Siirila v. Barrios

Decision Date21 December 1976
Docket NumberNo. 11,11
Citation398 Mich. 576,248 N.W.2d 171
PartiesJames Scott SIIRILA, a minor, by his next friend and father, James Siirila, and James Siirila, Individually, Plaintiffs-Appellants, v. Honorato BARRIOS, M.D., et al., Defendants-Appellees. 398 Mich. 576, 248 N.W.2d 171
CourtMichigan Supreme Court

Lopatin, Miller, Bindes & Freedman, Detroit, for plaintiffs-appellants; Michael H. Feiler, Detroit, of counsel.

Platt, Peacock & von Wiegen by John D. Peacock, Sault Ste. Marie, for defendant-appellee, Honorato Barrios, M.D.

McLean & McCarthy by John M. McCarthy, Houghton, for defendant-appellee, St. Joseph's Hospital.

WILLIAMS, Justice.

This malpractice case raises three questions. The first question is whether a properly qualified medical specialist witness may testify as to the standard of care that a general practitioner should meet. The second question is what the proper standard of care should be. The third question is whether the trial court properly refused to give an instruction that proper hospital records may be used to show that an action had not taken place as well as that an action had taken place.

As to the first question, we hold that a specialist may testify as to the standard of care of a general practitioner as long as the specialist is familiar with the applicable standard of the general practitioner.

However, since the proper foundation for one of plaintiffs' witnesses was not laid despite opportunity to do so, and since the other affected by this ruling admitted not knowing the standard of practice in the relevant communities, and therefore could not testify anyway, we affirm the Court of Appeals and the trial court.

As to the second question, we hold in this opinion that the question as to what the proper standard of care should be was not preserved.

As to the third question, we hold that in this case the instruction was properly not given.

I--FACTS

James Scott Siirila was a premature boby, born at 5 1/2 months, in St. Joseph's Hospital in Houghton, November 19, 1967. He weighed two pounds, one ounce at birth.

The attending physician, Dr. Honorato Barrios, had been a general practitioner in the Houghton-Hancock area since 1965. He ordered the child immediately placed in an Isolette infant incubator, where he remained, under controlled oxygen flow for about two months.

Dosage was apparently 3 liters per minute, from November 19, 1967 to November 26, 1967, then 2 liters per minute to December 7, when it was reduced to 1 liter per minute until December 12, when the flow was increased to 2 liters per minute for 2 days, after which it was reduced to 1 liter per minute for 1 day. The baby was removed from the Isolette for 20 minutes the following day, then replaced at a rate of probably 2 liters per minute for three days, when it was removed for 10 minutes, then returned for an amount of either 1 or 2 liters until the following day. The child was removed from the Isolette from December 19 to December 26, when the oxygen was supplied for 2 liters per minute for 5 hours. It was apparently started briefly for an undetermined time and dosage on December 29, after which the child was permanently removed from the Isolette.

According to hospital testing, a flow rate of 3 liters per minute was equivalent to an oxygen concentration of approximately 36%--38% In the Isolette (subject to 2% Inaccuracy). Two liters of oxygen reflect an approximate concentration of 32%--36% Oxygen, and 1 liter, 27%--31%, plus or minus 2%.

The child was discharged from the hospital February 10, 1968. Two weeks later, Dr. Barrios observed the boby had small eyeballs, but he attributed this abnormality to the child's premature birth. On March 23, at the six-weeks checkup, the mother reported her son had trouble with his sight. For the first time, Dr. Barrios used an ophthalmoscope and detected a scar on the retina. 1 Believing that there was a serious pathology of the eye, Dr. Barrios wrote, on March 25, to Dr. Norman L. Matthews, a pediatrician at St. Luke's Hospital, Marquette, Michigan, for an appointment. Dr. Barrios requested that Dr. Matthews evaluate the child's general condition, but, particularly, his eyes. In the letter, he indicated concern about opacity through refraction media, and gave Dr. Matthews information about the baby's prematurity, medication and nutrition.

Dr. Matthews replied on March 27, 1968, having made an appointment for the infant with Dr. John Kublin, a Marquette ophthalmologist, for April 2. He said that if the family was poor and would have problems transporting the child to Marquette, help was available. He also analyzed:

'Since the boy was born very small, one wonders Whether or not he has retrolental fibroplasia. This may not be the diagnosis, but it may be well to know how much exygen he had as an (sic) premature.'

