*1 V SCHANZ WlSCHMEYER WISCHMEYER v SCHANZ MARY’SMEDICAL CENTER v ST WISCHMEYER 15). (Calendar 5, 99129, Argued April No. 99139. Docket Nos. August 1995. Decided Wischmeyer brought Judy a medical Wade W. and Schanz, against George Saginaw P. Court in the Circuit action M.D., Center, alleging negligence Mary’s and Medical and St. during applicable of care back of the standard breach Wade, Mary’s by performed by St. Dr. Schanz on failure Schanz, qualified neurosurgeon provide and to assist part operating negligence room technician. The on the of an Heathscott, J., court, judgment Lynda on a L. entered respect action with to both defendants. verdict of no cause of Shepherd Kelly, P.J., Appeals, and J. The Court Michael curiam, JJ., holding opinion per in an Murphy, reversed allowing by cross-examina- that the court abused its discretion regarding prior poor plaintiff’s expert witness tion of (Docket surgical No. claims results and 135291). appeal. The defendants joined opinion Chief Justice Weaver, Justice In an Boyle Supreme Riley, Court Brickley, and Justices held: by allowing its discretion cross- The trial court did abuse expert witness. examination of the range be elicited on cross-exami- 1. A broad of evidence scope and duration of cross- nation to discredit a witness. discretion and will not examination is in the trial court’s sound showing When a case turns reversed absent a clear of abuse. another, testimony expert compared with that of on the of one disposition credibility expert relevant to the of each is generally value is admissible unless its the case and danger prejudice. substantially outweighed by of unfair is case, correctly permitted defense 2. In this the trial court plaintiff’s expert regarding question back counsel to surgeries performed those were rele- he had because competency. Gaps or weaknesses in a witness’ to his vant go subject expertise a fit for cross-examination are admissibility. weight testimony, Because not its Mich fact, testimony impera- is admitted to assist the trier of it was opposing opportu- in this be afforded an tive that counsel case expose nity to cross-examine to weakness in the witness’ knowl- skill, Further, experience, training, edge, or education. the line *2 questioning prejudicial probative. Evi- of was not more than present danger prejudice it dence does not of unfair unless goals of MRE 401 and MRE 403: threatens the fundamental accuracy and fairness. surgeries failed back are to the 3. While relevant witness, expert expert competency of an the mere fact that this may malpractice in have been named an unrelated medical MRE 608 action is not of his truthfulness under or Thus, competency knowledge. im- relevant to his or it was proper inquire for the defendant to into the unrelated action. However, By question the error was harmless. the time the was raised, Further, expert thoroughly the had the been discredited. plaintiff object questioning, did not to this line of nor did he specifically raise the issue his motion for mistrial. The Court Appeals distinguish adequately also failed to between cross- prior poor regarding examination results back unpreserved medical cases. Under MRE error only rights if is reviewed and reversed the substantial of a party rights plaintiff are affected. Here no substantial the were affected this line of cross-examination. case, plaintiff 4. In a medical the bears the care, proving applicable burden of the standard of breach defendant, injury, proximate that standard the and the alleged injury. causation between the breach and the Further- more, prevail evidence of a result alone bad is sufficient to case, theory ipsa loquitur. plaintiff under the of res In this the prima did not establish a facie case under either of his theories recovery. Appeals distinguish The Court of failed to its reasoning for reversal of the verdict of no cause of action with respect Mary’s to St. Medical Center from its reversal of the respect verdict with to Dr. Schanz. The theories against distinct, separate each defendant were and it is apparent plaintiff carry proof that the failed to the burden of against Mary’s. St. Reversed. Cavanagh Levin, joined by Mallett, Justice Justices dissenting, expert ques- stated that a medical should not be past malpractice litigation arising tioned about medical out of allegedly operations it failed because is not relevant to the expert’s competency knowledge concluding as a witness. In judge allowing the trial did not abuse her discretion in Opinion of the Court
impeachment
plaintiff’s expert by allegations
of bad
results,
surgical
majority ignores
the
facts that made this line
questioning especially misleading
plaintiff.
and unfair to the
omissions,
questioning
Even without
the
was
these
violative of
608(b).
addition,
In
MRE
its conclusion that the medical mal-
practice impeachment
persuasive.
was harmless error is not
608(b),
impeached by
Under Rule
a witness
not be
specific past
inquiry, into
acts unless the court finds that those
allega-
acts
for
reflect
witness’ character
truthfulness. The
prior surgical mishaps by
plaintiff’s expert
tions of
nothing to do with his truthfulness. The cross-examination of
improper
also would have been
under the common
alleged
negligence
law. The
acts of
were
to the
unrelated
subject
testimony.
