Frazier v. Hurd

157 N.W.2d 249, 380 Mich. 291, 1968 Mich. LEXIS 152

• Court: Michigan Supreme Court
• Decided: April 1, 1968
• Docket: Calendar 5, Docket 51,746
• Status: Published

Opinions

Souris, J.

This is a malpractice action against an osteopath. At conclusion of plaintiff’s proofs, the circuit judge directed a verdict of no cause of action. The Court of Appeals found error in the circuit judge’s ruling prohibiting plaintiff’s counsel from calling for cross-examination, under the statute cited in the margin,¹ an osteopath who assisted defendant in the surgical procedure out of which this action arises. It reversed for new trial. 6 Mich App 317. One other issue considered by the Court of Appeals, as to which it found no error, involved the circuit judge’s refusal to permit plaintiff to introduce testimony of an allopathic physician relating to the surgical procedures performed by defendant osteopath. On plaintiff’s application to this Court, we granted her leave to appeal so that we might review the Court of Appeals’ ruling on this latter issue. 379 Mich 765.

Defendant performed surgery upon plaintiff for removal of her right ovary. During the surgery, plaintiff’s right ureter was cut transversely while defendant was attempting to dissect the ovary from the ureter to which it had adhered. Defendant inserted a catheter into the opening in the ureter and then closed the opening with sutures. Defendant’s “operative report”, admitted in evidence as an exhibit, discloses that defendant had intended to leave a Penrose drain in place over the site of the ureteral repair, but “overlooked” doing so until the wound was completely closed.² Considering the repair of the ureter to be unusually secure, the defendant decided against reopening the abdomen to insert the drain. However, it was then discovered, by observation through a cystoscope passed into the bladder from the external genitalia, that the peristaltic action of the right ureter was expelling the catheter from the ureter. Thereupon, the catheter was removed with forceps, a Foley catheter was placed in the urinary bladder and the patient was returned to her hospital bed. Complications developed the following day resulting from a blockage of the ureter. On the second day after the surgery performed by defendant, an osteopathic specialist in urology operated upon plaintiff to repair the blocked ureter.

At trial, plaintiff called Dr. Clarence Youngstrom, an allopathic physician. During cross-examination on his qualification to testify as an expert witness in this case, Dr. Youngstrom stated that he knew nothing of the standards, procedures and techniques of osteopathic physicians. On redirect examination, plaintiff’s counsel asked him whether he was familiar with the standards or skill applied by osteopaths in performing operations such as was performed upon plaintiff. The circuit judge sustained defense counsel’s timely objection to the question on the basis of Dr. Youngstrom’s prior admissions that he was unfamiliar with osteopathic standards. Plaintiff’s counsel did not pursue that question further but, instead, asked the witness whether he had read the defendant’s “operative report”. Following an affirmative response by the witness to that question, defense counsel objected on the ground of materiality and the objection was sustained.

The colloquy between the circuit judge and counsel for the parties which then followed revolved not around the court’s last ruling but, rather, the ruling which preceded. Plaintiff’s counsel insisted that, notwithstanding his witness’ prior admissions that he was unfamiliar with osteopathic standards, he should have been allowed to testify whether he was familiar with the standards or skill applied by osteopaths in removing ovaries. In the jury’s absence plaintiff’s counsel on three occasions stated, in general terms only, what evidence he expected to elicit from Dr. Youngstrom:

“Mr. Gursten: The statement I want to make for the record, and as it was understood right from the beginning,.was that I was going to have a medical surgeon testify that the techniques, methods and details of an oophorectomy for an osteopathic school and the medical school are precisely the same. * * *

“Mr. Gursten: I would like to put on.the record now, that I intended to prove with this witness is the fact that the standards of the osteopathic surgeons and the medical surgeons were the same as it concerns oophorectomies. * * *

“Mr. Gursten: He would say that the method and technique of the osteopathic school of medicine and the medical school of medicine in the performance of an oophorectomy are precisely the same.”

Dr. Youngstrom, having already admitted on cross-examination and without qualification his unfamiliarity with osteopathic standards, could not thereafter be permitted on redirect to contradict his cross-examination testimony, even in part, in the face of defense counsel’s timely objection. It was not reversible error for the circuit judge to sustain the objection.

Thus thwarted, plaintiff’s counsel was unable to invoke an evidentiary exception to what he regards as the general rule concerning opinion testimony in malpractice cases. It seems to be his belief, a belief apparently shared by the Court of Appeals,³ that the general rule prohibits opinion testimony from a practitioner of one school of medicine regarding a defendant’s failure of compliance with the standards of another school solely because the witness is not a.practitioner of the school of medicine whose standards are in issue. From this premise, plaintiff’s counsel argues that Michigan should recognize, if it has not done so already in Bryant v. Biggs (1951), 331 Mich 64, at 74, an exception to that general rule when the standards of the two schools relating to the medical or surgical procedure involved in litigation are identical.

