
    SOTO v LAPEER COUNTY
    Docket No. 92495.
    Submitted October 20, 1987, at Detroit.
    Decided January 28, 1988.
    Cynthia J. Soto, personal representative of the estate of Stephen Soto, deceased, and Cynthia J. Soto and Luis Soto, individually, brought a medical malpractice action in the Lapeer Circuit Court against the County of Lapeer, Lapeer County General Hospital, Knollwood Clinic, P.C., Bruce Badaglialacqua, D.O., and Stephen A. Head, D.O. The trial court, Martin E. Clements, J., granted a motion to sever the trial and a jury trial was held in regard to the defendant doctors and Knollwood Clinic, P.C. The jury returned a verdict of no cause of action against those defendants and a judgment and order to that effect was entered. The trial court, after reviewing the pleadings, then entered an order granting summary disposition to defendants County of Lapeer and Lapeer County General Hospital based on governmental immunity. Plaintiffs appealed from the orders.
    The Court of Appeals held:
    
    1. The tried court did not commit error requiring reversal in ruling that plaintiffs could not question the defendant doctors concerning: a forceps delivery in which they had participated a week before the birth of Stephen Soto and in which the baby had died; allegations that defendant Badaglialacqua had attempted to alter the medical records in that prior case; a prior period during which defendant Head’s medical license had been restricted.
    2. The trial court did not abuse its discretion in ruling that an allopathic physician, who stated that the relevant osteopathic and allopathic standards of care were the same, could testify as an expert witness on behalf of defendant Head, an osteopathic physician.
    
      References
    Am Jur 2d, Evidence §§ 251 et seq.
    
    Am Jur 2d, Expert and Opinion Evidence §§ 26 et seq.
    
    Medical malpractice: necessity and sufficiency of showing of medical witness’ familarity with particular medical or surgical technique involved in suit. 46 ALr3d 275.
    
      3. The trial court properly granted the hospital summary disposition based upon governmental immunity.
    Affirmed.
    1. Appeal — Evidence — Undue Prejudice.
    A trial court’s determination to exclude evidence which would unduly prejudice the defendant but which is otherwise admissible may be determined not to be an abuse of the trial court’s discretion.
    2. Appeal — Evidence — Relevant Evidence.
    A trial court does not abuse its discretion in ruling inadmissible evidence which is not relevant to the case.
    3. Witnesses — Expert Witnesses — Allopathic Physicians — Osteopathic Physicians.
    A trial court does not abuse its discretion in ruling that an allopathic physician may testify as an expert witness on behalf of an osteopathic physician where the allopathic physician testifies that the osteopathic and allopathic standards of care are the same.
    
      Sommers, Schwartz, Silver & Schwartz, P.C. (by Stanley S. Schwartz, David R. Getto, and J. Lee Tilson), for plaintiffs.
    
      Nick O. Holowka, for the County of Lapeer.
    
      Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C. (by Robert G. Kamenec), for Lapeer County General Hospital.
    
      Cline, Cline & Griffin (by Walter P. Griffin), for Knollwood Clinic, P.C., and Stephen A. Head, D.O.
    
      Williams, Schaffer, Ruby & Williams, P.C. (by David D. Patton), for Bruce Badaglialacqua, D.O., and MacArthur, Cheatham, Acker & Smith, P.C. (by James G. Gross and Mary T. Nemeth), of Counsel, for Knollwood Clinic, P.C., and Bruce Badaglialacqua, D.O., and Stephen Head, D.O.
    
      Before: D. F. Walsh, P.J., and Weaver and M. Warshawsky, JJ.
    
      
       Circuit judge, sitting on the Court of Appeals by assignment.
    
   Per Curiam.

In this medical malpractice case, plaintiffs Cynthia Soto, personal representative of the estate of Stephen Soto, deceased, and Cynthia Soto and Luis Soto, individually, appeal from the order entered, following jury trial, granting a judgment in favor of defendants Bruce Badaglialacqua, D.O., Stephen Head, D.O., and Knollwood Clinic, P.C. Plaintiffs also appeal from the order granting summary disposition to defendants County of La-peer and Lapeer County General Hospital. We affirm.

On appeal, plaintiffs first claim that "the trial court erred in preventing plaintiffs from cross-examining defendants [Badaglialacqua and Head] about past incidents to impeach the credibility of their testimony.”

As plaintiffs acknowledge, the proofs at trial focused primarily on whether defendant Head performed a Scanzoni maneuver prior to delivering Stephen Soto, the son of Cynthia and Luis Soto. The Scanzoni maneuver is the rotation by forceps of a malpositioned baby just prior to the baby’s birth. According to defendant Head, he performed a manual rotation of the Soto baby. Other evidence, including the notes and deposition testimony of defendant Badaglialacqua, who was also present at the birth, indicated that the more dangerous forceps rotation had been performed. Among plaintiffs’ claims was the allegation that Stephen’s death two months after his birth was due to injuries sustained during a Scanzoni maneuver.