unfairly prejudicing
of his
The risk of
jurors against
expert,
as well as the risk of confusion of and
issues, substantially outweighed
from
distraction
whatever
slight
questioning
evaluating
expert’s
relevance the
had in
testimony.
majority’s ruling
permitting
the error in
cross-
concerning past
malpractice litigation
examination
inaccurate,
incomplete,
harmless is based on an
and thus
testimony.
expert’s inability
characterization of the trial
*3
improve
patient’s
question
his
conditions does not call into
knowledge of the standard of care. The trial court exacerbated
permitting
disparate
the error in
the cross-examination
its
parties
treatment of
issue.
(1994)
361;
App
203 Mich
Thomas C. Wimsatt for St. Medical Mary’s Cen- ter. Jacobs, Mattson, &
O’Leary, O’Leary, Perry Ma- son, P.C., Jacobs), P.- John of counsel for (by Schanz, M.D., Schanz, P. P. George George M.D., P.C. leave1 to in this granted appeal J. We
Weaver, clarify permissible medical case to scope of cross-examination witnesses. The (1994).
1 447Mich 1041
witness poor surgical prior practice mal- medical results reverse the decision claims.2 We Appeals the verdict of no and reinstate Court cause of action for Mary’s
Dr. Schanz and St. Medical Center.
i
FACTS August plaintiff Wischmeyer 1984, In Wade W. injured in a fall. He consulted with his back following In over the months.3 several doctors January defendant, 1985, he consulted with neurosurgeon practice Saginaw private in with hospital, privileges St. at defendant Mary’s May 29, 1985, Dr. Center. Medical On Mary’s plaintiff Schanz admitted Center, diskectomy to St. Medical following day performed a L4-L5 and on the posterior interbody fu- with a lumbar During surgery, Mary’s operat- sion two St. (plif).4 361; App 203 Mich NW2d Gruca, fall, plaintiff with Dr. who treated After the consulted out-patient plaintiff with medication on an plaintiff consulted Dr. basis. In November Jennings, deposition presented whose video Jennings plaintiff surgery at trial. Dr. indicated to would be plaintiff’s pain. opinion, plaintiff required to alleviate For a second Fields, January with Dr. Fields in 1985. Dr. indicated that a consulted type pain, necessary to relieve the rather of fusion would be plaintiff diskectomy laminectomy, and he therefore referred than a defendant, part surgeries. specialized in fusion Schanz who *4 plif surgical procedure spine by A is a that stabilizes the Apparently, plif plugs vertebrae. after disc has insertion of bone between diskectomy, removed a standard a combines the medical been bone, cutting procedure laminectomy, of a of a window in the plugs in vacated disc with the fusion of the bone space. between vertebrae Opinion op the Court
ing technicians, room Mark Nichols and Leah Lowery, alleges assisted Dr. Schanz. Plaintiff pain expe- soon after his worsened and he right leg. rienced numbness brought Plaintiff and his wife5 this action for Saginaw medical on in the Circuit Court (cid:127) May alleging 29, 1987, that Dr. Schanz breached the standard of care in his treatment of plaintiff injury and that his would not have oc- negligence part curred absent some Schanz.6 on the Dr. Against Mary’s, plaintiff St. raised two Mary’s provide first, theories: that St. failed to qualified neurosurgeon Schanz, to assist Dr. and operating second, Nichols, that Mark room negligent. technician, was party expert testimony Each relied on to estab- appropriate lish the standards of care. Defense experts Dr. counsel for Schanz called two medical who testified that there was no on the part Mary’s of Dr. Schanz. Defense counsel for St. Medical Center called one who testified that negligence part Mary’s there was no on the of St. employees. testimony plaintiff’s only expert, Ignelzi, pages
