Naccarato v. Grob, 14

• Decision Date: 01 October 1969
• Docket Number: No. 14,14
• Parties: John Francis NACCARATO, By His Next Friend, Nunzio M. Naccarato, Plaintiff-Appellant, v. Otto GROB and David Krevsky, Jointly and Severally, Defendants-Appellees. ,
• Court: Michigan Supreme Court

Page 788

180 N.W.2d 788

384 Mich. 248

John Francis NACCARATO, By His Next Friend, Nunzio M Naccarato, Plaintiff-Appellant, v. Otto GROB and David Krevsky, Jointly and Severally Defendants-Appellees.

No. 14, Oct. Term, 1969.

Supreme Court of Michigan.

Nov. 12, 1970.

Davidson, Gotshall, Halsey, Kohl, Nelson, Secrest & Wardle by Konrad D. Kohl, Detroit, Mich., for plaintiff and appellant; Richard H. Scholl, Detroit, Mich., of counsel.

Harold B. Desenberg Moll, Desenberg, Purdy, Glover & Bayer, Detroit, Mich., for defendants and appellees.

Before the Entire Bench except KELLY and DETHMERS, JJ.

T. G. KAVANAGH, Justice.

The plaintiff brought this suit against two Detroit area pediatricians for their alleged malpractice in failing timely to diagnose phenylketonuria (PKU). (PKU is a rare childhood disease which begins at birth and results in progressive mental deterioration. The sooner a diagnosis of PKU is made and treatment begun, the higher the intelligence quotient (IQ) of the child will be.) The trial court granted defendants motion for a judgment n.o.v., ¹ overturning a jury verdict for plaintiff in the amount of $80,000, and plaintiff appeals.

We are not concerned in this appeal with the medical wisdom of the two pediatricians, nor in the timetable of years which passed before the disease of the plaintiff was discovered and treatment begun. Rather, the trial court set aside the jury verdict on the grounds that two of the plaintiff's expert witnesses were incompetent to testify and, without their testimony, the trial judge felt the verdict could not stand. Plaintiff asserts that this was error. He feels, first that the testimony was competent and second, in any event, the record contained sufficient evidence to sustain the jury's verdict.

The defendants acknowledge that Dr. David Hsia of Chicago, Illinois, is a worldrenowned expert on phenylketonuria. Dr. Hsia testified that commercial medicines and special dietary programs were available for children suffering from PKU throughout the period of time when the plaintiff child remained untreated. He also testified to the effect that tests for PKU were easy to make and routinely made in the hospitals of the nation. In reaching his conclusion he stated:

'* * * that any resident who has been trained and who is a certified pediatrician would be expected to be, in a hospitalized patient anywhere in the country, to routinely test for phenylketonuria as part of a mental retardation workup in a hospital. I don't think anyone in 1960, I mean whether this is in Detroit or Chicago or in Oshkosh, it doesn't really make any difference. This is the established standard for anyone who is a board certified pediatrician, period.' ²

The trial court also struck the testimony of Dr. Richard Koch, another recognized expert on PKU, who practiced medicine and did research in the city of Los Angeles, California. His testimony concerned the dissemination of the knowledge of PKU throughout the nation, and the standard of care which should have been employed by Detroit physicians as it was in similar communities where large medical centers were located. ³ Dr. Koch testified that he was aware of the standard of care exercised by pediatricians in urban metropolitan communities such as Detroit or similar communities. Referring specifically to the disease of phenylketonuria, Dr. Koch testified that he was familiar with the standard of practice exercised in large metropolitan communities insofar as the diagnosis, care and treatment of children with phenylketonuria is concerned during the years in question of 1958, 1959, and 1960 and that, in his opinion, the physician in a clinical setting practices at the same level of competence as a private, board certified pediatrician.

In answer to the hypothetical question put to Dr. Koch as to the standard of care followed by defendant Grob (at this time no test for phenylketonuria was performed by defendant Grob to determine the cause of the mental retardation of John Naccarato) Dr. Koch testified:

'I believe that a practicing board certified pediatrician in January of 1960 who was evaluating a mentally retarded child should have included a test for phenylketonuria.'

In opposing the qualifications of the plaintiff's experts, the defendants introduced the testimony of three Detroit area doctors. Drs. Martmer, Wooley and Adams testified that it was not the common practice for pediatricians in the Detroit metropolitan area to use the recognized tests for PKU during the time period in question, because the disease was so rare. Their testimony was to the effect that the defendants did not vary from the usual 'standard of care' of pediatricians in the Detroit area. They did admit in various manners that most pediatricians knew of the disease and of the treatment then available for use. The defendants conceded that they knew of the test.

In the written opinion of the trial court overturning the jury verdict the court held that the testimony of the plaintff's experts could not be considered by the jury as worthy of belief regarding the standards of actual private practice of the physicians in the Detroit area during the time period in question. Plaintiff however believes that his witnesses could have assumed that standards of physicians in the Detroit area were comparable with any other metropolitan areas where large medical centers were engaged in PKU research. The trial judge rejected this contention and repeatedly emphasized that the plaintiff's experts lacked sufficient knowledge concerning the usual practice of Detroit area pediatricians.

It is unnecessary at this juncture to reexamine whether the practice of the community should be the standard to which all area general practitioners should be held. Rather, at issue here is the competency of acknowledged experts to testify as to the practice of a pediatrician, a specialist, in diagnosing and treating PKU.

In reaching our decision today, we rely on the reasoning in Wood v. Vroman (1921), 215 Mich. 449, 184 N.W. 520: (Where the defendant holds himself out as a specialist he is) 'obligated to bring to the discharge of his duty that degree of skill and knowledge possessed by physicians who are specialists in the Light of present day scientific knowledge.' (Wood v. Vroman, Supra, 465--466, 184 N.W. 525). (Emphasis added).

It is therefore unnecessary to consider in this opinion whether a standard of parochial negligence can obviate the requirement of reasonable care by a local practitioner. ⁴ At issue here is the standard of care owed to a patient by a community of specialists. Whatever the considerations were that allowed the area practice to set the standard for the country general practitioners--they are not relevant to a metropolitan specialist--calling a specialist parochial or bucolic is hardly appropriate. ⁵

The reliance of the public upon the skills of a specialist and the wealth and sources of his knowledge are not limited to the geographic area in which he practices. Rather his knowledge is a speciality. He specializes so that he may keep abreast. Any other standard for a specialist would negate the fundamental expectations and purpose of a specialty. The standard of care for a specialist should be that of a reasonable specialist practicing medicine in the light of present day scientific knowledge. Therefore, geographical conditions or circumstances control neither the standard of a specialist's care nor the competence of an expert's testimony.

We are at this time as conscious as this court was in 1931 that:

At times it may become necessary to secure the...