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10/27/87 DORIS M. BEADLE v. HARRY D. ALLIS

October 27, 1987

DORIS M. BEADLE, PLAINTIFF-APPELLANT,
v.
HARRY D. ALLIS, M.D., AND HARRY D. ALLIS, M.D., P.C., A MICHIGAN PROFESSIONAL CORPORATION, DEFENDANTS-APPELLEES



MacKenzie, P.j., and Beasley and E. A. Quinnell,* JJ.

The opinion of the court was delivered by: Per Curiam

This is a medical malpractice case. The jury returned a verdict for the defendants and plaintiff appeals as of right, alleging that the trial court erred so as to require reversal (1) by unduly restricting the scope of cross-examination of one of defendant's expert witnesses and (2) by refusing to give the jury several instructions requested by plaintiff. We disagree and accordingly affirm.

On March 5, 1981, plaintiff fell and injured her left arm. She went to a Lansing hospital emergency room, where she was treated by defendant Harry D. Allis, M.D., an orthopedic surgeon. He reviewed several x-rays of plaintiff's arm and diagnosed plaintiff's injury as " comminuted Colles' fracture of the left wrist with dorsal dislocation of the bones of the wrist, due to displacement of radial fragments."

Defendant opted to treat the injury by closed reduction (i.e., without surgical intervention) and casting. Accordingly, he gave plaintiff a local anesthetic, set the broken bones by external manipulation, placed plaintiff's arm in a short-arm "Cutter" cast, and had additional x-rays taken.

Because the second x-rays indicated that the bones in plaintiff's left arm were still not properly aligned, defendant removed the cast, further reduced the fracture, and ordered a third set of x-rays. Plaintiff's arm was then placed in a new "Cutter" cast and she was scheduled for a follow-up visit two weeks later, on March 19, 1981.

On March 19, defendant replaced plaintiff's cast with another "Cutter" cast. After this visit, plaintiff continued to treat with defendant until October 19, 1981. During this period she registered continuing complaints of pain in her left arm.

Subsequently, plaintiff began treatment with another orthopedic surgeon, Dr. Paul DeVito. Dr. DeVito described plaintiff's condition as of August 25, 1982, as follows:

Her range of motion was relatively good. She could almost fully move the arm. She did complain of pain. There was some prominence of the top of her wrist and of the ulna, and on x-ray she had evidence of an old fracture. It was not healed.

He hinted that some of plaintiff's complaints of pain might stem from "some psychological . . . overlay," as she had a "somewhat depressed and anxious" personality. As of November, 1985, Dr. DeVito said there had been no significant change in plaintiff's condition.

On November 9, 1983, plaintiff filed the instant lawsuit. With few exceptions, the case involved the typical "battle of the experts" over whether defendant had violated the applicable standard of care for orthopedic specialists.

Plaintiff presented the expert testimony of Dr. Sidney Schultz, an Albuquerque, New Mexico, orthopedic surgeon. In Dr. Schultz's opinion, the standard of acceptable treatment required traction of plaintiff's arm to maintain the overall length of the fractured bone and external fixation to maintain the bones' length during the healing process. Dr. Schultz also concluded that defendant had violated the standard of care for orthopedic specialists by using local anesthesia when setting plaintiff's wrist. According to Dr. Schultz, use of general anesthesia or an axillary block would allow the physician to better apply traction because the patient's muscles would be more relaxed.

Defendant presented the expert testimony of Dr. John DeBruin, Jr., M.D., a Lansing orthopedic specialist. Before Dr. DeBruin's testimony, the trial court granted defendants' motion in limine to exclude from evidence certain statements made by Dr. DeBruin to plaintiff's counsel in January, 1985 (before the defendants had retained him as an expert witness), to the effect that plaintiff should find an out-of-town expert because a local physician would be reluctant to testify against another physician in the same community. The court ruled that this statement was irrelevant to the case but allowed plaintiff to cross-examine Dr. DeBruin concerning another statement, that he "would never testify against another local Lansing orthopedic doctor." On cross-examination, Dr. DeBruin conceded that he had made that statement to plaintiff's counsel.

