CRODA
v.
SARNACKI.
Docket No. 43276.
Michigan Court of Appeals.
Decided May 5, 1981.Lopatin, Miller, Bindes, Freedman, Bluestone, Erlich & Rosen (by Steven G. Silverman), for plaintiffs.
Kerr, Russell & Weber (by James R. Dashiell), for defendants Sarnacki, Singson and South Macomb Gynecologists, P.C.
*55 Sullivan, Ranger, Ward & Bone, P.C., for defendant Pantos.
Before: BRONSON, P.J., and J.H. GILLIS and BASHARA, JJ.
BASHARA, J.
Plaintiffs sought recovery of damages incurred as the result of defendants' alleged medical malpractice. During the first week of trial, defendant Detroit-Macomb Hospitals Association settled with plaintiffs. Subsequently, the jury returned a verdict of no cause of action as to the remaining defendants. Plaintiffs now appeal the jury's verdict.
Drs. Sarnacki and Singson practiced medicine together as South Macomb Gynecologists, P.C., also a named defendant in the action. On June 8, 1973, plaintiff Josepha Croda consulted with Dr. Sarnacki concerning problems which included a dropped uterus, a herniated rectum, a lacerated cervix, excessive bleeding, pain on intercourse, constipation, and urinary incontinence. Sarnacki informed plaintiff that she needed a hysterectomy and a cystocele-rectocele. She underwent the surgery in the South Macomb Hospital on July 30, 1973. Subsequent to the surgery, plaintiff's bladder did not maintain its proper tone. As a result, catheterization was necessary to evacuate urine from the bladder. Two days after her discharge from the hospital, plaintiff went to the office of South Macomb Gynecologists and Dr. Singson removed the catheter. When Mrs. Croda began to notice urine in her vagina, Sarnacki reinserted a catheter and referred her to defendant Dr. Theodore Pantos, a urologist, who treated her from August 21, 1973, to November 2, 1973. As part of his treatment, Dr. Pantos performed a right nephrostomy *56 on September 11, 1973, and a reimplantation of the right ureter on November 9, 1973.
Plaintiff alleged that she sustained permanent injuries to her urinary system and right kidney as a result of defendants' negligence. She averred that she had not been properly informed of the dangers inherent in the surgical procedure of July 30, 1973, and that Dr. Sarnacki had breached a contract to cure. Mrs. Croda further contended that Sarnacki departed from the standard of care in cutting her right ureter during surgery and by discharging her from the hospital prematurely. Plaintiff further averred that Dr. Pantos was negligent in failing to perform the right nephrostomy before September 11, 1973, when he knew that plaintiff had problems with her right kidney on September 4, 1973. Mrs. Croda also alleged that the delay resulted in further damage to her right kidney. She also claimed that, instead of a nephrostomy, Dr. Pantos should have performed a reimplantation of the right ureter on September 11, 1973. Plaintiff Antonio Croda's claim was based on loss of consortium.
Plaintiffs initially contend that the trial court erred in restricting the cross-examination of Dr. Pantos. Plaintiffs' counsel began to ask Dr. Pantos whether he agreed with statements in the deposition of defendants' expert witness, Dr. Urwiller.
Upon objection by defendants, the trial court ruled that, since the deposition of Dr. Urwiller had not been admitted into evidence and he had not been called as a witness, plaintiffs' attorney could not specifically refer to the deposition. It was further held that plaintiffs' counsel could not inquire as to why Dr. Urwiller had not been called as a witness. Plaintiffs' counsel was allowed, however, to ask Dr. Pantos his frame of reference in *57 forming his opinion that Mrs. Croda had not suffered permanent kidney damage and the standard of care.
A separate record was made in which plaintiffs attempted to impeach Dr. Pantos. Plaintiffs failed to show any contradiction between Dr. Urwiller's deposition and Dr. Pantos' testimony. Therefore, the deposition was not relevant as impeachment evidence, there being no significant difference between the opinions of the two doctors.[1] We find no abuse of discretion in the court's ruling. Lorenz Supply Co v American Standard, Inc, 100 Mich. App. 600, 615; 300 NW2d 335 (1980), People v Strickland, 78 Mich. App. 40, 54; 259 NW2d 232 (1977).
