Carbonell v. Bluhm

318 N.W.2d 659, 114 Mich. App. 216
CourtMichigan Court of Appeals
DecidedMarch 17, 1982
DocketDocket 52494
StatusPublished
Cited by21 cases

This text of 318 N.W.2d 659 (Carbonell v. Bluhm) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carbonell v. Bluhm, 318 N.W.2d 659, 114 Mich. App. 216 (Mich. Ct. App. 1982).

Opinions

D. C. Riley, P.J.

Plaintiff appeals from a judgment of no cause of action entered against him in circuit court. The claim brought by plaintiff alleges professional negligence against the individual defendants for their failure to diagnose plaintiffs dislocated shoulder when he sought treatment at defendant hospital’s emergency room.

In 1972, plaintiff, a physician specializing in obstetrics and gynecology, experienced physical difficulties and discovered the existence of cardiac problems. Surgery to replace a heart valve was successfully conducted in early 1973, after which plaintiff resumed his practice. In July of 1973, plaintiff suffered a stroke but after treatment regained muscle usage and nearly complete sensation in his left arm. After the stroke, plaintiff no longer practiced medicine but acted as a surgical assistant to fellow doctors.

On February 2, 1974, plaintiff lost consciousness [220]*220while at home and fell to the floor. He was taken to defendant hospital’s emergency room and then transferred to the cardiology floor. Plaintiff complained of pain in his left shoulder and X-rays were taken which showed no positive injury. Therefore, defendant Garcia’s tentative diagnosis was that plaintiff had probably bruised or sprained his shoulder. The shoulder pain continued after plaintiff’s discharge from the hospital and he was unable to achieve a full range of movement of the left arm. The pain and problems persisted, thus, plaintiff pursued further medical treatment from defendant Garcia who referred plaintiff to defendant Bluhm, a specialist in rheumatology. Plaintiff was forced to discontinue his work as a surgical assistant.

On April 27, 1974, plaintiff was admitted to defendant hospital for further treatment. Dr. Bluhm changed the anti-inflammatory medication and ordered X-rays. The new medication had reduced the swelling in the shoulder and, on the basis of the X-rays, Dr. Bluhm suspected a hidden posterior dislocation of the shoulder. This diagnosis was confirmed and a closed reduction procedure was conducted. The plaintiff was discharged the following day. He testified that he experienced permanent pain and restriction of movement in the shoulder.

I

Plaintiff contends that the court committed error in failing to grant him a mistrial on the basis of defense counsel’s closing argument. The comments objected to were that allegedly plaintiff’s counsel had withheld evidence from his expert and that "obviously something is going on” between plaintiff’s counsel’s firm and plaintiff’s expert. -

[221]*221One of plaintiffs experts was unable to come to Michigan for the trial and, therefore, had to be deposed in Massachusetts. Defendant objected to the deposition and filed an application for emergency leave to appeal. This Court reached its decision against defendant late Friday, December 14, 1979. The plaintiff then sought a trial court order allowing the X-rays on exhibit to be taken to Massachusetts for the deposition. However, because of the lateness of the hour, no circuit judge was available to sign the order and defendants’ counsel refused to stipulate to taking the X-rays to the deposition. Plaintiff thus argues that, because defense counsel would not stipulate to the taking of the X-rays already introduced into evidence to Massachusetts to allow the expert to review them, defense counsel’s argument that plaintiff was withholding evidence from his own expert was incorrect and prejudicial.

This argument is difficult only in its facts and not the law. The appellate briefs must be compared with the more than 300-page trial transcript to resolve the confusion. Defense counsel’s closing argument that plaintiff did not provide the X-rays to his expert refers not only to the deposition of December 15, 1979, but to plaintiffs failure to provide the X-rays to his expert during the entire course of the expert’s preparation for the case. Furthermore, the record shows that, in his initial closing argument, plaintiffs counsel made allegations as to defendants’ part in the nonproduction of the X-rays. These allegations against defendants introduced the subject of nonproduction of the X-rays and "opened the door” to comment on the subject by defense counsel in his closing argument. Allowance of statements made by counsel in closing argument will not be an error if the state-[222]*222merits are made in response to arguments made by opposing counsel. Haynes v Monroe Plumbing & Heating Co, 48 Mich App 707, 721; 211 NW2d 88 (1973).

