Wischmeyer v. Schanz
| Decision Date | 10 August 1995 |
| Docket Number | Nos. 99129,99139,No. 15,s. 99129,15 |
| Citation | 449 Mich. 469,536 N.W.2d 760 |
| Parties | Wade W. WISCHMEYER and Judy Wischmeyer, his wife, Plaintiff-Appellees, v. George P. SCHANZ, M.D., and George P. Schanz, M.D., P.C., Defendant-Appellants, and St. Mary's Medical Center and Second Injury Fund, Defendants-Appellees. Wade W. WISCHMEYER and Judy Wischmeyer, his wife, Plaintiff-Appellees, v. ST. MARY'S MEDICAL CENTER, Defendants-Appellant, George P. Schanz, M.D., George P. Schanz, M.D., P.C., and Second Injury Fund, Defendants. Calendar |
| Court | Michigan Supreme Court |
Mark Granzotto, Detroit, Philip F. Maher, Chicago, IL, and Arthur A. Borella, Bloomfield Hills, for plaintiffs.
Thomas C. Wimsatt, Saginaw, for St. Mary's Medical Center.
O'Leary, O'Leary, Jacobs, Mattson, Perry & Mason, P.C., of counsel by John P. Jacobs, Southfield, for George P. Schanz, M.D. and George P. Schanz, M.D., P.C.
We granted leave 1 to appeal in this medical malpractice case to clarify the permissible scope of cross-examination of expert witnesses. The Court of Appeals reversed a jury verdict of no cause of action against defendants Dr. George P. Schanz and St. Mary's Medical Center. The Court of Appeals held that the trial court abused its discretion by allowing cross-examination of plaintiff's expert witness regarding that expert's prior poor surgical results and prior medical malpractice claims. 2 We reverse the decision of the Court of Appeals and reinstate the verdict of no cause of action for Dr. Schanz and St. Mary's Medical Center.
In August 1984, plaintiff Wade W. Wischmeyer injured his back in a fall. He consulted with several doctors over the following months. 3 In January 1985, he consulted with defendant, a neurosurgeon in private practice in Saginaw with medical privileges at defendant hospital, St. Mary's Medical Center. On May 29, 1985, Dr. Schanz admitted plaintiff to St. Mary's Medical Center, and on the following day performed a L4-L5 discectomy with a posterior lumbar interbody fusion (PLIF). 4 During surgery, two St. Mary's operating room technicians, Mark Nichols and Leah Lowery, assisted Dr. Schanz. Plaintiff alleges that soon after surgery his pain worsened and he experienced numbness in his right leg.
Plaintiff and his wife 5 brought this action for medical malpractice in the Saginaw Circuit Court on May 29, 1987, alleging that Dr. Schanz breached the standard of care in his treatment of plaintiff and that his injury would not have occurred absent some negligence on the part of Dr. Schanz. 6 Against St. Mary's, plaintiff raised two theories: first, that St. Mary's failed to provide a qualified neurosurgeon to assist Dr. Schanz, and second, that Mark Nichols, the operating room technician, was negligent.
Each party relied on expert testimony to establish the appropriate standards of care. Defense counsel for Dr. Schanz called two medical experts who testified that there was no malpractice on the part of Dr. Schanz. Defense counsel for St. Mary's Medical Center called one expert who testified that there was no negligence on the part of St. Mary's employees.
The testimony of plaintiff's only medical expert, Dr. Ronald J. Ignelzi, consumes two hundred pages of the record. On direct examination, Dr. Ignelzi outlined his credentials at length and explained that he had performed six to ten PLIFs, the type of surgery performed by Dr. Schanz on plaintiff, and that he had performed hundreds of other spinal surgeries. He explained in detail how various surgeries should be performed and concluded that Dr. Schanz performed the wrong procedure on plaintiff and had performed the procedure itself incorrectly. He stated that plaintiff's symptoms "should not have occurred unless there was some negligence at the time of the procedure."
On cross-examination, Dr. Ignelzi acknowledged that none of the PLIF surgeries he had performed had been successful because he had failed to relieve his patients' pain. However, he denied remembering four other back surgeries that failed, including three failed laminectomies and one failed dorsal rhizotomy. Plaintiff's counsel objected to the relevancy and prejudicial nature of raising non-PLIF surgeries, but was overruled. Dr. Ignelzi also denied that he had been the subject of a prior medical malpractice action.
The jury trial spanned two weeks. After deliberating for less than one hour, the jury returned a verdict of no cause of action with respect to both defendants. On appeal, plaintiff alleged that the trial court abused its discretion by permitting certain categories of cross-examination to proceed.
