Niemi v. Upper Peninsula Orthopedic Associates, Ltd.

• Decision Date: 13 January 1989
• Docket Number: Docket No. 102378
• Citation: 173 Mich.App. 326,433 N.W.2d 363
• Parties: Gerald NIEMI and Kathleen Niemi, Plaintiffs-Appellants, Cross-Appellees, v. UPPER PENINSULA ORTHOPEDIC ASSOCIATES, LTD., and Gerald L. Davis, M.D., Defendants-Appellees, Cross-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 363

433 N.W.2d 363

173 Mich.App. 326

Gerald NIEMI and Kathleen Niemi, Plaintiffs-Appellants Cross-Appellees, v. UPPER PENINSULA ORTHOPEDIC ASSOCIATES, LTD., and Gerald L Davis, M.D., Defendants-Appellees, Cross-Appellants.

Docket No. 102378.

Court of Appeals of Michigan.

Submitted May 3, 1988.

Decided Sept. 13, 1988.

Released for Publication Jan. 13, 1989.

Richard B. Adams, Bessemer, for plaintiffs-appellants, cross-appellees.

Stroup, Mulhauser, Johnson & Tresidder, P.C. by Nathaniel W. Stroup and Stephen J. Tresidder, Petoskey, for defendants-appellees, cross-appellants.

Before BEASLEY, P.J., and SAWYER and WEAVER, JJ.

PER CURIAM.

Plaintiffs appeal from a judgment of no cause of action as to their medical malpractice action. Defendants cross-appeal. We affirm.

I

On appeal, plaintiffs raise two issues. They first argue that the trial court abused its discretion in refusing to admit into evidence the deposition of their expert witness, Dr. Hoerner. We are unpersuaded by this argument.

Admission of depositions at trial is generally left to the trial court's discretion. Shields v. Grandstaff, 161 Mich.App. 175, 178, 410 N.W.2d 308 (1987), lv. gtd. 430 Mich. 857, 420 N.W.2d 569 (1988). Depositions of an expert witness are admissible at trial, but only insofar as permitted by the rules of evidence. MCR 2.308(A)(1). The party seeking admission bears the burden of proving admissibility. Shields, supra. Before deposition testimony may be used in place of live testimony, the opposing party must be given an opportunity to cross-examine the witness. Bonelli v. Volkswagen of America, Inc., 166 Mich.App. 483, 502, 421 N.W.2d 213 (1988).

Subsequent to taking Dr. Hoerner's deposition, significant questions arose regarding Dr. Hoerner's qualifications to serve as an expert witness, and Dr. Hoerner voluntarily withdrew from participation. Had the trial court allowed the use of Dr. Hoerner's deposition at trial, defendants would have been unable to question him as to his credibility and credentials and would have been denied their constitutional right of cross-examination. Therefore the trial court did not abuse its discretion in refusing to admit the deposition into evidence at trial. Shields, supra.

We also disagree with plaintiff's second argument that the trial court erred when it refused to instruct the jury on the theory of res ipsa loquitur.

Jury instructions are reviewed by this Court in their entirety and should not be extracted piecemeal. Wheeler v. Grand Trunk W.R. Co., 161 Mich.App. 759, 763, 411 N.W.2d 853 (1987). Whether additional instructions are necessary is a matter for case-by-case analysis. Jones v. Porretta, 428 Mich. 132, 146, 405 N.W.2d 863 (1987). Reversal is not mandated unless failure to vacate the jury's verdict would be inconsistent with substantial justice. Johnson v. Corbet, 423 Mich. 304, 326, 377 N.W.2d 713 (1985).

In denying defendants' motion for a directed verdict, the trial court found there to be three types of medical malpractice cases: (1) where there is expert testimony indicating professional malpractice; (2) where the situation is so gross that a layperson needs no expert testimony in order to find malpractice; and (3) res ipsa loquitur or circumstantial evidence of negligence. ¹ The trial judge recognized that expert testimony was needed to show that the defendant doctor had breached the standard of care and to show that such breach proximately caused the patient's injury. The trial judge also recognized that the situation was not so gross that a layperson would find malpractice without the benefit of expert testimony. The only remaining category was that of circumstantial evidence, or the inference of negligence based on a theory of res ipsa loquitur.

The Michigan Supreme Court has only recently recognized the application of res ipsa loquitur to medical malpractice cases. Jones, supra 428 Mich. at 150-151, 405 N.W.2d 863. The elements of res ipsa loquitur are as follows: (1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff; and (4) evidence of the true explanation of the event must be more readily accessible to the defendant than to the plaintiff. Id.

In this case, plaintiffs failed to present evidence of the first element. Plaintiffs presented no evidence to indicate that recurrence of pain following a hip resurfacing is an event of a kind which does not normally occur absent negligence. ² 2] Therefore the court did not err in declining to give the special instruction.

II

On cross-appeal, defendants argue that the trial court erred by not requiring plaintiffs to produce their own expert witness to establish the applicable standard of care and defendants' breach.

We find no error. Plaintiffs did not need to establish the applicable standard of care through their own expert, but were permitted to call defense witnesses as adverse witnesses and cross-examine them. M.C.L. Sec. 600.2161; M.S.A. Sec. 27A.2161; Rice v. Jaskolski, 412 Mich. 206, 211-212, 313 N.W.2d 893 (1981); Patelczyk v. Olson, 95 Mich.App. 281, 285, 289 N.W.2d 910 (1980). Plaintiffs' use of adverse witnesses produced enough expert testimony to establish the applicable standard of care. The issue of breach of the standard of care did not have to be established by expert testimony, but could properly be left to the jury as factfinder. Baldwin v. Williams, 104 Mich.App. 735, 739-740, 306 N.W.2d 314 (1981), lv. den. 412 Mich. 873, 312 N.W.2d 655 (1981).

Defendants also argue on cross-appeal that the trial court erred by allowing the case to go to the jury without any evidence...