Dunn v. Nundkumar

• Decision Date: 17 December 1990
• Docket Number: Docket No. 110325
• Citation: 463 N.W.2d 435,186 Mich.App. 51
• Parties: Dennis DUNN, Personal Representative of the Estate of Brinda Dunn, Deceased, Plaintiff-Appellant, v. C. NUNDKUMAR, M.D., Defendant-Appellee. 186 Mich.App. 51, 463 N.W.2d 435
• Court: Court of Appeal of Michigan — District of US

Page 435

463 N.W.2d 435

Dennis DUNN, Personal Representative of the Estate of Brinda

Dunn, Deceased, Plaintiff-Appellant, v. C. NUNDKUMAR, M.D., Defendant-Appellee.

Docket No. 110325.

186 Mich.App. 51, 463 N.W.2d 435

Court of Appeals of Michigan.

Submitted March 14, 1990.

Decided June 13, 1990.

Released for Publication Dec. 17, 1990.

[186 MICHAPP 52] Gursten, Wigod, Koltonow & Falzon, P.C. by John W. Whitman, Southfield, for plaintiff-appellant.

Peacock, Fordney, Cady, Ingleson & Prine, P.C. by Andrew W. Prine, Saginaw, for defendant-appellee.

Before HOOD, P.J., and MAHER and CYNAR, JJ.

PER CURIAM.

Plaintiff Dennis Dunn appeals as of right from the judgment, entered on June 28, 1988, on a general jury verdict of no cause of action. In this medical malpractice action, plaintiff alleged that defendant Crumsen Nundkumar, M.D., had failed to properly diagnose and treat plaintiff's decedent's gallbladder problem or make a timely referral to an internist, surgeon or gastroenterologist. The decedent, Brinda Dunn, on September 3, 1983, a few weeks after giving birth by Caesarean section, died from acute hemorrhagic pancreatitis subsequent to cholecystitis (gallbladder inflammation) due to cholelithiasis (gallstones). On appeal, plaintiff maintains that the trial court erred in precluding the deposition testimony of one of plaintiff's expert witnesses, Michael Blank, M.D., a board certified general surgeon and family practitioner, on the basis of the court's consideration[186 MICHAPP 53] of defendant as a specialist in obstetrics and gynecology. We affirm.

First, plaintiff argues that the trial court erroneously referred to defendant as a "specialist" in obstetrics and gynecology, as defendant did not receive board certification as an OB/GYN until December of 1983, three months after Brinda Dunn died. Plaintiff contends, therefore, that the court should have considered defendant to be a general practitioner, for whom Dr. Blank's deposition testimony on the standard of care would have been relevant. However, we find no authority, and plaintiff cites none, for the proposition that board certification is a necessary prerequisite for the court's designation of defendant as a specialist. A statement of position without supporting citation waives the issue on appeal. Tringali v. Lal, 164 Mich.App. 299, 306, 416 N.W.2d 117 (1987), lv. den. 430 Mich. 889 (1988). Plaintiff's reference by analogy to M.C.L. Sec. 600.2169; M.S.A. Sec. 27A.2169 (effective October 1, 1986), which provides more stringent standards for qualification of expert witnesses than previously required, does not cure this failing, particularly where this statute does not apply to actions, such as this one, filed before its effective date. Kelley v. Murray, 176 Mich.App. 74, 438 N.W.2d 882 (1989). Moreover, our review of the record does not indicate that plaintiff ever argued this position before the trial court. Thus, the issue is not properly before this Court on that basis as well. Muilenberg v. The Upjohn Co., 169 Mich.App. 636, 644, 426 N.W.2d 767 (1988), lv. den. 432 Mich. 890 (1989). In any event, given defendant's testimony to the effect that he has at all times limited his practice to obstetrics and gynecology, we find no fault with the trial court's reference to defendant as a specialist.

Next, plaintiff argues that even if defendant is a [186 MICHAPP 54] specialist, the trial court erred in not allowing the deposition testimony of Dr. Blank on the issues of standard of care and proximate causation.

Whether a witness is qualified as an expert is left to the discretion of the trial court. Petrove v. Grand Trunk W.R. Co., 174 Mich.App. 705, 716, 436 N.W.2d 733 (1989). On the issue of standard of care according to the law applicable when this suit was filed, an expert witness need not be a "specialist" in defendant's field in order to testify to the appropriate standard of care. However, the witness must possess the necessary learning, knowledge, skill or practical experience to enable him to testify competently on that area of medicine. Siirila v. Barrios, 398 Mich. 576, 591, 248 N.W.2d 171 (1976); Croda v. Sarnacki, 106 Mich.App. 51, 60, 307 N.W.2d 728 (1981), rev'd on other grounds 414 Mich. 882 (1982). In this case, Dr. Blank's experience in obstetrics and gynecology appears to have been limited to receiving referrals from OB/GYNs, a basis found insufficient by our Court in Dybata v. Kistler, 140 Mich.App. 65, 70, 362 N.W.2d 891 (1985), to overturn the lower court's refusal to qualify an expert witness to testify to the standard of care applicable to the defendant. Furthermore, we find Dr. Blank's proposed testimony to have been at best cumulative in light of the trial testimony of plaintiff's other expert, Dr. Hillabrand, a board-certified OB/GYN, who testified at length on the appropriate standard of care and his opinion as to defendant's breach thereof. Thus, we find that any error by the trial court in refusing to qualify and allow into evidence the deposition testimony of Dr. Blank concerning standard of care was at best harmless.

We also find harmless any error in the trial court's refusal to allow into evidence those portions[186 MICHAPP 55] of Dr. Blank's deposition regarding proximate causation. The trial court did not refuse to...