Jalaba v. Borovoy

520 N.W.2d 349, 206 Mich. App. 17
CourtMichigan Court of Appeals
DecidedJune 20, 1994
DocketDocket 141440
StatusPublished
Cited by20 cases

This text of 520 N.W.2d 349 (Jalaba v. Borovoy) 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
Jalaba v. Borovoy, 520 N.W.2d 349, 206 Mich. App. 17 (Mich. Ct. App. 1994).

Opinions

R. J. Danhof, J.

Plaintiff appeals as of right from the judgment entered by the trial court on a jury verdict of no cause of action in favor of defendant Dr. Matthew Borovoy, a board-certified podiatrist.1 Plaintiff brought a medical malpractice action against Dr. Borovoy and the other defendants based on their unsuccessful attempt to extract a fragment of a sewing needle that had lodged in her foot. Dr. Borovoy treated plaintiff at his office located in Oak Park, Michigan. Among other errors raised on appeal, plaintiff claims the trial court erred in instructing the jury to apply a local standard of care as opposed to a national [19]*19standard of care to Dr. Borovoy’s conduct. We affirm.

The trial court initially ruled during the trial that a board-certified podiatrist was to be held to a national standard of care, thereby finding plaintiffs expert podiatrist from California, Dr. Anthony Dintcho, qualified to testify. However, on the ninth day of trial, before closing arguments, the court ruled that a podiatrist is subject to the same standard of care as other general practitioners, and later instructed the jury over plaintiffs objection:

When I use the words "professional negligence” or "malpractice” with respect to the Defendant Matthew Borovoy’s conduct, I mean the failure to do something which a podiatrist who is board certified of ordinary learning, judgment or skill in this community or a similar one, would do, or the doing of something which a podiatrist who is board certified, of ordinary learning, judgment or skill, would not do under the same or similar circumstances you find to exist in this case.
It is for you to decide, based upon the evidence, what the ordinary podiatrist who is board certified of ordinary learning, judgment or skill would do or would not do under the same or similar circumstances. [Emphasis added; see SJI2d 30.01.]

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On appeal, plaintiff first contends that the trial court erred in instructing the jury to apply a local community standard of care as opposed to a nationwide standard of care. We disagree.

A malpractice action may be maintained against any state-licensed professional.2 MCL 600.2912a; [20]*20MSA 27A.2912(1) provides that in a malpractice action, the plaintiff has the burden of proving:

(a) The defendant, if a general practitioner, failed to provide the plaintiff the recognized standard of acceptable professional practice in the community in which the defendant practices or in a similar community, and that as a proximate result of the defendant failing to provide that standard, the plaintiff suffered injury.
(b) The defendant, if a specialist, failed to provide the recognized standard of care within that specialty as reasonably applied in light of the facilities available in the community or other facilities reasonably available under the circumstances, and as a proximate result of the defendant failing to provide that standard, the plaintiff suffered an injury.

Restated, the applicable standard of care for general practitioners is that of the local community or a similar community, whereas the standard of care for specialists is nationwide. Bahr v Harper-Grace Hosp, 198 Mich App 31, 34; 497 NW2d 526 (1993); Thomas v McPherson Community Health Center, 155 Mich App 700, 708; 400 NW2d 629 (1986).

This Court must decide the applicable standard of care for podiatrists for purposes of professional malpractice. MCL 333.18001; MSA 14.15(18001) defines the practice of podiatric medicine as follows:

(a) "Podiatrist” means a physician and surgeon licensed under this article to engage in the practice of podiatric medicine and surgery.
(b) "Practice of podiatric medicine and surgery” means the examination, diagnosis, and treatment of abnormal nails, superficial excrescenses occurring on the human hands and feet, including corns, warts, callosities, and bunions, and arch troubles or the treatment medically, surgically, [21]*21mechanically or by physiotherapy of ailments of human feet or ankles as they affect the condition of the feet. It does not include amputation of human feet, or the use or administration of anesthetics other than local.

A podiatrist receives four years of training regarding the foot at a school of podiatry, and may subsequently engage in an optional internship. Podiatric medicine does not have areas of specialties within the general field of practice.

On the other hand, medical doctors or osteopathic physicians attend medical or osteopathic schools for fours years, where they are instructed in all the general areas of medicine. Upon completion of an internship, they are eligible to become licensed as general practitioners. However, a person desiring to become a specialist in a particular field of medicine proceeds into a residency for a period, generally four years. During the residency, the doctor or physician receives advance training in the particular field. Upon completion, the doctor or physician must pass a nationally administered examination. Afterward, the doctor or physician is a board-certified specialist.

We hold that the local standard of care is applicable to podiatrists in light of our finding that a podiatrist is not a specialist under MCL 600.2912a; MSA 27A.2912(1). As this Court previously has recognized, a podiatrist is not a medical or osteopathic doctor who specializes in the treatment of the foot, but rather is a limited practitioner authorized to treat ailments of the human foot. See DeHart v Bd of Podiatry, 97 Mich App 307, 314; 293 NW2d 806 (1980)(a licensure action brought against a podiatrist). We are not persuaded by plaintiff’s argument that Dr. Borovoy is a specialist because his practice focuses on a certain part of [22]*22the body and is board-certified by a national organization. A doctor or physician is a specialist on the basis of advanced training and expertise in a particular field of general medicine. As the Michigan Supreme Court has explained, a specialist is measured by a national standard because:

The reliance of the public upon the skills of a specialist and the wealth and sources of his knowledge are not limited to the geographic area in which he practices. Rather his knowledge is a specialty. He specializes so that he may keep abreast. Any other standard for a specialist would negate the fundamental expectations and purpose of a specialty. [Naccarato v Grob, 384 Mich 248, 253-254; 180 NW2d 788 (1970).]

Accordingly, the trial court did not err in instructing the jury to apply a local community standard of care to Dr. Borovoy’s conduct.

Additionally, plaintiff argues that she was prejudiced by the court’s earlier erroneous ruling that a national standard would be applied because her experts had testified regarding the national standard of care. We disagree. Although plaintiff learned of the court’s ruling before closing arguments, she did not move to reopen proofs or move for a mistrial, but took her chances with the jury. Moreover, this Court will not reverse on the basis of prejudice where plaintiff’s counsel urged the erroneous ruling during the trial.3 See Vannoy v City of Warren, 386 Mich 686; 194 NW2d 304 (1972).

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Jalaba v. Borovoy
520 N.W.2d 349 (Michigan Court of Appeals, 1994)

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Bluebook (online)
520 N.W.2d 349, 206 Mich. App. 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jalaba-v-borovoy-michctapp-1994.