Siirila v. Barrios , 398 Mich. 576 ( 1976 )

Williams, J.

This malpractice case raises three questions. The first question is whether a properly qualified medical specialist witness may testify as to the standard of care that a general practitioner should meet. The second question is what the proper standard of care should be. The third question is whether the trial court properly refused to give an instruction that proper hospital records may be used to show that an action had not taken place as well as that an action had taken place.

As to the first question, we hold that a specialist may testify as to the standard of care of a general practitioner as long as the specialist is familiar with the applicable standard of the general practitioner.

However, since the proper foundation for one of plaintiffs’ witnesses was not laid despite opportunity to do so, and since the other affected by this ruling admitted not knowing the standard of practice in the relevant communities, and therefore could not testify anyway, we affirm the Court of Appeals and the trial court.

As to the second question, we hold in this opinion that the question as to what the proper standard of care should be was not preserved.

As to the third question, we hold that in this case the instruction was properly not given.

I — Facts

James Scott Siirila was a premature baby, born at 5-1/2 months, in St. Joseph’s Hospital in Houghton, November 19, 1967. He weighed 2 pounds, 1 ounce at birth.

The attending physician, Dr. Honorato Barrios, had been a general practitioner in the HoughtonHancock area since 1965. He ordered the child immediately placed in an Isolette infant incubator, where he remained, under controlled oxygen flow for about two months.

Dosage was apparently 3 liters per minute, from November 19, 1967 to November 26, 1967, then 2 liters per minute to December 7, when it was reduced to 1 liter per minute until December 12, when the flow was increased to 2 liters per minute for two days, after which it was reduced to 1 liter per minute for one day. The baby was removed from the Isolette for 20 minutes the following day, then replaced at a rate of probably 2 liters per minute for three days, when it was removed for 10 minutes, then returned for an amount of either 1 or 2 liters until the following day. The child was removed from the Isolette from December 19 to December 26, when the oxygen was supplied for 2 liters per minute for five hours. It was apparently started briefly for an undetermined time and dosage on December 29, after which the child was permanently removed from the Isolette.

According to hospital testing, a flow rate of 3 liters per minute was equivalent to an oxygen concentration of approximately 36%-38% in the Isolette (subject to 2% inaccuracy). Two liters per minute of oxygen reflect an approximate concentration of 32%-36% oxygen, and 1 liter per minute, 27%-31%, plus or minus 2%.

The child was discharged from the hospital February 10, 1968. Two weeks later, Dr. Barrios observed the baby had small eyeballs, but he attributed this abnormality to the child’s premature birth. On March 23, at the six-weeks checkup, the mother reported her son had trouble with his sight. For the first time, Dr. Barrios used an ophthalmoscope and detected a scar on the retina.¹ Believing that there was a serious pathology of the eye, Dr. Barrios wrote, on March 25, to Dr. Norman L. Matthews, a pediatrician at St. Luke’s Hospital, Marquette, Michigan, for an appointment. Dr. Barrios requested that Dr. Matthews evaluate the child’s general condition, but, particularly, his eyes. In the letter, he indicated concern about opacity through refraction media, and gave Dr. Matthews information about the baby’s prematurity, medication and nutrition.

Dr. Matthews replied on March 27, 1968, having made an appointment for the infant with Dr. John Kublin, a Marquette ophthalmologist, for April 2. He said that if the family was poor and would have problems transporting the child to Marquette, help was available. He also analyzed:

"Since the boy was born very small, one wonders whether or not he has retrolental fibroplasia. This may not be the diagnosis, but it may be well to know how much oxygen he had as an [sic]premature.”

Dr. Barrios replied on April 3 that "the baby had oxygen continuously from the birthdate [11/19/67] until 12/29/6[7]. Initially the oxygen was given at 3L. (40% concentration), and then reduced to 2L. and 1L.”

On April 18, Dr. Matthews wrote and reported to Dr. Barrios that Dr. Kublin found

"severe retrolental fibroplasia. He does not think there is any chance that the child will have any vision.

"You might have the hospital check very carefully the oxygen regulator on their incubators there to make sure that the oxygen content of the inside of the incubator will not be higher than 40%. Presumably, even 40% may not be safe over the prolonged period of time.”

Plaintiffs filed an action against Dr. Barrios and St. Joseph’s Hospital, claiming the retrolental fibroplasia and the consequent total and permanent blindness was caused by the infant’s continued exposure to oxygen while in the Isolette. They alleged medical malpractice by the physician and the hospital for allowing the baby to unnecessarily remain in oxygen for the extended period of time and for failing to properly maintain, control and measure the oxygen flow in violation of the standard of care.

