Koch v. Gorrilla, 75-2301

Citation552 F.2d 1170
Decision Date15 April 1977
Docket NumberNo. 75-2301,75-2301
PartiesDiane M. KOCH, Special Administratrix of the Estate of Curtis J. Koch, Deceased, Plaintiff-Appellant, v. A. C. GORRILLA, M. D., and M. A. Gertz, M. D., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Wisti & Jaaskelainen, Hancock, Mich., for plaintiff-appellant.

Charles Humphrey, Jr., Humphrey & Weis, Ironwood, Mich., for defendants-appellees.

Arthur A. Neiman, Escanaba, Mich., for Santini.

John D. Peacock, Sault Ste. Marie, Mich., for Gertz.

Before CELEBREZZE and PECK, Circuit Judges, and FEIKENS, * District Judge.

FEIKENS, District Judge.

This appeal concerns an action in diversity, brought by plaintiff-appellant Diane M. Koch against defendants, A. C. Gorrilla, M.D., Florien J. Santini, M.D., M. A. Gertz, M.D., and Grand View Memorial Hospital, all of Ironwood, Michigan, for medical malpractice upon and wrongful death of plaintiff's husband, Curtis J. Koch. The case was tried to a jury. Plaintiff appeals from a directed verdict of no cause of action in favor of the defendants entered at the close of her proofs. She contends that the District Court improperly excluded certain testimony of decedent's treating physicians of Duluth, Minnesota relating to the standards of medical practice applicable to defendants as general physicians. Appellant also contends that the District Court erred in refusing to submit her case to the jury despite expert testimony from defendants themselves describing the standards of medical practice in Ironwood, Michigan, where the claimed torts occurred, and evidence tending to show a breach of those standards. Michigan law controls our determination of these issues.

Curtis Koch traveled to Ironwood, Michigan on Tuesday, May 19, 1970, with his wife and three children on a trip for business and pleasure. In the evening of Wednesday, Koch complained of nausea and abdominal pains which he attributed to a barbecue he had eaten that afternoon for lunch. He vomited that night and was nauseous and weak throughout the next day, Thursday. His abdominal pains and vomiting continued through Thursday night, and in the early afternoon of Friday, May 22, 1970, Koch went for treatment to Dr. A. C. Gorrilla, a general practitioner in Ironwood.

Dr. Gorrilla questioned and physically examined Koch and tentatively diagnosed his ailment as an inflammation of the inner walls of the stomach, caused by eating tainted food. Dr. Gorrilla's records relating to his examination of Koch were unavailable at trial, but he testified from memory that Koch had given a history of having eaten a hamburger late Thursday evening and that he had taken Koch's temperature and blood pressure and performed a urinalysis. Dr. Gorrilla did not rule out acute appendicitis, but he prescribed an enema and the application of a wet heat pack to Koch's upper abdomen. Koch was to call Dr. Gorrilla's office if this treatment did not alleviate his symptoms within several hours; he was told that hospitalization would in that event be necessary.

Koch returned home and took an enema, but his condition continued to worsen. After Mrs. Koch made an unsuccessful attempt to reach Dr. Gorrilla Saturday evening, she called the Grand View Memorial Hospital near Ironwood on Sunday morning and was told by Dr. Gertz to bring Koch to the hospital. There, Koch was examined by Dr. Gertz and hospitalized immediately. He was very ill. The initial diagnosis after X-ray examination was an acute intestinal obstruction due to a ruptured appendix. After consultation with Dr. Santini, Dr. Gertz determined that Koch was too ill to undergo immediate surgery for the removal of his appendix, and he thereupon prescribed a conservative course of treatment for the purpose of improving Koch's condition so as to permit surgery.

Koch remained at the Grand View Hospital for seven days, until May 31, 1970. During this time, Koch's white blood count was monitored and showed an increase from 12,100 upon admission to 21,000 at the time of his discharge. Koch was X-rayed once for obstruction of his intestinal tract. Two enemas were given for treatment purposes. Dr. Gertz also ordered a Levine tube inserted into Koch's stomach to further monitor his condition.

Koch was taken from Grand View Hospital and transferred to St. Mary's Hospital in Duluth, Minnesota on Sunday, May 31. He underwent surgery the following day. Dr. Monge, who performed the operation, testified that he encountered large amounts of pus upon opening the peritoneal cavity. The appendix had ruptured and infected the entire peritoneal cavity, the pelvis and upper abdomen. The small intestine was dilated, abscessed, and due to fibronous adhesions was kinked. There were already signs of liver dysfunction and jaundice. Dr. Monge removed the appendix and irrigated the peritoneal cavity. Koch survived the surgery but his condition did not improve; liver and renal failure followed. He died on June 12, 1970.

At trial, plaintiff's presentation began with the reading of the deposition testimony of Dr. Monge, the decedent's treating physician in Duluth. In it he described Koch's general condition upon admission to St. Mary's Hospital in Duluth, the course of his surgery, and his subsequent complications and demise. Plaintiff next presented the deposition testimony of Dr. Aufderheide, who performed an autopsy of the decedent and reported the cause of death as a ruptured appendix resulting in an infection of the abdomen and other complications. Then followed the testimony of Drs. Gorrilla, Santini, and Gertz, who were examined regarding their treatment of Koch and the standards of medical practice generally recognized in the Ironwood area. Finally, Mrs. Koch testified to the events surrounding her husband's illness and the course of his medical treatment.