We do not read our precedents to preclude opinion testimony of compliance or failure of compliance with the standards of a defendant’s profession except 'only from a member of that profession. We never have addressed our decisional attention to this specific question.⁴ However, it is significant that on a number of occasions in which we have discussed opinon testimony in malpractice cases, we have suggested that opinions of one not a practitioner of defendant’s profession would have been admissible had there been a showing that the offered witness had knowledge of the applicable standards of the defendant’s profession. See, for example, Zoterell v. Repp (1915), 187 Mich 319, 330; Sima v. Wright (1934), 268 Mich 352, 356; Facer v. Lewis (1950), 326 Mich 702, 713, 714; and Pedler v. Emmerson (1951), 331 Mich 78.

It is true that other opinions of this Court sustain exclusion of opinion testimony in language so broad that it lends some credence to the claim that only a witness who practices defendant’s profession may give opinion testimony in a malpractice case. But, in none of those opinions is it suggested that the witness, not a practitioner of defendant’s profession, whose opinion testimony was excluded was knowledgeable about that profession's standards legally pertinent to the case. Perhaps understandably, a time-pressured Court tends to refer in its opinions only to those facts which are essential to the decision of the case at bar, leaving for another day and another case consideration of factors which might modify the decisional rule. Sometimes, indeed, decision is stated only in terms of the facts of the decided case while acknowledging tacitly that the rule of law applied is broader than required to be stated by the facts of the case being decided. Thus, in Janssen v. Mulder (1925), 232 Mich 183, at 190, this Court stated its decision in the following language : “It necessarily follows that such proof must be made by one engaged in treatment by similar methods to those employed by defendant.” However, at page 191, the Court cited a number of decisions from other States and said about them that “the conclusions reached were in harmony with the views we have expressed.”

Among the cases cited in Janssen are Martin v. Courtney (1899), 75 Minn 255 (77 NW 813); and Berkholz v. Benepe (1922), 153 Minn 335 (190 NW 800). In Martin and in Berkholz, the Minnesota supreme court considered the issue we now address and concluded that the knowledge possessed by the witness about the standards applicable to defendant’s profession, not simply the profession the witness practices or the school of healing he attended, is the significant factor in determining his qualification to express an expert’s opinion regarding defendant’s compliance or failure to comply with the standards of defendant’s own profession.

The most thoughtful consideration of the problem we have been able to find is Swanson v. Hood (1918), 99 Wash 506 (170 P 135), which relies in part upon Martin, supra. In Swanson, the Washington supreme court had this to say on the subject:

“Finally in this connection, it is contended that the deposition was inadmissible because the witness was an osteopath, whereas appellant belongs to the allopathic school. Appellant takes the broad position that a physician of one school is not competent to testify in a suit for malpractice or negligence of a physician of another school. Several decisions are cited which it is claimed support this view, but as we read them they hardly go that far. The rule is not that a physician of another school is not competent to testify, but that a defendant’s treatment is to be tested by the general doctrine of his own school, which is a very different thing. In other words, the standard of exclusion of evidence is not the school of the witness but the premises of his testimony. If the premises from which he testifies, that is to say, the criterions by which he measures defendant’s treatment, are those of defendant’s own school, the witness is not disqualified merely because he himself belongs to another school. Bowman v. Woods, 1 G. Greene (Iowa) 441; Force v. Gregory, 63 Conn 167 (27 A 1116, 22 LEA 343, 38 Am St Rep 371); Martin v. Courtney, 75 Minn 255 (77 NW 813); Patten v. Wiggin, 51 Me 594 (81 Am Dec 593); Grainger v. Still, 187 Mo 197 (85 SW 1114, 70 LEA 49).

“In qualifying, the witness McFadden stated he had studied operative surgery in college and that he had studied certain works of the late Dr. John B. Murphy, of Chicago, a recognized authority on operative surgery. Appellant himself admitted that Dr. Murphy was one of the foremost authorities on operative surgery in the world. The witness also testified that he had studied certain English works treating specifically of the Lane plate method. Clearly the basis or criterion by which the witness measured appellant’s use of this method was that of appellant’s own school. The distinction which we have attempted to make was covered by an instruction of the trial court as follows:

“ ‘In this connection yon are also instructed that if yon find that there is more than one branch or school of physicians and surgeons which applies or uses different methods in the treatment of bone fractures, to one of which schopls the defendant belongs, he is only expected to follow the method ordinarily followed by the school to which he belongs and the question of his sldllfulness, carelessness, or negligence is not to he governed by the beliefs or practices of any other school of physicians or surgeons.’

