Wilson v. Stilwill

• Decision Date: 05 September 1979
• Docket Number: Docket No. 77-4333
• Citation: 284 N.W.2d 773,92 Mich.App. 227
• Parties: Irving J. WILSON and Margaret D. Wilson, husband and wife, Plaintiffs-Appellants, v. George D. STILWILL, M. D. and Edward W. Sparrow Hospital Association, a Michigan Non-Profit Corporation, Defendants-Appellees. 92 Mich.App. 227, 284 N.W.2d 773
• Court: Court of Appeal of Michigan — District of US

Page 773

284 N.W.2d 773

Irving J. WILSON and Margaret D. Wilson, husband and wife Plaintiffs-Appellants, v. George D. STILWILL, M. D. and Edward W. Sparrow Hospital Association, a Michigan Non-Profit Corporation Defendants-Appellees.

Docket No. 77-4333.

92 Mich.App. 227, 284 N.W.2d 773

Court of Appeals of Michigan.

Sept. 5, 1979.

Released for Publication Nov. 9, 1979.

[92 MICHAPP 228] Newman & Mckay by William L. Mackay, Lansing, for plaintiffs-appellants.

Eugene F. Townsend and C. Mark Hoover, Lansing, for Stilwill.

Scott D. Feringa, Detroit, for Sparrow.

Before CAVANAGH, P. J., and V. J. BRENNAN and CARROLL, ^* JJ.

V. J. BRENNAN, Judge.

Plaintiffs, Irving J. and Margaret D. Wilson, appeal by right from a lower court order directing a verdict in favor of defendant Edward W. Sparrow Hospital Association and from a jury verdict of no cause of action in plaintiffs' suit against defendant Dr. George D. Stilwill.

Plaintiffs raise three issues in this appeal. The first pertains to a line of questioning directed to plaintiffs' expert, Dr. Waldo Badgley, by counsel for defendant Dr. Stilwill on cross-examination.

[92 MICHAPP 229] It was elicited from plaintiffs' expert that 40% Of his practice had to do with disability evaluation; that he had been involved in 2 or 3 cases in which there was suspected malpractice; that one of these cases occurred in Grand Haven and in that particular case the present plaintiffs' attorney was the counsel for the plaintiffs. In addition plaintiff's expert was also involved in a case concerning the Mason General Hospital, and in that particular case the plaintiffs' attorney was the same attorney representing plaintiffs in the instant case. It was only after the doctor was questioned about his participation in a malpractice suit against Foote Hospital in Jackson, Michigan, that counsel for plaintiffs objected to this line of questioning. The trial court then requested counsel for Dr. Stilwill to relate the latter case to the witness's competency to testify in the instant action. When counsel could not do so, plaintiffs' objection was sustained.

Following the ruling by the trial court on his objection, counsel for plaintiffs did not request a curative instruction to the jury. In Treece v. The Greyhound Bus Company, 63 Mich.App. 63, 66, 234 N.W.2d 404 (1975), the Court addressed a similar factual situation. In that case, the expert offered by the plaintiffs was asked on cross-examination about his status in the medical community and his license to practice at a particular hospital. He was further questioned about his relationship with counsel for the plaintiffs. The objections by plaintiffs' counsel to each of these questions were sustained by the trial court. On appeal, plaintiffs asserted that the asking of these questions were so prejudicial as to require reversal notwithstanding the trial court's sustaining of the objections. The Court disagreed and, with particular regard to the last question, held that all of the questions were [92 MICHAPP 230] probative of the weight of the doctor's testimony and, in any event, that the failure of plaintiffs' counsel to request a curative instruction waived any error on appeal.

Although the Supreme Court has held that it is reversible error to attack a witness on the basis of innuendo and unfounded accusations, Kern v. St. Luke's Hospital Ass'n of Saginaw, 404 Mich. 339, 273 N.W.2d 75 (1978), that is not the situation in the case at bar. In Kern a defense counsel attempted to show that the plaintiffs' counsel had conspired with the plaintiffs' medical expert to provide "bought and paid for" untrue and collusive testimony from 3 out-of-state physicians. The Supreme Court found that by the time the jury retired to deliberate the defense counsel had succeeded in conveying the message that plaintiffs would not have relied entirely on out-of-state physicians to testify had their case been meritorious. The Court concluded that this message was a false one, and that the trial tactics on which it was based were prejudicial to the plaintiffs. Significantly, the Supreme Court's opinion noted but did not cite as error the questioning by defendants' counsel concerning "the amount of testimony Dr. Kaplan (a witness on behalf of the plaintiffs) had provided in malpractice cases and his experience in medical-legal matters", Kern, supra, 348, 273 N.W.2d 79.

In the present case no error was committed below by the elicitation from plaintiffs' expert testimony concerning his involvement in other malpractice cases. This testimony was probative on the question of weight to be given by the trier of fact.

The next issue relates to an alleged characterization of plaintiffs' doctor as a "professional witness" by counsel for defendant Dr. Stilwill in his [92 MICHAPP 231] closing argument to the jury. In his closing argument to the jury, counsel for the defendant doctor stated:

"In an attempt, ladies and gentlemen, to find out the most probable cause of Mr. Wilson's injury we went to the two largest at least medical institutions in the State of Michigan. We went to the University of Michigan and we went to Henry Ford Hospital. And we got there, and we went to the sub-department of internal medicine, the medical practice of infectious diseases. We did not go to...