At trial, plaintiffs attempted to have Dr. Matthews testify as to the proper care and treatment of premature babies and the danger of oxygen therapy. The court ruled that Dr. Matthews would be prohibited "from testifying as to the standard of care in this community or similar communities on the basis that he’s a specialist”. Counsel was permitted, however, to make a separate record.

On this special record, Dr. Matthews said he did not know how oxygen was used in Houghton-Hancock, and that he was not capable of establishing what the standards of practice were in the area in 1967. However, he did testify that prior to the Siirila baby he had seen only one other case of retrolental fibroplasia (RLF) within the period 1955 to 1967. Prior to 1955, he said, such cases were seen frequently. He attributed the reduction in RLF to the information available to the medical profession that the use of oxygen in premature babies over prolonged periods of time caused the condition. He testified that 40% oxygen is the maximum concentration usually ordered, and indicated that, according to standard books of pediatrics, oxygen should be used for as short a period of time at as low a concentration as possible.²

He testified that proper procedure would have been that after two or three days at the 40% oxygen level, the Siirila baby should have been removed from oxygen, with continued exposure only if there were "very solid evidence of poor condition of the baby”. He saw no such evidence from examination of the record in the instant case.

In front of the jury, Dr. Barrios testified that he knew that oxygen concentration should be no more than 40% in the Isolette, but did not know that long exposure to oxygen could bring an added risk of RLF. He did not think of RLF when he ordered oxygen therapy, but prescribed it to keep the baby alive and to prevent brain and cardiorespiratory damage. He did not know what the average doctor in the community would have done under the circumstances in 1967. But he testified, over objection, that the care and treatment rendered to the Siirila baby were within the standards of practice as they existed in the area in 1967.

There was testimony that a premature baby can develop RLF without being given oxygen therapy, and that the Siirila baby suffered damage resulting from environmental difficulties while in his mother’s womb.³

The jury was instructed that a physician "must possess and exercise that degree of skill and learning which conforms to the average or ordinary learning and skill in his profession in the same or similar communities”. Further, they were instructed that Dr. Matthews’ testimony was not to be considered in determining the standard of care because he was a specialist and Dr. Barrios was a general practitioner.⁴ This was given over the objection of plaintiffs’ counsel that such testimony of Dr. Matthews which did not relate to standard of care should have been admissible. Plaintiffs’ counsel also maintained that Dr. Matthews testified as to proximate cause and did not testify as to the standard of care. The jury found no cause of action against defendants Dr. Barrios and St. Joseph’s Hospital.⁵

The Court of Appeals affirmed, Siirila v Barrios, 58 Mich App 721, 723; 228 NW2d 801 (1975). The Court held, first, that as an intermediate appellate court, they were bound by the standard of Lince v Monson, 363 Mich 135, 142-143; 108 NW2d 845 (1961), that there be expert testimony as to the defendant physician’s compliance with professional standards and practice in the same and similar communities.⁶

The Court of Appeals specifically refused to apply the same standard of care rule to a general practitioner as would be appropriate for a specialist, "that of a reasonable specialist practicing medicine in the light of present day scientific knowledge. * * * [Geographical conditions or circumstances control neither the standard of a specialist’s care nor the competence of an expert’s testimony”. Naccarato v Grob, 384 Mich 248, 253-254; 180 NW2d 788 (1970). In Naccarato, we found it unnecessary to consider whether the locality rule should be modified or abandoned as well for general practitioners. 384 Mich 253.

However, it is the view of a majority of this Court that the issue of applicability of the locality rule was not preserved for appellate review. Plaintiffs’ pleadings stated the claim under the "same or similar circumstances” test. Further, counsel never objected to instructions of the court which were couched in these terms. In addition, counsel insisted that the witness’s testimony was directed to establishing proximate cause, and not to the question of the appropriate standard of care.

The Court of Appeals also affirmed the trial court’s refusal to give plaintiffs a directed verdict. Also approved was Dr. Barrios’ testifying that his treatment met community standards. The panel also found the trial judge properly refused to give any instruction on hospital records. 58 Mich App 725-726. The Court of Appeals, however, did not rule on whether a specialist may be permitted to testify as to the standard of care of a general practitioner. We granted leave July 23, 1975. 394 Mich 817.

II — Specialists’ Competency to Testify

The trial judge ruled that Dr. Matthews, a pediatrician, would not be permitted to testify as to the standard of care of defendant general practitioner because Matthews was a specialist. We find the trial judge erred in so ruling without first permitting questioning of Dr. Matthews as to whether he knew the relevant standard of care of a general practitioner.⁷ However, since Dr. Matthews admitted he did not know the standards of practice in Houghton-Hancock or similar communities, he would not have been permitted to testify to the standard of care on that basis. Therefore, this was at most harmless error, and the trial court decision should not be disturbed.

