Jones v. Porretta, Docket No. 70998

• Decision Date: 07 January 1985
• Docket Number: Docket No. 70998
• Citation: 138 Mich.App. 241,360 N.W.2d 181
• Parties: Alfred D. JONES and Martha Ann Jones, Plaintiffs-Appellants, v. Charles PORRETTA, M.D., Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 181

360 N.W.2d 181

138 Mich.App. 241

Alfred D. JONES and Martha Ann Jones, Plaintiffs-Appellants, v. Charles PORRETTA, M.D., Defendant-Appellee.

Docket No. 70998.

Court of Appeals of Michigan.

Submitted April 16, 1984.

Decided Sept. 11, 1984.

Released for Publication Jan. 7, 1985.

Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick by Richard E. Shaw, Detroit, for plaintiffs-appellants.

Schureman, Frakes, Glass & Wulfmeier by Cheryl L. Chandler, Detroit, for defendant-appellee.

Before SHEPHERD, P.J., and BEASLEY and CAPRATHE, ^* JJ.

PER CURIAM.

In this medical malpractice action, plaintiffs appeal an order denying a motion for new trial. The sole issue on appeal is whether the trial court erred in giving the jury an instruction which deviated from the Standard Jury Instructions by adding the statement that "no physician can be required to guarantee results". Plaintiffs' attorney made a timely objection to the instruction on the record and also raised the issue in their motion for new trial. The record discloses that the issue of guaranteed results was never injected into the trial by evidence or arguments. We hold that such an instruction constituted reversible error and we remand for a new trial. In so doing, we create a conflict with another panel of this Court which held to the contrary. Warfield v. Wyandotte, 117 Mich.App. 83, 323 N.W.2d 603 (1982), lv. den. 417 Mich. 919 (1983). Accordingly, an order will be entered simultaneously with this opinion certifying this case to the Michigan Supreme Court for resolution of the conflict.

The trial court correctly gave SJI2d 30.01, and then added the following language:

"No physician can be required to guarantee results, but the law demands that they bring and apply to the case at hand that degree of skill and care, knowledge and attention ordinarily possessed and exercised by other orthopedic surgeons in the same specialty under like circumstances."

This addition to the Standard Jury Instructions was taken directly from Warfield, supra, and the trial judge cannot be faulted for so doing. Warfield had been decided at the time the instruction was given and the trial judge did not commit error in following that case.

However, we believe that Warfield was wrongly decided since it conflicts with Javis v. Ypsilanti Bd. of Ed., 393 Mich. 689, 227 N.W.2d 543 (1975). Javis holds that where there is a deviation from an accurate jury instruction prejudicial error will be presumed provided that the deviation was brought to the attention of the trial court prior to commencement of jury deliberations. We would agree with the rationale of Warfield where no objection is made to the instruction. The addition to the Standard Jury Instructions appears relatively harmless on its face and is arguably nothing more than an attempt by the court to clarify the law by contrasting to the jury the difference between what the law is and what it is not. On the surface no harm seems to have been done.

However, a new issue is injected into the case without explanation, without argument, and without any evidence appearing in the record to justify it. We do not know whether any jurors would have been influenced by this remark and, since we do not know, we must be guided by the presumption of reversible error stated in Javis, supra. Since it is not possible for anyone to know which factors will most influence a jury, we have little choice but to follow the guidelines of the Standard Jury Instructions when they are requested by a party...