Bivins v. Detroit Osteopathic Hospital

• Decision Date: 22 August 1977
• Docket Number: Docket No. 27560
• Citation: 77 Mich.App. 478,258 N.W.2d 527
• Parties: Nannie BIVINS, Administratrix of the Estate of James Bivins, Deceased, Plaintiff-Appellee, v. DETROIT OSTEOPATHIC HOSPITAL, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 527

258 N.W.2d 527

77 Mich.App. 478

Nannie BIVINS, Administratrix of the Estate of James Bivins Deceased, Plaintiff-Appellee, v. DETROIT OSTEOPATHIC HOSPITAL, Defendant-Appellant.

Docket No. 27560.

Court of Appeals of Michigan.

Aug. 22, 1977.

Rehearing Denied Sept. 29, 1977.

Released for Publication Oct. 27, 1977.

Dice, Sweeney & Sullivan, P. C. by Altero J. Alteri, Detroit, for defendant-appellant.

Zeff & Zeff, P. C. by A. Robert Zeff, Detroit, for plaintiff-appellee.

Before KAUFMAN, P. J., and RILEY and V. J. BRENNAN, JJ.

V. J. BRENNAN, Judge.

This case involves a malpractice action to recover damages for the death of James Bivens at 6:10 a. m., June 6, 1968, at defendant Detroit Osteopathic Hospital at 12523 Third Street in the City of Highland Park. Originally named as codefendants in the complaint were Dr. Donald J. Evans, D.O. and Dr. John H. Sloan, D.O., a resident surgeon in training at defendant hospital at the time of Bivens' death.

Prior to trial, plaintiff Nannie Bivens settled with Dr. Evans for the limits of his malpractice liability insurance policy. Following a jury trial which commenced October 23, 1975, the jury returned a verdict on November 7, 1975, finding no cause of action against defendant Dr. Sloan but finding the hospital liable in the amount of $300,000.

Defendant hospital filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial on December 1, 1975, which motion was denied by the trial court on February 9, 1976. The hospital then filed a claim of appeal on February 11, 1976.

The facts indicate that decedent entered the defendant hospital on May 28, 1968, for some tests. While in the hospital, an x-ray of Bivens' lungs was taken which showed a suspicious mass in the right lobe of the lung. Dr. Evans was called in for consultation. Dr. Evans examined the x-rays and determined that the only way he could get the difficulty diagnosed was by bronchoscopy. This procedure involved passing a tube down the throat into the lungs, viewing the condition of the lungs and removing samples of lung tissue.

The operation was performed by Dr. Evans on June 5, 1968. While using a bronchoscope to perform the bronchoscopy, he performed a biopsy with cupped forceps in order to obtain some tissue and in doing so he cut a vein in the right lung. This situation caused a massive amount of blood to fill the air sacs of Bivens' lungs. Dr. Evans then passed absorbent gauze down through the bronchoscope to stop the bleeding, and this procedure did stop the bleeding for the moment. Subsequent x-rays revealed that the air sacs were still filled with blood.

Dr. Evans then performed a tracheotomy so an artificial respirator could provide the decedent with oxygen and so other equipment could be used to suction the blood out of the air passages in his lungs. Bivens died the following day from a lack of oxygen.

Defendant brings several allegations of error on appeal. We will address each claim.

Defendant first alleges that error was committed because there was no evidence of any osteopathic standard of care where plaintiff's expert witness as to such standard of care was classified as a medical doctor and not an osteopathic doctor.

Dr. Richard Overholt, M. D., testified for the plaintiff as follows:

"Q (Plaintiff's counsel) Doctor, is there a difference between a thoracic surgeon classified as a medical doctor and a thoracic surgeon classified as an osteopathic doctor?

"A I haven't thought of that. I can't answer it.

"Q Doctor, in your teaching in your supervision of residents, have you taught and supervised osteopathic physicians?

"A Not formally. We have had osteopathic physicians that have gone here to observe and to find out how we (medical doctors) manage certain diseases, and there is one osteopathic physician that came down from the state of Maine, from Portland, that was here and took and observed our (medical doctors') method of doing a bronchoscopy."

Prior to the reading of Dr. Overholt's deposition, defendants objected to admission of the Doctor's testimony based on the question raised on appeal. In response, the court ruled:

"THE COURT: Well, let me rule this way: To the extent that Dr. Overholt is an expert in the field dealing with the thoracic area having to do with the lungs and aspirations and tracheotomies and bronchoscopies, I will take his testimony to the extent that he can testify physiologically. Now, it's inconceivable to me that if Dr. Overholt would testify that physiologically certain things definitely cannot be done or they will result in death, it is inconceivable to me the standard of care of osteopathic physicians would be to engage in such activities that would bring on death. Also to the extent that the physiologies of people are the same, whether being treated by an M.D. or an osteopath would have been taken into consideration. I will, therefore, permit the testimony and leave its weight to the jury. At a subsequent time, on proper request, I will advise the jury that the standard of care may be different in different fields of medicine, such as osteopaths and M.D.'s. So we will proceed."

