Clapham v. Yanga

• Decision Date: 21 November 1980
• Docket Number: Docket No. 46188
• Citation: 102 Mich.App. 47,300 N.W.2d 727
• Parties: Loriann CLAPHAM, by her next friend, Samuel Clapham, and Nancy Clapham and Samuel Clapham, Individually, Plaintiffs-Appellees, v. Ismael YANGA, M.D., Defendant-Appellant. 102 Mich.App. 47, 300 N.W.2d 727
• Court: Court of Appeal of Michigan — District of US

Page 727

300 N.W.2d 727

Loriann CLAPHAM, by her next friend, Samuel Clapham, and Nancy Clapham and Samuel Clapham, Individually Plaintiffs-Appellees, v. Ismael YANGA, M.D., Defendant-Appellant.

Docket No. 46188.

102 Mich.App. 47, 300 N.W.2d 727

Court of Appeals of Michigan.

Nov. 21, 1980.

Released for Publication Jan. 29, 1981.

[102 MICHAPP 49] Richard G. Ward, Detroit, for defendant-appellant.

Peter R. Barbara, Samuel H. Pietsch, Detroit, for plaintiffs-appellees.

[102 MICHAPP 50] Before MAHER, P.J., and BRONSON and QUINN, ^* JJ.

PER CURIAM.

Following a jury trial conducted April 17, 1979, through April 20, 1979, in the Livingston County Circuit Court, defendant was found liable for medical malpractice in his diagnosis and treatment of plaintiff Loriann Clapham. The combined jury verdict in favor of plaintiffs was $133,700. Of this total, plaintiff Loriann Clapham was awarded $69,000 for personal damages. Additionally $57,000 was awarded for the expense of raising Joel Clapham, Loriann's child, who was born following defendant's failure to diagnose Loriann's pregnancy. Each of these awards was reduced by 30% based upon Loriann's comparative negligence, resulting in an award of $48,300 for personal damages and $39,900 to be held in trust for the expenses incurred in the rearing of the baby. Plaintiff Nancy Clapham, Loriann's mother, received an award of $64,000 reduced by 65% based on her negligence, leaving a net total of $22,400. Loriann's father, plaintiff Samuel Clapham, was awarded $35,000, with a 34% reduction due to his comparative negligence, leaving $23,100.

Loriann Clapham was 14 years old when her mother took her to defendant for a medical examination. Loriann had been complaining of dizzy spells, fainting, and missed menstrual periods. According to both Loriann and Nancy Clapham, defendant said that these symptoms were a manifestation of obesity and low blood pressure. In fact, Loriann was pregnant. Loriann saw defendant for medical services six times between October 14, 1974 and January 28, 1975. Mrs. Clapham accompanied[102 MICHAPP 51] her daughter to each appointment except one. At no time was either mother or daughter informed that Loriann might be pregnant.

According to defendant, questions were specifically posed to Loriann concerning problems with menstrual periods. However, both she and Mrs. Clapham indicated there were no problems in this regard. Defendant further denied he had ever been informed that Loriann had missed menstrual periods.

The videotaped deposition testimony of Dr. Kalman Gold, who stated that he was a specialist in obstetrics and gynecology, was shown to the jury. He stated that although his practice was based in Toledo, Ohio, he was familiar with the standard of care for a general practitioner in obstetrical care in Michigan. In his opinion, it constituted a breach of this standard of care to fail to conduct tests ruling out the possibility of pregnancy when a patient with Loriann's symptoms seeks treatment.

Dr. Avelardo Bustillo, a general practitioner and defendant's associate, examined Loriann on three occasions. After defendant was served with the complaint in this matter, he told Dr. Bustillo that he had suspected pregnancy during Loriann's initial examination. Bustillo indicated that, if defendant had told him pregnancy was suspected, he would have requested Loriann's permission to conduct specific pregnancy tests.

Loriann indicated that at the time of trial she was employed at a fast-food restaurant and was making minimum wage. Prior to her pregnancy, she intended to get training to become a registered nurse. However, when the baby was born, she dropped out of high school. Loriann also stated that, had she known she was pregnant, she would have sought an abortion. Other testimony was [102 MICHAPP 52] presented regarding the emotional and financial strain on a family where an unmarried, teenage daughter bears a child.

The issues raised on appeal fall into two basic categories those which primarily concern the question of liability and those which primarily impact on the issue of damages. We will consider the problem of defendant's liability first.

