Not overruled or negatively treated on appealinfoCoverage
Michigan Court of AppealsMar 18, 1985
141 Mich. App. 468 (Mich. Ct. App. 1985)
141 Mich. App. 468367 N.W.2d 418

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Docket Nos. 72355, 72356.

Decided March 18, 1985. Leave to appeal applied for.

Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen Bartnick (by Richard E. Shaw), for plaintiffs.

Dice, Sweeney, Sullivan, Feikens, Hurbis Foster, P.C. (by Dennis J. Mendis), for defendant Henkin.

Sullivan, Ward Bone, P.C. (by Michelle A. Thomas and Robert E. Sullivan), for defendants William Beaumont Hospital, Klewicky and Reifler.

Before: HOOD, P.J., and R.B. BURNS and S. EVERETT, JJ.

Circuit judge, sitting on the Court of Appeals by assignment.


Plaintiffs appeal as of right from a June 14, 1983, judgment that orders that plaintiffs take nothing in this medical malpractice case because a jury found no cause of action against the defendants and that plaintiffs pay defendants their costs and charges. The trial court denied plaintiffs' motion for new trial on June 14, 1983. We affirm.

Plaintiffs raise two issues on appeal, both properly preserved and addressed in their motion for new trial.

First, plaintiffs argue that the trial court erred by granting defendants' motion in limine. Defendants moved to limit the scope of plaintiffs' cross-examination of their only expert witness, Dr. Scratch, by excluding questions regarding Dr. Scratch's involvement with the Physicians' Crisis Committee and with the Physicians' Insurance Company of Michigan, the malpractice insurer of both Dr. Scratch and defendant Henkin. At the hearing on the motion in limine, Dr. Scratch said that the purpose of the Physicians' Crisis Committee was "to try to make some sort of sense out of the legal harassment of the medical professional as regards care of patients". Dr. Scratch said he donated money to that committee, attended "a meeting or two", and reviewed a few cases on its behalf. Dr. Scratch also said that he attended a meeting sponsored by PICOM regarding the possibility of insured doctors volunteering to review medical malpractice cases. Otherwise, Dr. Scratch's only involvement with PICOM was regular payment of his malpractice insurance premiums.

The trial court granted the motion, finding the above potential testimony for purposes of cross-examination for impeachment of credibility more prejudicial than probative, MRE 403, and that any reference to insurance was prohibited.

The scope and duration of cross-examination of witnesses rests in the trial court's sound discretion and exercise of that discretion will not be reversed by this Court absent a clear showing of abuse. Wilson v Stilwell, 411 Mich. 587, 599; 309 N.W.2d 898 (1981); MRE 611(b). However, it is generally permissible to cross-examine an adverse witness to elicit from him or her any fact or circumstance that tends to show that witness's relationship with, feelings toward, bias, prejudice, or interest for or against either party. Hayes v Coleman, 338 Mich. 371, 381; 61 N.W.2d 634 (1954); Wilson v Stilwell, supra, p 599.

In this case, we find that the trial court did improperly limit the plaintiffs' cross-examination of Dr. Scratch in regard to the Physicians' Crisis Committee. That testimony would have been probative of Dr. Scratch's interest and bias against medical malpractice actions in general. We do not agree that it would have been more prejudicial than probative. MRE 403. We do agree that the trial court properly excluded cross-examination of Dr. Scratch regarding PICOM. In an action such as this, a party is prohibited by statute from referring to the insurer. MCL 500.3030; MSA 24.13030. See, also, MRE 411. Although technically plaintiffs were not referring to PICOM as defendant Henkin's insurer, reference to that medical malpractice insurer would have been prejudicial to defendants, and such prejudice would not be outweighed by the limited probativeness of the relationship between Dr. Scratch and PICOM.

Although we find that the trial court erred in part by granting defendants' motion in limine, we do not find that the error mandates reversal. We recognize that each party presented only one expert witness and, therefore, this case presented a battle of the experts' credibility. Wilson v Stilwell, supra, p 599. Nevertheless, the trial court otherwise gave plaintiffs the opportunity to freely impeach Dr. Scratch's credibility, an opportunity plaintiffs did take.

