Croda v. Sarnacki, Docket No. 67307

• Decision Date: 13 August 1982
• Docket Number: Docket No. 67307
• Citation: 414 Mich. 882,322 N.W.2d 712
• Parties: Joseph P. CRODA and Antonio Croda, Plaintiffs-Appellants, v. Carl J. SARNACKI, M.D., Graciano F. Signson, 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: Michigan Supreme Court

Page 712

322 N.W.2d 712

414 Mich. 882

Joseph P. CRODA and Antonio Croda, Plaintiffs-Appellants, v. Carl J. SARNACKI, M.D., Graciano F. Signson, 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. 67307.

Supreme Court of Michigan.

Aug. 13, 1982.

ORDER

On order of the Court, the application for leave to appeal is considered, and pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we REVERSE the judgments of the Court of Appeals, 106 Mich.App. 51, 307 N.W.2d 728, and of the trial court and we REMAND the case to the trial court for a new trial. The trial court erroneously instructed the jury that in this case it was "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". The witness in question, Dr Miller, testified that he was not board certified in urology or gynecology. The trial court's instruction was objected to by the plaintiffs. We agree with the reasoning of Judge Bronson in his dissent that the instruction may well have led the jurors to conclude that Dr. Miller's testimony should be given less weight because he was not a specialist in urology and gynecology. We further agree with Judge Bronson's conclusions that this error was not harmless and that a new trial is warranted.

RYAN, Justice, dissents as follows:

I dissent.

Upon the speculation that the jurors "may well have" drawn from a portion of the trial court's instruction an inference wholly unwarranted, this medical malpractice verdict is set aside.

The court in this case has been required to split syntactical hairs in order to find reversible error in a single sentence of the trial court's lengthy, plain, understandable and correct instructions concerning the measure of expertise required of a physician to enable him to testify to the standard of practice in the field of urology and gynecology.

Concerning the point in contention, the trial court instructed the jury as follows:

"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." (Emphasis added).

Counsel for plaintiffs objected to the instruction, saying:

"I object to the Court's charge that you have to have someone learned in urology or gynecology in order to testify as to the--as to what should or should not have been done. I think the test is if a person is a medical doctor or even an osteopathic doctor who is familiar with the standard of care that is the test to be applied and not that he has to be aware of the speciality of both urology and gynecology."

Plaintiffs argued in the Court of Appeals and before this Court that the phrase "learned in urology and 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.

Dr. George Miller, the expert witness called by the plaintiffs, whose qualifications were the subject of the contested instruction, is a board-certified surgeon who testified that although he was not board certified in urology and gynecology, he kept himself professionally...