Summary
In McCullough v. Hutzel Hosp. (1979), 88 Mich. App. 235, 276 N.W.2d 569, the plaintiff, Ophelia McCullough, underwent a tubal ligation at Hutzel Hospital. Since Hutzel was a teaching hospital, the actual surgery was performed by a resident.
Summary of this case from Lownsbury v. VanburenOpinion
Docket No. 77-2735.
Decided January 17, 1979.
Barbara, Ruby, Domol, Bowerman, Miller Aaron, for plaintiffs.
Kerr, Wattles Russell, for defendants.
Before: DANHOF, C.J., and R.M. MAHER and D.C. RILEY, JJ.
Plaintiffs Ophelia McCullough and Sedrick McCullough, Jr., brought this medical malpractice action to recover for damages incurred as a result of defendants' alleged negligence in failing to perform properly a tubal ligation on plaintiff Ophelia McCullough. A few months after she was, according to hospital records, rendered incapable of conception, Ms. McCullough discovered that she was pregnant. The preexisting health problem which had led to her decision to undergo sterilization forced her to accede to a therapeutic abortion and ligation of the remaining fallopian tube. Subsequently, a hysterectomy was also performed.
Following trial, the jury returned a verdict in favor of plaintiffs in the amount of $100,000. Defendant hospital having settled plaintiffs' claim against it prior to trial for the sum of $40,000, judgment in the amount of $60,000 was entered against defendant doctors. From this judgment, they appeal as of right.
Defendants' sole allegation of error concerns the admission of testimony of plaintiffs' expert witness, Dr. Kalman Gold, on the applicable standard of care. Dr. Gold is a board-certified specialist in obstetrics and gynecology, licensed in Ohio and Michigan. He practices in Toledo, where he is on the staffs of several hospitals and teaches a clinical course at a medical school. Defendants are specialists in obstetrics and gynecology who undertook to supervise the care rendered to Ms. McCullough at Hutzel Hospital. Hutzel being a teaching hospital, the actual surgery was performed by a resident taking advanced training at the hospital.
Defendants claim that because they did not actually perform the surgery, but were merely responsible for supervising the resident who did, they were not practicing their speciality, and are therefore not to be held to the national standard of care applicable to specialists, see Siirila v Barrios, 398 Mich. 576; 248 N.W.2d 171 (1976), Naccarato v Grob, 384 Mich. 248; 180 N.W.2d 788 (1970). Because Dr. Gold admitted that he was not familiar with procedures at Hutzel, defendants argue, he is not qualified to testify regarding the applicable standard of care. Defendants, in effect, argue for a locality rule for specialists teaching clinical medicine in hospitals. We reject defendants' arguments for two reasons: First, we find that defendants were engaged in the practice of their specialty in caring for Ms. McCullough. Second, the locality rule does not apply to specialists engaged in teaching their specialty.
When plaintiff entered Hutzel Hospital for gynecological surgery, defendants assumed responsibility for her care. Even though the surgical procedure was actually performed by a resident, defendants were under a duty to see that it was performed properly. It is their skill and training as specialists which fits them for that task, and their advanced learning which enables them to judge the competency of the resident's performance. Their failure to take reasonable care in ascertaining that the surgery was competently performed renders them liable for the resulting damages. We reject defendants' argument that supervision of a patient's care does not constitute practice of medicine.
We must point out that defendants' liability is not predicated on the negligence of the resident, but upon their own negligence in failing to provide adequate supervision, cf. Abbe v Woman's Hospital Assn, 35 Mich. App. 429; 192 N.W.2d 691 (1971).
It has long been the rule that a general practitioner is required "to use that degree of diligence and skill which is ordinarily possessed by the average of the members of the profession in similar localities, giving due consideration to the state of the art at the time", Miller v Toles, 183 Mich. 252, 257; 150 N.W. 118 (1914). See also Lince v Monson, 363 Mich. 135; 108 N.W.2d 845 (1961). Specialists, on the other hand, are held to the standard of "a reasonable specialist practicing medicine in the light of present day scientific knowledge", without regard to geographical circumstances, Naccarato v Grob, 384 Mich. 248, 254; 180 N.W.2d 788 (1970). Even as to general practitioners, however, the trend of authority is away from the locality, see Sirila v Barrios, supra, opinion by WILLIAMS, J.
The locality rule had its origins in the 19th century, a time when the level of practice in remote rural areas was considerably lower than in urban areas, where opportunities for continuing education and broad experience were greater, see Siirila v Barrios, supra, at 612-613. As Justice WILLIAMS notes in his concurring opinion in Siirila, the situation today is much different:
"It is evident that today's physician operates within a milieu in which the "coach and four", Wiggins v Piver, 276 N.C. 134, 140; 171 S.E.2d 393, 396 (1970), has been replaced by sophisticated communication and improved transportation. `[M]edical journals, closed circuit television presentations, special radio networks for doctors, tape recorded digests of medical literature, and current correspondence courses', 23 Vand L Rev 732, are not uncommon.
"All licensed physicians meet minimum standards required by state licensing boards. The increasing excellence of medical schools and the free interchange of scientific information have a `consequent tendency to harmonize medical standards throughout the country'. Cook v Lichtblau, 144 So.2d 312, 315 (Fla App, 1962), quoting Montgomery v Stary, 84 So.2d 34, 39 (Fla, 1955).
"Development of the locality rule preceded accreditation of medical schools, which began in 1906 under the AMA Council on Medical Education." Siirila v Barrios, supra, at 614. (Footnotes omitted.)
The result of improved education, Justice WILLIAMS concluded, is improved levels of practice, Siirila v Barrios, supra, at 615-616:
"Uniform and improved levels of medical practices must inevitably result from the encouragement of continuing medical education, the prevalence of regional medical centers, standardization and excellence of modern medical schools and training, the dissemination of reports via journals, and instant communication devices." (Footnote omitted.)
We think a situation such as that presented in the case at bar is a singularly inappropriate one for application of the locality rule. Defendants are specialists, engaged in teaching their specialty to other physicians in a large, well-equipped hospital in a major metropolitan area. They suffer none of the disadvantages, such as lack of access to modern equipment and ignorance of modern techniques, which led to the development of the locality rule for general practitioners, see Siirila, supra. To adopt a rule that an expert witness must be familiar with procedures in the particular hospital in question — or even in other hospitals in the same geographical area — would be a step backward. It is a step we decline to take.
Dr. Gold testified that he was familiar with procedures in teaching hospitals in Toledo and, from his student days, in Ann Arbor. He professed to be familiar with the standard of care ordinarily utilized by gynecologists in supervising other physicians in training. We are of the opinion that the trial court did not abuse his discretion in finding Dr. Gold qualified to testify as an expert, Siirila v Barrios, supra, LeBlanc v Lentini, 82 Mich. App. 5; 266 N.W.2d 643 (1978).
Affirmed. Plaintiffs may tax their costs.