Plaintiffs next argue that the trial court erred by instructing the jury that no physician is required to guarantee results. The trial court read SJI2d 30:01 to the jury regarding professional negligence or malpractice. In addition, the trial court also instructed as follows pursuant to defendants' request:

"The difficulties and uncertainties in the practice of medicine are such that no one can be required to guarantee results and all the law demands is that the individuals involved bring and apply to the case at hand that degree of skill, care, knowledge and attention ordinarily possessed and exercised by practitioners of the medical profession under like circumstances.

"The mere fact that an adverse result may occur following medical treatment is not, in itself, any evidence of negligence."

Plaintiffs correctly argue that they neither pleaded a contract or guaranty theory nor argued such a theory at trial. Plaintiffs further argue that by giving such an instruction the jury was misled to plaintiffs' prejudice. Plaintiffs also assert that by implication GCR 1963, 516.6(4) mandates that if a standard jury instruction adequately covers the law in the case the trial court shall not give additional instructions. We first recognize that there is now a conflict in this Court regarding this issue. In Warfield v Wyandotte, 117 Mich. App. 83, 93-94; 323 N.W.2d 603 (1982), lv den 417 Mich. 919 (1983), a panel of this Court found the guarantor instruction a correct statement of the law and not improper if not standing alone. See Cleveland v Rizzo, 99 Mich. App. 682; 298 N.W.2d 617 (1980). In Jones v Porretta, 138 Mich. App. 241; 360 N.W.2d 181 (1984), another panel of this Court decided that Warfield was wrongly decided. In Jones, as in this case, the trial court gave the correct standard jury instruction but added the guarantor language. Jones relied on Javis v Ypsilanti Bd of Ed, 393 Mich. 689, 702-703; 227 N.W.2d 543 (1975), in which the Supreme Court held that where a trial court deviates from an accurate standard jury instruction, and that deviation is properly brought to the trial court's attention prior to deliberation, prejudicial error will be presumed.

We believe that the Jones panel misapplied Javis. This is not a case in which the trial court deviated from the standard and proper jury instruction. Rather, the trial judge gave the correct SJI but also added an instruction that is an accurate statement of Michigan common law. Roberts v Young, 369 Mich. 133; 119 N.W.2d 627 (1963), cited in the note and comment to SJI2d 30:01. We do not find this situation similar to the one the Javis Court intended to cover with the automatic presumption of prejudice rule.

We also disagree with plaintiffs' argument that GCR 1963, 516.6(2) compels a trial court to give only an applicable standard jury instruction to a jury. That rule states:

"Pertinent portions of Michigan Standard Jury Instructions (SJI) published under authority of this subrule shall be given in each civil case in which jury instructions are given if (a) they are applicable and (b) they accurately state the applicable law."

More pertinent is GCR 1963, 516.6(4) which states:

"This subrule does not limit the power of the court to give additional instructions on applicable law not covered by SJI. Additional instructions when given shall be modeled as nearly as practicable after the style of SJI, making them concise, understandable, conversational, unslanted and non-argumentative."

We hesitate, without an explicit rule, to limit a trial court's discretion regarding the reading of additional instructions to only those situations where there is a standard jury instruction which does not apply. Nevertheless, we do believe that it would be the better practice for trial courts to limit their instructions on the law of the case to only the applicable standard jury instructions. Superfluous instruction too often lends itself to error.

While we do not find instructional error in this case, we do note that we agree with plaintiffs' argument that the guarantor or warrantor instruction tends to be confusing because it injects a contract issue into a negligence action. For that reason, we also urge trial courts to refrain from adding that instruction to SJI2d 30:01. We find the SJI sufficient to instruct the jury on the applicable law.


While I concur in the result reached, I feel compelled to write separately. This decision recognizes the fact that the trial court's instructing the jury that no physician is required to guarantee results properly states the law, under the circumstances of this case. At the same time, trial courts are urged to limit their instructions to only the applicable standard jury instruction.

The refusal to give a requested instruction which states the applicable law, and is supported by the evidence, is error. Richman v City of Berkley, 84 Mich. App. 258; 269 N.W.2d 555 (1978); Bailey v Graves, 411 Mich. 510; 309 N.W.2d 166 (1981). If a trial court accepts the admonition of the majority opinion, such acceptance constitutes error, and probably error mandating reversal. If a trial court follows the above-noted rule, then it is ignoring the urging of this Court. I do not believe that the trial bench should be placed in this position.