Plaintiffs claim that they should have been allowed to question the defendant doctors concerning a forceps delivery in which they had participated a week before Stephen’s birth and in which the baby had died. Plaintiffs also state that it had been "hinted” that defendant Badaglialacqua had attempted to alter medical records in the prior case and that they should have been allowed to question defendant Badaglialacqua about that alleged accusation. Finally, plaintiffs claim error in the trial court’s ruling that defendant Head could not be questioned about a prior period during which his medical license had been restricted. We are persuaded of no evidentiary ruling by the trial court requiring reversal.

The issue of admissibility of evidence of the death of the other baby was raised during pretrial proceedings on defense motions to sever trial against the county and hospital from trial against the other defendants. At that time, the trial court noted that admission of that evidence against defendant doctors would cause "tremendous prejudice” to them. During trial, the court reiterated that "the determination of liability should always be on facts of the case at hand, not in any alleged other negligent acts.”

The trial court was well within its discretionary authority in determining that, in order to avoid diversion of the jurors’ attention from the facts surrounding Stephen’s birth, the evidence would not be admitted. Even assuming that the proffered evidence was otherwise admissible, we are not persuaded of an abuse of the trial court’s discretion in finding that its admission would unduly prejudice defendant doctors. MRE 405.

The allegation that defendant Badaglialacqua had been accused of altering records in the prior case was discussed at the pretrial proceeding on the motions for severance. Plaintiffs claim on appeal that evidence of that allegation was relevant to the issue of the credibility of defendant Badaglialacqua’s trial testimony, during which he contradicted both his deposition testimony and entries he had made in the Soto medical records. Even assuming that the evidence was relevant, we find that, by failing to request permission at trial to question Dr. Badaglialacqua about the alleged accusation, plaintiffs did not preserve this claim for appellate review. Harvey v Security Services, Inc, 148 Mich App 260, 264-265; 384 NW2d 414 (1986), lv den 425 Mich 863 (1986). Plaintiffs further claim that the jury "might . . . have found Dr. Badaglialacqua’s postoperative notes more credible if they had known that Dr. Badaglialacqua had just one week before been admonished for attempting to alter medical records in a similar incident.” Even assuming the viability of plaintiffs’ underlying claim of admissibility, there is no record support for their assertion that the admonishment had been made during the week between the prior incident and Stephen’s birth. Plaintiffs do not persuade this Court of error requiring reversal.

The issue of the admissibility of evidence of a consent order, whereby defendant Head had agreed to a probationary period during which his license was restricted, was discussed at length during trial. The consent order, which predated Stephen’s birth, apparently arose out of an administrative complaint filed against defendant Head concerning a specific procedure which had been performed on a particular patient. It did not arise out of the Soto case and apparently did not concern any procedures performed by defendant Head in Stephen’s delivery. We find no abuse of discretion in the trial court’s finding that the evidence was not relevant to the determination "whether any physician in this case was negligent.”

Next, plaintiffs claim error requiring reversal in the trial court’s ruling that Joseph Metz, an allopathic physician, could testify as an expert witness on behalf of defendant Head, an osteopathic physician. Dr. Metz, whose qualifications as an allopathic obstetrician are not challenged, testified that the relevant osteopathic and allopathic standards of care were the same. We are not persuaded of an abuse of the trial court’s discretion. Frazier v Hurd, 380 Mich 291, 301; 157 NW2d 249 (1968); Ferguson v Gonyaw, 64 Mich App 685, 695; 236 NW2d 543 (1975), lv den 396 Mich 817 (1976); Haisenleder v Reeder, 114 Mich App 258; 318 NW2d 634 (1982), lv den 417 Mich 969 (1983); Higgins v Detroit Osteopathic Hospital Corp, 154 Mich App 752; 398 NW2d 520 (1986), lv den 428 Mich 911 (1987).

Finally, plaintiffs claim that the court erred in finding that defendant hospital was protected by governmental immunity and in thus granting summary disposition to the hospital. Plaintiffs argue: (1) that defendant hospital is not a governmental agency entitled to immunity; (2) thát the immunity "defense” was not timely asserted; and (3) that they stated a valid cause of action in contract against the hospital. On the authority of Hyde v University of Michigan Bd of Regents, 426 Mich 223; 393 NW2d 847 (1986), and Stein v Southeastern Michigan Family Planning Project, Inc, 158 Mich App 702; 405 NW2d 147 (1987), lv gtd 429 Mich 861 (1987), we reject each of these arguments.

The orders from which plaintiffs appeal are affirmed.  