Cross-Examination
Rule 611(b) of the Michigan Rules of Evidence states:
A witness may be cross-examined on any matter relevant to any issue in the case, including credibility. The judge may limit cross-examination with respect to matters not testified to on direct examination.
A broad range of evidence may be elicited on cross-examination for the purpose of discrediting a witness. 7 The scope and duration of cross-examination is in the trial court's sound discretion; we will not reverse absent a clear showing of abuse. 8 The trial judge is charged with overseeing attacks on an expert's credibility and insuring that
questions seeking to elicit evidence indicating bias, prejudice or interest and inconsistent testimony or statements are not unduly limited or improvidently extended. The trial judge must also be alert to questions which harass, intimidate or belittle a witness. 9
However, when a case turns on the testimony of one expert compared with that of another, the credibility of each expert is relevant to the disposition of the case. 10 The credibility of a medical expert, therefore, is relevant to the disposition of a medical malpractice case and evidence of an expert's credibility generally is admissible unless its probative value is substantially outweighed by the danger of unfair prejudice. 11
We must address two categories of testimony elicited by the defense during its cross-examination of Dr. Ignelzi: prior poor surgical results in non-PLIF back surgeries and prior claims of medical malpractice against him. These categories of evidence are addressed separately below.
A
On cross-examination, defense counsel questioned Dr. Ignelzi regarding back surgeries the doctor had performed in the past. Plaintiff's counsel entered an objection on unspecified grounds as the cross-examination regarding prior failed surgeries began, but was overruled after a bench conference. The questioning by defense counsel proceeded as follows:
Q. Doctor, do you recall in 1980 performing surgery on a lady named Cynthia Hughes where you performed a laminectomy and the dura was ripped in a fashion and she was later discharged with the spinal fluid leaking?
A. No, I don't.
Q. You don't recall that?
A. No.
Q. Certainly something like that would be so horrible that you wouldn't forget it, would you?
A. I don't know what you mean by horrible, but I mean I don't recall this case.
Q. Do you recall in May of 1979 performing surgery on an individual by the name of Rodgers who underwent a cervical laminectomy and developed a Brown-Sequard syndrome postoperatively?
Counsel for plaintiff objected to the relevancy and prejudicial effect of this questioning, but was overruled.
Q. Do you recall that, where you cut into the spinal cord?
A. What was that again?
Q. In May of 1979 do you recall performing a lamin--a cervical laminectomy on a gentleman by the name of Rodgers where he developed a Brown-Sequard syndrome postoperatively?
* * *
Q. Do you recall in January of 1979 surgery performed upon a Mr. Jack Rodgers who underwent a dorsal rhizotomy and wound up a paraplegic following the operation secondary to a hematoma?
A. No.
Q. You don't recall that?
A. No.
Again, plaintiff's counsel initiated a bench conference, followed by:
Q. Do you recall performing surgery on a Mr. Eric Woods in August of 1977 who underwent a laminectomy and wound up with a wound infection and postoperative epidural hematoma which resulted in paraplegia?
A. No.
Q. Do you remember that case of yours?
There is some confusion regarding whether plaintiff's objections arose under MRE 608(b) 12 or MRE 403. We find that both rules were correctly considered and decided by the trial court. The court permitted inquiry into prior non-PLIF surgeries because it felt that those surgeries were relevant to the expert's competency. 13 We agree. Further, the court appropriately disallowed impeachment of Dr. Ignelzi on extrinsic matters under MRE 608(b), stating that defendant would be "stuck with" Dr. Ignelzi's answer. 14 At the conclusion of Dr. Ignelzi's cross-examination, the trial court properly denied plaintiff's motion for a mistrial, again holding that the cross-examination did not violate MRE 608(b). 15
The Court of Appeals disagreed with the trial court's rulings, citing Heshelman v. Lombardi, 183 Mich.App. 72, 454 N.W.2d 603 (1990). 16 However, Heshelman is not in conflict with the trial court's ruling. 17 In this case, Dr. Ignelzi testified that defendant should have undertaken a more conservative course of treatment, implying that a more conservative treatment would have prevented plaintiff's injuries. Through this testimony, he placed his competency to condemn defendant in question. The cross-examination of Dr. Ignelzi regarding prior poor surgical results, therefore, did not raise extrinsic evidence prohibited by MRE 608. Because the competency of Dr. Ignelzi was properly before the court, evidence pertaining to his credibility was relevant.
It is intended that the Rules of Evidence promote the ascertainment of the truth. 18 Where information is relevant and not unduly prejudicial, it would be unwise to apply MRE 608 so that the jury is deprived of information that would...
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