Ordinarily, the qualification of competency of expert witnesses is a matter for the discretion of the trial judge, Ives v Leonard, 50 Mich 296, 299; 15 NW 463 (1883), "and it is incumbent on the person offering an expert witness to show that the witness possesses the necessary learning, knowledge, skill or practical experience to enable him competently to give such testimony”. 11 Michigan Law & Practice, Evidence, § 260, p 484. See Moore v Lederle Laboratories, 392 Mich 289, 295-296; 220 NW2d 400 (1974).

Generally, where there are different schools of medical thought, the physician is to be judged by his or her ability to adhere to the requisite standard of care of the school to which he or she adheres. Prosser, Law of Torts (4th ed), p 163. The rationale is that "[practitioners of other schools of treatment, no matter how well qualified by study and experience in their own methods and standards but lacking the requisite knowledge of the specific matter in question [i.e., the ordinary methods and standards of practice of another school], could not competently express opinions”. Bryant v Biggs, 331 Mich 64, 72; 49 NW2d 63 (1951). However, it is clear that a member of one school of thought may testify as to the standard of care applicable to an individual adhering to another school as long as the proffered witness is familiar with the applicable standards of defendant’s school.

"We do not read our precedents to preclude opinion testimony of compliance or failure of compliance with the standards of a defendant’s profession except only from a member of that profession. We never have addressed our decisional attention to this specific question. However, it is significant that on a number of occasions in which we have discussed opinion testimony in malpractice cases, we have suggested that opinions of one not a practitioner of defendant’s profession would have been admissible had there been a showing that the offered witness had knowledge of the applicable standards of the defendant’s profession. See, for example, Zoterell v Repp, 187 Mich 319, 330 [153 NW 692] (1915); Sima v Wright, 268 Mich 352, 356 [256 NW 349] (1934); Facer v Lewis, 326 Mich 702, 713, 714 [40 NW2d 457] (1950); and Pedler v Emmerson, 331 Mich 78 (1951).” Frazier v Hurd, 380 Mich 291, 297; 157 NW2d 249 (1968).

Frazier permitted a medical doctor to testify as to the standard of care of an osteopathic physician. See also, Ferguson v Gonyaw, 64 Mich App 685, 696; 236 NW2d 543 (1975) (neurosurgeon permitted to testify as to standard of care of osteopathic neurosurgeon after qualifying on basis of testimony that medical and osteopathic neurosurgical procedures were similar); Pedler v Emmerson, 331 Mich 78, 80; 49 NW2d 70 (1951) (suggesting that such knowledge may be demonstrated by factors including training or experience in the field or practice of the school about which testimony is to be received or learning directly from members of that school what constitutes the standard practice in the subject treatment).⁸

Pediatricians and general practitioners are both medical doctors and therefore there is even less reason to preclude testimony of one on the standard of care of the other than there would be if members of diiferent schools were involved. The rule therefore as to the ability of a specialist testifying as to a general practitioner’s compliance with the requisite standard of care of a general practitioner is only that the witness have knowledge of the standard of care about which he or she is testifying. The standard of care discussed must of course be that of a general practitioner. See Czajka v Sadowski, 243 Mich 21, 22; 219 NW 660 (1928) (testimony of a specialist was deemed improper because it was based on the standards of a skilled specialist). The weight to be given such testimony is, of course, a matter for the jury. Harvey v Silber, 300 Mich 510, 517; 2 NW2d 483 (1942).⁹.

We are referred to no cases which have changed this rule. Naccarato v Grob, 384 Mich 248; 180 NW2d 788 (1970), is inapplicable to this issue because it only dealt with the appropriate standard of care of a specialist. This is not the same as saying that because specialists are subject to a higher standard of care than general practitioners, a specialist may not comment on a general practitioner’s adherence to his or her own standard, once the specialist demonstrates familiarity with the general practitioner’s standard.

Other cases suggested for supporting exclusion of Dr. Matthews’ testimony are equally inapposite. Thus, in Rytkonen v Lojacono, 269 Mich 270, 273-275; 257 NW 703 (1934), admission of expert testimony was deemed error because the witness failed to testify as to whether the method used by defendant was recognized by other doctors of the vicinity or elsewhere as good practice. He testified instead to methods others actually used. In Callahan v William Beaumont Hospital, 67 Mich App 306, 311-312; 240 NW2d 781 (1976), the Court of Appeals held that because defendant specialist was acting as a general practitioner at the time of the disputed treatment, the locality rule prevailed. Therefore, the Court of Appeals held, since the witness had never practiced in the area where treatment was given, his testimony as to defendant’s standard of care was properly excluded. Therefore, neither Rytkonen nor Callahan is on point, and neither Naccarato nor these two cases have anything to do with the ability of a specialist to testify as to the standard of care of a general practitioner.

