Opinion
Docket No. 60802.
Decided February 10, 1983. Leave to appeal denied, 417 Mich 1100.5.
Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen Bartnick (by Richard E. Shaw), for plaintiff.
James S. Goulding, for defendants.
Both plaintiff and defendants Detroit General Hospital and City of Detroit appeal as of right from a jury verdict in favor of plaintiff in this medical malpractice action. The jury found no cause of action against defendant Lucas and awarded a $50,000 verdict against the City of Detroit and Detroit General Hospital, reducing it by 50% due to plaintiff's comparative negligence.
Defendants appeal the trial court's admission of testimony of plaintiff's medical expert witness, Dr. George Miller, regarding the applicable standard of care in the emergency room treatment of gunshot wounds. Plaintiff cross-appeals the trial court's instruction to the jury on comparative negligence.
In Michigan, the test for determining whether a witness is qualified as an expert witness in a medical malpractice action is whether the witness is familiar with the appropriate standard of care. Swanek v Hutzel Hospital, 115 Mich. App. 254, 257; 320 N.W.2d 234 (1982); Francisco v Parchment Medical Clinic, PC, 407 Mich. 325, 327; 285 N.W.2d 39 (1979). The witness must possess the necessary learning, knowledge and skill, or practical experience that would enable him or her to competently testify about that area of medicine. Siirila v Barrios, 398 Mich. 576, 591; 248 N.W.2d 171 (1976); Swanek, supra. This Court will not reverse a trial court's ruling on the qualifications of an expert witness absent an abuse of discretion. Wood v Posthuma, 108 Mich. App. 226, 230; 310 N.W.2d 341 (1981); Swanek, supra.
Defendants argue that Dr. Miller's 20-year absence from an emergency room setting precluded him from testifying on the standard of care applicable in a city hospital emergency room. Defendants further argue that no evidence was introduced to establish that Dr. Miller was familiar with the treatment of gunshot wounds. We do not agree.
In Haisenleder v Reeder, 114 Mich. App. 258; 318 N.W.2d 634 (1982), plaintiffs filed a medical malpractice action against a hospital and two doctors alleging the negligent treatment of their 16-year-old son, resulting in his death. The decedent had been rushed to the emergency room due to symptoms associated with Reyes Syndrome. At trial, plaintiffs sought to introduce the expert testimony of Dr. Baublis, a medical doctor, who had last practiced in an emergency room setting while a resident during the years 1956 through 1959. The trial court refused to admit the doctor's testimony on the ground that his knowledge of the standard of care applicable in an emergency room setting was theoretical only and not the result of recent, personal experience in an emergency room. This Court reversed the trial court's ruling in Haisenleder, holding that the witness's absence from the emergency room setting from 1959 to 1972 was not dispositive of his ability to testify about the applicable standard of care. Dr. Baublis had also testified that he was engaged in consultation work and stated that he was familiar with the applicable standard of care. 114 Mich. App. 265.
The ruling of Haisenleder is applicable to the present case. Although Dr. Miller has long been removed from emergency room practice, he did testify about his many years of experience as a surgeon, including his extensive experience in orthopedic surgery. Dr. Miller testified that he was familiar with the standard of care applicable in this case. There is nothing in the record to suggest that the trial court abused its discretion in admitting the testimony of Dr. Miller as an expert medical witness. Dr. Miller's 20-year absence from an emergency room setting goes to the weight of his testimony and not to its admissibility.
Plaintiff has filed a cross-appeal challenging the trial court's reading of the standard jury instruction on comparative negligence, SJI 11.01.
In Michigan, pertinent portions of the Michigan Standard Jury Instructions must be given in every civil action so long as the instruction is applicable and so long as it accurately states the applicable law. GCR 1963, 516.6(2); Javis v Ypsilanti Bd of Ed, 393 Mich. 689, 697; 227 N.W.2d 543 (1975).
In the present case, defendants introduced evidence which, if believed, established that non-life-threatening bullet wounds are routinely observed for a period of weeks before a final decision is made to remove a bullet or leave it in place. Defendants also introduced evidence which, if believed, established that plaintiff had been instructed to return to the hospital for a check-up three weeks after the shooting but that he failed to do so. Dr. Krome testified that if plaintiff had continued his periodic check-ups as instructed, it is possible that the bullet would have subsequently been removed. This evidence sufficiently establishes the applicability of an instruction on comparative negligence.
Moreover, the standard jury instruction given, SJI 11.01, accurately stated the applicable law in Michigan. With the adoption of the pure form of comparative negligence in this state in Placek v Sterling Heights, 405 Mich. 638, 662; 275 N.W.2d 511 (1979), liability for damages in a negligence action is apportioned on the basis of the relative fault of plaintiff and defendants. The trial court did not err in giving the standard jury instruction on comparative negligence.
The judgment is affirmed and the case is remanded to the trial court for a determination of the amount, if any, of attorney fees to which plaintiff may be entitled pursuant to the local court rule, WCCR 403.15(d).
Affirmed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.