Wischmeyer v. Schanz

Levin, J.

(dissenting). The majority rules that the impeachment of Dr. Ronald Ignelzi with allegations of prior bad surgical results was permissible. The majority further rules that it was error to impeach him with questions concerning medical malpractice claims against him, but that the error was harmless. The majority reinstates the verdict of no cause of action for defendant Dr. George P. Schanz and codefendant St. Mary’s Medical Center.

In concluding that the trial judge did not abuse her discretion in allowing impeachment by allegations of bad surgical results, the majority ignores *486facts that made this line of questioning especially misleading and unfair to plaintiff. But even without these omissions, the questioning was violative of MRE 608(b).

We agree with the majority that the questioning about prior medical malpractice litigation was improper. There is no reason, however, to distinguish such questions from those about bad surgical results.

The majority’s conclusion that the medical malpractice impeachment was harmless error is not persuasive.

We also disagree with the majority’s reinstatement of the jury verdict for codefendant St. Mary’s Medical Center.

i

The majority acknowledges that Ignelzi "was under a gag order” not to discuss his involvement in "certain federal court cases.”1 The majority omits that the gag order was issued in two cases arising out of the very facts about which Ignelzi was cross-examined.

The cross-examination concerning alleged surgical mishaps related to a lawsuit filed by Ignelzi. California hospitals at which Ignelzi practiced had revoked his surgical privileges for a period of time in the early 1980s. The revocation appears to have resulted from the surgical results mentioned on cross-examination. Ignelzi sued to have his privileges reinstated, with apparent success.

The court handling that litigation sealed the record and apparently ordered the parties not to discuss the matter. The defense in this case obtained the information and sought to cross-examine Ignelzi about it.

*487Plaintiff informed the judge of the gag order and objected repeatedly to this line of questioning. The judge permitted the defense to ask Ignelzi whether his privileges had ever been terminated, and about the surgical results.2

To obey the gag order, Ignelzi was left with an unenviable choice. He could refuse to comment on these matters, which a jury would likely interpret as virtually an admission of misfeasance. Or, in the face of the defense attorney’s detailed questions, Ignelzi could fail to acknowledge that these incidents occurred, and appear untruthful. He chose the latter course, but forcing this choice was unfair to the plaintiff and- misleading to the jury.

n

Apart from these unusual facts, the cross-examination concerning alleged prior surgical mishaps and past medical malpractice litigation was improper. Michigan Rule of Evidence 608(b) provides:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility . . . may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness .... [Emphasis added.][3]

Under Rule 608(b), a witness may not be impeached by an inquiry into specific past acts unless the court finds that those acts reflect on the wit*488ness’ character for truthfulness.4 The allegations of prior surgical mishaps by Dr. Ignelzi had nothing to do with his truthfulness. Permitting such questions was improper under MRE 608(b).

A

The majority argues that this Court should ignore the plain meaning of MRE 608(b). It would allow such impeachment because "[w]here 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 assist it in its task.”5

Under common-law rules of evidence, the cross-examination of Ignelzi would also have been improper. Where not relevant to truthfulness, "allegations of professional wrongdoing, misconduct or negligence that is unrelated to the case on trial is not a proper subject of impeachment of an expert medical witness.”6 This rule of law seeks to avoid the substantial risk of distracting and confusing the jury with a "minitrial” on collateral matters:

In order for the jury to assess [the past acts] in weighing [the expert’s] opinion in the present case, the jury would have had to have known, at a minimum, the circumstances of the other cases, the nature of the mistakes made in those cases, how they occurred, and what, if anything, about *489those cases made it more likely that [the expert] was mistaken in his opinion [in the-present case].[7]

Little would have been gained by a minitrial concerning Ignelzi’s failed procedures. The alleged acts of negligence were unrelated to the subject of his testimony. They allegedly occurred in the performance of procedures other than the plif procedure at issue in this case.8

B

The majority argues that the impeachment related to Ignelzi’s "competency to condemn defendant . . . .”9 Evidence that a medical expert has made mistakes in practice does little to disprove his understanding of the standard of care expected of a neurosurgeon performing back surgery. As the cliche goes, "those who can’t do, teach,” or coach, or become referees or judges.