At the close of plaintiff's case, the District Court upon motion directed a verdict of no cause of action in favor of defendants and ruled that plaintiff had failed to present any direct expert testimony to establish that defendants had breached their duty of professional care, as that duty is recognized in defendants' community or similar communities. The District Court held that such evidence is required under Michigan law to sustain a medical malpractice action, citing Siirila v. Barrios, 58 Mich.App. 721, 228 N.W.2d 801 (1975), and Lince v. Monson, 363 Mich. 135, 108 N.W.2d 845 (1961), among other authorities.

Appellant first challenges a ruling made by the District Court excluding certain testimony of decedent's treating physicians of Duluth, Drs. Monge and Aufderheide, relating to the propriety of care offered decedent by the defendant doctors in Ironwood, Michigan. Our consideration of this issue is hampered at the outset by the absence of any such ruling in the record. The briefs of all parties state that the District Court issued this ruling from the bench during the course of trial, but appellant's counsel was frank to admit at oral argument that the transcript of the trial proceedings contains no mention of it. However, even assuming that some such testimony was offered by appellant and excluded by the court as inadmissible under Michigan law, we perceive no error in the District Court's ruling.

The standard of medical practice which governs a general practitioner's professional conduct under Michigan law is that degree of skill and diligence ordinarily exercised by general practitioners in the same or similar localities, with due consideration to the state of the medical arts at the time. Lince v. Monson, supra; Sampson v. Veenboer, 252 Mich. 660, 234 N.W. 170 (1931); Abbe v. Women's Hospital Assoc., 35 Mich.App. 429, 192 N.W.2d 691 (1971). Accordingly, decedent's treating physicians from Duluth would only have qualified as experts on the standards of practice owed by defendants in this case if they could have testified to a knowledge of the standards of practice of general practitioners in the Ironwood area or in similar communities. Sampson v. Veenboer, supra; Skeffington v. Bradley, 366 Mich. 552, 115 N.W.2d 303 (1962). A careful review of the record indicates, however, that Drs. Monge and Aufderheide were only familiar with and prepared to testify to the standards of medical practice in the Duluth area. There is nothing in the record to indicate that decedent's treating physicians from Duluth had any knowledge of medical standards prevailing in the Ironwood community.

Nor is it possible to consider Duluth a part of the Ironwood community to bring it within the Michigan rule. While Duluth is the closest large city to Ironwood at a distance of 100 miles, and while there may be referrals from Ironwood to Duluth medical facilities on a regular basis, Ironwood remains a much smaller community, with its own separate identity and its own localized medical needs and services. Contrast Morgan v. Engles, 372 Mich. 514, 127 N.W.2d 382 (1964), cited by appellant. Duluth and Ironwood are not part of the same medical community, nor are they similar medical communities; McPhee v. Bay City Samaritan Hospital, 10 Mich.App. 567, 159 N.W.2d 880 (1968); Skeffington v. Bradley, supra ; and therefore any testimony from appellant's treating physicians from Duluth regarding Duluth's standard of practice was properly excluded by the District Court as irrelevant.

Appellant has raised several policy arguments for the abolition of Michigan's locality rule as applied to general practitioners, but a federal appellate court sitting in a diversity action has no power to question the wisdom or utility of this doctrine. Recently, 1 the Michigan Supreme Court decided the case of Siirila v. Barrios, 398 Mich. 576, 248 N.W.2d 171 (1976), a medical malpractice action very much similar to the instant case, in which plaintiff sought to overturn the Michigan locality rule on the same policy grounds urged here. Four of the seven justices held that the issue had not been...

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  • Spaight v. Shah-Hosseini, C.A. PC 04-6802
    • United States
    • Superior Court of Rhode Island
    • December 30, 2009
    ...(1972); (both cases find a physician negligent for severing the ureter during an oopherectomy or hysterectomy); but see Koch v. Gorilla, 552 F.2d 1170 (1977); Williams v. Ricks, 152 Ga.App. 555 (1979) (both cases upholding a verdict for the defendant physician where the ureter was sutured d......
  • Spaight v. Shah-Hosseini, C.A. PC 04-6802
    • United States
    • Superior Court of Rhode Island
    • December 30, 2009
    ...(1972); (both cases find a physician negligent for severing the ureter during an oopherectomy or hysterectomy); but see Koch v. Gorilla, 552 F.2d 1170 (1977); Williams v. Ricks, 152 Ga.App. 555 (1979) (both cases upholding a verdict for the defendant physician where the ureter was sutured d......
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    • Supreme Court of Michigan
    • January 1, 1993
    ...2 Restatement Torts, 2d, § 360, p. 250. Physicians must keep reasonably abreast of current advances in their field. Koch v. Gorrilla, 552 F.2d 1170 (C.A. 6 1977). Manufacturers must diligently inspect their products to discover lurking dangers. Livesley v. Continental Motors Corp., 331 Mich......
  • Spaight v. Shah-Hosseini, C.A. No. PC 04-6802 (R.I. Super 12/30/2009), C.A. No. PC 04-6802.
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    • Superior Court of Rhode Island
    • December 30, 2009
    ...234 (1972); (both cases find a physician negligent for severing the ureter during an oopherectomy or hysterectomy); but see Koch v. Gorilla, 552 F.2d 1170 (1977); Williams v. Ricks, 152 Ga. App. 555 (1979) (both cases upholding a verdict for the defendant physician where the ureter was sutu......
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