Plaintiffs allege error in the following jury instruction:
"Now there was an additional defendant in this trial which was South Macomb Hospital [sic] Association and as you recall I instructed you that South Macomb Hospital [sic] Association after a particular point in this trial would no longer be considered a defendant. South Macomb Hospital [sic] Association has settled the claim filed against it by the plaintiffs for the amount of four thousand dollars. If you determine to award Mr. and Mrs. Croda any additional money from the remaining defendants, you should first deduct the sum of four thousand dollars from any sum you feel the plaintiffs should receive as damage."
Plaintiffs argue that the instruction violated MRE 408, which states:
"Rule 408 Compromise and Offers to Compromise.
*58 "Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution." (Emphasis added.)
We find MRE 408 inapplicable to the controversy at bar. The settlement was not introduced into evidence in order to prove the liability of the remaining defendants. In fact, it was not admitted into evidence at all.
Plaintiffs assert for the first time on appeal that the trial court should have deducted the $4,000 from whatever judgment the jury may have reached rather than advise them to make the deduction themselves. By telling the jury that plaintiffs recovered $4,000 from the hospital, they contend the jury was allowed to speculate that their claim was without merit.
Admission of proof of a prior settlement agreement between a defendant and the plaintiff is a matter of judicial discretion. Wilson v W A Foote Memorial Hospital, 91 Mich. App. 90, 97; 284 NW2d 126 (1979), lv to appeal held in abeyance 409 Mich. 868 (1980), Reno v Heineman, 56 Mich. App. 509, 512; 224 NW2d 687 (1974). But see, Brewer v Payless Stations, Inc, 94 Mich. App. 281; 288 NW2d *59 352 (1979), lv gtd 409 Mich. 871 (1980).[2] Until the Supreme Court holds to the contrary, we agree with the conclusion in Wilson, supra, that plaintiffs' proposal raised only on appeal is a permissible alternative which the trial court is not required to follow. Wilson, supra, 98.
In view of the fact that the hospital association was an active party during the initial days of trial, the court's instruction was proper in order to inform the jury of the party's dismissal from the suit. The trial court's instruction was the only noted mention of the settlement to the jury. There is no reason to assume that, based upon this instruction, the jury concluded that plaintiffs' claims were without merit. We fail to find an abuse of discretion in the trial court's ruling.
The third instruction challenged on appeal concerns the apportionment of damages among the defendants. The trial court substantially charged the jury with the standard jury instructions on apportionment, SJI 41.04 and SJI 41.05. Based upon the evidence presented, we find no error in the charge. Naccarato v Grob, 384 Mich. 248, 255-256; 180 NW2d 788 (1970).
Plaintiffs challenge one final jury instruction:
"Now, the question is, `How do you as jurors determine what the standard of practice is and whether or not it has been observed by the defendants in this case?'
"Jurors and judges do not know and are not permitted arbitrarily to say what are the proper methods of *60 treating a patient under the circumstances in this case. This is a medical question. What is or is not a proper practice by a urologist or a gynecologist, the treatment of a patient or what is or is not standard of practice of the usual practice in the community is a question for experts and can be established only by their testimony. That is, it is only those learned in urology or gynecology who can say what should have been done or what was done or not to have been done and it is only those learned in urology or gynecology who can say what was done was proper."
Plaintiffs contend that the phrase "learned in urology or gynecology" could have misled the jury into concluding that, contrary to established law, the expert must be a specialist in those fields in order to be a competent witness. We agree with plaintiffs' initial premise that an expert need not be a board-certified specialist in the field in order to testify as to the standard of care of that practice. However, it is well-established that the expert witness must possess the necessary learning, knowledge, skill or practical experience that would enable him to competently testify concerning that area of medicine. Siirila v Barrios, 398 Mich. 576, 591; 248 NW2d 171 (1976).
It is therefore clear that plaintiffs' expert, Dr. Miller, was not required to be a gynecologist or urologist in order to qualify as an expert witness. He stated that he was learned in those areas due to his medical training, experience and continuing review of the literature in those fields. The trial court properly allowed Dr. Miller to testify as an expert witness. MRE 702, SC Gray, Inc v Ford Motor Co, 92 Mich. App. 789, 805; 286 NW2d 34 (1979), MCL 600.2912a; MSA 27A.2912(1).