In Morrow v Stivers, 836 SW2d 424 (Ky App, 1992), an expert witness had relinquished his medical license for five years after allegedly transmitting hepatitis to patients. The Kentucky Court of Appeals affirmed the exclusion of such evidence, stating that this alleged past misfeasance

does not reflect on his knowledge or ability to testify on the matters at hand, i.e., the causation of [the plaintiff’s] condition and any deviation by [the defendant] from the standard of care.[10]

Because Ignelzi’s alleged bad surgical results were described so gruesomely, "the inflammatory effect [of the questioning], although unproven, would outweigh any probative value it might *490have.”11 The risk of unfairly prejudicing the jurors against Ignelzi, as well as the risk of confusion and distraction of issues, substantially outweighed whatever slight relevance the questioning had in evaluating Ignelzi’s testimony. MRE 403.

III

The majority correctly recognizes that a medical expert should not be questioned about past medical malpractice litigation arising out of allegedly failed operations, because it is not relevant to the expert’s competency or knowledge as a witness.12 Yet it concludes that allegations of failed back surgeries — in which a medical malpractice action may or may not have been filed — should be treated differently.

The majority states that a past action for medical malpractice "is not probative of [a witness’] truthfulness ... or relevant to his competency or knowledge.”13 The majority offers no reason for its conclusion that allegations of poor medical results should be viewed differently when they have not led to an action for professional negligence. If anything, such claims would seem even less probative than evidence of medical malpractice litigation. The risks of confusion and distraction of a "minitrial” that justify excluding allegations of *491surgical mishaps loom as large as when evidence of medical malpractice litigation is offered.

IV

The majority also rules that the error in permitting cross-examination concerning past medical malpractice litigation was harmless, stating:

By the time that this question was raised, Dr. Ignelzi had been thoroughly discredited. He testified that plaintiff’s bad result from the plif procedure should not have occurred absent some negligence in the operating room. Then on cross-examination, he admitted that every time he had performed this surgery it resulted in failure. Consequently, his entire testimony was placed in jeopardy and any error in allowing this question about prior medical malpractice actions was harmless.[14]

This argument is based on an incomplete, and thus inaccurate, characterization of the trial testimony. On direct examination, Ignelzi testified that plaintiff’s symptoms — increased back pain and numbness in his legs — would not have occurred but for negligent performance of the plif procedure. On cross-examination, defendant’s attorney asked:

Q. And the six plif procedures that you performed were failures, am I correct?
A. They didn’t relieve the pain.
Q. Yes. And you’ve testified in your deposition that you would consider them failures?
A. In the sense that they did not relieve the pain.

Failing to improve a patient’s condition cannot *492properly be equated with worsening it through negligence. Ignelzi’s inability to improve his patient’s conditions through the plif procedure does not call into question his knowledge of the standard of care for performing plifs, and his testimony that, absent negligence, even an unsuccessful plif should not have worsened Wischmeyer’s problem. Evidence of failure to • have improved patients’ conditions does not mean that Ignelzi’s "entire testimony was placed in jeopardy.”15

The judge exacerbated the error in permitting the cross-examination by her disparate treatment of the parties on this issue. Although the judge allowed impeachment of Ignelzi with these questions, she ruled that the same inquiry could not be conducted of defendant Schanz, who testified on his own behalf during the trial.16

Before the trial, the judge granted Dr. Schanz’ motion to preclude plaintiff from inquiring about prior medical malpractice actions filed against Schanz. Then, the judge and plaintiff’s attorney agreed that questions about factually dissimilar surgical malpractice actions should be excluded. Defendant’s attorney had argued that such inquiries have "absolutely no relevance” and tend to confuse the issues, as well as having "far more prejudicial [effect] than it would have probative value.”

