Naccarato v. Grob

384 Mich. 248 (1970) 180 N.W.2d 788

NACCARATO
v.
GROB

No. 14 October Term 1969, Docket No. 52,132.

Supreme Court of Michigan.

Decided November 12, 1970. Rehearing denied February 1, 1971.

Davidson, Gotshall, Halsey, Kohl, Nelson, Secrest & Wardle (by Richard H. Scholl), for plaintiff.

Moll, Desenberg, Purdy, Glover & Bayer, for defendant.

T.G. KAVANAGH, J.

The plaintiff brought this suit against two Detroit area pediatricians for their alleged malpractice in failing timely to diagnose phenylketonuria (PKU). (PKU is a rare childhood disease which begins at birth and results in progressive mental deterioration. The sooner a diagnosis of PKU is made and treatment begun, the higher the intelligence quotient [IQ] of the child will be.) The trial court granted defendants' motion for a judgment n.o.v.,^[1] overturning a jury verdict for plaintiff in the amount of $80,000, and plaintiff appeals.

We are not concerned in this appeal with the medical wisdom of the two pediatricians, nor in the timetable of years which passed before the disease of the plaintiff was discovered and treatment begun. Rather, the trial court set aside the jury verdict on the grounds that two of the plaintiff's expert witnesses were incompetent to testify and, without their testimony, the trial judge felt the verdict could not stand. Plaintiff asserts that this was error. He feels, first that the testimony was competent and second, in any event, the record contained sufficient evidence to sustain the jury's verdict.

The defendants acknowledge that Dr. David Hsia of Chicago, Illinois, is a world-renowned expert on phenylketonuria. Dr. Hsia testified that commercial medicines and special dietary programs were available for children suffering from PKU throughout the period of time when the plaintiff child remained untreated. He also testified to the effect that tests for PKU were easy to make and routinely made in the hospitals of the nation. In reaching his conclusion he stated:

"[T]hat any resident who has been trained and who is a certified pediatrician would be expected to be, in a hospitalized patient anywhere in the country, to routinely test for phenylketonuria as part of a mental retardation workup in a hospital. I don't think anyone in 1960, I mean whether this is in Detroit or Chicago or in Oshkosh, it doesn't really make any difference. This is the established standard for anyone who is a board certified pediatrician, period."^[2]

The trial court also struck the testimony of Dr. Richard Koch, another recognized expert on PKU, who practiced medicine and did research in the City of Los Angeles, California. His testimony concerned the dissemination of the knowledge of PKU throughout the nation, and the standard of care which should have been employed by Detroit physicians as it was in similar communities where large medical centers were located.^[3] Dr. Koch testified that he was aware of the standard of care exercised by pediatricians in urban metropolitan communities such as Detroit or similar communities. Referring specifically to the disease of phenylketonuria, Dr. Koch testified that he was familiar with the standard of practice exercised in large metropolitan communities insofar as the diagnosis, care and treatment of children with phenylketonuria is concerned during the years in question of 1958, 1959, and 1960 and that, in his opinion, the physician in a clinical setting practices at the same level of competence as a private, board certified pediatrician.

In answer to the hypothetical question put to Dr. Koch as to the standard of care followed by defendant Grob (at this time no test for phenylketonuria was performed by defendant Grob to determine the cause of the mental retardation of John Naccarato) Dr. Koch testified:

"I believe that a practicing board certified pediatrician in January of 1960 who was evaluating a mentally retarded child should have included a test for phenylketonuria."

In opposing the qualifications of the plaintiff's experts, the defendants introduced the testimony of three Detroit area doctors. Drs. Martmer, Wooley and Adams testified that it was not the common practice for pediatricians in the Detroit metropolitan area to use the recognized tests for PKU during the time period in question, because the disease was so rare. Their testimony was to the effect that the defendants did not vary from the usual "standard of care" of pediatricians in the Detroit area. They did admit in various manners that most pediatricians knew of the disease and of the treatment then available for use. The defendants conceded that they knew of the test.

In the written opinion of the trial court overturning the jury verdict the court held that 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 period in question. Plaintiff however believes that his witnesses could have assumed that standards of physicians in the Detroit area were comparable with any other metropolitan areas where large medical centers were engaged in PKU research. The trial judge rejected this contention and repeatedly emphasized that the plaintiff's experts lacked sufficient knowledge concerning the usual practice of Detroit area pediatricians.

It is unnecessary at this juncture to reexamine whether the practice of the community should be the standard to which all area general practitioners should be held. Rather, at issue here is the competency of acknowledged experts to testify as to the practice of a pediatrician, a specialist, in diagnosing and treating PKU.

In reaching our decision today, we rely on the reasoning in Wood v. Vroman (1921), 215 Mich 449: (Where the defendant holds himself out as a specialist he) 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." (Wood v. Vroman, supra, 465, 466.) (Emphasis added.)

It is therefore unnecessary to consider in this opinion whether a standard of parochial negligence can obviate the requirement of reasonable care by a local practitioner.^[4] At issue here is the standard of care owed to a patient by a community of specialists. Whatever the considerations were that allowed the area practice to set the standard for the country general practitioners — they are not relevant to a metropolitan specialist — calling a specialist parochial or bucolic is hardly appropriate.^[5]

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.

