Croda v. Sarnacki

• Decision Date: 05 May 1981
• Docket Number: Docket No. 43276
• Citation: 106 Mich.App. 51,307 N.W.2d 728
• Parties: Josepha P. CRODA and Antonio Croda, Plaintiffs-Appellants, v. Carl J. SARNACKI, M. D., Graciano F. Singson, M. D., South Macomb Gynecologists, P. C., and Theodore G. Pantos, M. D., jointly and severally, Defendants-Appellees, and Detroit-Macomb Hospitals Association, Defendant.
• Court: Court of Appeal of Michigan — District of US

Page 728

307 N.W.2d 728

106 Mich.App. 51

Josepha P. CRODA and Antonio Croda, Plaintiffs-Appellants, v. Carl J. SARNACKI, M. D., Graciano F. Singson, M. D., South Macomb Gynecologists, P. C., and Theodore G Pantos, M. D., jointly and severally Defendants-Appellees and Detroit-Macomb Hospitals Association, Defendant.

Docket No. 43276.

Court of Appeals of Michigan.

May 5, 1981.

Released for Publication July 13, 1981.

Steven G. Silverman, Detroit, for plaintiffs-appellants.

James R. Dashiell, Detroit, for Sarnacki, Singson, S. Macomb Gynec.

Richard G. Ward, Detroit, for Pantos.

Before BRONSON, P. J., and J. H. GILLIS and BASHARA, JJ.

BASHARA, Judge.

Plaintiffs sought recovery of damages incurred as the result of defendants' alleged medical malpractice. During the first week of trial, defendant Detroit-Macomb Hospitals Association settled with plaintiffs. Subsequently, the jury returned a verdict of no cause of action as to the remaining defendants. Plaintiffs now appeal the jury's verdict.

Drs. Sarnacki and Singson practiced medicine together as South Macomb Gynecologists, P. C., also a named defendant in the action. On June 8, 1973, plaintiff Josepha Croda consulted with Dr. Sarnacki concerning problems which included a dropped uterus, a herniated rectum, a lacerated cervix, excessive bleeding, pain on intercourse, constipation, and urinary incontinence. Sarnacki informed plaintiff that she needed a hysterectomy and a cystocele-rectocele. She underwent the surgery in the South Macomb Hospital on July 30, 1973. Subsequent to the surgery, plaintiff's bladder did not maintain its proper tone. As a result, catheterization was necessary to evacuate urine from the bladder. Two days after her discharge from the hospital, plaintiff went to the office of South Macomb Gynecologists and Dr. Singson removed the catheter. When Mrs. Croda began to notice urine in her vagina, Sarnacki reinserted a catheter and referred her to defendant Dr. Theodore Pantos, a urologist, who treated her from August 21, 1973, to November 2, 1973. As part of his treatment, Dr. Pantos performed a right nephrostomy on September 11, 1973, and a reimplantation of the right ureter on November 9, 1973.

Plaintiff alleged that she sustained permanent injuries to her urinary system and right kidney as a result of defendants' negligence. She averred that she had not been properly informed of the dangers inherent in the surgical procedure of July 30, 1973, and that Dr. Sarnacki had breached a contract to cure. Mrs. Croda further contended that Sarnacki departed from the standard of care in cutting her right ureter during surgery and by discharging her from the hospital prematurely. Plaintiff further averred that Dr. Pantos was negligent in failing to perform the right nephrostomy before September 11, 1973, when he knew that plaintiff had problems with her right kidney on September 4, 1973. Mrs. Croda also alleged that the delay resulted in further damage to her right kidney. She also claimed that, instead of a nephrostomy, Dr. Pantos should have performed a reimplantation of the right ureter on September 11, 1973. Plaintiff Antonio Croda's claim was based on loss of consortium.

Plaintiffs initially contend that the trial court erred in restricting the cross-examination of Dr. Pantos. Plaintiffs' counsel began to ask Dr. Pantos whether he agreed with statements in the deposition of defendants' expert witness, Dr. Urwiller.

Upon objection by defendants, the trial court ruled that, since the deposition of Dr. Urwiller had not been admitted into evidence and he had not been called as a witness, plaintiffs' attorney could not specifically refer to the deposition. It was further held that plaintiffs' counsel could not inquire as to why Dr. Urwiller had not been called as a witness. Plaintiffs' counsel was allowed, however, to ask Dr. Pantos his frame of reference in forming his opinion that Mrs. Croda had not suffered permanent kidney damage and the standard of care.