Dr. Overholt testified that there is no difference between a medical doctor performing a bronchoscopy as compared to an osteopathic doctor. He further testified that the hospital records indicate that the bleeding was not stopped, and the autopsy showed that there was blood in the bronchial system that included many of the air tubes to the lungs. He believed the condition had not been checked adequately, because bleeding into the hollow tube system continued and filled up these tubes with clots which prevented proper ventilation.

The Michigan Supreme Court recently discussed in detail the issue of competency of expert witnesses. Siirila v. Barrios, 398 Mich. 576, 248 N.W.2d 171 (1976). The Court there stated:

"Ordinarily, the qualification of competency of expert witnesses is a matter for the discretion of the trial judge, Ives v. Leonard, 50 Mich. 296, 299, 15 N.W. 463 (1883), 'and it is incumbent on the person offering an expert witness to show that the witness possesses the necessary learning, knowledge, skill or practical experience to enable him competently to give such testimony.' 11 Michigan Law & Practice, Evidence, § 260, p. 484. See Moore v. Lederle Laboratories, 392 Mich. 289, 295-296, 220 N.W.2d 400 (1974).

"Generally, where there are different schools of medical thought, the physician is to be judged by his or her ability to adhere to the requisite standard of care of the school to which he or she adheres. Prosser, Law of Torts (4th ed), p. 163. The rationale is that '(p)ractitioners of other schools of treatment, no matter how well qualified by study and experience in their own methods and standards but lacking the requisite knowledge of the specific matter in question (i. e., the ordinary methods and standards of practice of another school), could not competently express opinions'. Bryant v. Biggs, 331 Mich. 64, 72, 49 N.W.2d 63 (1951). However, it is clear that a member of one school of thought may testify as to the standard of care applicable to an individual adhering to another school as long as the proffered witness is familiar with the applicable standards of defendant's school." Siirila v. Barrios, supra, at 591, 248 N.W.2d at 176.

Regarding the familiarity of the expert witness with the applicable standards of defendant's school, the Court relied upon its earlier decision in Frazier v. Hurd, 380 Mich. 291, 157 N.W.2d 249 (1968):

"We do not read our precedents to preclude opinion testimony of compliance or failure of compliance with the standards of a defendant's profession except only from a member of that profession. We never have addressed our decisional attention to this specific question. However, it is significant that on a number of occasions in which we have discussed opinion testimony in malpractice cases, we have suggested that opinions of one not a practitioner of defendant's profession would have been admissible had there been a showing that the offered witness had knowledge of the applicable standards of the defendant's profession. See, for example, Zoterell v. Repp, 187 Mich. 319, 330, 153 N.W. 692 (1915), Sima v. Wright, 268 Mich. 352, 356, 256 N.W. 349 (1934), Facer v. Lewis, 326 Mich. 702, 713-714, 40 N.W.2d 457 (1950), and Pedler v. Emmerson, 331 Mich. 78, 49 N.W.2d 70 (1951)." Frazier v. Hurd, supra, at 297, 157 N.W.2d at 251.

Frazier allowed testimony by a medical doctor as to the standard of care of an osteopathic physician. See also Ferguson v. Gonyaw, 64 Mich.App. 685, 696, 236 N.W.2d 543 (1975) (neurosurgeon permitted to testify regarding the standard of care of osteopathic neurosurgeon after demonstrating that medical and osteopathic neurosurgical procedures were very similar).

In the present case, Dr. Overholt, a medical doctor-thoracic surgeon, testified as to the standard of care for an osteopathic doctor-thoracic surgeon. Clearly, under Frazier and Ferguson, his testimony is not impermissible so long as his testimony establishes that he was familiar with osteopathic thoracic surgery procedures and standards.

When asked to distinguish between a thoracic surgeon classified as a medical doctor and a thoracic surgeon classified as an osteopathic doctor, Dr. Overholt answered: "I haven't thought of it. I can't answer it". Immediately afterward, he did comment upon the differences in training between a medical doctor and an osteopathic doctor. He also admitted having worked with certain osteopathic physicians in his capacity as a thoracic surgeon. Later, Dr. Overholt testified that he did not believe performing a bronchoscopy would be different for an osteopathic doctor as compared to a medical doctor.

In any case, because the liability of Dr. Evans was not an issue for the jury and since the jury found no cause of action against Dr. Sloan, we do not perceive Dr. Overholt's...