Dybata v. Kistler
| Decision Date | 28 February 1985 |
| Docket Number | Docket No. 74365 |
| Citation | 362 N.W.2d 891,140 Mich.App. 65 |
| Parties | Gale Justin DYBATA, Plaintiff-Appellant, v. Ole KISTLER, Defendant-Appellee. 140 Mich.App. 65, 362 N.W.2d 891 |
| Court | Court of Appeal of Michigan — District of US |
[140 MICHAPP 66] Sommers, Schwartz, Silver & Schwartz, P.C. by Jeffrey N. Shillman, Southfield, for plaintiff-appellant.
Siemon, Huckabay, Bodary, Padilla & Morganti, P.C. by Raymond W. Morganti, Detroit, for defendant-appellee.
[140 MICHAPP 67] Before HOOD, P.J., and BRONSON and TAHVONEN, * JJ.
In this medical malpractice case, plaintiff challenges an order of the trial court barring the proposed testimony of her expert witness as to the claim made against defendant, Ole Kistler. We affirm.
In her complaint, plaintiff alleged that on September 4, 1979, she consulted Dr. Kistler, a doctor of osteopathy in general practice, because of uterine bleeding, discharge and pain. Dr. Kistler allegedly diagnosed functional uterine bleeding and treated accordingly. On September 11, 1979, Dr. Kistler referred plaintiff to Dr. David Prigg, a doctor of osteopathy specializing in obstetrics and gynecology. The plaintiff's condition did not improve and she subsequently underwent surgery for what was determined to be incomplete abortion, chronic pelvic inflammatory disease, pyosapinx and pelvic adhesions. Seventeen claims of professional negligence were set forth in the complaint against Drs. Kistler and Prigg seeking damages for plaintiff's loss of her fallopian tubes, sterility, medical expenses, pain and suffering, and lost earnings.
Plaintiff deposed Dr. Richard A. Fields, a medical doctor specializing in obstetrics and gynecology. Defendant Kistler made a motion in limine challenging Dr. Fields' qualifications to testify as an expert witness regarding the standard of care applicable to a general practitioner. The trial court granted defendant Kistler's motion and barred the testimony of Dr. Fields, finding that Dr. Fields was not qualified to testify regarding the standard of care applicable to a general practitioner. Subsequently, counsel for plaintiff and defendant Kistler signed a stipulation dismissing [140 MICHAPP 68] plaintiff's claim against Dr. Kistler with prejudice and without costs "in light of the court's ruling" on the motion in limine. The case proceeded to trial against Dr. Prigg and plaintiff recovered a verdict in the amount of $250,000. Plaintiff now appeals as of right from the order dismissing the claim against Dr. Kistler.
As a threshold matter, defendant argues that plaintiff cannot appeal from a stipulated order dismissing her claim. Although we agree with the proposition that one may not appeal from a consent judgment, order or decree, Dora v. Lesinski, 351 Mich. 579, 88 N.W.2d 592 (1958), we do not believe a dismissal expressly necessitated by and premised upon a dispositive evidentiary ruling is a "consent" judgment or order. To require plaintiff to present proofs as a mere prelude to a certain directed verdict in order to preserve the issue would serve no one's interest. The question is properly before us.
The substantive issue is whether the trial judge abused his discretion in concluding that Dr. Fields was not qualified to testify concerning the standard of care applicable to Dr. Kistler's diagnosis and treatment.
MRE 702 governs the admission of expert testimony. It provides that:
"If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." (Emphasis added.)
Whether a witness is sufficiently qualified to provide opinion testimony is a decision within the [140 MICHAPP 69] sound discretion of the trial court, and that court's decision will not be disturbed absent an abuse of discretion, Gilmore v. O'Sullivan, 106 Mich.App. 35, 39, 307 N.W.2d 695 (1981). The proper test for determining if an expert witness is qualified to testify in a medical malpractice trial is whether the witness is familiar with the appropriate standard of care. Swanek v. Hutzel Hospital, 115 Mich.App. 254, 320 N.W.2d 234 (1982); Thompson v. DAIIE, 133 Mich.App. 375, 350 N.W.2d 261 (1984).
The following testimony from Dr. Fields' deposition is claimed by plaintiff to demonstrate his familiarity with the appropriate standard of care:
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...permits the prosecution to appeal that evidentiary ruling. Caselaw from our Court of Appeals recognizes this. In Dybata v. Kistler, 140 Mich.App. 65, 362 N.W.2d 891 (1985), a medical malpractice case, the trial court barred testimony from the plaintiff's expert witness regarding the standar......
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...sound discretion of the trial court, the decision of which will not be reversed absent an abuse of discretion. Dybata v. Kistler, 140 Mich.App. 65, 68-69, 362 N.W.2d 891 (1985). Here, the trial court determined that plaintiffs' expert witness was qualified as an expert witness in the area o......
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