Heshelman v. Lombardi

Decision Date09 May 1990
Docket NumberDocket No. 111627
Citation454 N.W.2d 603,183 Mich.App. 72
PartiesEva HESHELMAN, Plaintiff-Appellant, v. Kenneth LOMBARDI, M.D., and Battle Creek Medical Associates, P.C., Defendants-Appellees. 183 Mich.App. 72, 454 N.W.2d 603
CourtCourt of Appeal of Michigan — District of US

[183 MICHAPP 73] Field & Field, P.C. by Samuel T. Field, Kalamazoo, for plaintiff-appellant.

Bremer, Wade, Nelson, Mabbitt & Lohr by Phillip[183 MICHAPP 74] J. Nelson and Michael D. Wade, Grand Rapids, for defendants-appellees.

Before MICHAEL J. KELLY, P.J., and SULLIVAN and ALLEN, * JJ.

MICHAEL J. KELLY, Presiding Judge.

Plaintiff Eva Heshelman appeals from a jury verdict of no cause of action in favor of defendants Kenneth Lombardi, M.D., and Battle Creek Medical Associates, P.C. Plaintiff sued defendants for alleged medical malpractice arising from Dr. Lombardi's failure to diagnose and treat her heart attack. Following a four-day trial, the jury found that Dr. Lombardi had not been negligent in his diagnosis or treatment of plaintiff and rendered a verdict for defendants.

Plaintiff testified that on February 26, 1985, at around 11:00 a.m. she felt sudden chest pains and pain in her left arm. Plaintiff was fifty-nine years old and had a prior history of atherosclerotic artery disease. Plaintiff had undergone an operation in 1982 to remove atherosclerotic obstructions. Plaintiff's family had a history of heart disease. Plaintiff also smoked and had been smoking for the past thirty-five years.

After feeling chest pains, plaintiff went to see Dr. Lombardi. She testified that when she arrived at Lombardi's office she was perspiring and had almost fainted. When Lombardi examined her, she told him that she was suffering pain in her chest and in her left arm. According to plaintiff, Lombardi did not question her in detail about her symptoms. Plaintiff testified that Lombardi told her that the causes of her complaints were that she was working too hard, was overweight, and was smoking too much. Dr. Lombardi did not give plaintiff an electrocardiogram.

[183 MICHAPP 75] When plaintiff returned home, her pain did not subside. At around 7:00 p.m. that evening, plaintiff went to a hospital emergency room, where she was diagnosed as suffering from a myocardial infarction. Plaintiff's heart was damaged as a result of this infarction. A cardiac catheterization indicated that her right coronary artery was totally occluded. An angiogram performed in April of 1987 indicated that the artery was still occluded but that her other blood vessels were normal and her overall heart function was good.

At trial, plaintiff's expert, Dr. Crane, testified that a physician confronted with a patient complaining of chest pains should first check the patient's medical history. Crane faulted Dr. Lombardi's failure to obtain adequate information on plaintiff's history. Crane testified that Lombardi's failure to adequately check plaintiff's history led to inadequate treatment and diagnosis. In Dr. Crane's opinion, an electrocardiogram performed at the time of Lombardi's examination would have demonstrated a cardiac abnormality.

Dr. Lombardi testified that when he examined plaintiff she complained only of mild tightness in her chest and did not mention pain in her arms. Lombardi testified that he had taken a proper history from plaintiff and that his method of charting was common practice. Lombardi said he examined plaintiff and listened to her heart and that she was not sweating or exhibiting other symptoms of a heart attack. Lombardi diagnosed plaintiff as having a respiratory infection. Lombardi testified that he was familiar with the standard of care applicable to specialists in internal medicine and that he had not violated that standard of care.

Defendants also presented an expert witness, Dr. Dykman, who testified regarding plaintiff's damages. Dr. Dykman specifically stated that he was [183 MICHAPP 76] not testifying regarding the standard of care or any breach thereof.

Following the jury verdict in favor of defendants, plaintiff moved for a new trial based upon alleged instructional error and the verdict being against the great weight of the evidence. The court denied plaintiff a new trial. Plaintiff appeals as of right, raising four issues.

I

The first issue we address is whether the jury's verdict was against the great weight of the evidence. Plaintiff claims that the trial court erred in not granting her a new trial on this basis. We find no error.

