Summary
In Grewe, the plaintiff's second count was based on an alleged breach of an implied contract. That is not the case here.
Summary of this case from Marchlewicz v. StantonOpinion
Docket No. 11335.
Decided May 22, 1973. Leave to appeal denied, 390 Mich ___.
Appeal from Macomb, Walter P. Cynar, J. Submitted Division 2 June 21, 1972, at Detroit. (Docket No. 11335.) Decided May 22, 1973. Leave to appeal denied, 390 Mich ___.
Complaint by LaVerne Grewe against Mount Clemens General Hospital and Michael Fugle, D.O., for damages for injuries sustained during treatment for other injuries. Verdict and judgment for defendant. Plaintiff appeals. Reversed and remanded.
Lopatin, Miller, Bindes Freedman (by Michael H. Feiler), for plaintiff.
Kitch Suhrheinrich, P.C., for defendants.
Before: LESINSKI, C.J., and LEVIN and V.J. BRENNAN, JJ.
Plaintiff suffered a dislocated shoulder and sought treatment at defendant hospital. Plaintiff filed suit against the hospital and the defendant doctor alleging that their negligence in treating his injury resulted in additional injuries. Plaintiff now appeals as of right from a judgment entered pursuant to a jury verdict of no cause for action returned in favor of defendants, following trial of plaintiff's medical malpractice suit against said defendants.
The first of the six arguments raised by the plaintiff is that the trial court erred by failing to give a requested charge to the effect that a verdict in favor of the plaintiff would in no way affect defendant hospital's right to do business or defendant doctor's right to practice medicine. The plaintiff argues that the defendants implied the possibility of such an effect of an adverse verdict; however, the plaintiff does not indicate how or where the defendants created such an implication. Furthermore, plaintiff's requested charge is not legally correct. A verdict in favor of the plaintiff could have an effect on the doctor's right to practice medicine in this state (MCLA 338.109; MSA 14.579). Therefore, the trial court properly denied plaintiff's requested instruction.
The second argument raised by the plaintiff is that the trial court erred by striking the second count of plaintiff's complaint which alleged that the defendants had breached an implied contract. However, the standard used to determine whether a physician has breached an implied contract is the same as the standard employed to determine whether a physician is guilty of malpractice. (See Miller v Toles, 183 Mich. 252, and Abbe v Woman's Hospital Association, 35 Mich. App. 429). The second count of plaintiff's complaint is therefore redundant, and the trial court did not err by striking it.
Plaintiff's third argument is that the trial court erred by sustaining an objection to the admission of a portion of a certain deposition into evidence. First, the plaintiff in his argument addresses himself to the admissibility of depositions in general, and not to the admissibility of the specific matter excluded by the trial court herein. From our review of the record, it appears that the matter excluded was apparently hearsay. Furthermore, the defendants' failure to object to the testimony at the time the deposition was taken does not preclude an objection at trial. GCR 1963, 308.3(1).
The plaintiff also argues that the trial court committed error by refusing to admit into evidence a report made by a radiologist who is now deceased. The report contained an analysis of certain x-rays taken of plaintiff's shoulder. The business entry statute (MCLA 600.2146; MSA 27A.2146) on which the plaintiff relies, only applies to a writing "* * * made as a memorandum of any act, transaction, occurrence or event * * *"; it does not apply to diagnoses. Bond v Greenwood, 34 Mich. App. 41, 43 (1971). Also, the x-rays themselves were received into evidence and plaintiff secured the testimony of another radiologist to interpret the x-rays and therefore suffered no prejudice.
The plaintiff's fifth argument is that the trial court improperly precluded cross-examination of a defense witness on the basis of certain medical textbooks. The witness had recognized the books in question as authoritative in the field. Nevertheless, the trial court did not permit cross-examination from the textbooks. At the time the trial court made its decision, it was in accord with the Michigan rule. The rule was that in order to cross-examine an expert from a text he must do more than recognize it as authoritative, he must refer to it as his authority. De Haan v Winter, 258 Mich. 293 (1932); Fisher v Bernard, 21 Mich. App. 260 (1970). The long line of Michigan cases adhering to this rule were overruled by our Supreme Court in Jones v Bloom, 388 Mich. 98 (1972). In accordance with the holding therein, we must reverse.
Plaintiff's remaining allegation of error does not merit discussion.
Reversed and remanded.
LESINSKI, C.J., concurred.
Judge LEVIN did not participate.