STANEK v. BERGEON

Docket No. 77-3641.

89 Mich. App. 283 (1979)

279 N.W.2d 296

STANEK v. BERGEON

Michigan Court of Appeals.

Decided February 22, 1979.


Attorney(s) appearing for the Case

Newman & Mackay, for plaintiff.

Fraser, Trebilcock, Davis & Foster (by Eugene F. Townsend, Jr. and Michael H. Perry), for Milton C. Bergeon, M.D.

Kitch & Suhrheinrich, P.C. (by Gregory Drutchas and Lawrence J. Acker), for Mason General Hospital.

Before: D.F. WALSH, P.J., and T.M. BURNS and D.E. HOLBROOK, JR., JJ.


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 N.W.2d 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 N.W.2d 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 skilled 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 N.W.2d 845 (1961), Siirila v Barrios, 398 Mich. 576; 248 N.W.2d 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 N.W.2d 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 DePree, 3 Mich.App. 337, 346; 142 N.W.2d 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 N.W.2d 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 N.W.2d 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 N.W.2d 438 (1976), lv den 397 Mich. 880 (1976), Simonelli v Cassidy, 336 Mich. 635, 644; 59 N.W.2d 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.

T.M. BURNS, J. (dissenting).

I cannot fully agree with the majority's treatment of the issue regarding the jury's request to have the testimony of X-ray technician Twichell repeated. The majority states:

"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."

As I view the problem, the majority has not dealt with the real question presented.

Twichell testified without objection:

"Q. Do you ever remember taking an X-ray of Mr. Stanek's arm after the cast was applied and before February 12th, 1973?

"A. Yes, I did.

"Q. Do you know where that is?

"A. What?

"Q. Is that X-ray here?

"A. I don't know. I — I don't know. I saw one with a cast on the 12th.

"Q. No, I mean did you ever take an X-ray of Mr. Stanek's arm after the cast was applied on 2-10-73?

"A. Oh, oh, okay.

"Q. And before February 12th, 1973?

"A. Oh. Routinely, but I really — routinely this is done, but I don't remember on his case at all. Routinely this is done. I don't remember there for sure."

After the jury had begun its deliberation, it requested that certain testimony be reread, including what Twichell had said regarding the normal procedure of taking post-casting X-rays. Plaintiff's counsel opposed rereading any testimony. I would agree that had the trial court merely refused to have the testimony reread, there would have been no error; indeed, that was plaintiff's position. But, the court went further and instructed the jury:

"I instruct you that Mr. Twichell was not qualified as an expert to render an opinion as to what is normal procedure in relation to taking post-casting X-rays. And, so, I will not comply with your request because he is an X-ray technician, he is not one who a foundation was laid that would demonstrate that he has the qualifications of an expert to say what the, quote, `normal procedure', unquote is in relation to post-casting X-rays. We don't know how many broken arm cases he took pictures of. We don't know what his total experience is, you see. What may be a procedure in an area that he worked in in one hospital may or may not be a procedure in another, I don't know. But, I tell you that the Court will not comply with your request because this witness was not qualified to render that opinion and you would have no right to rely upon his opinion as to what is, quote, `normal procedure of taking post-casting X-rays', unquote."

This instruction was erroneous, not in what it said, but in the confusion it would unavoidably cause in the jurors' minds.

Twichell was not an expert. But, the testimony he gave required no expertise. He was only relating what he routinely did. He was certainly competent to testify to these facts. He was never asked and he never indicated an opinion that failure to order post-casting X-rays violated the physician's standard of care. The question to which this testimony was relevant was whether X-rays were taken, not whether the failure to take them was malpractice.

Somehow, what had been offered as fact testimony became opinion testimony in the minds of the defendants and the trial court. By striking the testimony, at the state of proceedings at which it did, the trial court undoubtedly caused some confusion among the jurors on specifically this point.

I would reverse and remand for a new trial.


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