Ill — Plaintiffs’ Instruction

One more significant matter remains, that is, whether the trial court properly refused to give plaintiffs’ proposed instruction: "I charge you, that you may consider as evidence the matters contained in this hospital record, and also concerning the lack or absence of an entry in said hospital record, which should have been entered if such act, occurrence or event had taken place, can be considered as evidence by you that such act, transaction, occurrence or event had not taken place”.

The judge properly denied this request on the basis of Michigan Standard Jury Instructions— Civil, SJI 2.12 "Hospital and Business Records”. The SJI provides:

"The committee recommends that no instruction be given concerning hospital and business records.

"Comment

"An instruction on this subject is not necessary and would place undue emphasis upon particular portions of the evidence.”

GCR 1963, 516.6(3) requires:

"Where the SJI Committee Report recommends that no instruction be given on a particular matter, the court shall not give an instruction on the matter unless it specifically finds for reasons stated in the record that (a) such an instruction is necessary to state accurately the applicable law and (b) the matter is not adequately covered by other pertinent Standard Jury Instructions.”

The problem is that MCLA 600.2146, MSA 27A.2146 provides,

"The lack of an entry regarding any act, transaction, occurrence or event in any writing or record so proved may be received as evidence that no such act, transaction, occurrence or event did, in fact, take place.”

Such entries must be "made in the regular course of any business” and it must be

"the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.”

See People v Kirtdoll, 391 Mich 370, 386, fn 9; 217 NW2d 37 (1974), for analysis of the use of hospital records.

In construing a predecessor statute,¹⁰ in Podvin v Eickhorst, 373 Mich 175, 179-180; 128 NW2d 523 (1964), we held that the statute permitted plaintiff "to use his medical records as evidence not only of the happening of events recorded thereon but he was also entitled to rely upon such records as evidence of the nonoccurrence of certain events in the absence of any record thereof’.

Thus, we must reconcile the language of the SJI, and the court rule, and the statute. The court rule mandates an instruction where the SJI recommends none be given only where the applicable law is not otherwise adequately covered. Defendants urge that since the statute says only that lack of an entry may be used for a particular purpose, and the evidence was so admitted and argued, an instruction is not necessary.

Defendants are correct. The plain language of the statute says only that the lack of absence of an entry may be "considered as evidence” of the nonoccurrence of particular events. Plaintiffs themselves agree that a significant amount of testimony was devoted to an alleged failure to record information on the infant’s charts and records. Further, plaintiffs’ counsel told the jury, in his closing argument:

"[W]e have a statute in Michigan * * * that says that a record is admissible not only for the entries that it contains, but for the entries that it doesn’t contain. That is, if something should be in the record and isn’t there, this is admissible evidence of the fact that it didn’t occur.”

Therefore, the mandate of the statute was complied with. Unlike Podvin, the trial judge did not disparage the records in the presence of the jury, 373 Mich 181, and plaintiffs in the instant case thus had the opportunity to have the jury determine the weight and effect of these non-entries. We have been offered no good reason within the guidelines provided by GCR 1963, 516.6(3) to circumvent the express provision of the SJI that no instruction be given. The trial court quite properly refused plaintiffs’ request.

Further, it would have been error in any event to give plaintiffs’ requested instruction, as it did not state the law accurately. The requested instruction would not have advised the jury that an entry must be made in the regular course of business, and that it must be the regular course of business to make such records.

IV — Conclusion

We reiterate today that a specialist may testify as to the standard of care of a general practitioner as long as the witness is knowledgeable about the general practitioner’s standard of care.

As to missing entries in records usually made in the ordinary course of business, the SJI must be followed and the jury may not be instructed, under certain circumstances, that such omissions may be used as evidence that the acts to be recorded did not take place. We find it unnecessary to consider other issues raised by plaintiffs.

The Court of Appeals and the trial court are affirmed. Costs to defendants.

Kavanagh, C. J., and Levin and Ryan, JJ., concurred with Williams, J.

Coleman, J.

(to affirm). Plaintiff has sued for damages claiming that his blindness was caused by-defendant Barrios’ negligence. The jury returned a verdict of no cause of action which the Court of Appeals affirmed.

The appeal to this Court reduces into one viable issue:

Did the trial judge err in refusing to admit into evidence the testimony of an expert witness, a specialist, concerning the standard of care of a general practitioner in Houghton, Michigan or similar communities?

The testimony was properly rejected in what was an exemplary trial.

Although much has been written in this case about the "locality rule”, it is surplusage because the circuit judge did exactly what plaintiff urged in his complaint. The judge instructed the jury to consider the standard of care employed by Dr. Barrios not only in light of the standards of Houghton but also of similar communities. Plaintiff received that for which he asked. We cannot properly make a different case at this level of the proceedings and thereby adopt a new rule to apply to a situation which occurred ten years ago.