The plaintiff also objects to defense counsel’s comments concerning plaintiffs experts and his counsel’s firm. The trial court denied plaintiffs motion for a mistrial based on these alleged errors. The denial of a motion for a mistrial will not be reversed unless it is shown that the denial constituted an abuse of discretion. Flinn v Sun Oil Co, 96 Mich App 59, 62; 292 NW2d 484 (1980), People v Coffman, 45 Mich App 480, 487; 206 NW2d 795 (1973).

The Supreme Court defined "abuse of discretion” in Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959), in the following manner:

"[A]n abuse of discretion involves far more than a difference in judicial opinion between the trial and appellate courts. The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an 'abuse’ in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.”

Having reviewed the record, we conclude that the trial court did not abuse its discretion.

II

The plaintiff alleges that the trial court commit[223]*223ted reversible error in denying his motion for a mistrial in response to defense counsel’s reference to plaintiffs income tax returns during closing arguments.

Defense counsel had repeatedly tried to have plaintiff produce his income tax returns before trial, which plaintiff failed to do. At trial, the court denied defense counsel’s request for an instruction concerning the tax forms. Defendants were informed by the trial court that the failure to produce the tax records could be used when plaintiff made a claim of lost wages. The judge said: "You may argue to the jury the lack of proofs, as you see it, of earning capacity, but the request to instruct is refused.”

During closing argument, defense counsel began describing his attempts at obtaining plaintiffs income tax returns. This was immediately objected to on the ground that this was not in evidence. Defense counsel continued mentioning his motion to produce the records to which plaintiffs counsel also objected. Both objections were sustained. Defense counsel then stated that he had tried to get the records and that plaintiffs counsel had not shown the income tax records to the jury. Again, plaintiffs counsel objected. At this point, the trial judge excused the jury and explained that defense counsel could properly comment on the lack of plaintiffs proof with respect to income. loss but that he could not go through the details of the pretrial procedures undertaken to have the records produced. Defense counsel then stated that he would limit himself to comment consistent with the instruction.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

David Oaks v. Timothy R. Chamberlain, M.D.
76 N.E.3d 941 (Indiana Court of Appeals, 2017)
Cassandra Harris v. Genesee County
Michigan Court of Appeals, 2017
Condra v. Atlanta Orthopaedic Group P.C.
681 S.E.2d 152 (Supreme Court of Georgia, 2009)
Wiley v. Henry Ford Cottage Hospital
668 N.W.2d 402 (Michigan Court of Appeals, 2003)
Cudnik v. William Beaumont Hospital
525 N.W.2d 891 (Michigan Court of Appeals, 1994)
May v. William Beaumont Hospital
448 N.W.2d 497 (Michigan Court of Appeals, 1989)
Heins v. Detroit Osteopathic Hospital Corp.
389 N.W.2d 141 (Michigan Court of Appeals, 1986)
Slayton v. Michigan Host, Inc
376 N.W.2d 664 (Michigan Court of Appeals, 1985)
Francisco v. Manson, Jackson & Kane, Inc
377 N.W.2d 313 (Michigan Court of Appeals, 1985)
Wincher v. City of Detroit
376 N.W.2d 125 (Michigan Court of Appeals, 1985)
Van Every v. Southeastern Michigan Transportation Authority
369 N.W.2d 875 (Michigan Court of Appeals, 1985)
Bishop v. St John Hospital
364 N.W.2d 290 (Michigan Court of Appeals, 1984)
Joba Const. Co., Inc. v. Burns & Roe, Inc.
329 N.W.2d 760 (Michigan Court of Appeals, 1982)
Harbenski v. Upper Peninsula Power Co.
325 N.W.2d 785 (Michigan Court of Appeals, 1982)
Carbonell v. Bluhm
318 N.W.2d 659 (Michigan Court of Appeals, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
318 N.W.2d 659, 114 Mich. App. 216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carbonell-v-bluhm-michctapp-1982.