However, plaintiffs argue that by giving the above instruction, Dr. Miller's credibility was diminished by the court. They read the instruction *61 as requiring the expert to be an actual member of one of the named specialties, a greater qualification then established by law.
We disagree with plaintiffs' interpretation of the instruction. The trial court told the jurors that they could not determine the standard of care on their own knowledge. Rather, the proper practice may only be established by one "learned in urology or gynecology". We find the instruction to conform precisely to the requirements of Siirila, supra.
Viewing the instructions as a whole, we find no reversible error. Moore v Foster, 96 Mich. App. 317, 321; 292 NW2d 535 (1980).
Affirmed. Costs to defendants.
J.H. GILLIS, J., concurred.
BRONSON, P.J. (dissenting).
I have two major areas of disagreement with the majority's opinion in this case. I therefore dissent.
I
I disagree with most aspects of the majority's analysis on the question of whether the trial court erred in instructing the jury to deduct $4,000 from any judgment which it might render in plaintiffs' favor. Preliminarily, contrary to the majority view, only an extremely technical reading of the transcript can lead one to conclude that plaintiffs assert this issue for the first time on appeal. While most of the discussion at trial was concerned with the propriety of telling the jury about the $4,000 settlement with the South Macomb Hospital when no evidence has been introduced during trial concerning the same, it is patently clear that plaintiffs' counsel desired that the trial court make a *62 postverdict adjustment if the jury found in his clients' favor. Indeed, the trial court noted that Wayne County Circuit Court Judge Baum had done the postjudgment arithmetic calculations himself in a prior case. The judge here stated, however, that there was no case law supporting this approach and specifically said, "I can't find any authority for the position". Plaintiffs' counsel immediately rejoined, "My authority for the position is * * *", clearly indicating that he had no objection to the trial court making any postjudgment calculations himself. All the arguments on this issue were manifestly premised on which approach was proper submitting the settlement figure to the jury or having the trial judge do the calculations himself.
While the majority prefers the approach used in Wilson v W A Foote Memorial Hospital, 91 Mich. App. 90, 96-97; 284 NW2d 126 (1979), lv to appeal held in abeyance 409 Mich. 868 (1980), allowing the jury to know about the previous settlement, I believe that the reasoning employed in Brewer v Payless Stations, Inc, 94 Mich. App. 281; 288 NW2d 352 (1979), lv gtd 409 Mich. 871 (1980), is far more persuasive. I agree with the majority that, standing by itself, MRE 408 is not applicable to this controversy. The jury was informed of the settlement for reasons other than proving the validity or invalidity of the claim. At the same time, a substantial possibility existed, as expressed by plaintiffs' attorney, that the jury would misuse the information concerning the settlement and conclude that plaintiffs' claim was of dubious validity given the relatively low amount for which the case against the hospital was settled. Since plaintiffs' counsel was willing to allow the trial court to make any necessary postverdict adjustments to a *63 favorable judgment rendered, the fact of the settlement was immaterial and inadmissible. MRE 402. Assuming, arguendo, that counsel's willingness to allow the trial judge to make the postverdict adjustments should not be deemed sufficient to remove the prior settlement as material to a fact in issue, I still believe that under these circumstances MRE 403 would preclude the admission of the amount of the settlement. The jury's knowledge of the low settlement figure was extremely prejudicial and clearly outweighed any probative value it had, given that counsel was prepared to allow the trial court to make the necessary adjustments. Furthermore, I am convinced that defense counsel was primarily interested in having the settlement amount come before the jury precisely because of the prejudical impact it would have.[1] The trial court believed it was compelled to give the instruction since requested by defense counsel. At one point during the arguments, the court suggested that defense counsel might want to withdraw the request for the instruction. The defense attorney, however, was adamant about the jury being informed of the settlement figure.
It is clear that the trial court did not recognize its discretion to refuse the instruction. It is equally apparent that had it been aware of its discretion to reject the instruction, it would have done so. The following pertinent excerpts from the trial court's comments on this issue unequivocally establish both facts:
"The Court: First I guess with respect to reference to *64 the verdict, the settlement between Mr. Vander Male and Mr. Lopatin, South Macomb Hospital, I can't find any authority to support Mr. Lopatin's proposition that under Michigan law that I am not required under Michigan law to bring that settlement to the jury. I understand your position on it as far as in terms of money being in evidence.
