Persichini v. William Beaumont Hosp.

Citation238 Mich. App. 626,607 N.W.2d 100
Decision Date07 March 2000
Docket NumberDocket No. 207377.
PartiesPatricia PERSICHINI, Personal Representative of the Estate of Mildred Mikoljeski, Deceased, Plaintiff-Appellant, v. WILLIAM BEAUMONT HOSPITAL, Richard A. Herbert, M.D., D. Dilisio, M.D., Kevin S. Grady, M.D., Dr. Cameron Wright, Pulmonary & Critical Care Associates, P.C., and Sinai Hospital of Greater Detroit, Defendants-Appellees.
CourtCourt of Appeal of Michigan (US)

Meklir, Nolish, Friedman & Saperstein, P.C. (by Michael W. Stephenson), Southfield, for the plaintiff.

Plunkett & Cooney, P.C. (by Robert G. Kamenec ), Detroit, for William Beaumont Hospital.

Siemion, Huckabay, Bodary, Padilla, Morganti & Bowerman, P.C. (by Raymond W. Morganti), Southfield, for Richard A. Herbert and others.

Kitch, Drutchas, Wagner & Kenney, P.C. (by Susan Healy Zitterman), Detroit, for Sinai Hospital of Greater Detroit.

Before COLLINS, P.J., and SAWYER and MARK J. CAVANAGH, JJ.

MARK J. CAVANAGH, J.

Plaintiff, Patricia Persichini, as personal representative of the estate of Mildred Mikoljeski, appeals by leave granted from the trial court order assessing plaintiff's counsel with mistrial sanctions in this medical malpractice action. We affirm in part and reverse in part.

Plaintiff filed the instant lawsuit alleging that defendants' failure to diagnose and treat Mikoljeski's respiratory distress led to her death. A trial before then Circuit Judge Hilda Gage commenced on October 16, 1995. On the third day of trial, while cross-examining defendant Dr. Richard A. Herbert, plaintiff's counsel asked: "Doctor, is it true that in your career, you have been sued for medical malpractice six or eight times?" The defense objections were immediate and vociferous. Defense counsel moved for a mistrial and requested costs. Plaintiff's counsel protested that the question had been asked without objection at Dr. Herbert's deposition, and that he therefore had not had any reason to believe that there would be an objection to the question at trial. The trial court ruled that the question was improper and, because it did not see how the error could be cured, stated that it was inclined to grant defendants' motion for a mistrial. However, the court recessed the proceedings so that the parties could present authority in support of their arguments.

When court reconvened, counsel for Dr. Herbert stated that plaintiff's counsel had misrepresented the record with regard to defendant Dr. Herbert's deposition. In fact, there had been an objection to the question regarding prior medical malpractice lawsuits. Plaintiff's counsel conceded that the question had been objected to at the deposition. However, he asserted that the question was not improper because the "answers to that question and subsequent questions may well have been relevant and material in this case." Specifically, plaintiff's counsel explained that in other cases where Dr. Herbert had been sued, it had been alleged that, as in the present case, he had failed to properly diagnose the patient. Furthermore, plaintiff's counsel argued that "it may well be that in some of those prior cases Doctor Herbert has hired the same experts that he has in this case and I may be able to develop some bias or prejudice argument along those lines."

Plaintiff's counsel further argued that, even if the question were improper, a mistrial was not warranted because defendants had been on notice of his intention to ask the question and had not brought a motion in limine to prevent it. Moreover, plaintiff's counsel stated that the question had not been answered and, therefore, any error could be cured by instructing the jury to disregard it.

The trial court disputed counsel's assertion that Dr. Herbert had not responded to the question, stating that she had heard him say "yes."1 Regardless, the trial court concluded that the question was "overwhelmingly prejudicial," and it could not see how the jurors could be made to forget what they had heard. Accordingly, the trial court granted defendants' motion for a mistrial.2 With regard to defendants' request for sanctions, the court stated that the action of plaintiff's counsel had caused the mistrial, and it believed that "a practitioner of [his] experience" should have known that the question was "highly prejudicial and not relevant to any issue in this case." Therefore, the court ordered plaintiff's counsel to pay mistrial sanctions. The court awarded $7,500 in attorney fees and $10,000 to defendants to compensate them for the income they had lost in the three days they had spent in court. In addition, the court awarded $910 as reimbursement for the cost of flying a witness in from Boston for the trial.