The facts of this case are important and all were before the jury. They reveal virtually a miracle not only in saving the life of a baby born after only a little over five months gestation, but also in saving him from brain damage.

Plaintiff was born almost four months prematurely on November 19, 1967 and weighed 950 grams (2 lbs, 1 oz.). His chances of living were one in ten and, if he did live, there was an even chance that some brain damage would result. The mother’s prebirth difficulties resulted in the child being starved for oxygen. His exposure to the operating room air doubled his blood oxygen level. There was testimony that the child probably suffered retrolental fibroplasia (RLF) immediately upon birth and prior to placement in an Isolette.

Dr. Barrios ordered the child placed in an incubator and given oxygen in order for him to survive. He considered it necessary to prevent brain damage or injury to the cardio-respiratory system. His main concern was to keep the child alive:

"Q. Doctor, was that your first, your main and your continuing main consideration in your care and treatment of James Siirila?

"A. His life.

"Q. Doctor, is there ever anything that takes any precedence over life in the care of a child or a person?

’A. No.

"Q. Doctor, what are the main reasons — causes of death of premature babies?

"A. Anoxia. Lack of oxygen.

"Q. That comes from what, poor respiratory problems?

"A. Yes.”

Dr. Barrios visited the child 30 to 45 times during the first two days of his life and checked on him frequently each day after that. He consulted often with his associate, Dr. De Castilla, who had held a residence in pediatric surgery at Children’s Hospital in Detroit.

The child was removed from oxygen or the dosage reduced on several occasions without success until December 29 when he was finally removed from the Isolette and returned only as his condition required. On one occasion, the child had been removed from oxygen for seven days but became cyanotic so that he had to be placed back in the oxygen for survival. Removal to another city would have meant almost certain death.

Plaintiff was in thé hospital for nearly three months. Following release, his mother noted that plaintiff was not seeing well. Dr. Barrios discovered a scar on the retina and recommended that Dr. Matthews, a Marquette pediatrician, examine the child. This led to an appointment with an opthalmologist and the discovery that plaintiff had retrolental fibroplasia.

At trial, Dr. Matthews was presented as a witness for plaintiff. Defendant objected and the court decided "to prohibit the doctor from testifying as to the standard of care in this community or similar communities on the basis that he’s a specialist”. Plaintiff did present a Dr. Carson who had practiced in the area since 1952. He said keeping a premature infant under oxygen treatment without regard to retrolental fibroplasia departed from the standard of practice in the area.

Defendant presented Dr. Repola who was on the St. Joseph Hospital staff. He said Dr. Barrios acted according to acceptable standards. He said the child needed "the oxygen to live and so that it won’t have brain damage”. He believed plaintiff to be one of those premature babies who incur retrolental fibroplasia without ever being treated with oxygen, a result of oxygen starvation in the mother’s womb.

The trial judge described Dr. Barrios’ duty to plaintiff in this manner:

"You are instructed, members of the jury, that the law requires a doctor to possess and exercise reasonable skill and care in the treatment and care of his patients. Although this requirement does not mean that a physician must possess and exercise the highest degree of learning and skill in his profession, it does require that he possess and exercise that degree of skill and learning which conforms to the standard of practice in the same or similar communities. That is, he must possess and exercise that degree of skill and learning which conforms to the average or ordinary learning and skill in his profession in the same or similar communities.

"You are further instructed that for you to find that the defendant, Dr. Barrios, in his care and treatment of plaintiff, James Scott Siirila, did not use reasonable skill or care, plaintiff must show by a preponderance of the evidence as follows: One, that defendant doctor did some particular thing or things that a doctor of ordinary skill, care and diligence, in the same or similar community, would not have done under like or similar circumstances. Or, two, that defendant doctor did some particular thing or things in a manner that a doctor of ordinary skill, care and diligence, in the same or similar community, would not have done under like or similar circumstances. Or, three, that defendant doctor failed to do some particular thing or things that a doctor of ordinary skill, care and diligence, in the same or similar community, in the exercise of due care, would not [sic] have done under the same or similar circumstances. And, fourth, it must be further shown that such conduct was the proximate cause of the injury suffered.” (Emphasis added.)

He also said the jury could not measure "the standards of practice as they affect Dr. Barrios” by holding him "to the standards of board certified pediatricians and opthalmologists”.

Plaintiff’s complaint said defendant was "under a duty to render care and treatment * * * in accordance with the standard of practice in this and similar communities”. The judge instructed the jury that "the law requires a doctor to possess and exercise reasonable skill and care” in treating patients. He must "possess and exercise that degree of skill and learning which conforms to the average or ordinary learning and skill in his profession in the same or similar communities”.

