Ferguson v. Gonyaw, Docket No. 18982

CourtCourt of Appeal of Michigan (US)
Citation64 Mich.App. 685,236 N.W.2d 543
Docket NumberDocket No. 18982
PartiesJames R. FERGUSON, Plaintiff-Appellant, v. Earl GONYAW, D.O., et al., Defendants-Appellees.
Decision Date13 October 1975

Charfoos & Charfoos by L. S. Charfoos, Detroit, for plaintiff-appellant.

Dice, Sweeney & Sullivan by Robert E. Dice, Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen by B. I. Stanczyk, Detroit, for defendants-appellees.

Before BRONSON, P.J., and V. J. BRENNAN and D. E. HOLBROOK, Jr., JJ.

D. E. HOLBROOK, Jr., Judge.

Plaintiff filed a medical malpractice action against Dr. Earl Gonyaw, an osteopathic physician, and a negligence action against Martin Place Hospital. The suits alleged that Dr. Gonyaw failed to use a requisite standard of care in treating the plaintiff's back injury and that the hospital was negligent in allowing Dr. Gonyaw to be a staff member at the hospital. At the close of plaintiff's proof, following a seven-day trial, the trial court granted the hospital's motion for a directed verdict of no cause of action. After deliberating, the jury returned a verdict of no cause of action in favor of Dr. Gonyaw. From the judgments entered on these two verdicts, plaintiff appeals as of right.


Plaintiff, on appeal, claims that the trial court improperly limited his examination of Dr. Gonyaw. He further claims that the trial court erred in not allowing him to make a separate record of what he would prove if he were allowed a 'full' examination of Dr. Gonyaw. Such a record is necessary for this court to determine if there was any prejudice caused by the trial court limiting the plaintiff's examination of Dr. Gonyaw. Ruhala v. Roby, 379 Mich. 102, 117, 150 N.W.2d 146 (1967), Cf. Moynes v. Applebaum, 218 Mich. 198, 202, 187 N.W. 241 (1922).

As his first witness plaintiff sought to call Dr. Gonyaw under the adverse party witness statute. 1 M.C.L.A. § 600.2161; M.S.A. § 27A.2161. This statute permits the calling party to treat an adverse party as if he had been called to testify on his own behalf. He may be asked questions as if on cross-examination, but more importantly he may be impeached. Without the aid of this statute it becomes impractical to call the opposing party since the calling party would be bound by his answers. 3A Wigmore, Evidence (Chadbourn rev), § 916. See McCormick, Evidence (2d ed.), § 38, p. 77.

The purpose of the rule is to allow the truth to be brought out with greater regularity by eliminating a technical rule of evidence. Detroit v. Porath, 271 Mich. 42, 75, 260 N.W. 114 (1935); Waller v. Sloan, 225 Mich. 600, 603--605, 196 N.W. 347 (1923); Giacobazzi v. Fetzer, 6 Mich.App. 308, 313, 149 N.W.2d 222 (1967), Lv. den., 379 Mich 770 (1967). By allowing the calling party to initially 'cross-examine' the opposing party, all the facts can be more readily revealed. With impeachment the calling party has a ready tool to prevent and expose any twisting of the facts by the adverse party through the introduction of prior inconsistent statements, for example. The argument that allowing impeachment will coerce the witness into giving favorable testimony to the calling party does not apply when the adverse party is the witness since his interests directly contradict the calling party's. 3A Wigmore, Evidence, Supra, 4 Jones, Evidence (6th ed.), § 26.13.

Although Dr. Gonyaw is clearly an adverse party, who may be called under the statute, when he was called plaintiff's counsel failed to announce that he was being called under the statute. Ruhala v. Roby, supra, 379 Mich. at 111, 150 N.W.2d 146; Mally v. Excelsior Wrapper Co., 181 Mich. 568, 574--575, 148 N.W. 443 (1914). The purpose behind the rule requiring the announcement of the reliance upon the statute is to give the trial court and the adverse party's counsel warning as to the mode of questioning. This will prevent unnecessary objections by the adverse party's counsel, which can only create the suspicion in the jurors' minds that the witness is attempting to hide something.