Plaintiff filed an interlocutory application for leave to appeal. This Court, in lieu of granting leave to appeal, reversed the trial court's award of sanctions on the basis that the sanctions were premature before final resolution of the case.3 In October 1996, a trial was held before Judge Denise Langford Morris. The jury returned a verdict of no cause of action in favor of defendants. Subsequently, defendants renewed their motion for mistrial sanctions. Judge Langford Morris instructed the parties to provide the transcript of the mistrial and authority in support of their positions. Subsequently, Judge Langford Morris reinstated the award of sanctions for the reasons set forth in the opinion issued by Judge Gage. The order incorporating all the posttrial rulings was entered on April 21, 1997. This Court granted plaintiff's delayed application for leave to appeal.

I

Plaintiff first argues that the question posed by counsel was not improper. The trial court has the discretion to control the questioning of witnesses, and we review its determination of the scope of cross-examination for an abuse of discretion. Richardson v. Ryder Truck Rental, Inc., 213 Mich.App. 447, 454, 540 N.W.2d 696 (1995). An abuse of discretion exists when the result is so palpably and grossly violative of fact and logic that it evidences perversity of will or the exercise of passion or bias rather than the exercise of discretion. Schoensee v. Bennett, 228 Mich.App. 305, 314-315, 577 N.W.2d 915 (1998).

Under MRE 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. However, pursuant to MRE 608(b), a court may, in its discretion, allow inquiry regarding specific instances of the conduct of a witness for the purpose of attacking or supporting the witness' credibility where the conduct at issue is probative of the witness' character for truthfulness or untruthfulness.

In Heshelman v. Lombardi, 183 Mich. App. 72, 82, 454 N.W.2d 603 (1990), the trial court allowed counsel for the defendant to cross-examine the plaintiff's expert regarding an unrelated malpractice suit brought against him. This Court held that the trial court abused its discretion in permitting the defense counsel's questions, because the mere fact that the plaintiff's expert had been named as a defendant in a malpractice suit was not probative of his truthfulness, competency, or knowledge. Id. at 85, 454 N.W.2d 603. The Heshelman Court explained:

Mere unproven accusations of malpractice stated in a complaint cannot be used as a basis for attacking a physician's knowledge and credibility. Such allegations of malpractice are analogous to unproven charges of criminal activity. Arrests and charges not resulting in conviction may not be used for impeachment. Similarly, the mere fact that someone has been named as a defendant in a malpractice lawsuit may not be used to impeach his credibility as an expert witness. [Id. (citations omitted).]

Approximately five years later, our Supreme Court addressed the propriety of posing various questions to experts in medical malpractice cases in Wischmeyer v. Schanz, 449 Mich. 469, 536 N.W.2d 760 (1995). In Wischmeyer, the trial court allowed the defendant to cross-examine the plaintiff's expert regarding unsuccessful surgeries that he had performed. The Supreme Court held that such cross-examination was permissible because the surgeries were relevant to the expert's competency. Id. at 479-480, 536 N.W.2d 760. However, the Court stated that it was improper for the defendant to inquire into an unrelated medical malpractice action against the expert. The Court explained, "[T]he mere fact that an expert may have been named in an unrelated medical malpractice action is not probative of his truthfulness under MRE 608 or relevant to his competency or knowledge." Id. at 482, 536 N.W.2d 760.

In the present case, plaintiff argues that the question regarding other medical malpractice actions was proper because Dr. Herbert was testifying as an expert on his own behalf and, therefore, his past failures were relevant. Plaintiff's argument fails, however, because the question posed by counsel did not address any alleged misdiagnoses made by Dr. Herbert in other cases. Rather, plaintiff's counsel asked whether Dr. Herbert had previously been a defendant in multiple other medical malpractice cases. Both the Wischmeyer and the Heshelman Courts held that evidence of prior malpractice actions against a witness is not relevant to the witness' competency or knowledge. Thus, the trial court correctly ruled that the question was improper.

Plaintiff also contends that the question was proper because it was an attempt to explore the bias of Dr. Herbert's experts. Plaintiff notes that in Wilson v. Stilwill, 411 Mich. 587, 600-602, 309 N.W.2d 898 (1981), the Supreme Court found that the trial court did not abuse its discretion in permitting cross-examination regarding the expert's involvement in prior malpractice cases brought by the plaintiffs' counsel. However, the Court also stated that such evidence is only minimally probative of bias and...

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