A separate record was made in which plaintiffs attempted to impeach Dr. Pantos. Plaintiffs failed to show any contradiction between Dr. Urwiller's deposition and Dr. Pantos' testimony. Therefore, the deposition was not relevant as impeachment evidence, there being no significant difference between the opinions of the two doctors. ¹ We find no abuse of discretion in the court's ruling. Lorenz Supply Co. v. American Standard, Inc., 100 Mich.App. 600, 615, 300 N.W.2d 335 (1980); People v. Strickland, 78 Mich.App. 40, 54, 259 N.W.2d 232 (1977).

Plaintiffs allege error in the following jury instruction:

"Now there was an additional defendant in this trial which was South Macomb Hospital (sic) Association and as you recall I instructed you that South Macomb Hospital (sic) Association after a particular point in this trial would no longer be considered a defendant. South Macomb Hospital (sic) Association has settled the claim filed against it by the plaintiffs for the amount of four thousand dollars. If you determine to award Mr. and Mrs. Croda any additional money from the remaining defendants, you should first deduct the sum of four thousand dollars from any sum you feel the plaintiffs should receive as damage."

Plaintiffs argue that the instruction violated MRE 408, which states:

"Rule 408 Compromise and Offers to Compromise.

"Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution." (Emphasis added.)

We find MRE 408 inapplicable to the controversy at bar. The settlement was not introduced into evidence in order to prove the liability of the remaining defendants. In fact, it was not admitted into evidence at all.

Plaintiffs assert for the first time on appeal that the trial court should have deducted the $4,000 from whatever judgment the jury may have reached rather than advise them to make the deduction themselves. By telling the jury that plaintiffs recovered $4,000 from the hospital, they contend the jury was allowed to speculate that their claim was without merit.

Admission of proof of a prior settlement agreement between a defendant and the plaintiff is a matter of judicial discretion. Wilson v. W. A. Foote Memorial Hospital, 91 Mich.App. 90, 97, 284 N.W.2d 126 (1979), lv. to appeal held in abeyance 409 Mich. 868 (1980); Reno v. Heineman, 56 Mich.App. 509, 512, 224 N.W.2d 687 (1974). But see, Brewer v. Payless Stations, Inc., 94 Mich.App. 281, 288 N.W.2d 352 (1979), lv. gtd. 409 Mich. 871 (1980). ² Until the Supreme Court holds to the contrary, we agree with the conclusion in Wilson, supra, that plaintiffs' proposal raised only on appeal is a permissible alternative which the trial court is not required to follow. Wilson, supra, 91 Mich.App. 98, 284 N.W.2d 126.

In view of the fact that the hospital association was an active party during the initial days of trial, the court's instruction was proper in order to inform the jury of the party's dismissal from the suit. The trial court's instruction was the only noted mention of the settlement to the jury. There is no reason to assume that, based upon this instruction, the jury concluded that plaintiffs' claims were without merit. We fail to find an abuse of discretion in the trial court's ruling.

The third instruction challenged on appeal concerns the apportionment of damages among the defendants. The trial court substantially charged the jury with the standard jury instructions on apportionment, SJI 41.04 and SJI 41.05. Based upon the evidence presented, we find no error in the charge. Naccarato v. Grob, 384 Mich. 248, 255-256, 180 N.W.2d 788 (1970).

Plaintiffs challenge one final jury instruction:

"Now, the question is, 'How do you as jurors determine what the standard of practice is and whether or not it has been observed by the defendants in this case?'

"Jurors and judges do not know and are not permitted arbitrarily to say what are the proper methods of treating a patient under the circumstances in this case. This is a medical question. What is or is not a proper practice by a urologist or a gynecologist, the treatment of a patient or what is or is not standard of practice of the usual practice in the community is a question for experts and can be established only by their testimony. That is, it is only those learned in urology or gynecology who can say what should have been done or what was done or not to have been done and it is only those learned in urology or gynecology who can say what was done was proper."

Plaintiffs contend that the phrase "learned in urology or gynecology" could have misled the jury into concluding that, contrary to established law, the expert must be a specialist in those fields in order to be a competent witness. We agree with plaintiffs' initial premise that an expert need not be a board-certified specialist in the field in order to testify as to the standard of care of that practice. However, it is well-established that the expert witness must possess the necessary learning, knowledge, skill or practical experience that would enable him to competently testify concerning that area of medicine. Siirila v. Barrios, 398 Mich. 576, 591, 248 N.W.2d 171 (1976).

It is therefore clear that plaintiffs' expert, Dr. Miller, was not...