Dr. Ronald J. consumes two hundred examination, record. On direct Dr. length explained outlined his credentials at and performed type that he six to ten plifs, surgery performed by plaintiff, Dr. Schanz on performed spinal that he had hundreds of other surgeries. explained He in detail how various sur- geries performed should be concluded that performed wrong procedure plaintiff Schanz performed procedure and had itself incor- rectly. plaintiff’s symptoms He stated that "should Wischmeyer Mrs. claimed loss of consortium. alleged procedure unnecessary Plaintiff the fusion necessary. more invasive than *5 Mich 469 op Opinion the Court negli- unless there was some have occurred not gence procedure.” at time acknowledged cross-examination, Dr. On surgeries performed of he none that had been successful plif re- had failed to because he patients’ pain. However, he re- denied lieve membering failed, other back four including one failed and three laminectomies rhizotomy. counsel ob- dorsal Plaintiff’s failed prejudicial jected relevancy nature of to the and raising surgeries, was overruled. non-PLiF but subject of that he also denied had been prior medical action. a jury spanned weeks. After deliber- The trial two ating hour, a for than one returned less respect of no with to both verdict cause action plaintiff alleged appeal, defendants. On trial court abused by permitting its discretion categories proceed. of cross-examination to certain
ii CROSS-EXAMINATION Iff)) Michigan Rules of Evidence Rule states: A on may any witness be cross-examined matter case, any including issue in the credi- relevant may
bility. judge limit cross-examination with respect to to on exami- matters testified direct nation. range of evidence be on
A broad elicited discrediting purpose for the a cross-examination scope duration cross-examina- witness.7 tion discretion; is in the trial court’s sound we will 587, Stilwill, 599; 411 Mich 309 NW2d See Wilson (Chadbourn rev), p Wigmore, 3A Evidence 778. § also Opinion of the Court showing
not reverse a clear absent abuse.8 The charged overseeing judge trial is with attacks expert’s credibility insuring questions seeking indicating bias, to elicit evidence prejudice statements are not testimony or or interest inconsistent unduly improvi limited or dently judge extended. The trial must also alert questions harass, to witness.[9] which intimidate belittle *6 testimony However, when a case turns on the of expert compared another, one with that of the credibility disposi- of each is relevant to the credibility tion of the case.10 The expert, of a medical disposition therefore, is the relevant to of a case an and evidence of ex- pert’s credibility generally is admissible unless its probative danger outweighed substantially by value is the prejudice.11
of unfair categories testimony must We address two of by during elicited the defense its cross-examina- prior Ignelzi: poor surgical tion of Dr. results surgeries prior non-PLiF back medi- claims of malpractice against categories cal him. These separately evidence are addressed below._ 8Stilwill, supra n 7 at 599. 9Id
10Id. MRE states: having tendency any "Relevant evidence” means evidence any consequence the
make existence of fact that to the is probable probable action determination more or less it than would be without the evidence. pertinent part: MRE 403 states in relevant, Although evidence be excluded if its substantially outweighed danger by value is unfair prejudice .... Mich Opinion Court
A RESULTS SURGICAL PRIOR POOR NON-PLIF cross-examination, ques- defense counsel On regarding back tioned past. Plaintiff’s coun- performed in doctor had grounds as objection unspecified on sel entered failed sur- regarding the cross-examination overruled after a bench geries began, but. defense counsel questioning conference. follows: proceeded as Doctor, performing
Q. you do recall Hughes lady Cynthia named where laminectomy you performed a and the dura was discharged ripped in a fashion and she was later leaking? fluid spinal with No, A. I don’t.
Q. You don’t recall that?
A. No. Q. Certainly something like would so it, forget you you? would horrible that wouldn’t horrible, you A. I know mean but don’t what *7 I mean I recall this case. don’t performing
Q. May Do recall of 1979 you Rodgers surgery who underwent a cervical by name on individual laminectomy and devel- oped Brown-Sequard postoperatively? syndrome a relevancy plaintiff objected Counsel for over- questioning, effect of this but was prejudicial ruled. that,
Q. you Do cut into the you recall where spinal cord? again?
A. What was performing Q. May you In of 1979 do recall a gentleman a laminectomy cervical lamin--a Opinion op the Court Rodgers developed the name of where he a Brown-Sequard syndrome postoperatively?
Q. you January Do recall of 1979 performed upon Rodgers Mr. a Jack under- who para- went a rhizotomy up dorsal and wound a plegic following operation secondary a he- matoma?
