Kelley v. Murray, Docket No. 107319

Citation176 Mich.App. 74,438 N.W.2d 882
Decision Date18 May 1989
Docket NumberDocket No. 107319
PartiesGeneva KELLEY and Edmond Kelley, Plaintiffs-Appellants, v. E.C. MURRAY, D.O., Defendant-Appellee. 176 Mich.App. 74, 438 N.W.2d 882
CourtCourt of Appeal of Michigan (US)

[176 MICHAPP 74] Levine, Benjamin, Tushman, Bratt, Jerris & Stein, P.C. by Bruce L. Jerris, Bloomfield Hills, for plaintiffs-appellants.

Cline, Cline & Griffin, P.C. by Howard D. Cline, Flint, for defendant-appellee.

Before J.H. GILLIS, P.J., and SULLIVAN and GRIFFIN, JJ.

GRIFFIN, Judge.

Plaintiffs Geneva and Edmond Kelley appeal as of right from a judgment of no cause [176 MICHAPP 75] of action entered pursuant to a jury verdict on their claim of medical malpractice against defendant E.C. Murray, D.O. Plaintiffs-appellants allege several errors, one of which we find dispositive. Specifically, we agree with appellants that the lower court committed error requiring reversal by reading to the jury portions of the inapplicable tort reform acts and by permitting extensive cross-examination as to their provisions. We reverse and remand for a new trial.

I

On October 18, 1985, plaintiffs filed a complaint against defendant E.C. Murray, D.O. Plaintiffs' complaint alleged medical malpractice in connection with an October 21, 1983, Caldwell-Louc procedure performed by the defendant which allegedly resulted in plaintiff Geneva Kelley's suffering double vision, numbness on the right side of her face, nausea, recurring pain behind her eye, and lowering of the right eye.

Trial of the malpractice case against otolaryngologist (ear, nose, and throat specialist) Dr. Murray commenced February 4, 1988. During the four day trial, each side presented one expert witness on the issue whether Dr. Murray had breached the applicable standard of care. Plaintiffs' expert was board certified otolaryngologist John Warren Grigg, M.D. Dr. Grigg was licensed to practice medicine in 1956 and board certified in otolaryngology in 1964. From 1981 through the time of trial, Dr. Grigg was an assistant clinical professor at the Wayne State University School of Medicine. His surgical teaching included the Caldwell-Louc procedure utilized in the present case. From 1982 through January 1985, Dr. Grigg also attended law school. Dr. Grigg was duly admitted to the State [176 MICHAPP 76] Bar of Michigan in May, 1985. At the time of trial, Dr. Grigg testified that he devotes approximately fifty percent of his time to his medical practice and fifty percent to his law practice.

After extensive voir dire, the trial judge qualified Dr. Grigg as an expert witness. The lower court in applying the standards of MRE 702 ruled that Dr. Grigg was qualified by "knowledge, skill, experience, training, or education" to testify as to the alleged breach of the required standard of care. Defendant-appellee did not object below to the qualification of Dr. Grigg as an expert witness.

During the trial, defense counsel, over plaintiffs' objection, extensively cross-examined Dr. Grigg in regard to the medical expert qualification provisions of the tort reform acts of 1986. Although defendant conceded that the acts were inapplicable to the instant case, it was asserted that the new and more stringent qualification provisions were relevant. The argument was made that the jury had a right to know that the law had been changed and, further, that the jury should be allowed to consider the new standards in weighing the quality of the expert testimony.

During cross-examination, defense counsel sought to establish that, had the tort reform acts been applicable, Dr. Grigg may not have qualified as an expert witness during the time Grigg was attending law school. Further, it was suggested that Dr. Grigg resumed his medical practice only to qualify as a medical expert under the new act.

The trial judge, after permitting such cross-examination by defense counsel, decided to read to the jury the inapplicable statute:

"The Court: Why don't we just tell the jury, so they can understand this, what the statute provides. It does not require that an expert necessarily[176 MICHAPP 77] meet these qualifications in this case because the case was started before the act was passed. But cross out the part having to do with (indiscernible) that doesn't have anything to do with this case simply says, 'In an action alleging medical malpractice if the defendant is a specialist a person shall not give expert testimony on the appropriate standard of care unless the person is or was a physician licensed to practice medicine or osteopathic medicine and surgery in this or another state that meets both of the following criteria. First, specializes or specialized at the time of the occurrence, which is the basis for the action, in the same specialty or a related relevant area of medicine or osteopathic medicine and surgery as the specialist who is the defendant in the medical malpractice action. And, second, devotes, or devoted at the time of the occurrence, which is the basis for the action, a substantial portion of his or her professional time to the active clinical practice of medicine or osteopathic medicine and surgery, or to the instruction of students in an accredited medical school, or osteopathic medical school in the same specialty or a related relevant area of health care as the specialist who is the defendant in the medical malpractice action.' Now I think the jury can understand the inquiry as a whole lot better because they know what the statute says."

Defense counsel then asked Dr. Grigg whether Grigg would have been qualified as an expert witness prior to the resumption of his medical practice if the new standards had been in effect. Timely objection to the cross-examination and reading of the statute was made by plaintiffs' counsel. On appeal, plaintiffs Kelley argue that their case was severely prejudiced by the introduction of this inapplicable statute. We agree.

II

In 1986, the Michigan Legislature passed a series[176 MICHAPP 78] of bills commonly referred to as the tort reform acts of 1986. One of the acts (178 P.A. 1986, effective October 1, 1986) established new and more stringent standards for the qualification of expert witnesses in medical malpractice actions:

"Sec. 2169. (1) In an action alleging medical malpractice, if the defendant is a specialist, a person shall not give expert testimony on the appropriate standard of care unless the person is or was a physician licensed to practice medicine or osteopathic medicine and surgery or a dentist licensed to practice dentistry in this or another state and meets both of the following...

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2 cases
  • Nelson v. American Sterilizer Co., Docket No. 199685
    • United States
    • Court of Appeal of Michigan (US)
    • May 16, 1997
    ...relevant, but also reliable. Amorello v. Monsanto Corp., 186 Mich.App. 324, 331-332, 463 N.W.2d 487 (1990). See Kelley v. Murray, 176 Mich.App. 74, 79, 438 N.W.2d 882 (1989). The primary source of this obligation is MRE 702, which clearly contemplates some degree of regulation of the subjec......
  • Dunn v. Nundkumar
    • United States
    • Court of Appeal of Michigan (US)
    • December 17, 1990
    ...particularly where this statute does not apply to actions, such as this one, filed before its effective date. Kelley v. Murray, 176 Mich.App. 74, 438 N.W.2d 882 (1989). Moreover, our review of the record does not indicate that plaintiff ever argued this position before the trial court. Thus......

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