Because the announcement rule runs counter to the principle of the adverse party witness statute the Supreme Court carved out an exception in Walter v. Detroit, J. & C.R. Co., 191 Mich. 181, 157 N.W. 414 (1916). In that case they ruled that the announcement was timely even though counsel had begun to question the adverse party witness since the questions related solely to preliminary matters. In the present case plaintiff's counsel began his questioning of Dr. Gonyaw under the statute without making any announcement about the statute. The first few questions were the normal qualifying questions and then the plaintiff's counsel began to question the doctor about his qualifications. Shortly thereafter, during a conference in chambers, Dr. Gonyaw's counsel objected to this form of questioning stating that no announcement had been made as required. After hearing extensive argument the trial court ruled that the questions concerning the doctor's qualifications were not preliminary and thus plaintiff's counsel was foreclosed from questioning under the statute for failing to make his announcement.

In reaching its decision, the record indicates that the trial court gave careful consideration to the questions asked by plaintiff's counsel and the genuine issues in the case. The questions went to Dr. Gonyaw's training. One of the central issues in the case was whether Dr. Gonyaw was qualified to practice neurosurgery. Although educational qualifications are normally merely preliminary questions of a medical witness, in this case they go to the very heart of the case. We find that the trial court correctly ruled that the questions did not fall within the category of preliminary questions.

The Supreme Court has also created another exception to the announcement rule to lessen the harshness of the rule. In Moynes v. Applebaum, supra, the Court stated that it was not reversible error to permit a late announcement under the adverse party witness statute when no prejudice to the opposing party was shown. By holding that it was not reversible error, the Supreme Court implied that it was error to allow the late announcement. However, in reviewing the facts of that particular case, it found the error harmless since the testimony had only aided the opposing party. In the present case by sustaining the defendants' timely objection to the continued reliance on the statute without an announcement, the trial court prevented error. Since there is no error this Court is not required to determine if it is harmless. Since there is no available exception to the announcement rule, the trial court did not err in forbidding the plaintiff to use the adverse party witness statute in questioning Dr. Gonyaw.

Since it was not error to forbid the questioning of Dr. Gonyaw under the statute, the trial court did not err in denying plaintiff the right to make a separate record of what he would prove if allowed to use the statute. In reality, the statute only aids a party collaterally as the trial court noted:

'* * * You can get out everything from (sic) your client, from this witness (with direct examination) that you could get out of cross-examination, but I have found very few lawyers have the ability to do it, but it is a very easy way to do it * * *. You can get statements from this witness that are going to be satisfactory to you * * *.'

Furthermore, although Dr. Gonyaw could not be directly impeached except under the statute, the plaintiff was free to contradict him. Jones v. Pere Marquette R. Co., 168 Mich. 1, 15, 133 N.W. 993 (1911). The trial court also stated that if Dr. Gonyaw became evasive in answering plaintiff's questions, it would declare the doctor a hostile witness.


Plaintiff next claims that the trial court improperly drew a distinction between osteopathic physicians and medical doctors. In support of this contention he points out several instances during the trial where the trial court prevented the plaintiff from asking questions concerning the differences in the training between osteopathic and medical doctors. The plaintiff also claims the trial court continued the distinction by instructing the jury that the relevant malpractice standard was for Osteopathic neurosurgeons and not simply neurosurgeons.

Plaintiff bases his argument on the fact that when the incident occurred Dr. Gonyaw and his neurosurgical instructor were the only practicing osteopathic neurosurgeons in Michigan. His contention is that these two men should not be entitled to establish their own standard of care from which to defend malpractice actions. While plaintiff's argument has merit, Michigan recognizes that specialists should be held to a national standard of care according to their school of medicine. See Naccarato v. Grob, 384 Mich. 248, 180 N.W.2d 788 (1970).

Plaintiff also argues that a patient has the right to expect the same standard of care from any person practicing medicine, whether the person's training is osteopathic or medical. In his appellate brief, plaintiff points out that the osteopathic and medical schools of medicine are slowly integrating. Dr. Gonyaw's neurosurgical instructor testified that the mechanics of neurosurgery were similar between the two branches of medicine, but that the philosophies of the practitioners of the two branches differ. In fact, the instructor testified that he received his neurosurgical training in France under the guidance of medical doctors. It was further revealed that Dr. Gonyaw had studied neurosurgery almost exclusively from textbooks written by medical doctors.

Furthermore, the American Medical Association, the national association of medical doctors, is accepting osteopathic physicians that have met certain requirements into membership. Ten medical speciality boards, including neurology, have begun certifying osteopaths provided they have completed American...

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