A. No.
Q. You don’t recall that? No.
A. Again, plaintiff’s counsel initiated a confer- bench ence, followed by:
DoQ. you performing recall a Mr. surgery on August Eric Woods in laminectomy of 1977 who underwent up and wound awith wound infec- postoperative epidural tion and which hematoma in paraplegia? resulted
A. No. you
Q. yours? Do remember that case A. I don’t even know that that was a case of mine.
There is some confusion whether regarding 608(b)12 plaintiff’s objections arose under MRE or MRE 403. We find that both rules were correctly considered decided the trial court. The court permitted into inquiry surger- non-PLiF ies it because felt those rele- were 608(b) pertinent part: MRE states in witness, Specific purpose instances of conduct of a for the attacking supporting credibility,
of of crime as or other than conviction provided by 609, may proved by Rule not be however, They may, extrinsic evidence. court, in the discretion untruthfulness, if in- of truthfulness quired into on cross-examination of the witness .... *8 Mich op Opinion the Court agree. expert’s competency.13 Fur- We vant to impeach- appropriately ther, disallowed court Ignelzi under on extrinsic matters ment Dr. 608(b), stating that defendant would be MRE Ignelzi’s At conclu- answer.14 "stuck Dr. with” Ignelzi’s cross-examination, the trial Dr. sion of properly for a mis- motion court denied again holding trial, did that the cross-examination 608(b).15 not MRE violate disagreed Appeals the trial with
The Court rulings, citing Lombardi, Heshelman court’s inquire prior surger if into counsel asked he could Heathscott When defense Judge performed by Ignelzi, stated: Dr. ies go qualifications, I to and would I think that would would
think so.
stated:
The court
Fordney
reviewing
Mr.
last
In
documents submitted
Evidence,
Michigan
night,
I have
reviewed
Rules
also
608(b)
applicable to
I
that Rule
this situation.
and I believe
am not
eral
However,
is
impeachment
going
a
to
of Dr.
collat-
allow
matter,
going
allow extrinsic evidence.
and I’m not
to
Fordney
right
Mr.
will have the
to
I do believe that
hospital privileges
from
ask if the doctor has been terminated
anywhere,
not
Fordney.
documents,
privileges.
you’re going
I’m
but
to
stuck with the answer.
matters,
go
any
going
you
Mr.
to
to
into
collateral
allow
any
going
you
I’m
to
to use
of these
allow
if
any
you may
from
but
ask
he’s been terminated
by the court
The
involved certain federal
evidence and collateral matters referenced
extrinsic
court cases for which
was under
gag order.
15Judge Heathscott stated:
Maher,
going
grant
.... Under
I’m not
a mistrial
Mr.
608(b),
specific
Fordney
cross examine about
instances
Mr.
can
accept which
done. He then must
answer
of conduct
he has
doctor,
complied
...
I
been
with.
of the
understand
all,
and I believe
has
being
your disagreeing
the suits
mentioned at
with
Fordney
you specifically
whether Mr.
I want
to address
but
prove
specific
these
instances of
extrinsic evidence
used
my
order.
conduct
violation
*9
479
Opinion op the Court
(1990).16
App 72;
Mich
The cross-examination of Dr. re- garding prior poor surgical results, therefore, did prohibited by not raise extrinsic evidence 608. Because the MRE competency Ignelzi of Dr. was properly pertaining court, before the evidence to credibility was relevant. pro-
It is intended that the Rules of Evidence mote the ascertainment of the truth.18 in- Where unduly prejudicial, formation is relevant and not 16 Appeals part: The Court of stated in relevant The trial allowing court abused its discretion in defense plaintiffs’ expert witness, counsel to cross-examine regarding prior poor surgical Ignelzi, Dr. prior results and medical mal- practice Lombardi, claims. App 72; Heshelman v 183 Mich 454 questioning NW2d 603 This line of was not untruthfulness, truthfulness or improper and constituted an impeaching credibility Ignelzi. means of of Dr. Id. at 84-85. plaintiffs’ The be raised cross-examination of on this basis cannot Heshelman, supra. considered questions harmless error. unproved malpractice graphic accusations of acts' of and, believe, detail thoroughly we discredited Dr. before jury. App Mich [203 362.] Lombardi, supra. Heshelman v admissibility prior Heshelman addressed part ii(b), actions. As will not be discussed in actions are generally competency expert. relevant to the of an 102 states: MRE administration, These rules are intended to secure fairness unjustifiable expense delay, promotion elimination of of growth development of the law of evidence to the end proceedings
that the truth justly be ascertained and determined. Mich Opinion Court apply MRE so it would be unwise deprived it that would assist of information is this cross-examination believe that in its task. We during proper Dr. examination direct because performed hundreds testified he surgeries, including plips, in order to estab- back competency.19 lish his Ignelzi’s testimony juxtaposition Dr. and his conclusion examination
direct
plaintiff’s
only
some
result from
condition could
Ignelzi’s
during
negligence
rendered
"Gaps
perform
ability
relevant.
such
*10
expertise are a fit
in the witness’
or weaknesses
subject
go
weight
cross-examination,
to the
for
admissibility.”20
testimony, not
Because
its
of his
expert testimony
the trier of
is admitted to assist
opposing
imperative
fact,
that
counsel be
it was
Ig-
opportunity
Dr.
the
to cross-examine
afforded
knowledge,
expose thé
in his
nelzi to
weaknesses
training,
experience,
skill,
or education.21
line
the
of
find
that
defendant’s
We
further
proba-
prejudicial
questioning
than
more
was
part, "[although
pertinent
in
tive. MRE 403 states
relevant,
if
excluded
its
evidence
outweighed
danger
substantially
value is
question
prejudice
.
that
. .