These instructions accurately reflect Michigan precedent. In Lince v Monson, 363 Mich 135, 140-141; 108 NW2d 845 (1961), the Court used this standard:

"In order to submit a case of alleged malpractice to the jury, the plaintiff must produce medical testimony to the effect that what the attending physician or surgeon did was contrary to the practice in that or similar communities, or that he omitted to do something which was ordinarily done in that or similar communities.” Delahunt v Finton, 244 Mich 226, 229, 230; 221 NW 168 (1928).

Skeffington v Bradley, 366 Mich 552, 554; 115 NW2d 303 (1962), followed Lince in requiring that there be medical testimony "showing or tending to show that what the defendant did or omitted doing was contrary to customary practice by reputable members of the medical profession practicing under similar conditions”. Also see Wrobel v Cotman, 372 Mich 383; 126 NW2d 723 (1964), Daniel v McNamara, 10 Mich App 299; 159 NW2d 339 (1968), and Mitz v Stern, 27 Mich App 459; 183 NW2d 608 (1970).

The jury was properly instructed on Dr. Barrios’ duty to plaintiff. The remaining question is whether the jury should have been permitted to consider the testimony of two specialists in measuring the standard of practice. The trial judge correctly refused to permit this.

In Naccarato v Grob, 384 Mich 248, 252; 180 NW2d 788 (1970), plaintiff sued two Detroit pediatricians for failing to diagnose a certain disease. Plaintiff’s experts were from Chicago and Los Angeles; defendants’ were from Detroit. The jury returned a verdict for plaintiff. The trial judge overturned this because "the testimony of the plaintiff’s experts could not be considered by the jury as worthy of belief regarding the standards of actual private practice of the physicians in the Detroit area during the time periods in question”.

In reinstating the verdict, this Court relied on Wood v Vroman, 215 Mich 449, 465, 466; 184 NW 520 (1921), which said a specialist is "obligated to bring to the discharge of his duty that degree of skill and knowledge possessed by physicians who are specialists in the light of present day scientific knowledge”. This Court then said:

"The reliance of the public upon the skills of a specialist and the wealth and sources of his knowledge are not limited to the geographic area in which he practices. Rather his knowledge is a speciality. He specializes so that he may keep abreast. Any other standard for a specialist would negate the fundamental expectations and purpose of a speciality. The standard of care for a specialist should be that of a reasonable specialist practicing medicine in the light of present day scientific knowledge. Therefore, geographical conditions or circumstances control neither the standard of a specialist’s care nor the competence of an expert’s testimony.”

Dr. Barrios did not hold himself out as a specialist. He should not be judged by a specialist’s standards.

In Rytkonen v Lojacono, 269 Mich 270, 274; 257 NW 703 (1934), plaintiffs husband had died following surgery. One allegation was that defendant had failed to properly secure a tube which slipped inside the husband’s body. The man who performed the autopsy, Dr. Talso, was permitted to testify how he would have secured the tube and about practices he had observed at famous hospitals:

"Dr. Talso’s testimony in this respect was error. Defendant is not to be charged with the peculiar skill or methods of practice used in famous medical institutions. Nor is the treatment another physician would have used under the circumstances the test. Wood v Vroman, 215 Mich 449, 465. The rule is firmly established that defendant was bound to use the degree of diligence and skill which is ordinarily possessed by the average of the members of the profession in similar localities. Miller v Toles, 183 Mich 252; LRA 1915C, 595 [150 NW 118 (1914)]; Czajka v Sadowski, 243 Mich 21 [219 NW 660 (1928)]. Dr. Talso’s testimony was' not cured by a general statement that his methods have been used by physicians in the same and similar communities. He did not say other methods were not recognized as proper.”

One defendant in Callahan v Beaumont Hosp, 67 Mich App 306, 310; 240 NW2d 781 (1976) (a surgeon named Feldstein), had treated plaintiff in the emergency room for an ankle injury. The Court said Naccarato "was grounded to a large degree on the reliance and expectations of the public with respect to the skills possessed by a specialist”. P specialist "represents to the public that he has special knowledge and skills not possessed by a general practitioner and that he also keeps abreast with the advances in his specialty”.

Plaintiffs expert witness was a surgeon. The trial judge refused to let him testify as to the standards of care to be imposed on the defendant. In affirming, the Court of Appeals said:

"Dr. Feldstein, although a surgeon, was not practicing surgery or utilizing any special skills of a surgeon when he treated the plaintiff. Rather, in wrapping the plaintiff’s ankle in an Ace bandage and telling her to take aspirin for the pain, Dr. Feldstein was acting in the same manner as would any other doctor on duty at the emergency room of the defendant hospital. Furthermore, the injury suffered by the plaintiff was not an injury requiring treatment by a surgeon, nor is there any indication that the knowledge and skills that Dr. Feldstein gained by virtue of his specialization in any way better prepared him to examine and treat the plaintiffs injury. Under these circumstances, there is no holding out of special skills or knowledge on the part of Dr. Feldstein, nor is there any reliance upon such special skills or knowledge by the plaintiff As a result, we decline to extend the holding of the Naccarato decision to the facts of the present case, since the rationale underlying that decision has no application here.”¹

The defendant was held to " 'that degree of skill and diligence ordinarily exercised by the average members of the medical profession in the same or similar localities with due consideration to the state of the profession at the time’ ”.