Whether to grant a motion for a new trial is within the trial court's discretion. Termaat v. Bohn Aluminum & Brass Co., 362 Mich. 598, 602, 107 N.W.2d 783 (1961). The standard of review is whether the verdict was against the overwhelming weight of the evidence. Troyanowski v. Village of Kent City, 175 Mich.App. 217, 223, 437 N.W.2d 266 (1988). In determining whether the evidence was overwhelming, this Court should give deference to the trial court's unique ability to judge the weight and credibility of the testimony and should not substitute its judgment for that of the jury unless the record reveals a miscarriage of justice. Id.

Review of the record does not indicate that the verdict was contrary to the overwhelming evidence. The trial presented a credibility contest between plaintiff Eva Heshelman and defendant Dr. Lombardi. Plaintiff testified as to one set of facts, which indicated that she suffered from severe symptoms and that Lombardi gave her only a cursory examination. Lombardi testified that plaintiff complained only of mild tightness in her [183 MICHAPP 77] chest and, after a complete examination, she exhibited no symptoms of heart problems. Plaintiff's expert testified that, based upon plaintiff's testimony, Dr. Lombardi violated the necessary standard of care by not obtaining an adequate history from plaintiff and that an electrocardiogram would have revealed plaintiff's condition. Lombardi testified that he did not violate the standard of care and that his examination of plaintiff did not indicate that an electrocardiogram was necessary. The jury evidently found Dr. Lombardi's testimony more credible and found that he had not been negligent in his treatment of plaintiff. We are bound by the assessment of the witnesses' credibility made by the jury and the trial court.

II

Plaintiff argues that the trial court erred in instructing the jury, claiming several instructional errors. We find no error requiring reversal.

The court gave the following instruction regarding the testimony of expert witnesses.

In this case, a number of doctors have given their opinions as experts in the field of internal medicine. Experts are permitted to give their opinions as to matters on which they are experts. You should consider each expert opinion received in evidence, but you are not bound to follow the opinion of an expert. You may give each opinion whatever weight you believe it deserves.

In determining whether or not to believe the opinion of an expert or which opinion to believe, you should consider the reasons and facts upon which the expert bases his or her opinion and whether those facts are true. You should also consider the qualifications and believability of the expert in light of all the evidence in the case.

[183 MICHAPP 78] This instruction is essentially the same as CJI 5:2:12, now CJI2d 5.10.

Plaintiff argues that this instruction was erroneous under MCR 2.516(D)(3), which provides:

(3) Whenever the SJI committee recommends that no instruction be given on a particular matter, the court shall not give an instruction on the matter unless it specifically finds for reasons stated on the record that

(a) the instruction is necessary to state the applicable law accurately, and

(b) the matter is not adequately covered by other pertinent standard jury instructions.

Plaintiff points out that the comments to SJI2d 4.10 recommend that no instruction on "weighing expert testimony" be given. Plaintiff reasons that the court erred by giving this instruction regarding expert testimony without stating reasons on the record for this particular instruction.

We note that CJI 5:2:12, upon which the complained-of instruction was patterned, is followed by commentary also recommending that no instruction be given regarding "weighing expert testimony." From this, it is evident that the committee did not consider CJI 5:2:12 to be such a "weighing" instruction and one not to be recommended. Thus, the instruction given by the trial judge, which tracked CJI 5:2:12, was not a disfavored weighing instruction, and the court did not need to comply with MCR 2.516(D)(3) in order to read it to the jury.

Plaintiff claims that the court erred in giving SJI2d 30.04, which provides:

There are risks inherent in medical treatment that are not within a doctor's control. A doctor is not liable merely because of an adverse result. [183 MICHAPP 79] However, a doctor is liable if the doctor is negligent and that negligence is a proximate cause of an adverse result.

Plaintiff argues that this instruction was inappropriate because plaintiff never argued that the mere fact of her injuries was proof of malpractice. In Jones v. Porretta, 428 Mich. 132, 146, 405 N.W.2d 863 (1987), our Supreme Court noted that where a plaintiff makes such an argument a similar instruction could be given.

Where proofs put the significance of an adverse result in issue, it may be more appropriate to explain the physician's duty of care by advising the jury that there are inherent risks in medical treatment which are beyond the physician's control.

Despite the fact that this instruction may not have been entirely appropriate for this fact situation, we find that any error which resulted was minimal and had no effect on the verdict. At worst, this instruction was "nothing more than an innocuous recitation of what a reasonable juror already understands." Jones, supra, at p. 144, 405 N.W.2d 863. This...

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