Popp v. Crittenton Hosp.

• Court: Court of Appeal of Michigan
• Writing for the Court: Before DANHOF; PER CURIAM
• Citation: Popp v. Crittenton Hosp., 449 N.W.2d 678, 181 Mich.App. 662 (Mich. App. 1990)
• Decision Date: 22 January 1990
• Docket Number: Docket No. 106925
• Parties: Laurentiu POPP, Plaintiff-Appellant, v. CRITTENTON HOSPITAL, a corporation, and Harold Portnoy, M.D., Defendants-Appellees.

Page 678

449 N.W.2d 678

181 Mich.App. 662

Laurentiu POPP, Plaintiff-Appellant, v. CRITTENTON HOSPITAL, a corporation, and Harold Portnoy M.D., Defendants-Appellees.

Docket No. 106925.

Court of Appeals of Michigan.

Submitted June 6, 1989.

Decided Aug. 24, 1989.

Released For Publication Jan. 22, 1990.

Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick by Lee R. Franklin, Detroit, for Laurentiu Popp.

Mellon & McCarthy, P.C. by James T. Mellon and Nancy L. Wright, Troy, for Crittenton Hos.

Feikens, Foster, Vander Male & De Nardis, P.C. by Dennis J. Mendis, Detroit, for Harold Portnoy, M.D.

Before DANHOF, C.J., and HOOD and MARILYN J. KELLY, JJ.

PER CURIAM.

Plaintiff appeals as of right from two rulings of the trial court: the denial of his request for the medical records of a nonparty and the striking of a portion of deposition testimony he submitted at trial. The jury returned a verdict of no cause of action. We affirm.

Plaintiff injured himself when, after a tennis game, he attempted to jump the net. Unfortunately, he tripped and landed on his head and shoulder on the concrete surface of the court. He was taken to defendant Crittenton Hospital where surgery was performed. While there, plaintiff was treated by defendant Dr. Portnoy. He suffered a massive epidural hematoma resulting in loss of memory, inability to concentrate and other neurological problems.

Plaintiff filed a malpractice action alleging, among other things, that defendants failed to timely diagnose his injury.

On appeal, plaintiff first contends that the trial court erred in removing portions of testimony from the deposition of Dr. Levine when plaintiff sought to introduce it at trial. Dr. Levine was an emergency room physician who treated plaintiff at Crittenton. He was called as an adverse witness. Plaintiff's counsel elicited information in order to show bias and prejudice concerning Dr. Levine's history of testifying on behalf of insurance companies and other physicians.

Pursuant to defendants' objection, the trial judge removed this portion of the testimony. He reasoned that it was irrelevant, since Dr. Levine was testifying as a fact witness, not as to the standard of care or proximate cause. He further concluded that the probative value of the excised testimony was outweighed by its prejudicial effect.

The decision whether to admit certain evidence rests within the sound discretion of the trial court. Petrove v. Grand Trunk W.R. Co., 174 Mich.App. 705, 715, 436 N.W.2d 733 (1989).

In this case, the judge erred in concluding that the testimony was irrelevant. It was relevant to show bias or prejudice on the part of the witness. MRE 401. The purpose and content of Dr. Levine's testimony were immaterial to this determination, since his bias or prejudice would always be in issue.

However, the judge did not abuse his discretion in excluding the evidence. Its prejudicial effect did outweigh its impeachment value. MRE 403. Injecting the fact that Dr. Levine had testified for insurance companies had the potential to confuse and mislead the jurors and prejudice their valuation of his testimony.

Next, plaintiff argues that the trial judge abused his discretion in denying his request for the medical records of a nonparty.

The malpractice complained of in this suit...