.” There is no
unfair
damaging
potentially
questioning
the line of
plif
19
performed acknowledges
Plaintiff
Ignelzi
relevant.
are
20
(1987).
Gambrell,
401, 408;
People
B PRIOR MEDICAL MALPRACTICE CLAIMS cross-examination, On the following exchange between defense counsel and Dr. occurred: Q. you Have ever been a defendant in a mal-
practice suit, Doctor?
A. No.
Q. You haven’t?
A. No.
regarding
The substance of the cross-examination in this case
*11
prior poor surgical
distinguishable
People Chaplin,
results is
from
v
219;
(1981),
by plaintiff.
412
People
Mich
313
899
NW2d
cited
In
v
Chaplin,
improper
this
impeach
Court ruled that it was
to
a witness
by showing
on
prostitute,
cross-examination
that
was a
she
because
probative
propensity
her moral character was not
of her
for truthful
prostitution
ness. Insofar as the
of
evidence
the witness’
relevant
was
bias,
to show
this Court held
it
further
that
should
excluded
be
danger
prejudice substantially outweighed
the
because
of unfair
its
probative value.
23
LeasCo,
Wayne
126, 134;
Co Bd of Rd Comm’rs v GLS
394 Mich
(1975) (an expert
229
lying
797
repeatedly
NW2d
witness was
accused of
information).
feigning ignorance of
relevant
(1978)
Hosp,
354;
24 Kern v St
404
Luke’s
Mich
75
NW2d
(defense
repeatedly
plaintiff’s expert
counsel
the
characterized
testi
"collusive”).
"bought”
mony as
Mich
Opinion
the Court
of
got
somewhere, Doctor.
it here
I know I’ve
Q.
may.
got
just
it,
find
if I
take a moment to
I’ve
to
.
[sic] . .
of Kristeen
case
Superior
the
Court of
State California
Q. Diego
County
in
case of Kristine
of San
the
for the
plaintiffs,
Loreago
Loreago
Ron-
versus
and Doris
Ignelzi, you
that?
recall
ald J.
do
any
really
suit. I never
A. I
don’t remember
depositions
any
in
that I’m aware
in
this
testified
of.
obligation?
professional
Q. Breach medical
it.
I don’t recall
I never saw
document.
A.
prior
to
back
are relevant
While
the
failed
expert
expert
competency
of an
witness whose
perform
opinion regarding
failure to
defendant’s
type
surgery
appropriate
the correct level
at
premised
variety
of back
is
surgeries
on
number
performed, the mere fact
has
expert may
in an
have been named
unre-
that an
malpractice action is not
lated medical
his
MRE 608 or relevant
truthfulness under
knowledge.25
competency
improper
it
Thus,
for defendant
we find
was
inquire
this medical
action
into
against
Ignelzi. However, we find that
question
By that this
error
harmless.
time
was
thoroughly
raised, Dr.
had been
dis-
was
result
He
bad
credited.
from the
testified
plif procedure
occurred
should not have
negligence
operating
room.
absent some
every
cross-examination, he admitted that
Then performed
it
this
resulted
time he had
testimony
Consequently,
his entire
failure.
Lombardi,
ECCO,
See,
supra;
Balimoy
e.g.,
Ltd v
Heshelman
Co, Inc,
App 748;
Mfg
We need not
placed allowing jeopardy any in in error this question prior about medical actions was harmless. Plaintiff’s counsel also rehabilitated Dr. issue on redirect this examination testimony when he elicited the effect that Dr. to never to went trial in the case to referred defendant. categories
Furthermore, because these evi- they required separate specific distinct, dence are objections preserve appeal. in order to both for plaintiff object However, did not to this line of questioning, specifically nor did he raise the issue attempt in his motion for mistrial. Plaintiff’s appeal questioning consolidate his line of this appeal regarding with his of the cross-examination surgeries improper. failed non-PLiF was The Court Appeals distinguish adequately also failed to regarding prior poor between cross-examination results back medical mal- practice cases. unpreserved
Under MRE we review error only rights if reverse the substantial of a party rights are affected.26Here no substantial plaintiff were affected this line of cross-exami- nation. mary’s
st.
center
alleged
against
liability
Plaintiff
two theories of
Mary’s
hospital
first,
St.