During direct examination, Dr. DeBruin testified that defendant had not breached the appropriate standard of care in treating plaintiff's fractures. He stated that there were numerous complications possible with external fixation of fractures (including infection and damage to other nearby bodily structure) and other possible complications with general anesthesia (including death, pneumonia, atelectasis, and allergic reactions). Moreover, said Dr. DeBruin, even in the case of treatment using external fixation, a certain number of patients still experience a shortening of the radius, angulation, and prominence of the ulna -- complications plaintiff suffered even without having such a procedure used. On cross-examination, Dr. DeBruin admitted that he had known defendant for "quite some time." He also conceded that certain forms of external fixation such as the "pin and plaster" procedure were commonly used to treat fractures in Lansing and throughout the United States.

Defendant also presented testimony from Dr. John C. Hall, M.D., an internist who was plaintiff's primary care physician. He began treating plaintiff in 1977 for a "constellation of pain complaint" which he felt was "largely the manifestations of severe depression for which she was under the concurrent care of a Lansing psychiatrist." From 1977 to 1981, said Dr. Hall,

were multiple visits, and the pattern was very consistent. Mrs. Beadle's complaints were inevitably of pain involving the shoulders, arms, wrists, and legs. These complaints were evaluated repeatedly, without establishing any organic cause, and the multiple visits were felt to be related to underlying psychiatric illness.

When plaintiff went to Dr. Hall in June, 1982, complaining of pain in her wrist, Dr. Hall referred her to Dr. DeVito.

Following the presentation of proofs, the trial court refused to give SJI2d 15.03, 50.04, and 50.11, requested by plaintiff. The court also refused to give several supplemental instructions requested by plaintiff. Plaintiff objected to the trial court's refusal to instruct the jury as requested. After two hours of deliberation, the jury returned a verdict in favor of defendant.

On appeal, plaintiff first contends that the trial court unduly restricted the scope of plaintiff's cross-examination of defendant's medical expert by refusing to allow the witness to be asked if he had told plaintiff's counsel that it would be best if he went out of town to find an expert because it would be difficult to find a local physician to testify against another physician in the same community. We find no abuse of discretion in restricting the scope of plaintiff's cross-examination of Dr. DeBruin. The specific testimony plaintiff sought to elicit was not relevant to the issues upon which Dr. DeBruin was called to testify. During his direct examination, Dr. DeBruin gave his opinion as to the relevant standard of care of an orthopedic specialist and whether Dr. Allis had breached that standard. He did not in any way suggest that an out-of-town orthopedic specialist such as plaintiff's expert, Dr. Schultz, was not qualified or competent to offer similar testimony. A trial Judge need not permit a party to cross-examine a witness concerning evidence which is marginally relevant to the case as a whole but which is beyond the scope of the witness' testimony on direct examination. MRE 611(B). Thus, even though the trial court has the discretion "to permit questions concerning . . . the problems, if any, in securing the necessary expert testimony," Wilson v Stillwill, 411 Mich 587, 601-602, n 3; 309 NW2d 898 (1981), such questions may still be prohibited on cross-examination where they exceed the scope of direct examination of the same witness. MRE 611(B).

Neither was the proffered testimony relevant to Dr. DeBruin's credibility. No evidence of bias or prejudice on Dr. DeBruin's part was indicated by the mere fact that he advised plaintiff's counsel that it would be best for him to seek expert witnesses from some place other than Lansing due to the difficulty of convincing a local physician to testify against another physician in the same community. Moreover, to the extent that plaintiff desired to show that Dr. DeBruin, a Lansing orthopedic specialist himself, was part of this "conspiracy of silence," Kern v St Luke's Hospital Ass'n of Saginaw, 404 Mich 339, 352; 273 NW2d 75 (1978), plaintiff was explicitly permitted to do so. Any remote indication of bias plaintiff sought to demonstrate by eliciting the content of Dr. DeBruin's advice to plaintiff's counsel was ...


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