4, 1932, in a malpractice case against defendant Winter, in which present counsel represented the parties and argued the question, this court held that it was error to do the identical thing my Brother now sanctions. DeHaan v. Winter,258 Mich. 293. The question was then fully briefed, argued orally by present counsel, considered by the court, and no rehearing was sought. Counsel for plaintiff now urges error in our former holding.
Expert opinion evidence is an exception carved out of the general rule confining a witness to a relation of facts, and is usually accomplished by means of hypothetical questions.
Upon the issue of whether defendants were guilty of malpractice by commission or omission the expert
could and did give opinion evidence. Upon the ultimate issue of whether plaintiff's condition resulted solely from malpractice, the expert should not have, but did give his conclusion as to a fact, not necessarily following malpractice, and in dispute. When a result may or may not be occasioned by malpractice, an expert medical witness invades the province of the jury when permitted to go beyond stating that it could, and in saying that it did, occasion the result. Such an opinion is but the private judgment of the witness and not competent evidence. Whether the alleged malpractice could occasion the result complained of was one of science only. Whether malpractice did occasion such result was in controversy, and, therefore, not one of mere science. When the facts are admitted and not in dispute, the question, if answered, may be considered one of science. But when a result could have been occasioned by one of two or more causes, the ultimate fact of which cause occasioned the result is for determination by the jury, and a medical expert may not, in case of conflicting evidence, invade the province of the jury and testify that the result was in fact occasioned by one cause only.
Rules of evidence should have stability. The rule violated in this case was early announced by this court, repeatedly followed, supported by the weight of authority, has led to no injustice, and has kept medical experts from invading the province of the jury and should be maintained.
My Brother's opinion overrules Hitchcock v. Burgett, 38 Mich. 501; People v. Hare, 57 Mich. 505; Jones v. Village ofPortland, 88 Mich. 598 (16 L.R.A. 437); In re Harris' Estate,247 Mich. 690; DeHaan v. Winter, supra. The present rule is supported by the admitted weight of authority.
In Jones v. Village of Portland, supra, the ultimate issue was whether claimed injuries were caused by a fall. In the case at bar the ultimate issue was whether plaintiff's disability was caused by malpractice.
In Lacas v. Railway, 92 Mich. 412, 417, it was said of medical opinion testimony:
"The testimony given in answer to the above-quoted question was proper, as showing the character of the cause which might have produced the injury. The question did not, as was the case in Jones v. Village of Portland, 88 Mich. 598
(16 L.R.A. 437), call for the opinion of the witness on the whole case. The extent to which the ruling went was to permit a doctor to state whether a cause which it was alleged existed would, in his opinion as a medical man, be sufficient to produce a condition which it was claimed resulted from this cause."
My Brother does not think that the Jones Case excludes an opinion by an expert as to the ultimate fact to be determined by the jury. The Jones Case, in my opinion, is directly to the point, and I am confirmed in this by an examination of the record, and my view of that case is shared by all text writers and digests on the subject of expert opinion evidence, published since that holding.
The present condition of plaintiff's leg is easily traced to the break, but whether the present condition is the result of malpractice or otherwise was an issue of fact for the jury and not of science for medical experts.
In Justis v. Union Mutual Casualty Co., — Iowa, — (244 N.W. 696), the ultimate fact in issue was whether disability of the plaintiff resulted from stomach ulcers or whether his disability was from bodily injuries. That case is directly in point, and I
make liberal quotations therefrom. The court held, quoting syllabus (N.W.):
"Admission of expert testimony by medical witnesses in respect to their opinion as to the cause of insured's condition held erroneous as invading province of jury.
"Expert may not be permitted to invade province of jury and express opinion as to ultimate facts."
The court stated:
" 'The general rule prevailing in this State is to the effect that such a question is not proper, for it permits the witness to decide the whole case, and leaves nothing for the jury to do except to believe or disbelieve the witness and render its verdict accordingly.' * * *
"In Eclipse Lumber Co. v. Davis, 196 Iowa, 1349, 1364
(195 N.W. 337, 343), this court said: 'But it is a well-recognized rule that an expert cannot be permitted to express an opinion on the ultimate question to be determined by the jury, and which must inhere in the verdict.' * * *
"In Budde v. National Travelers Benefit Association,184 Iowa, 1219, 1226 (169 N.W. 766, 769), this court said: 'Of course, an expert may not express an opinion as to what produced the kink in the bowel, as was, in substance, asked Dr. Smith, for that was precisely what the jury were to determine, and was not the subject of expert evidence.' * * *
"In Sever v. Railway Co., 156 Iowa, 664, 668 (137 N.W. 937,938, 44 L.R.A. [N. S.] 1200), this court, after citing many cases, said in reference to medical testimony: 'These cases and many others which might be cited draw a sharp distinction between a question calling for an opinion by an expert as to what might or might not have caused an injury and one calling for an opinion as to what in fact did cause it.' "
Also "In Martin v. Des Moines Edison Light Co.,131 Iowa, 724, 739 (106 N.W. 359, 364), this court said: 'It is an accepted rule that, while experts may testify as to what in their opinion may or may not have been the cause of a given result or condition, it is not permissible for them to give their opinion as to the ultimate fact which the jury is organized to determine.' * * *
"In Sachra v. Town of Manilla, 120 Iowa, 562, 567
(95 N.W. 198, 200), this court said: "What in fact causes a wound or injury is a question for the jury, but what might or might not have caused it is a matter of expert testimony.'
