Turbin v. GRAESSER , 214 Mich. App. 215 ( 1995 )

214 Mich. App. 215 (1995) 542 N.W.2d 607

TURBIN
v.
GRAESSER

Docket No. 187261.

Michigan Court of Appeals.

Submitted July 11, 1995, at Lansing. Decided November 3, 1995, at 9:10 A.M.

Wilson, Lawler & Lett (by Steven T. Lett and R. David Wilson), for the plaintiffs.

Willingham & Cote, P.C. (by Curtis R. Hadley), for the defendant.

Before: DOCTOROFF, C.J., and MICHAEL J. KELLY and MURPHY, JJ.

ON REMAND

MURPHY, J.

We review this case on remand from the Supreme Court. A panel of this Court previously affirmed the trial court's determination that plaintiffs' proposed expert witness was not qualified to testify because plaintiffs could not establish that the expert was familiar with the standard of medical care in Lansing. Unpublished memorandum opinion of the Court of Appeals, issued September 16, 1994 (Docket No. 143969). The Supreme Court, in lieu of granting leave to appeal, remanded the case for reconsideration in light of Bahr v Harper-Grace Hosps, 448 Mich 135; 528 NW2d 170 (1995). 449 Mich 852 (1995). We reverse and remand.

This case is a medical malpractice action in which plaintiffs assert that defendant overprescribed various drugs to plaintiff Harold Turbin, causing him to become addicted to certain drugs. Defendant is a general practitioner in Lansing, Michigan. MCL 600.2912a; MSA 27A.2912(1) provides the standard of care for general practitioners:

(1) Subject to subsection (2), in an action alleging malpractice, the plaintiff has the burden of proving that in light of the state of the art existing at the time of the alleged malpractice:

(a) The defendant, if a general practitioner, failed to provide the plaintiff the recognized standard of acceptable professional practice or care in the community in which the defendant practices or in a similar community....[^[1]]

A party offering the testimony of an expert witness must demonstrate the witness' knowledge of the applicable standard of care. Bahr, supra, 141. The trial court's decision regarding whether an expert witness is qualified is reviewed for an abuse of discretion. See id.

Plaintiffs' expert, Dr. Peter Macaluso, a general practitioner in Tallahassee, Florida, reviewed various written materials and concluded that Lansing was a community similar to Tallahassee. The materials that Dr. Macaluso reviewed include pamphlets and brochures regarding the various hospitals in the Lansing area, copies of the Lansing yellow pages under the heading physicians and surgeons, a metropolitan profile of the Lansing area, and a listing of Michigan hospitals that included various types of data about the hospitals. After reviewing these materials, Dr. Macaluso testified that Lansing and Tallahassee had similar populations, a similar scope of medical specialties, similar available procedures, and similar technology.

We conclude that Dr. Macaluso's review of the written information, coupled with his impeccable credentials and experience, provides a sufficient basis to establish that Dr. Macaluso was familiar with the standard of care in Lansing or a similar community. See id. Dr. Macaluso is board certified in addiction medicine and has treated between eight thousand and nine thousand patients with chemical dependencies. He is also a diplomate for the American Board of Quality Assurance and Utilization Review Physicians, which is responsible for assessing the quality of medical care and the proper utilization of that care. In addition, Dr. Macaluso is a consultant to the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), the primary accrediting body of hospitals. As part of his consulting duties for the JCAHO, Dr. Macaluso visits psychiatric and chemical dependency hospitals in communities across the country to assess the hospitals' quality and standard of care to determine whether accreditation is warranted.

In deciding not to qualify Dr. Macaluso as an expert witness, the trial court cited Mazey v Adams, 191 Mich App 328; 477 NW2d 698 (1991). In that case, a panel of this Court stated that an expert witness may base his knowledge of the applicable standard of care upon hearsay information ascertained from contact with other physicians. Id., 332. In this case, Dr. Macaluso did not speak with any physicians, hospital administrators, or other health care providers in the Lansing area to determine the applicable standard of care in Lansing or whether Lansing and Tallahassee were similar communities. An expert's verbal communication with physicians in a community would certainly be relevant to determining whether the expert is familiar with the standard of care in that community or whether that community is similar to another community. However, MCL 600.2912a; MSA 27A.2912(1) does not require an expert to contact physicians in one area to determine the applicable standard of care in that community or to determine whether that community is similar to another community. Therefore, the fact that Dr. Macaluso did not verbally communicate with Lansing physicians to ascertain the standard of care for general practitioners in Lansing does not disqualify him from testifying regarding the applicable standard of care.

The trial court's refusal to qualify Dr. Macaluso as an expert effectively resulted in the dismissal of plaintiffs' cause of action. We conclude that Dr. Macaluso's reliance on the written information, coupled with his experience and credentials, provides sufficient indication that he was familiar with the standard of care in Lansing or a similar community. See id. Therefore, we hold that the trial court abused its discretion in refusing to qualify Dr. Macaluso as an expert witness.

Reversed and remanded.

MICHAEL J. KELLY, J., concurred.

DOCTOROFF, C.J. (concurring).

I agree with the result reached by the majority in this case. I concur only to reiterate my criticism of the locality rule.

Defendant is a general practitioner in Lansing. Defendant prescribed narcotics to plaintiff Harold Turbin for pain. Plaintiffs allege that defendant prescribed too great a dosage and caused Harold to become addicted to the narcotics. As noted by the majority, plaintiffs' expert, Dr. Peter Macaluso, possesses outstanding credentials and he is clearly qualified to testify regarding the subject of addiction medicine. However, a trial court may not base its decision to allow Dr. Macaluso to testify on his impressive credentials. Instead, the law requires that an expert must indicate his familiarity with the standard of care in the local community. Jalaba v Borovoy, 206 Mich App 17, 20; 520 NW2d 349 (1994).

In Birmingham v Vance, 204 Mich App 418; 516 NW2d 95 (1994), we noted that the locality rule was a holdover from a time when vast differences existed between medical practice in rural and urban areas. Id. at 422-423, quoting Siirila v Barrios, 398 Mich 576; 248 NW2d 171 (1976) (opinion of WILLIAMS, J.). Advances in communications systems, computer innovations, and more structured medical organizations have provided once rural disconnected communities with the ability to perform complex medical procedures under more uniform and accurate guidelines. This is particularly true when a general practitioner is providing a service that has become uniform throughout the nation. Birmingham, supra at 424-425.

Dr. Macaluso testified: "[Q]uality medicine is quality medicine. The practice of quality medicine is in essence one standard." It is time for the law to acknowledge the truth of his statement. To do otherwise merely excuses medical professionals from using the vast array of tools at their disposal to provide the best care for their patients.

NOTES

[1] The locality rule has been criticized by this Court. See Birmingham v Vance, 204 Mich App 418; 516 NW2d 95 (1994).