“As limited by this instruction, the testimony of the witness, though an osteopath, was clearly competent.

“Nor are we impressed with the claim that this witness was disqualified because he had no right to practice the allopathic system and has only a theoretical knowledge of that system. So long as the opinion of the medical expert is his own it is admissible, though it be based on the study of books rather than on his own experience. Jones on Evidence (2d ed), § 368; People v. Phelan, 123 Cal 551 (56 P 424); Finnegan v. Fall River Gas Works Co., 159 Mass 311 (34 NE 523); Hardiman v. Brown, 162 Mass 585 (39 NE 192); People v. Thacker, 108 Mich 652. Even a nurse is competent to testify as an expert from her own observation as to whether a given operation was performed in the usual manner and with the usual care. In fact, in this case, appellant himself called the nurse to negative respondent’s charge of surgical uncleanliness and excessive force and to say that appellant used no greater force than the usual skilled manipulation of a surgeon. Such evidence is competent; its weight is for the jury. So here, when it once appeared that the osteopathic physician was basing his testimony on the tenets of appellant’s own school, his testimony was admissible; its weight was for the jury. The admission of this testimony then became largely a matter for the discretion of the trial court, as in other cases of expert testimony.” 99 Wash 506, at 514-516.

The reasoning of the Washington court in Swanson is persuasive to us, is not contrary to any of our prior decisions, and is consistent with statements contained in some of our opinions seemingly recognizing the rule stated in Sioanson. Accordingly, it is our conclusion that in malpractice cases the opinion testimony of a witness, knowledgeable on the subject of the standards applicable to defendant’s profession and concerning defendant’s compliance or noncompliance with those standards, is admissible notwithstanding the witness does not practice the same profession or belong to the same school of healing as does defendant.

Having so concluded,' however, does not help this plaintiff. Her witness, Dr. Youngstrom, ah allo-pathic physician, expressly denied any knowledge of the standards applicable to osteopathy, defendant’s profession. Thus, he was disqualified from testifying as an expert, under the general rule, whether defendant complied with those osteopathic standards by which the law must determine the issue of his ■asserted negligence.

Nor do we believe Dr. Youngstrom’s testimony was admissible under the “exception” to which plaintiff refers- The “exception” is described, in this Court’s quotation, in Bryant v. Biggs, supra, at page 74, from 41 Am Jur, Physicians and Surgeons, § 130, p 243, as follows:

“ 'This rule does not, however, exclude the testimony of physicians of other schools or experts in other lines when that testimony bears on a point as to' which the principles of the two schools concur, such as matters of diagnosis, the methods and dangers of the use of X-ray or other electric or me.chanical appliances in common use by the several schools, or the existence of a condition that should be recognized by any physician of any school. There is authority, however, which emphasizes the point that the tenets and standards of treatment which form the premises for the testimony must he so substantially the same on the point in issue as to afford a true test.’ ”

Dr. Toungstrom’s cross-examination admissions effectively precluded, defendant’s timely objection considered, his subsequent claim of expert knowledge regarding any osteopathic standards and principles, as we have noted. Thus, absent any other evidence of such osteopathic standards and principles in the record presented on this appeal for our review, there was no possible evidentiary basis for Dr. Youngstrom to testify, as plaintiff’s counsel said he was prepared to do, that the standards of allop-athy and osteopathy for removal of ovaries were identical. In short, this record does not permit our ruling that the circuit judge should have allowed Dr. Youngstrom’s offered testimony either under the general rule as above stated or as an exception to the general rule.

The Court of Appeals’ judgment of reversal and remand for new trial is affirmed for the reasons stated. Costs may be taxed by defendant.

Adams and BeeNNAN, JJ., concurred with Souris, J. T. M. KavaNagh, J., concurred in the result.

1 CLS 1961, § 600.2161 (Stat Ann 1962 Rev § 27A.2161).

2 Plaintiff! did not preserve for appellate review the question whether the defendant’s “operative reporj;” contained evidence of negligence sufficient in itself to take that issue to the jury. Accordingly, we express no opinion thereon.

3 “In light of the increased similarity between osteopathic' and medical procedures and in view of their mergers in some jurisdictions, this Court finds it difficult to subscribe to [Bryant v. Biggs (1951); 331 Mich 64]. However, we are bound by its holding which effectively defeats plaintiff’s claim.” 6 Mich App 317, 319,

4 Other courts have. The conclusions reached are not uniform. Some courts restrict opinion witnesses to practitioners of the same sehool as defendant. Others focus attention, instead, upon the witness’ ’ asserted knowledge of the standards applicable to defendant’s profession. 1 Still others admit opinions from nonpraetitioners of defendant’s profession, but who are knowledgeable about its standards, as an exception to the more limited general rule. The cases are assembled in 85 ALR2d 1022.