Bahr v. Harper-Grace Hospitals

• Decision Date: 19 January 1993
• Docket Number: HARPER-GRACE,Docket Nos. 119957,121364
• Citation: 198 Mich.App. 31,497 N.W.2d 526
• Parties: Elizabeth J. BAHR, as personal representative of the estate of Brian M. Bahr, deceased, Plaintiff-Appellee, v.HOSPITALS, Harper Hospital Division, a Michigan Corporation, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 526

497 N.W.2d 526

198 Mich.App. 31

Elizabeth J. BAHR, as personal representative of the estate of Brian M. Bahr, deceased, Plaintiff-Appellee, v. HARPER-GRACE HOSPITALS, Harper Hospital Division, a Michigan Corporation, Defendant-Appellant.

Docket Nos. 119957, 121364.

Court of Appeals of Michigan.

Submitted June 16, 1992, at Detroit.

Decided Jan. 19, 1993, at 9:30 a.m.

Released for Publication April 12, 1993.

Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick by Lee R. Franklin, Detroit, for plaintiff-appellee.

Garan, Lucow, Miller, Seward, Cooper & Becker, P.C. by Daniel S. Saylor and Carol Holmes, Detroit, for defendant-appellant.

Before JANSEN, P.J., and MICHAEL J. KELLY and CORRIGAN, JJ.

JANSEN, Presiding Judge.

Defendant, Harper-Grace Hospitals, appeals as of right from a June 2, 1989, order of judgment awarding plaintiff $1.3 million in damages. The judgment was entered following a jury trial in the Wayne Circuit Court. Defendant also appeals from a September 18, 1989, order granting plaintiff attorney fees; however, defendant's brief on appeal raises no issue relating to this order. We reverse the judgment entered in favor of plaintiff and remand the case to the trial court for a new trial.

Defendant raises several issues on appeal, only two of which require discussion. Defendant first contends that it was entitled to a directed verdict or judgment notwithstanding the verdict because plaintiff's experts did not establish the applicable standard of care for interns and residents. Although we agree that plaintiff did not establish the applicable standard of care for interns and residents, we do not believe that judgment notwithstanding the verdict would have been proper. This is so because plaintiff presented expert testimony from Edwina Eggleston, R.N., regarding the applicable standard of care for nurses, and defendant did not object to the testimony. Because defendant's liability was premised on the negligence of Dr. Huntoon, an intern, Dr. Hukku, a resident, and various nurses, and in light of the testimony of Eggleston, reasonable persons could have reached different conclusions with regard to the negligent conduct of the nurses. Strach v. St. John Hosp. Corp., 160 Mich.App. 251, 260, 408 N.W.2d 441 (1987).

Generally, expert testimony is required in a malpractice case to establish the applicable standard of care and to demonstrate that the professional breached that standard. Carlton v. St. John Hosp., 182 Mich.App. 166, 171, 451 N.W.2d 543 (1989). Although the applicable standard of care for general practitioners is that of the local community or similar communities, the standard of care for a specialist is nationwide. Thomas v. McPherson Community Health Center, 155 Mich.App. 700, 708, 400 N.W.2d 629 (1986). It is clear that interns and residents are not "specialists," and, therefore, we conclude that the applicable standard of care for such persons is that of the local community or similar communities. Cf. Hilyer v. Hole, 114 Mich.App. 38, 43, 318 N.W.2d 598 (1982). We are of the opinion that such a conclusion is supported where, as in this case, plaintiff's complaint alleged a local standard of care and the trial court instructed the jury that the standard of care required of interns, residents, and nurses is that of ordinary learning, judgment, or skill in the local community or a similar one.

In this case, one of plaintiff's experts, Dr. Neilson, testified that he was familiar with the term standard of care and was familiar with the standard of care for interns, residents, and nurses in 1985. However, there was no testimony that Dr. Neilson was familiar with the requisite standard of care for interns, residents, and nurses in the Detroit community or similar communities. Although Dr. Neilson testified that he was familiar with the standard of care, he did not state what the applicable standard of care was. Dr. Neilson did not state whether interns, residents, and nurses were governed by a local, as opposed to a national, standard.

Similarly, plaintiff's other expert, Dr. Crane, testified that he too was familiar with the term standard of care. However, Dr. Crane did not testify that he was familiar with the requisite standard of care regarding interns and residents, nor did he testify that he was familiar with the standard of care with regard to interns and residents in the Detroit community or similar communities.

Because interns and residents are held to a local, rather than a national, standard of care, it was incumbent on plaintiff to establish that the experts had knowledge of the standard of care in the medical community in question, or that of similar communities. See Francisco v. Parchment Medical Clinic P.C., 86 Mich.App. 583, 587-588, 272 N.W.2d 736 (1978), modified 407 Mich. 325, 285 N.W.2d 39 (1979). In cases such as this, "counsel should clearly elicit that the expert knows the standard and what the standard was before questioning as to what that standard would have required." Haisenleder v. Reeder, 114 Mich.App. 258, 265, 318 N.W.2d 634 (1982). In this case, although Dr. Neilson testified that he was familiar with the standard of care, he did not state "what the standard was." Id. In this light, we cannot say that plaintiff's experts were "knowledgeable regarding the practice of the area in question," that being the Detroit community or communities similar thereto. Mazey v. Adams, 191 Mich.App. 328, 331, 477 N.W.2d 698 (1991). The trial court abused its discretion in qualifying Drs. Neilson and Crane as experts regarding the applicable standard of care for interns, residents, and nurses. Id.

Defendant also claims that the trial court erred in allowing the decedent's sister, Marlene Bahr, to offer hearsay testimony regarding a statement allegedly made by Dr. Gilroy. We agree with defendant.

At trial, Marlene Bahr testified that Dr. Gilroy, a neurologist who examined the decedent after his cardiac arrest, told her that the decedent should have been admitted to the intensive care unit, where he could have been watched more carefully. Over defense counsel's objection, the trial court allowed this testimony because plaintiff's counsel argued that it would be established that Dr. Gilroy was an agent of defendant and that the statement was not offered to prove the truth of the matter asserted therein.

Pursuant to MRE 801(d)(2)(D), a statement is not hearsay if the statement is offered against a party and is a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship. Before an agent's declaration may be received as evidence against the principal, there must be some evidence of an agency relationship. Przeradski v. Rexnord, Inc., 119 Mich.App. 500, 504, 326 N.W.2d 541 (1982), remanded on other grounds 417 Mich. 1100.19, 338 N.W.2d 188 (1983); Fassihi v. St. Mary Hosp. of Livonia, 121 Mich.App. 11, 14, 328 N.W.2d 132 (1982).

Although Marlene Bahr stated that Dr. Gilroy was the neurologist at Harper Hospital, it was not established that Dr. Gilroy was an agent or employee of defendant. Plaintiff's counsel stated...