We are at this time as conscious as this Court was in 1931 that:

"At times it may become necessary to secure the expert testimony of one who resides some distance from the home of a defendant accused of malpractice, for it may be difficult to obtain a witness to testify against one who bears the very high professional reputation of defendant. * * * What credence should be given to the expert's statements is another matter. That was the province of the jury." Sampson v. Veenboer (1931), 252 Mich 660, 667.

We hold that the plaintiff's expert witnesses were qualified to testify concerning the standard of practice of pediatricians and accordingly overrule the judgment n.o.v. and reinstate the jury's verdict.

There is one further assertion of error — this by the defendant.

The defendant-appellees asserted in their answering brief that the form of the jury's verdict was improper and ambiguous and asked if we set aside the judgment non obstante veredicto we remand this case for a new trial.

GCR 1963, 813.1 requires that an issue not suggested by the plaintiff's statement of questions involved will not be considered here. It properly should have been asserted as a cross-appeal.

This issue was not raised in the Court of Appeals and we normally will not consider such matters for the first time in this Court. Because GCR 1963, 865.1(8) provides that we should grant whatever relief we deem just after setting aside a judgment non obstante veredicto, we treat the issue thus raised.

The ambiguity of the verdict is possibly the result of an erroneous instruction by the trial judge,^[6] on the issue of joint and several liability. The jury however returned a verdict "in favor of the plaintiff", in the sum of $80,000. When asked "against which defendant or defendants?", the foreman responded: "The split is $60,000 for Dr. Otto Grob and $20,000 for Dr. Krevsky."

Counsel and the judges then retired to his chambers where a discussion was had on the form of the verdict. It was pointed out by counsel for the defendant that PKU is a progressively deteriorating disease; that the doctors independently treated the plaintiff and their negligence was that of omission in failing to administer a test for the disease. As a result, defendant contended, the first of the treating Doctors, Dr. Grob, should be liable for the full amount of the plaintiff's damages and the second treating Doctor, Dr. Krevsky ought to be liable for only that portion of damages fairly found to have occurred after his treatment of the plaintiff had begun. We agree.

However we find that this was the fair import of the jury's verdict. When polled by the court, the jury affirmed that they found "for the plaintiff and against the defendant in the sum of $80,000." We held in Rabion v. Kelley (1916), 194 Mich 107, at 117, "There can be no doubt that where the intentions of the jury are ascertainable the court may amend the verdict, correcting manifest errors of form, and sometimes matters of substance, to make it conform to the intentions of the jury."

In this case, the jury's intention is apparent — they found the plaintiff's damages totaled to $80,000. They endeavored to allocate the burden between the parties and failed. This possibly was due to the error in the instructions.

We believe the jury intended to allocate the burden as follows: As to the final $20,000 liability of Dr. Grob, that the jury would have held him jointly and severally liable to that amount and severally liable as to the $60,000. We further hold that defendant Dr. Krevsky is jointly and severally liable for the final $20,000. This is the import of the jury's verdict. The error was one of form only.

The Court of Appeals is reversed and the cause remanded for the entry of judgment in accord with this opinion.

Costs to appellant.

T.E. BRENNAN, C.J., and T.M. KAVANAGH and ADAMS, JJ., concurred with T.G. KAVANAGH, J.

BLACK, J., concurred in result.

DETHMERS and KELLY, JJ., did not sit in this case.

NOTES

[1] In reaching his verdict the trial judge relied on Zoterell v. Repp (1915), 187 Mich 319, Lince v. Monson (1961), 363 Mich 135, and Skeffington v. Bradley (1962), 366 Mich 552, all of which dealt with the standard of care of a general practitioner.

[2] Both defendants were board certified pediatricians.

[3] The Wayne State University Medical School, The University of Michigan Medical School, The Children's Hospital and Henry Ford Hospital are well known throughout the medical world. Dr. Koch referred to their well known reputations on several occasions.

[4] A series of states in recent years have abandoned or modified the "locality rule". Two of the most representative cases are Brune v. Belinkoff (1968), 354 Mass 102 (235 NE2d 793) and Pederson v. Dumouchel (1967), 72 Wash 2d 73 (431 P2d 973). Brune fully reviews many of the recent decisions in other states. Almost 40 years ago this Court recognized the burgeoning national community of specialists in Wood v. Vroman (1921), 215 Mich 449.

[5] "[U]sual and customary methods generally employed by physicians and surgeons in the diagnosis, care and treatment of a patient, no matter how long such methods have continued to be employed, cannot avail to prove and establish as safe in law methods and conduct which are in fact negligent.

"Evidence of conformity to such usual and customary methods, however, may, and should, be considered by the jury, along with all of the other circumstances in the case, in determining whether or not the physician or surgeon exercised the degree of care required of him under the law." Morgan v. Sheppard (Ohio App 1963), 188 NE2d 808.

[6] "You must assess and determine the liability of, if any, the defendants separately. If you should hold for plaintiff against both defendants, after your due deliberation, any verdict would be apportioned; that is, it would be in one lump sum, but you must assess the liability, if any, of the defendants separately."