Medical Center:
negligent
provide
because it
a
did
neuro-
103(d)
MRE
states:
Nothing
precludes taking
plain
in this rule
notice of
errors
affecting
although they
brought
rights
substantial
were not
the attention of the court.
Mich Opinion op the Court
surgeon
second,
and,
Schanz;
under
to assist
*13
plaintiff
ipsa loquitur theory,
would have
that
res
part
negligence
injury
the
of
on
no
absent
suffered
Mark Nichols.
plaintiff
malpractice case, the
In a medical
(1)
appli-
proving:
the
of
the burden
bears
(2)
that standard
care,
of
of
breach
cable standard
(4)
(3)
proximate
injury,
by
causa-
defendant,
injury.27
alleged
and the
the
breach
tion between
any
prove
is
these
fatal.
elements
Failure to
Furthermore,
one
alone is not
of a bad result
evidence
ipsa
theory
prevail
the
of res
under
sufficient
loquitur.28
ipsa loquitur
plaintiff
res
a
raises
Where
require
malpractice context, we
the
(1)
prove
plaintiff
a
the event
is of
that
ordinarily
not occur in the absence
does
kind
(2)
agency
negligence,
is
caused
of someone’s
instrumentality
control of
within
exclusive
or
defendant,
(3)
any voluntary
not due to
is
plaintiff.29
part
action
contribution
prima
a
this
did not establish
Plaintiff in
case
recovery.
either of his theories
facie case under
During
Ignelzi’s
St.
cross-examination
specifically
Mary’s,
that the standard
he
stated
require
a second
for
did
care
plif
that Mark Nichols
doctor in assistance and
applicable
any
to an
standard
care
not violated
operating
Mary’s
considering
St.
technician.
In
room
at the close of
for directed verdict
motion
judge
plaintiff’s case, the trial
observed:
is that
there is
My
of the evidence
recollection
liability
no
evidence as to
credible
However, I
this is a
hospital.
know
defendant
my
remedy, and I don’t want to trust
own
drastic
27
27A.2912(1).
Pachtman,
600.2912a;
v
MSA
See also Locke
MCL
(1994).
216, 222;
Mich
recollection . . . I because know it’s a drastic rem- edy. Appeals may The Court of overturn a ver- only against great weight dict if it is of evi- summary dence.30In its court, reversal of the trial Appeals distinguish the Court of failed to its rea- soning for reversal of the verdict of no cause of respect Mary’s action with to St. Medical Center respect from its reversal of the verdict with to Dr. against Schanz. The theories each de- separate ap- fendant distinct, were and it is parent plaintiff from the record that failed to carry proof against Mary’s. the burden of St. Appeals
We reverse the decision of the Court of regard Mary’s with to both St. and Dr. Schanz and *14 reinstate the trial court’s verdict of no cause of action. Boyle
Brickley, C.J., Riley, JJ., con- J. curred Weaver, with (dissenting). majority J. Levin, The rules that impeachment Ignelzi
the of Dr. Ronald with alle- gations prior surgical permissi- bad results was majority ble. The further rules that it was error to impeach questions concerning him with medical against him, claims but that the error majority was harmless. The reinstates the verdict George of no cause of action for defendant Dr. P. Mary’s Schanz and codefendant St. Medical Cen- ter. concluding judge
In
the trial
did not abuse
allowing impeachment by allega-
her discretion in
surgical
ignores
majority
tions of bad
results, the
Gray,
349;
Granstrom v
(1961);
365 Mich
practice persuasive. harmless error is not majority’s disagree reinstate- with the We also Mary’s St. ment verdict for codefendant Center. Medical
i Ignelzi acknowledges majority "was gag not to his involvement under a order” discuss majority cases.”1 The in "certain federal court gag order was issued two cases omits that arising very facts about which out was cross-examined. concerning alleged surgi-
The cross-examination Ignelzi. mishaps filed a lawsuit cal related Ignelzi practiced hospitals at which California privileges period surgical time for a revoked appears early to have The revocation in the 1980s. surgical results mentioned on resulted from privi- sued to have his cross-examination. *15 leges apparent reinstated, with success. handling litigation the
The sealed court parties apparently not to the ordered record in this case ob- the matter. The defense discuss tained the information sought to cross-exam- Ignelzi ine about it. Ante, p n 14. Dissenting Opinion Levin, J. judge gag
Plaintiff informed the order and objected repeatedly questioning. to this line of judge permitted Ignelzi the defense to ask whether privileges terminated, ever been and about surgical results.2 obey gag order,
To left with an unenviable choice. He could refuse comment on likely interpret matters, these which a would virtually as Or, an admission of misfeasance. attorney’s ques- the face of the defense detailed acknowledge tions, fail could these appear occurred, incidents untruthful. He forcing course, chose the latter unfair to the but this choice was plaintiff misleading jury. and- to the
