Brandon v. Art Centre Hospital (Osteopathic)
| Decision Date | 21 September 1966 |
| Docket Number | No. 16292.,16292. |
| Citation | 366 F.2d 369 |
| Parties | Ruth E. BRANDON, Plaintiff-Appellant, v. ART CENTRE HOSPITAL (OSTEOPATHIC), a Michigan corporation, and W. M. Radebaugh, individually and jointly, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Saul M. Leach, Detroit, Mich. (Maile, Leach & Silver, Judson L. Levin, Detroit, Mich., on the brief), for appellant.
John D. Hayes, Detroit, Mich. (Ward, Plunkett, Cooney, Rutt & Peacock, Thomas A. Neenan, Detroit, Mich., on the brief), for appellee W. M. Radebaugh.
Jack R. Sullivan, Detroit, Mich. (Feikens, Dice, Sweeney & Sullivan, Detroit, Mich., on the brief), for appellee Art Centre Hospital.
Before EDWARDS, Circuit Judge, McALLISTER, Senior Circuit Judge, and KENT, District Judge*.
This is an action for damages for alleged malpractice on the part of the appellee, W. M. Radebaugh, an osteopathic physician, and for claimed negligence on the part of the Art Centre Hospital (Osteopathic).
Plaintiff-appellant (hereinafter referred to as plaintiff) entered the defendant hospital on July 18, 1962. Defendant Radebaugh was engaged to treat and care for the plaintiff. Subsequently plaintiff was discharged from the defendant hospital on order of the defendant Radebaugh, apparently at her own request. Thereafter she was admitted to another hospital where she was treated. It is claimed by the plaintiff that defendant, Dr. Radebaugh, erred in his diagnosis of the plaintiff's condition and that the defendant hospital negligently failed to provide proper care, and failed to provide or obtain qualified doctors and personnel. Essentially, plaintiff's claim is that there was an error in diagnosis for which both doctor and hospital were responsible.
Judgment was entered for the defendants on order of the court at the end of the plaintiff's proofs. The motion for new trial as to both defendants was denied.
During the course of the trial plaintiff offered the testimony of a medical doctor to support her claim of malpractice on the part of the defendant, Dr. Radebaugh. Never at any time did the medical doctor testify that he was familiar with the standard of care for osteopathic physicians in the community. Efforts on the part of plaintiff's counsel to obtain an opinion from the medical doctor relative to the care given to the plaintiff by the defendant, Dr. Radebaugh, were unavailing over the objection of counsel for the defendants.
On objection plaintiff's counsel was prevented from cross examining the Chairman of the Department of Medicine of the defendant hospital, who was an independent practicing osteopathic physician and surgeon in the City of Detroit, holding the position of Chairman of the Department of Medicine outside the control of the defendant hospital. It is the theory and claim of the plaintiff's counsel that he should have been permitted to utilize the testimony of a medical doctor to evaluate the standard of care of an osteopathic physician, and that he was entitled to cross examine the Chairman of the Department of Medicine of the defendant hospital under Rule 43(b) F.R. Civ.P., 28 U.S.C.
During the course of the trial no testimony was received from any osteopathic physician and surgeon to establish that the care given the plaintiff by the defendant, Dr. Radebaugh, was not in accordance with the standard of care for osteopathic physicians in the community, and no testimony was offered to establish any duty on the part of the defendant hospital to secure a doctor for the plaintiff. No testimony was offered to show a duty on the part of the defendant hospital to review the nature of the care rendered to the plaintiff by her attending physician.
Plaintiff called the Chairman of the Department of Medicine of the defendant hospital for cross examination under the provisions of Rule 43(b) F.R.C.P., 28 U.S.C.: "* * * a party may call * * * an officer, director or managing agent of a public or private corporation * * * which is an adverse party, and interrogate him by leading questions * * *." Counsel for the defendant hospital objected to cross examination of the Chairman of the Department of Medicine of the defendant hospital on the ground that he was not "a managing agent" within the meaning of Rule 43(b). The objection was sustained.
It appears from the evidence that the Chairman of the Department of Medicine was an independent practicing osteopathic physician and surgeon in the City of Detroit, that the position of Chairman of the Department of Medicine was in a sense honorary, that the "position" was not a paid position, that he had no authority to employ or terminate employment, that he had no authority to interfere with the performance of the employees of the staff of the hospital, that his authority in connection with the hospital was basically the same as that of every other osteopathic physician and surgeon who was a member of the staff of the defendant hospital. It appears from the record that the position of Chairman of the Department of Medicine was a recognition of the training, experience and ability of the person holding that position, that it was entirely outside the echelon of management of the hospital.
The determination of the issues presented by this case must be in accordance with the laws of the State of Michigan, Erie Railroad Co. v. Thompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. Under Michigan law, "the implied contract between a patient and surgeon requires the latter to use the degree of diligence and skill ordinarily exercised by the average of the members of the profession in the same locality or similar localities, with due consideration to the state of the profession at the time." Bryant v. Briggs, 331 Mich. 64, 70, 49 N.W. 2d 63, 67. In Bryant v. Briggs, supra, the Supreme Court of Michigan was presented with a case with issues almost exactly like those in the instant case. The medical doctor was used to testify in regard to the proper care of a patient who had been treated by an osteopathic physician. The medical doctor did not at any time express any knowledge with reference to osteopathy, or the degree of care and skill customarily followed and exercised by osteopathic practitioners in the community or similar communities. The Supreme Court of Michigan in disposing of the issue stated at page 77 of 331 Mich. at page 69 of 49...
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