Yet later, at the trial, the judge permitted plaintiff’s expert witness to be impeached with the same inquiry. This disparate treatment only adds to the error of allowing cross-examination of Ignelzi concerning prior litigation.17

*493The majority errs in asserting that plaintiff failed to object to the cross-examination about prior litigation. As discussed above, there is no reason to distinguish between evidence of past alleged surgical mishaps and evidence of medical malpractice litigation. Defendants have not argued that plaintiff failed to object to the inquiry concerning medical malpractice litigation. Schanz’ brief treats plaintiff’s objections as covering both the malpractice litigation and the general allegations of surgical mishaps.18

v

The errors in impeaching Dr. Ignelzi benefited St. Mary’s Medical Center as well as Dr. Schanz, because Ignelzi had also testified that the hospital may have breached the standard of care.

The majority rules that plaintiff "did not establish a prima facie case . . . .”19 In effect, it would grant a directed verdict to St. Mary’s Medical Center. This issue was not addressed by the Court of Appeals.20

Cavanagh and Mallett, JJ., concurred with Levin, J._

Ante, p 478, n 14.

The judge did forbid the defense from proving these incidents through extrinsic evidence.

Rule 608(b) is identical to the federal rule and similar to its counterparts in many other states.

People v Bouchee, 400 Mich 253, 268; 253 NW2d 626 (1977); 28 Graham, Federal Practice & Procedure (interim ed), § 6504, pp 21-23.

Ante, pp 479-480.

State v Lindh, 161 Wis 2d 324, 360; 468 NW2d 168 (1991). See also People v Mitchell, 131 Mich App 69, 72-73; 345 NW2d 611 (1983); State v Paradise, 213 Conn 388, 402-405; 567 A2d 1221 (1990) (barring inquiry into a prior investigation of a witness for official misconduct as chief medical examiner of New York City as being of "dubious relevance” and leading to a minitrial on collateral issues); Downey v Weston, 451 Pa 259; 301 A2d 635 (1973) (barring inquiry into an expert medical witness’ breach of medical ethics).

Paradise, n 6 supra at 404.

Ignelzi was also cross-examined about his performance in past plifs. Plaintiff does not claim this line of questioning was improper.

Ante, p 479.

Id., p 429.

Id.

Ante, p 482. See also Moses v Haney, 725 P2d 866, 868 (Okla, 1986); Heshelman v Lombardi, 183 Mich App 72, 85; 454 NW2d 603 (1990); Mazzone v Holmes, 197 Ill App 3d 886; 557 NE2d 186 (1990).

The few opinions permitting such impeachment generally treat past malpractice lawsuits as probative of possible bias or interest, and thus truthfulness, of the expert. Underhill v Stephenson, 756 SW2d 459 (Ky, 1988); Willoughby v Wilkins, 65 NC App 626; 310 SE2d 90 (1983). But see Navarro de Cosme v Hospital Pavia, 922 F2d 926 (CA 1, 1991). The majority does not suggest that any of the questions about past lawsuits or alleged surgical mishaps relate to Ignelzi’s character for truthfulness.

Ante, p 482.

Ante, pp 482-483.

Ante, pp 482-483.

When a defendant physician takes the stand in his own behalf, he may be questioned as an expert witness. See, e.g., anno: 11 ALR5th 1, 16.

Cf. Webb v Angell, 155 Ill App 3d 848, 860-861; 508 NE2d 508 *493(1987) (finding no abuse of discretion where the trial judge barred - questioning of both parties’ experts about prior lawsuits).

Now, certainly, later in the cross-examination of Dr. Ignelzi with respect to inquiries regarding numerous failed operations, lost staff privileges and malpractice suits, some objections were raised by Plaintiffs’ trial counsel but ... no such objections were ever stated as to the cross-examination to the unsuccessful six plif operations.

That argument ignores that plaintiffs do not contend that the cross-examination about the plifs was erroneous. See n 8.

Ante, p 484.

At the most, this Court should remand this issue to the Court of Appeals for consideration.