n Apart facts, from these unusual the cross-exami- concerning alleged prior surgical mishaps nation and past malpractice litigation was im- 608(b) proper. Michigan provides: Rule of Evidence Specific witness, instances of a conduct for purpose attacking supporting or the witness’ credibility may proved by . . . not be extrinsic may, They however, evidence. in the discretion of court, if of truthfulness or untruth inquired fulness, into on cross-examination of (1) concerning the witness the witness’ character [Emphasis .... for truthfulness untruthfulness ed.][3] add 608(b), Under Rule a witness not be im peached by inquiry past specific into acts unless the court finds those acts reflect on the wit judge proving did forbid the defense from these incidents through extrinsic evidence. 608(b) Rule is identical to the rule and federal similar to its counterparts many other states. *16 Mich 469 488 by Levin, J. Dissenting Opinion allegations of truthfulness.4 The character for ness’ prior nothing mishaps by surgical Permitting ques truthfulness. such to do with his 608(b). improper MRE under tions A ig argues majority this Court should 608(b). meaning plain of MRE It would nore the impeachment "[w]here infor because allow such unduly prejudicial, it is relevant and mation apply 608 MRE so that would be unwise to deprived jury it information that would assist is of in its task.”5 evidence, the cross- common-law rules of
Under im- would also have been examination of proper. truthfulness, relevant "alle- Where not professional wrongdoing, gations negligence of misconduct is unrelated to the case on trial
that is
impeachment
expert
proper subject
of
of
not a
medical
the substantial
to avoid
witness.”6 This rule of law seeks
distracting
confusing
risk
jury
"minitrial”
matters:
with a
on collateral
past
jury
[the
acts]
In order
assess
for
opinion
present
weighing
expert’s]
case,
[the
in the
known,
have had to have
at a
would
minimum,
cases,
cases,
the circumstances of the other
the nature
how
the mistakes made
those
anything,
they occurred,
what, if
about
4
(1977);
Bouchee,
253, 268;
People
Mich
B The argues impeachment re- majority Ignelzi’s lated to "competency to condemn defen- dant . . . .”9 expert Evidence that a medical has practice made mistakes little disprove does to his understanding expected standard of care neurosurgeon performing of a surgery. back As the do, goes, teach,” coach, cliche "those who can’t or or judges. become referees or Stivers, Morrow
In
App,
does not reflect on his ability or hand, i.e., testify on the at matters the causation plaintiff’s] any condition and deviation [the care.[10] from the standard of [the defendant] Ignelzi’s alleged surgical Because bad results were described so "the gruesomely, inflammatory questioning], although effect unproven, [of would outweigh any probative might value it 7Paradise, supra n 6 404. at 8 Ignelzi performance past was also cross-examined about his plifs. questioning improper. Plaintiff does not claim this line of 9Ante, p 479.
10Id., p 429. Mich Dissenting Opinion Levin, J. jurors unfairly prejudicing have.”11The risk against Ignelzi, of confusion as the risk as well outweighed substantially issues, distraction questioning slight had in relevance whatever testimony. evaluating Ignelzi’s 403. MRE
III recognizes majority correctly that a medical past questioned medi- about should allegedly arising litigation malpractice out cal operations, it is not relevant failed expert’s competency because knowledge aas witness.12
or allegations of failed it back Yet surgeries concludes action which a medical —in may treated filed—should be not have been differently. past majority action for medi states that a witness’] [aof "is not
cal competency or to his truthfulness knowledge.”13 ... or relevant *18 majority for its The offers no reason poor allegations of medical results that conclusion differently they not when have viewed should be led anything, negligence. professional If to an action for proba seem even less such claims would litiga malpractice of medical tive than evidence tion. The risks of a of confusion and distraction excluding allegations justify "minitrial” that 11Id. 12 (Okla, Ante, Haney, p 725 P2d 868 482. also Moses v See 72, 85; Lombardi, App 1986); 183 Mich 454 NW2d Heshelman v (1990). Holmes, 886; (1990); App v 197 Ill 3d NE2d Mazzone generally past opinions permitting impeachment treat The such few interest, possible malpractice and thus as bias lawsuits
truthfulness,
Stephenson,
expert.
v
756 SW2d
of the
Underhill
Wilkins,
626;
1988);
App
(Ky,
Willoughby
surgical large loom as as when evidence mishaps malpractice litigation of medical is offered.
