Frazier v. Hurd, Docket No. 290

• Decision Date: 28 March 1967
• Docket Number: Docket No. 290,No. 1,1
• Citation: 149 N.W.2d 226,6 Mich.App. 317
• Parties: Frances FRAZIER, Plaintiff-Appellant, v. Douglas B. HURD, D.O., Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 226

149 N.W.2d 226

6 Mich.App. 317

Frances FRAZIER, Plaintiff-Appellant, v. Douglas B. HURD, D.O., Defendant-Appellee.

Docket No. 290.

Court of Appeals of Michigan, Division No. 1.

March 28, 1967.

Rehearing Denied April 28, 1967.

Nat Gursten, Highland Park, for appellant.

Robert E. Dice, Feikens, Dice, Sweeney & Sullivan, Detroit, for appellee.

Before LESINSKI, C.J., and GILLIS and HOLBROOK, JJ.

GILLIS, Judge.

Defendant, Dr. Douglas B. Hurd, an osteopathic physician, assisted by Dr. A. Robert Klucka, performed an oophorectomy ¹ on the plaintiff, Frances Frazier. Plaintiff had been referred to defendant by Dr. Klucka. Plaintiff's cause of action for malpractice arose out of the aforementioned surgical procedure.

At trial, plaintiff attempted to cross-examine Dr. Klucka, pursuant to the adverse party statute, ² on the theory that he was the agent of the defendant when the operation was performed. The court ruled that Dr. Klucka was not an agent within the meaning of the statute and also overruled plaintiff's additional contention that the witness was hostile. Thereafter, plaintiff called Dr. Klucka as her own witness and he testified:

'I firmly believe the surgeon used good discretion at all times and that he followed the standards of his profession.'

Plaintiff's second witness, Dr. Clarence S. Youngstrom, a medical doctor, testified on cross-examination that his training was exclusively as a medical doctor, that he had never worked with an osteopathic physician in connection with an oophorectomy, that he was not familiar with the rules and procedures of osteopathic surgeons and that he had no knowledge of osteopathic standards. On redirect examination plaintiff asked the witness the following question:

'Doctor, with reference to an oophorectomy, are you familiar with the standards or skill applied by osteopathic surgeons in oophorectomies?'

Plaintiff contends that while his witness,

'May not know the standards of osteopathic surgeons in general, that he would know what the standards are with reference to an oophorectomy * * * he would say that the method and technique of the osteopathic school of medicine and the medical school of medicine in the performance of an oophorectomy are precisely the same.'

The trial court sustained an objection to this question and subsequently granted the defendant's motion for a directed verdict.

On appeal plaintiff contends that the trial court erred in refusing to allow testimony of the medical doctor pertaining to osteopathic standards in performing an oophorectomy. The trial court's decision was in accord with the rule laid down in Bryant v. Biggs (1951), 331 Mich. 64, 76, 49 N.W.2d 63, 69.

'In view of the repeated statements that he had no knowledge of osteopathy or the methods and standards of practice generally of osteopathic practitioners, the conclusion necessarily follows that he was not competent to testify whether the defendants exercised due and proper care, according to the applicable test, in treating Mr. Bryant's ailment and in performing the operation.'

In light of the increased similarity between osteopathic and medical procedures and in view of their mergers in some jurisdictions, this Court finds it difficult to subscribe to Bryant. However, we are bound by its holding which effectively defeats plaintiff's...