"To further quote from our unbroken line of cases on the subject would unduly extend this opinion. The foregoing cases announce the definite and certain rule which has obtained in this State for many years. It has been announced in scores of cases and is well understood by the great majority of the bench and bar. It is based on sound reasoning and works substantial justice. It is completely in harmony with our system of jurisprudence.
"In a case of this kind, it may become highly important that an expert shall enlighten the jury upon subjects of a technical or scientific character. The expert may be permitted, under certain circumstances, to express an opinion as to whether, in his judgment, a certain condition, arising in a scientific or technical field, may have been brought about from certain causes, but never may the expert be permitted to invade the province of the jury and express any opinion as to the ultimate facts to be determined by the jury. This rule has so often been announced by this and other courts that further discussion seems unnecessary."
I am not impressed by the reasoning that, because an expert witness may be cunning enough to transgress a rule of evidence, the rule should be leveled to the grade of the transgressor. The rule in the DeHaan Case, supra, either applies or has no application
at all. If it applies it should control. What is meant by confining the rule there applied to its proper sphere? What is that sphere? There we held the opinion was incompetent. Here, by confining the rule there applied "to its proper sphere," my Brother holds the opinion competent. If this prevails, what is the rule from now on?
In cases of insanity, mental competency, etc., the expert is not passing upon the cause but upon a condition evidenced by manifestations. In the case at bar, the condition of plaintiff's leg is unquestioned, but the cause of that condition may have been occasioned by malpractice or otherwise, and an opinion by an expert that it was caused by malpractice is a weighing of evidence by the expert and an expression of the result. On questions of science or professional skill one may be an expert, but on a question of fact as to whether one rather than another cause produced a condition, he is not permitted to venture his conclusion.
Every text writer on the subject of expert opinion evidence states that the weight of authority excludes such testimony as here admitted, and practically all cite Jones v. Village ofPortland, supra, as a leading authority on the subject.
"As the opinion evidence rule is intended to provide against the mischief of invasion of the province of the jury, a court should as far as possible exclude the inference, conclusion, or judgment of a witness as to the ultimate fact in issue, even though the circumstances presented are such as might warrant a relaxation of the rule excluding opinion but for this circumstance." 22 C. J. p. 502.
In 22 C. J. p. 666, it is said of an expert medical witness:
"Statements have also been received from such a witness as to whether certain detailed occurrences
would be a natural, sufficient, probable, or possible cause of a certain physical result, or of death, although the witness cannot state his opinion whether they actually produced it" —
citing, among other authorities, Jones v. Village of Portland,supra, and People v. Hare, 57 Mich. 505.
The following from 3 Chamberlayne, Modern Law of Evidence, § 2495:
"For the protection of the province of the jury, it is a general rule that an expert cannot be asked to decide as to the existence of a fact which is controverted upon the evidence. * * * It is the province of the witness to determine what,assuming certain facts to be true, they mean in terms of the science, art, trade or calling with which the witness is familiar. * * * The skilled witness testifying as an expert will not be allowed to declare his judgment as to how far the evidence in the case establishes the existence of a given fact. * * * All this is for the jury."
3 Chamberlayne, Modern Law of Evidence, § 1999:
"A reasonable protection of the province of the jury requires that except in case of an adequate forensic necessity, the skilled medical observer should not be permitted to take the step from announcing possible or probable causes of observed results to declaring actual. He may properly state what could or might have caused the injury, not what did so."
The following from 3 Jones, Commentaries on Evidence (2d Ed.), § 1321:
"Whatever liberality may be allowed in calling for the opinions of experts, such witnesses must not be permitted to usurp the province of the court and jury by drawing those conclusions of law or fact upon which the decision of the case depends. Although
this view has been earnestly criticized, it is sustained by the undoubted weight of authority. It is, moreover, founded in practical necessity as well as theory; for in many cases trials would become farcical if zealous experts were allowed to express direct opinions upon the very issue to be tried."
"The object of all questions to experts should be to obtain their opinion as to the matter of skill or science which is in controversy, and at the same time to exclude their opinions as to the effect of the evidence in establishing controverted facts." 3 Jones, Commentaries on Evidence (2d Ed.), § 1323.
In Kimbrough v. Railway Co., 272 Ill. 71 (111 N.E. 499), the court stated:
"A physician may be asked whether the facts stated in a hypothetical question are sufficient, from a medical or surgical point of view, to cause and bring about a certain condition or malady, or he may be asked whether or not a given condition or malady of a person may or could result from and be caused by the facts stated in the hypothetical question, but he should not be asked whether or not such facts did cause and bring about such condition or malady."
I do not accept my Brother's postulate that, because the jury may disregard such opinion evidence "there is no real invasion of the functions of the jury." Rules of evidence are intended to keep expert witnesses within bounds. Suppose the jury accepts the ipse dixit of the witness and shifts the ultimate result to his conclusion, then there is an accomplished invasion without record or remedy.
In principle, the rule which has so long prevailed in this State is right, and the judgment should be reversed, with costs to defendants.
McDONALD, C.J., and CLARK, POTTER, and SHARPE, JJ., concurred with WIEST, J.