"Michigan differs from maybe every state in the union but my understanding, and you can check me, the most recent cases I could find which I had done research on is in that that matter must be brought to the jury's attention and they must do the arithmetic rather than me.
"The last person I haven't talked with Judge Baum. The last person who tried this in Wayne Circuit, to do the arithmetic themselves was Judge Baum and even he, I am quite sure I can't find any authority for the position.
* * *
"The Court: You may well be right. As I read the cases, I am bound to tell them that they must subtract from the verdict the amount of settlement. As I say if I were sitting in the Supreme Court which I am obviously not, I would not have signed my name to such an opinion of such a rule.
* * *
"The Court: It's a matter now. It has no probative value with respect to liability. It is a matter of Michigan law is an anomaly. If I were sitting in the Supreme Court, I wouldn't have adopted such a procedure. I think the judge should do the arithmetic but that is not the way the Supreme Court has ruled. They have ruled that the jury must do the arithmetic and therefore the jury must be instructed from any verdict which it renders it must subtract $4,000.00."
Wilson, supra, relied on by the majority, specifically refers to questions concerning the admission of a settlement with a joint tortfeasor as being a matter within the trial court's discretion. Here, the trial judge did not recognize his discretion so *65 that his ruling cannot be seriously characterized as an exercise of the same. In People v Jackson, 391 Mich. 323, 332; 217 NW2d 22 (1974), the Supreme Court indicated that the failure of a trial judge to recognize his discretion is a basis for reversal. This rule has also been applied in civil cases. The Cleveland-Cliffs Iron Co v First State Ins Co, 105 Mich. App. 487; 307 NW2d 78 (1981).
Finally, as concerns this issue, plaintiffs' argument below that the jury should not be informed of the $4,000 settlement because the fact of settlement was never introduced into evidence is well taken. The two cases relied upon by the majority, Wilson, supra, and Reno v Heineman, 56 Mich. App. 509; 224 NW2d 687 (1974), both arose in the context of evidentiary rulings made by the trial court. In the instant case, the defense never attempted to admit evidence of the settlement. The jury had not been apprised of the settlement prior to the close of the proofs by either side. MRE 408 does not require exclusion of a settlement when the evidence of the settlement is offered for another legitimate purpose. Here, the evidence was simply not offered. The defendants' failure to introduce the fact and amount of settlement in their case in chief deprived plaintiffs of any opportunity to present testimony under oath which might tend to minimize the obvious prejudicial impact of the low settlement figure.[2]
*66 The error in the instant case cannot be deemed harmless. The relatively low amount of the settlement may well have convinced jurors that plaintiffs' claim was frivolous.
II
I also disagree with the majority's conclusion concerning the likely effects of the following instruction:
"Now, the question is, `How do you as jurors determine what the standard of practice is and whether or not it has been observed by the defendants in this case?'
"Jurors and judges do not know and are not permitted arbitrarily to say what are the proper methods of treating a patient under the circumstances in this case. This is a medical question. What is or is not a proper practice by a urologist or a gynecologist, the treatment of a patient or what is or is not standard of practice of the usual practice in the community is a question for experts and can be established only by their testimony. That is, it is only those learned in urology or gynecology who can say what should have been done or what was done or not to have been done and it is only those learned in urology or gynecology who can say what was done was proper."
Plaintiffs' counsel objected to the instruction as follows:
"* * * I object to the Court's [c]harge that you have *67 to have someone learned in urology or gynecology in order to testify as to the as to what should or should not have been done. I think the test is if a person is a medical doctor or even an osteopathic doctor who is familiar with the standard of care that is the test to be applied and not that he has to be aware of the specialty of both urology and gynecology."
Plaintiffs contend that the phrase "learned in urology or gynecology" suggests that the expert had to be a specialist in both of these fields to be considered competent to testify on the appropriate standard of care. Defendants argue that the instruction was correct and that expert testimony on the standard of care requires "more than mere knowledge of a speciality".
To be a qualified medical expert, the witness need not necessarily be of the same school or specialty as the defendant. It is sufficient if the witness has expertise in the standard of care imposed by the defendant's school or specialty. Siirila v Barrios, 398 Mich. 576, 590-594; 248 NW2d 171 (1976), Wilson, supra, 101-102.