IV permit- also rules that the error in majority ting concerning past cross-examination medical harmless, litigation stating: was raised, By question the time that this was
Ignelzi fied that thoroughly had been discredited. He testi plif plaintiff’s pro bad result from the neg cedure should not have occurred absent some ligence ination, operating in the room. Then on cross-exam every per
he admitted that time he had formed this quently, ardy prior it resulted in failure. Conse testimony placed jeop his entire allowing any question error in this about harmless.[14] actions was argument This is based on an incomplete, inaccurate, thus characterization of the trial testi- examination, direct mony. On testified that symptoms pain back —increased numbness in his legs have occurred —would negligent performance plif but for pro- cross-examination, cedure. attorney On defendant’s asked: plif Q. procedures per- And the six you failures,
formed were am I correct? A. They pain. didn’t relieve the Q. you’ve your deposition Yes. And testified in you would consider them failures? A. they In the sense that did not relieve the pain. *19 Failing improve patient’s to condition cannot 14Ante, pp 482-483. Mich Dissenting Opinion Levin, J. through worsening
properly equated it with be improve pa- inability negligence. Ignelzi’s his to plif procedure through does the tient’s conditions knowledge question of the stan- not call into performing plifs, and his testi- dard of care for negligence, mony that, even an unsuccess- absent Wischmeyer’s have worsened ful problem. should not plif (cid:127) improved to have Evidence of failure Ignelzi’s patients’ mean that does not conditions placed jeopardy.”15 testimony "entire permitting judge the error in exacerbated disparate by her treatment the cross-examination Although judge parties on this issue. ques- impeachment these with allowed tions, inquiry could not be ruled that the same she Schanz, testified on defendant who conducted of during the trial.16 his own behalf granted judge trial, Dr. Schanz’ Before the plaintiff inquiring preclude from about motion prior against filed actions attorney judge plaintiff’s Then, Schanz. agreed factually questions about dissimilar surgical malpractice actions should be excluded. inquir- attorney argued that such Defendant’s "absolutely and tend to ies have no relevance” having issues, more as well as "far confuse the prejudicial than it would have [effect] value.” permitted judge trial, later,
Yet at impeached expert with witness be only inquiry. disparate adds This treatment same allowing cross-examination to the error Ignelzi concerning prior litigation.17
15Ante, pp 482-483. 16. When a Cf. Webb v questioned defendant Angell, as an physician 155 Ill witness. App takes 3d the stand in his own See, e.g., 848, 860-861; anno: 11 ALR5th 508 NE2d behalf, he *20 by Dissenting Opinion Levin, J. asserting plaintiff majority errs object to the cross-examination about
failed prior litigation. above,
As discussed there is no distinguish past evidence of reason to between alleged surgical mishaps and evidence of medical malpractice litigation. Defendants have not
argued object plaintiff inquiry failed to to the con- malpractice litigation. cerning medical Schanz’ covering plaintiff’s objections as both brief treats litigation general allega- and the surgical mishaps.18 tions of Ignelzi impeaching Dr. benefited The errors Mary’s Schanz, St. Medical Center as well as hospital because had also testified that may have the standard of care. breached plaintiff majority rules that "did not estab- prima effect, facie case . . . .”19In it would lish a grant Mary’s verdict to St. Medical directed Center. This issue was not addressed of the Court Appeals.20
Cavanagh JJ., Mallett, concurred with Levin, J._ -
(1987) (finding judge the trial no abuse of discretion where barred lawsuits). questioning parties’ experts about both 18 Now, certainly, later in the cross-examination of Dr. respect inquiries regarding operations, with lost staff raised numerous failed suits, privileges objections some were objections Plaintiffs’ trial counsel but ... no such to the unsuccess were ever stated as to the cross-examination plif operations. ful six argument ignores plaintiffs That do not contend that the cross- plifs erroneous. See n 8. examination about the 19Ante, p 484. most, At this Court should remand this issue to the Court of Appeals for consideration.