Defendant argues that the trial court committed reversible error by permitting the plaintiffs to amend their complaint at trial to allege as a basis for relief the deprivation of Loriann's right to terminate her pregnancy. Michigan's court rule regarding the amendment of pleadings provides for a liberal handling of requests to amend. GCR 1963, 118.1, Ben P. Fyke & Sons v. Gunter Co., 390 Mich. 649, 656-657, 213 N.W.2d 134 (1973). A decision to permit an amendment is one within the trial court's discretion and will not be upset absent an abuse of discretion. Worth v. Dortman, 93 Mich.App. 103, 113, 288 N.W.2d 603 (1979).

In the case at bar, the amendment offered did not differ substantially from the theories previously asserted. The defendant could not have been surprised by the amendment, given Loriann's deposition testimony that she would have preferred an abortion had she been aware of her condition. The trial court specifically found that defendant was not surprised. Defendant is unable to show any specific prejudice resulting from the amendment. (For these reasons, the trial court's decision permitting the amendment did not constitute an abuse of discretion.

Defendant also argues that the trial court's instruction on the standard of care was reversibly improper. It is alleged that the instruction was contrary to Michigan's "locality rule" which provides[102 MICHAPP 53] that a general practitioner's conduct will be measured by the standard of professional competence existing in his or similarly situated communities in light of the state of the art. At present, Michigan continues to adhere to the locality rule although its continuing vitality is in some doubt. See, Siirila v. Barrios, 398 Mich. 576, 248 N.W.2d 171 (1976). ¹

In the instant case, the trial court instructed:

"A general practitioner is under a duty to use that degree of care and skill which is expected of a reasonably competent practitioner of the same class acting under the same or similar circumstances.

"In considering whether the defendant, Dr. Yanga, practiced within that standard for the purposes of this case, you may consider whether Dr. Yanga should have diagnosed pregnancy in this case based upon the general state of knowledge on the subject of pregnancy diagnosis within the medical community of general practitioners as a whole."

It is arguable whether this instruction should fail under the locality rule. The court's reference in the charge to a practitioner acting under "the same or similar circumstances" would embody the same community or similar communities as one of the circumstances for the jury to consider in determining if the standard of care was breached.

Assuming that the instruction was erroneous, we are convinced that the error does not constitute grounds for reversal. The only direct testimony concerning the standard of care was that of Dr. [102 MICHAPP 54] Gold. ² This testimony was properly limited to the applicable locality in which defendant practices. Thus, the only evidence upon which the jury could have premised its conclusion that the standard of care was breached was the testimony specifically tied to the appropriate locale. Consequently, it is difficult to see how defendant was prejudiced by the instruction, even if it was erroneous. It is an elementary principle of Michigan jurisprudence that a defect in something done by the court is not grounds for granting a new trial unless this is "inconsistent with substantial justice". GCR 1963, 529.1.

In LeBlanc v. Lentini, 82 Mich.App. 5, 17-19, 266 N.W.2d 643 (1978), lv. den. 403 Mich. 807 (1978), this Court recognized that in some cases local standards might be uniform throughout the United States. After reaching this conclusion, the Court upheld a decision to allow a medical expert to testify on the standard of care in the local area, even though he was unfamiliar with the locale. The record in this case suggests that such a nationwide locality standard exists in respect to the tests and treatment to be performed on one who has missed menstrual periods and complains of dizzy spells and fainting. This being the case, it would make no difference if the standard of care instruction was tied to a specific locality or explicitly posited as having nationwide applicability. While the latter instruction would be technically defective, since the substantive standard is the same, it would be unnecessary and inappropriate to reverse the case for a new trial.

[102 MICHAPP 55] We also note that, while expert testimony is essential to establish that a doctor has violated the requisite standard of care in most cases, if the physician's conduct is such that a layperson could ascertain that the medical practitioner's acts were negligent, such testimony is not needed. Heins v. Synkonis, 58 Mich.App. 119, 122, 227 N.W.2d 247 (1975), Murphy v. Sobel, 66 Mich.App. 122, 124, 238 N.W.2d 547 (1975), Lince v. Monson, 363 Mich. 135, 141, 108 N.W.2d 845 (1961). We conclude that a jury could find, without specific testimony on the standard of care, that it is negligent not to give a patient who complains of the symptoms experienced by Loriann a pregnancy test. This is particularly true in light of defendant's admission that he suspected from the initial visit that Loriann was pregnant. We note that Mrs. Clapham testified she assumed a pregnancy test had been conducted since the probable cause of her daughter's condition was obvious. However, when defendant said nothing about the possibility of pregnancy, she did not concern herself with it.

Defendant also charges that the trial court committed reversible error in giving a modified SJI 10:07. Defendant contends that the instruction was inapplicable in this case. SJI 10:07 recognizes that a child will not exercise the same degree...