We agree with Justice Williams that "a general practitioner is under a duty to use that degree of care and skill which is expected of a reasonably competent practitioner of the same class, acting under the same or similar circumstances”. However, his extended discussion of the "locality rule” is unnecessary and diverting. As demonstrated above, a doctor’s conduct is to be measured against the degree of skill and learning expected of reputable doctors practicing under similar conditions. We do not limit consideration to the particular locality but include similar communities. We require that the doctor’s actions conform to customary practice of the medical profession. There is nothing impermissibly parochial or restrictive about the Michigan standard. It states a reasonable method by which to judge the doctor’s conduct. The trial judge followed the law.

Justice Williams concludes that reversible error occurred when the jury was told that the specialist’s testimony could not be used to judge Dr. Barrios’ conduct. I disagree. This would be a new rule of law which would inure to the benefit of no one.

Expert witnesses are used to assist the jury in determining by what standards the defendant’s conduct should be examined. Dr. Barrios held himself out as a general practitioner. He did not claim to be a specialist; he should not be judged by their standards. The specialist’s testimony was heard by the jury and was excluded only to the extent that the jury could not use it to measure "the standards of practice as they affect Dr. Barrios”. The case was fully and properly presented to the jury and its verdict should stand. We should not act as a superior, if remote, second jury.

This is a very difficult case because one of the principals was an infant. It is natural to feel deep sadness for the child and family. Undoubtedly the jurors were similarly moved. However, from the evidence presented, they may have concluded that without Dr. Barrios’ efforts James Siirila would not have lived at all. Also, from the fully developed evidence they could not fix blame for the sight problem upon defendant doctor. This was an emergency situation demanding that tough decisions be made. Dr. Barrios’ main concerns were preserving life and preventing brain damage. There was testimony that the sight damage probably took place because of the lack of oxygen in the mother’s womb. The jury heard all the facts in 17 days of testimony and found that Dr. Barrios had not violated his duty.

Included in the testimony was a cross-examination of Dr. Barrios concerning the fact that he "didn’t seek any advice from any pediatrician 100 miles away by picking up a telephone to say to him * * * are there any special problems, things that I should be looking out for?” Dr. Barrios made the point that he "was treating jointly this patient with Dr. De Castilla * * * [who] had experience in pediatrics”. He said:

"I knew there was going to be problems, but in my judgment, the child started doing well, and any transfer or any change of what has been established, you know, of a nursery, would be detrimental to the baby.”

The jury thus had available testimony concerning whether Dr. Barrios should have called Marquette for advice. It is not proper for us, by hindsight, to say that the jury should have concluded other than as they did. They had the information which my colleague argues they should have had.

Unfortunately, we cannot bring back plaintiffs sight. Neither can we in good conscience affix blame on Dr. Barrios in a suit charging medical malpractice where the jury found none.

Importantly, we should limit ourselves to the only real issue before us: the propriety of admitting the expert testimony of the Marquette specialist Dr. Matthews regarding the standard of medical care by general practitioners in Houghton or similar communities.

We would not adopt the new rules proposed and cause them to be applicable to facts which occurred ten years ago.

Affirm.

Fitzgerald and Lindemer, JJ., concurred with Coleman, J.

1 Specific findings included nystagmus, or eye movement typical of the child who has lost his sight, opacity of the lens of the eye and a white retina.

2 According to Adler’s Textbook of Ophthalmology (W B Saunders Co, 8th ed 1969), "This [RLF] is an oxygen-induced retinopathy in premature infants who weigh less than four pounds” and "[r]etrolental fibroplasia has, to a great extent, been eliminated by careful regulation of oxygen' therapy”. 24-25. In the chapter on Pediatric Ophthalmology, it is observed that RLF was virtually unknown prior to 1940, when "it became the vogue to treat irregular respiration in premature infants with high concentrations of oxygen”. By 1953 "it was estimated that 50 per cent of all blindness in institutionalized children up to the age of 7 was a result of retinopathy of prematurity”. By 1952 the relationship of the disease to both the level and duration of oxygen therapy was confirmed. Apparently, "[i]t is now well understood and accepted that the incidence of retrolental fibroplasia will increase with any one of three factors, each of which may act independently:

"1. Oxygen concentration. The higher the concentration of the oxygen, the greater the chance of retrolental fibroplasia developing within a given time period. * * * The accepted 'safe’ oxygen concentration has been less than 40 per cent, but this must be modified when one considers the variables mentioned below.