Dr. Barrios replied on April 3 that 'the baby had oxygen continuously from the birthdate (11/19/67) until 12/29/67. Initially the oxygen was given at 3L. (40% Concentration), and then reduced to 2L. and 1L.'

On April 18, Dr. Matthews worte and reported to Dr. Barrios that Dr. Kublin found

'severe retrolental fibroplasia. He does not think there is any chance that the child will have any vision.

'You might have the hospital check very carefully the oxygen regulator on their incubators there to make sure that the oxygen content of the inside of the incubator will not be higher than 40%. Presumably, even 40% May not be safe over the prolonged period of time.'

Plaintiffs filed an action against Dr. Barrios and St. Joseph's Hospital, claiming the retrolental fibroplasia and the consequent total and permanent blindness was caused by the infant's continued exposure to oxygen while in the Isolette. They alleged medical malpractice by the physician and the hospital for allowing the baby to unnecessarily remain in oxygen for the extended period of time and for failing to properly maintain, control and measure the oxygen flow in violation of the standard of care.

At trial, plaintiffs attempted to have Dr. Matthews testify as to the proper care and treatment of premature babies and the danger of oxygen therapy. The court ruled that Dr. Matthews would be prohibited 'from testifying as to the standard of care in this community or similar communities on the basis that he's a specialist.' Counsel was permitted, however, to make a separate record.

On this special record, Dr. Matthews said he did not know how oxygen was used in Houghton-Hancock, and that he was not capable of establishing what the standards of practice were in the area in 1967. However, he did testify that prior to the Siirila baby he had seen only one other case of retrolental fibroplasia (RLF) within the period 1955 to 1967. Prior to 1955, he said, such cases were seen frequently. He attributed the reduction in RLF to the information available to the medical profession that the use of oxygen in premature babies over prolonged periods of time caused the condition. He testified that 40% Oxygen is the maximum concentration usually ordered, and indicated that, according to standard books of pediatrics, oxygen should be used for as short a period of time at as low a concentration as possible. 2

He testified that proper procedure would have been that after two or three days at the 40% Oxygen level, the Siirila baby should have been removed from oxygen, with continued exposure only if there were 'very solid evidence of poor condition of the baby'. He saw no such evidence from examination of the record in the instant case.

In front of the jury, Dr. Barrios testified that he knew that oxygen concentration should be no more than 40% In the Isolette, but did not know that long exposure to oxygen could bring an added risk of RLF. He did not think of RLF when he ordered oxygen therapy, but prescribed it to keep the baby alive and to prevent brain and cardiorespiratory damage. He did not know what the average doctor in the community would have done under the circumstances in 1967. But he testified, over objection, that the care and treatment rendered to the Siirila baby were within the standards of practice as they existed in the area in 1967.

There was testimony that a premature baby can develop RLF without being given oxygen therapy, and that the Siirila baby suffered damage resulting from environmental difficulties while in his mother's womb. 3

The jury was instructed that a physician 'must possess and exercise that degree of skill and learning which conforms to the average or ordinary learing and skill in his profession in the same or similar communities'. Further, they were instructed that Dr. Matthews' testimony was not to be considered in determining the standard of care because he was a specialist and Dr. Barrios was a general practitioner. 4 This was given over the objection of plaintiffs' counsel that such testimony of Dr. Matthews which did not relate to standard of care should have been admissible. Plaintiffs' counsel also maintained that Dr. Matthews testified as to proximate cause and did not testify as to the standard of care. The jury found no cause of action against defendants Dr. Barrios and St. Joseph's Hospital. 5

The Court of Appeals affirmed, Siirila v. Barrios, 58 Mich.App. 721, 723, 228 N.W.2d 801 (1975). The Court held, first, that as an intermediate appellate court, they were bound by the standard of Lince v. Monson, 363 Mich. 135, 142--143, 108 N.W.2d 845 (1961), that there be expert testimony as to the defendant physician's compliance with professional standards and practice in the same and similar communities. 6

The Court of Appeals specifically refused to apply the same standard of care rule to a general practitioner as would be appropriate for a specialist, 'that of a reasonable specialist practicing medicine in the light of present day scientific knowledge. * * * (G)eographical conditions or circumstances control neither the standard of a specialist's care nor the...

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