Dr. George Miller, plaintiffs' expert, testified that he is not board certified in urology or gynecology. However, he was board certified in surgery and stated that he kept up on the medical literature in obstetrics, gynecology, and urology. Miller testified that he also attended general surgical conferences covering these topics. Finally, he testified that he was familiar with the standard of care as it pertained to specialists in obstetrics, urology, and gynecology, practicing in Detroit, for patients who have problems like those of plaintiff. As regards Dr. Miller's status as a medical expert, this case is similar to Wilson, supra. There, this Court rejected the assertion that plaintiffs' expert need be an expert in obstetrics to give an opinion on the *68 emergency nature of a breech presentation. The Wilson Court noted that the situation in question was not totally limited to the field of obstetrics. The same is also true in the instant case, where Dr. Miller's certification as a surgeon necessarily required him to keep up on the relevant standard of care for surgical procedures of many varieties.
The question here, however, is not whether Miller was properly qualified to give expert testimony, but whether the trial court's instructions would lead the average juror to conclude that his testimony should be given less weight because he was not a specialist in urology and gynecology. I believe that the instruction as given was improper. Although "learned" arguably could be interpreted simply as requiring knowledge of urology or gynecology, which Miller had, the jurors could also have construed the instruction to mean that the witness must be a specialist in those fields.[3]
Unlike the majority, I think the instruction was imcomplete and erroneous. This is particularly true in light of plaintiffs' counsel's very specific objection to the charge and the ease with which the trial court could have rectified the same.
In the instant case, I cannot say that the error was harmless. Defense counsel's cross-examination of Dr. Miller constituted a strong attack on his qualifications and credibility. While this attack was proper and within permissible bounds, in combination with the erroneous instruction, the possibility that the jury associated "learned in gynecology and urology" as the equivalent of requiring specialization in these fields was greatly *69 enhanced. On balance, I am persuaded that it is highly probable that the jury's verdict was improperly affected by the instruction.
I would reverse and remand for a new trial.
NOTES
[1] Consequently, we need not address plaintiffs' novel suggestion that the deposition of one doctor may be introduced into evidence solely for the purpose of impeaching another doctor's testimony. See MRE 707, People v Brown, 13 Mich. App. 222; 163 NW2d 829 (1968).
[2] An interlocutory appeal was granted in Brewer, where this Court reversed the judge's pretrial ruling that evidence of the settlement of one defendant would go to the jury in order that it could deduct the amount from any judgment rendered. One issue under consideration by the Supreme Court in Brewer is "whether the jury hearing the plaintiff's case against one or more tortfeasors may be informed of a settlement between plaintiff and another tortfeasor responsible for the same injuries where the settlement does not directly relate to an issue of material fact in the case". 409 Mich. 871 (1980).
[1] It is clear that any verdict in plaintiffs' favor would have been lessened by the $4,000 even if the jury was not told of the settlement figure. Thus, I am unable to see any reason, other than the tactical one mentioned, for defense counsel's insistence that the instruction be given.
[2] The majority states, "There is no reason to assume that, based upon this instruction, the jury concluded plaintiffs' claims were without merit." In my opinion this statement imposes upon the litigant an affirmative obligation to actually prove the error harmful. Of course, this is almost always an impossibility. There is no reason to assume in this case that the jury did not conclude plaintiffs' claims were without merit based upon this instruction. Longstanding case law provides that if the error committed was on motion of the opposition, as here, the opposition must establish that the complaining party was not prejudiced by the error. Campau v Traub, 27 Mich. 215, 216 (1873). Additionally, ancient and venerable case law provides that where there has been instructional error, unless it is clear that appellant could not have prevailed in any case, the error cannot be deemed harmless. Toledo & A A R Co v Johnson, 49 Mich. 148, 150; 13 N.W. 492 (1882). Additionally, Wilson, supra, which the majority relies on, forthrightly acknowledges the potential for prejudice in admitting evidence of a prior settlement. In Wilson, the settlement amount was $150,000, $75,000 as to each of two settling defendants. Clearly, if a potential for prejudice was apparent in Wilson, it is hard to rebut that the $4,000 settlement here likely did substantial mischief.
[3] The instruction would have been proper had the trial court also charged: "Learned in urology or gynecology does not mean that the witness must be a specialist in these fields. It is sufficient if the witness is familiar with the requisite standard of care by training, education or experience."