"2. Duration of oxygen treatment. The longer the continuous oxygen treatment, the greater the chance for retinopathy of prematurity to develop for any fixed oxygen concentration. Thus, six to eight weeks of 40 per cent oxygen therapy may be just as dangerous as three weeks of 60 to 70 per cent.

"3. Prematurity of the infant. If both the above variables are held constant, the degree of prematurity becomes important; the smaller the infant, the greater the chance for retrolental fibroplasia.

"Since there is no treatment for this disease once activity has begun, the physician’s major concern must be toward prevention.” 148-149, 152.

3 One theory presented was that the RLF was caused because the baby’s blood vessels were severely immature at the time of birth, and he received lower than normal levels of blood oxygen before he was born. The transfer from a low oxygen content to the 21% oxygen content of ambient air might have caused the constriction of blood vessels which leads to RLF. Testimony at trial was that prenatal problems resulting from abnormal attachment of the placenta and infection of the umbilical cord resulted in lower than normal prebirth blood oxygen levels.

4 The testimony of Dr. John Kublin, an ophthalmologist, was also included in this prohibition.

5 A directed verdict had been rendered in favor of the defendant Air Shields, Inc., manufacturer of the Isolette. Plaintiff moved for voluntary dismissal of defendant Mira Corporation, manufacturer of the oxygen analyzer.

6 Lince, however, referred only to standards of good practice in the community, and did not mention that similar communities might also be considered. E.g., 363 Mich 140, 141, 142. However, in Delahunt v Finton, 244 Mich 226, 230; 221 NW 168 (1928), quoted in Lince, 363 Mich 140-141, the standard was "the practice in that or similar communities”. (Emphasis added.) This appears to be the correct statement of Michigan law. E.g., Pelky v Palmer, 109 Mich 561, 563-564; 67 NW 561 (1896); Miller v Toles, 183 Mich 252, 257; 150 NW 118 (1914).

7 The trial judge also instructed the jury to disregard the testimony of Dr. John Kublin, an ophthalmologist, as it concerned the standard of care, also because he was a specialist. However, no error was committed as to Dr. Kublin because the opportunity to establish such a foundation was provided:

Defense Counsel: "At this time, I don’t think Dr. Kublin has testified that he has knowledge that would be deemed in the general practice of medicine other than ophthalmology.”

The Court: "Mr. Okrent [plaintiffs’ counsel]?” Plaintiffs’ counsel then attempted to establish whether the medical profession had in 1967 any generally accepted standard for oxygen dosage, but Dr. Kublin did not know that. There appear to have been no other questions directed to the foundational problem, although Dr. Kublin later testified that 40% oxygen was an accepted maximum level to be administered. Since there was an opportunity to do so, and the required competency of witness was not demonstrated, there was no error in the instruction concerning Dr. Kublin.

8 In Sampson v Veenboer, 252 Mich 660, 667; 234 NW 170 (1931), we approved the following qualification of a surgeon from Chicago, testifying as to the standard of practice of a surgeon in Grand Rapids:

"The defendant testified in his presence that:

" 'There are about 20 fellows of the American College of Surgery in Grand Rapids. Grand Rapids as a surgical center or locality stands very high.’

"This in itself would give the witness a good idea of the standard of surgery in Grand Rapids. After giving these qualifications, the expert was asked whether he was 'familiar with the standards of surgery of the average practitioner of surgery in localities and communities similar to Grand Rapids.’ He testified that he was. Thereupon, his testimony was admitted. The fact that he was a man of experience and had performed somewhat similar operations, even though not the identical one in question, and the further fact that it was not shown that this was a very unusual operation, and the further knowledge that he obtained in the court-room listening to defendant’s testimony in regard to the practice of surgery in Grand Rapids, were sufficient to qualify him as an expert. The jury was sufficiently informed so as to be able to judge the extent of his qualifications and to decide how much credence should be given to the testimony.”

This suggests still another way in which competency may be established.

9 In Harvey, a physician who was only a medical student at the time of a shooting was permitted to testify as to the standard of care of gunshot wounds.

10 MCLA 617.53; MSA 27.902. The relevant language was identical.

1 The Court also noted these factors:

"Moreover, this case involves treatment in the emergency room of a large metropolitan hospital. It is entirely possible that the conditions present in an emergency room of a Detroit area hospital are so different from those in an emergency room of a small-town hospital, that any comparisons made by a small-town doctor would be unfair to a doctor practicing in the big-city hospital. It is also possible that the number of cases handled in the emergency room of a big-city hospital as well as the nature of those cases may differ so significantly from the nature and volume of cases handled in the emergency room of a small-town hospital that comparisons of the procedures used in each to examine a person seeking emergency treatment would be misleading.”