Stanek v. Bergeon

Michigan Court of Appeals

Stanek v. Bergeon

279 N.W.2d 296, 89 Mich. App. 283, 1979 Mich. App. LEXIS 2070

CourtMichigan Court of Appeals

DecidedFebruary 22, 1979

DocketDocket 77-3641

StatusPublished

Cited by13 cases

This text of 279 N.W.2d 296 (Stanek v. Bergeon) 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

Stanek v. Bergeon, 279 N.W.2d 296, 89 Mich. App. 283, 1979 Mich. App. LEXIS 2070 (Mich. Ct. App. 1979).

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Opinions

Per Curiam.

Plaintiff, William Stanek, filed a complaint against defendant Milton Bergeon seeking damages for medical malpractice. Plaintiff also sought damages from defendant Mason General Hospital on an agency theory. Plaintiff appeals the jury verdict of no cause of action as to each defendant.

On appeal plaintiff raises several issues. In his discussion of five of the nine issues raised plaintiff cites no authority. Such a practice has been held sufficient to preclude appellate review. Kucken v Hygrade Food Products Corp, 51 Mich App 471; 215 NW2d 772 (1974).

We find no clear abuse of discretion in the trial court’s refusal to reread certain testimony of X-ray technician John Twichell. Klein v Wagenheim, 379 Mich 558; 153 NW2d 663 (1967). Although Mr. Twichell’s testimony as to what he himself routinely did was perhaps admissible because it was based on his own personal knowledge and observations, it was not admissible to establish the standard of care to which Dr. Bergeon was bound. Plaintiff presented no expert medical testimony that the failure to take immediate post-casting X-rays was not in accord with customary practice of [286]*286skilled doctors in the community practicing under similar conditions. Such expert medical testimony was an absolute prerequisite to plaintiff’s right to recover for alleged malpractice. Lince v Monson, 363 Mich 135; 108 NW2d 845 (1961), Siirila v Barrios, 398 Mich 576; 248 NW2d 171 (1976) (Coleman, J., concurring, 398 Mich 602; Williams, J., concurring, 398 Mich 611-612), Bivens v Detroit Osteopathic Hospital, 77 Mich App 478, 488; 258 NW2d 527 (1977). None of the recognized exceptions to this rule is applicable to the instant facts. Lince v Monson, supra, at 141-142, Haase v De-Pree, 3 Mich App 337, 346; 142 NW2d 486 (1966).

Nor do we find error in the trial court’s refusal to admit as substantive evidence a medical textbook offered by plaintiff. Such texts are admissible for impeachment purposes only. MRE 707; Bivens v Detroit Osteopathic Hospital, supra.

The trial court properly permitted Dr. Kent Wu to give his opinion as to the quality of care received by plaintiff. Groth v DeGrandchamp, 71 Mich App 439, 443; 248 NW2d 576 (1976), lv den 400 Mich 808 (1977). The burden of attacking the foundation for such opinions rested on plaintiff in cross-examination. Campbell v Charles J Rogers Construction Co, 58 Mich App 411, 416; 228 NW2d 398 (1975).

The court properly precluded plaintiff from expanding his theory of malpractice beyond what he had alleged in his complaint. Serafin v Peoples Community Hospital Authority, 67 Mich App 560, 565; 242 NW2d 438 (1976), lv den 397 Mich 880 (1976), Simonelli v Cassidy, 336 Mich 635, 644; 59 NW2d 28 (1953), GCR 1963, 111.1.

We have reviewed the remaining issues raised on appeal and find them to be without merit.

Affirmed. Costs to appellees.

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Per Curiam.

Plaintiff, William Stanek, filed a complaint against defendant Milton Bergeon seeking damages for medical malpractice. Plaintiff also sought damages from defendant Mason General Hospital on an agency theory. Plaintiff appeals the jury verdict of no cause of action as to each defendant.

On appeal plaintiff raises several issues. In his discussion of five of the nine issues raised plaintiff cites no authority. Such a practice has been held sufficient to preclude appellate review. Kucken v Hygrade Food Products Corp, 51 Mich App 471; 215 NW2d 772 (1974).

We find no clear abuse of discretion in the trial court’s refusal to reread certain testimony of X-ray technician John Twichell. Klein v Wagenheim, 379 Mich 558; 153 NW2d 663 (1967). Although Mr. Twichell’s testimony as to what he himself routinely did was perhaps admissible because it was based on his own personal knowledge and observations, it was not admissible to establish the standard of care to which Dr. Bergeon was bound. Plaintiff presented no expert medical testimony that the failure to take immediate post-casting X-rays was not in accord with customary practice of [286]*286skilled doctors in the community practicing under similar conditions. Such expert medical testimony was an absolute prerequisite to plaintiff’s right to recover for alleged malpractice. Lince v Monson, 363 Mich 135; 108 NW2d 845 (1961), Siirila v Barrios, 398 Mich 576; 248 NW2d 171 (1976) (Coleman, J., concurring, 398 Mich 602; Williams, J., concurring, 398 Mich 611-612), Bivens v Detroit Osteopathic Hospital, 77 Mich App 478, 488; 258 NW2d 527 (1977). None of the recognized exceptions to this rule is applicable to the instant facts. Lince v Monson, supra, at 141-142, Haase v De-Pree, 3 Mich App 337, 346; 142 NW2d 486 (1966).

Nor do we find error in the trial court’s refusal to admit as substantive evidence a medical textbook offered by plaintiff. Such texts are admissible for impeachment purposes only. MRE 707; Bivens v Detroit Osteopathic Hospital, supra.

The trial court properly permitted Dr. Kent Wu to give his opinion as to the quality of care received by plaintiff. Groth v DeGrandchamp, 71 Mich App 439, 443; 248 NW2d 576 (1976), lv den 400 Mich 808 (1977). The burden of attacking the foundation for such opinions rested on plaintiff in cross-examination. Campbell v Charles J Rogers Construction Co, 58 Mich App 411, 416; 228 NW2d 398 (1975).

The court properly precluded plaintiff from expanding his theory of malpractice beyond what he had alleged in his complaint. Serafin v Peoples Community Hospital Authority, 67 Mich App 560, 565; 242 NW2d 438 (1976), lv den 397 Mich 880 (1976), Simonelli v Cassidy, 336 Mich 635, 644; 59 NW2d 28 (1953), GCR 1963, 111.1.

We have reviewed the remaining issues raised on appeal and find them to be without merit.

Affirmed. Costs to appellees.

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279 N.W.2d 296, 89 Mich. App. 283, 1979 Mich. App. LEXIS 2070, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stanek-v-bergeon-michctapp-1979.

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