Callahan v. William Beaumont Hospital

67 Mich. App. 306 (1976) 240 N.W.2d 781 CALLAHAN v. WILLIAM BEAUMONT HOSPITAL Docket Nos. 22830, 22831. Michigan Court of Appeals. Decided February 10, 1976. *308 Balfour Peisner, for plaintiffs. Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by John P. Jacobs), for defendant William Beaumont Hospital. Sullivan, Ranger, Ward & Bone, for defendant Feldstein. Before: McGREGOR, P.J., and BASHARA and ALLEN, JJ. Leave to appeal applied for. McGREGOR, P.J. Plaintiffs, Patricia N. Callahan and her husband, Kenneth R. Callahan, brought suit against the defendants William Beaumont Hospital and Dr. Jerome Edward Feldstein, alleging negligence by the defendants in failing to diagnose and correctly treat an alleged fracture of plaintiff Patricia N. Callahan's right ankle at the hospital's emergency room. A jury trial was commenced on April 22, 1974. In the course of plaintiffs' presentation of their case, the trial court ruled that Dr. Robert J. Huebner, called as an expert witness by the plaintiffs, was not competent to testify as to the negligence of Dr. Feldstein because Dr. Huebner had never practiced in the Detroit metropolitan area. The trial court also ruled that Dr. Huebner could not testify as to the negligence of those employees of the hospital who had examined the plaintiff's x-rays *309 because Dr. Huebner lacked the qualifications of a radiologist. Following these rulings, the trial court granted a motion by the plaintiffs for a mistrial so that plaintiffs could seek an emergency appeal. At the same time, before the plaintiffs had completed the presentation of their case, the trial court also granted a motion by Dr. Feldstein to be dismissed from the case upon a directed verdict of no cause of action. Thereafter, the plaintiffs filed two applications for leave to appeal, and leave was granted by this Court on May 28, 1975. Plaintiffs' first assignment of error concerns the trial court's refusal to permit plaintiffs' expert witness, Dr. Huebner, to testify as to the standard of care to be imposed upon the defendant Dr. Feldstein. Plaintiffs argue that since Dr. Huebner and Dr. Feldstein were both surgeons and, therefore, specialists, Dr. Huebner's expert testimony was not subject to the "similar community" rule and should have been allowed by the trial court. Plaintiffs' argument is based on the Supreme Court's holding in Naccarato v Grob, 384 Mich 248; 180 NW2d 788 (1970). Before that decision, all doctors in Michigan were held to "that degree of skill and diligence ordinarily exercised by the average members of the medical profession in the same or similar localities with due consideration to the state of the profession at the time".[1] The Naccarato decision, however, exempted specialists from the "similar community" rule, holding them only to the standard of care of a reasonable specialist practicing medicine in the light of present-day scientific knowledge. This decision did not affect the standard of care required of general *310 practitioners. They continued to be subject to the "similar community" rule.[2] Even if it is assumed that Dr. Huebner and Dr. Feldstein are, in fact, specialists,[3] we nevertheless hold that the trial court properly invoked the "similar community" rule in the present case. In Naccarato, supra, the Court stated: "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. The standard of care for a specialist should be that of a reasonable specialist practicing medicine in the light of present day scientific knowledge. Therefore, geographical conditions or circumstances control neither the standard of a specialist's care nor the competence of an expert's testimony." 384 Mich 253-254. It is clear from the foregoing that the Naccarato decision was grounded to a large degree on the reliance and expectations of the public with respect to the skills possessed by a specialist. Consequently, if a doctor does become a specialist, he thereby represents to the public that he has special knowledge and skills not possessed by a general practitioner and that he also keeps abreast with the advances in his specialty. In the present case, however, Dr. Feldstein, although a surgeon, was not practicing surgery or utilizing any special skills of a surgeon when he *311 treated the plaintiff. Rather, in wrapping the plaintiff's ankle in an Ace bandage and telling her to take aspirin for the pain, Dr. Feldstein was acting in the same manner as would any other doctor on duty at the emergency room of the defendant hospital. Furthermore, the injury suffered by the plaintiff was not an injury requiring treatment by a surgeon, nor is there any indication that the knowledge and skills that Dr. Feldstein gained by virtue of his specialization in any way better prepared him to examine and treat the plaintiff's injury. Under these circumstances, there is no holding out of special skills or knowledge on the part of Dr. Feldstein, nor is there any reliance upon such special skills or knowledge by the plaintiff. As a result, we decline to extend the holding of the Naccarato decision to the facts of the present case, since the rationale underlying that decision has no application here. Moreover, this case involves treatment in the emergency room of a large metropolitan hospital. It is entirely possible that the conditions present in an emergency room of a Detroit area hospital are so different from those in an emergency room of a small-town hospital, that any comparisons made by a small-town doctor would be unfair to a doctor practicing in the big-city hospital. It is also possible that the number of cases handled in the emergency room of a big-city hospital as well as the nature of those cases may differ so significantly from the nature and volume of cases handled in the emergency room of a small-town hospital that comparisons of the procedures used in each to examine a person seeking emergency treatment would be misleading. Factors such as these further support the application of the "local community" rule to the facts of the present case. *312 Consequently, the trial court did not err in not permitting Dr. Huebner to testify as to the negligence of Dr. Feldstein. For the same reasons, it follows that the trial court was also correct in not permitting Dr. Huebner to give expert testimony against the hospital's employees who examined the plaintiff's x-rays. Furthermore, as noted above, the trial court also ruled that Dr. Huebner was incompetent to give such testimony since Dr. Huebner was not a radiologist. On voir dire, Dr. Huebner stated that he was not entitled by training to read, quote, or diagnose from x-rays. Based on this admission, it would appear that Dr. Huebner was not qualified to testify as to the standard of care required of those employees who examined plaintiff's x-rays. As a result, the trial court's ruling on this matter cannot be considered an abuse of discretion. See Smith v Children's Hospital of Michigan, 33 Mich App 186, 188-189; 189 NW2d 753 (1971). Plaintiffs lastly contend that the trial court erred by granting a directed verdict in favor of Dr. Feldstein before the plaintiffs had concluded the presentation of their case. We agree. First of all, the plaintiffs' attorney indicated to the court that he was prepared to present other testimony concerning the malpractice of Dr. Feldstein. Thus, the plaintiffs may have been able, even without the testimony of Dr. Huebner, to present sufficient evidence of negligence by Dr. Feldstein to warrant submission of the case against him to the jury. Plaintiffs should have been allowed to present their entire case to the jury before the trial court ruled on the motion for a directed verdict. Secondly, it appears that the trial court directed the verdict because Dr. Feldstein, having never *313 seen the x-rays, could not be liable for reading them improperly. If the directed verdict was, in fact, based on this ground, it would have been improperly granted. It is possible that the plaintiff's fracture was such that it could have been noticed by a simple visual examination. Therefore, in spite of the fact that Dr. Feldstein may have been told that the x-rays indicated that there had been no fracture, it is possible that he should have discovered from personal observation that the plaintiff required more treatment than just an Ace bandage. In addition, depending upon such factors as qualifications of those who actually read the x-rays and reported the results to Dr. Feldstein, it is also possible that Dr. Feldstein was negligent by relying on those reports and not personally reading the x-rays. Thus, even if Dr. Feldstein did not read the x-rays, additional testimony, either expert or otherwise, could have raised several questions of fact which would have entitled the plaintiffs to have the issue of Dr. Feldstein's negligence decided by the jury. As a result, the trial court erred by prematurely granting the motion for a directed verdict. Affirmed in part. Reversed in part. Remanded for proceedings consistent with this opinion. ALLEN, J. (concurring). I agree in the decision announced in Judge McGREGOR'S opinion. However, I do so solely on the basis of Abbe v Woman's Hospital Association, 35 Mich App 429; 192 NW2d 691 (1971), cited in footnote 3 by Judge McGREGOR, in which our Court held that a general surgeon does not fall within the category of a specialist. Consequently, the testimony of plaintiff's expert witness, Dr. Huebner, a general surgeon, was subject to the "similar community rule". I do not *314 think it necessary or wise to go further and justify our decision by reference to Naccarato v Grob, 384 Mich 248; 180 NW2d 788 (1970). As was said by this Court in the recent case of Siirila v Barrios, 58 Mich App 721; 228 NW2d 801 (1975): "This is a malpractice suit wherein the plaintiffs ask us to extend the holding of Naccarato v Grob, 384 Mich 248; 180 NW2d 788 (1970), to general practitioners. This we cannot do. Such action can only be taken by the Supreme Court." Siirila v Barrios, supra, at 722. My colleague's opinion extends Naccarato by drawing distinctions in the types of activities performed by the medical specialist. I do not believe this was intended by the holding therein. If so, it is a distinction which should be taken by the Supreme Court. More importantly, the distinction is not necessary for the result arrived at in this case. NOTES [1] Bradshaw v Blaine, 1 Mich App 50, 53; 134 NW2d 386 (1965). See also Lince v Monson, 363 Mich 135; 108 NW2d 845 (1961). [2] See Burton v Smith, 34 Mich App 270; 191 NW2d 77 (1971), Siirila v Barrios, 58 Mich App 721; 228 NW2d 801 (1975). [3] But see Abbe v Woman's Hospital Association, 35 Mich App 429; 192 NW2d 691 (1971), which held that a general surgeon does not fall within the category of a specialist.