Cox v. BOARD OF HOSPITAL MANAGERS, Docket No. 205025.

• Decision Date: 19 December 2000
• Docket Number: Docket No. 205025.
• Citation: 620 N.W.2d 859,243 Mich. App. 72
• Parties: Teresa COX, as Next Friend of Brandon Cox, a minor, Teresa Cox and Carey Cox, individually, Plaintiffs-Appellees/Cross-Appellants, v. BOARD OF HOSPITAL MANAGERS FOR the CITY OF FLINT, d/b/a Hurley Medical Center, a municipal corporation, Defendant-Appellant/Cross-Appellee, and Edilberto Moreno, M.D, Defendant.
• Court: Court of Appeal of Michigan — District of US

620 N.W.2d 859

243 Mich. App. 72

Teresa COX, as Next Friend of Brandon Cox, a minor, Teresa Cox and Carey Cox, individually, Plaintiffs-Appellees/Cross-Appellants, v. BOARD OF HOSPITAL MANAGERS FOR the CITY OF FLINT, d/b/a Hurley Medical Center, a municipal corporation, Defendant-Appellant/Cross-Appellee, and Edilberto Moreno, M.D, Defendant.

Docket No. 205025.

Court of Appeals of Michigan.

Submitted June 12, 2000, at Detroit.

Decided October 27, 2000, at 9:00 a.m.

Released for Publication December 19, 2000.

Sommers, Schwartz, Silver & Schwartz, P.C. (by Robert J. Schwartz, Stanley S. Schwartz, and Norman D. Tucker), Southfield, and Stephen N. Leuchtman, Detroit, for the plaintiffs.

Portnoy, Pidgeon & Roth, P.C. (by Robert P. Roth and Marc S. Berlin), Bloomfield Hills, for the Board of Hospital Managers for the City of Flint.

Before HOOD, P.J., and GRIFFIN and MARKEY, JJ.

ON REMAND

HOOD, P.J.

This case is on remand by order of the Supreme Court to consider defendant Board of Hospital Managers for the City of Flint's issues on appeal. 462 Mich. 859, 613 N.W.2d 719 (2000). We affirm.

At the commencement of the jury trial, the board (hereafter defendant) objected to the qualifications of plaintiffs' expert, Dr. Houchang Modanlou. Specifically, Dr. Modanlou had been deposed five months earlier as well as two weeks before the trial. During both depositions, Dr. Modanlou had indicated that he was not familiar with the local standard of care for nurses. The trial court held that a national standard of care governed because plaintiffs' theory of the case was based on the cumulative acts of doctors, nurses, and residents who worked in defendant's neonatal intensive care unit (NICU). Later in the trial, Dr. Carolyn Crawford testified as an expert for plaintiffs regarding the standard of care. She also stated that she was not familiar with the local standard of care. However, both experts testified that national standards of care applied to the care and treatment rendered by all staff members who participated in the treatment of newborns as a team. Over defense counsel's objection the trial court allowed Dr. Crawford to testify regarding the national standard of care.

Brandon Cox was born by cesarean section on February 8, 1990, at twenty-six to twenty-seven weeks' gestation. An umbilical arterial catheter (UAC) was inserted into Brandon's umbilicus to aid his treatment. The UAC allowed NICU personnel to monitor Brandon and take blood in a convenient fashion. The UAC was inserted by a doctor or resident. Doctors at defendant's hospital secured the UAC by suturing it. Further security was provided by taping the UAC, an act that was done by nurses who received specialized training to work in the NICU. Babies with UACs were monitored for activity level. The UAC was inserted into an artery and, if dislodged, the baby would have blood flow from the area of the umbilicus. Nurses could place babies in restraints to further ensure that the UAC would not be dislodged. While the medical records do not indicate Brandon's activity level, Brandon weighed a mere 907 grams or approximately two pounds and was given a sedative. There is no indication attending nurses found the need to place Brandon in restraints.

On February 9, 1990, Brandon did experience problems. Doctors attended to Brandon, and he stabilized. However, on that date, the UAC was moved out two centimeters. Nurse Edith Klupp performed this action at the request of a doctor. No one resutured the UAC, and Nurse Klupp testified that resuturing was not required, although this testimony contradicted the testimony of defendant's witness, Dr. Brian Nolan. A cranial ultrasound taken in the early afternoon of February 10, 1990, did not reveal any abnormality.

On February 10, 1990, at 4:00 p.m., Nurse Martha Plamondon attended to Brandon. She drew blood from the UAC and repositioned him. It was common practice to reposition premature babies. At 4:20 p.m., respiratory therapist Richard Scott notified Nurse Plamondon that there was blood on Brandon's abdomen. There is a dispute regarding what happened next. Nurse Plamondon testified that Dr. Roberto Villegas, a neonatalogist, was present. She allegedly called out to him about Brandon's condition, and he told her to give Brandon 20 cubic centimeters of Plasmanate. However, Dr. Villegas had no recollection of Brandon. Furthermore, he testified that he would not have ordered 20 cc of Plasmanate be administered at one time, but would have ordered 10 cc be administered at two separate times. While it was undisputed that orders for Plasmanate were to reflect which doctor requested the administration, the order for 20 cc of Plasmanate was recorded in the chart, but there was no indication which doctor gave the order. Dr. Amy Sheerer, a resident, testified that she was paged to the NICU "stat" and arrived by approximately 4:42 p.m. There, she learned from Nurse Plamondon that Brandon suffered 40 cc of blood loss, or approximately half of his blood volume, secondary to UAC dislodgment. Dr. Sheerer was advised that 20 cc of Plasmanate had been administered. She recorded that entry, but could not be certain regarding the ordering doctor. Brandon was treated with more Plasmanate and blood. Red blood cells are necessary because they carry hemoglobin for oxygenation. Plasmanate acts to improve blood volume and is convenient until blood can be obtained from the blood bank. While Brandon recovered from this incident, it was later discovered that he suffered from cranial bleeding. Brandon was later diagnosed with a form of cerebral palsy that involves the stiffening of the lower extremities. Plaintiffs' experts testified that Brandon's condition was a result of the incident on February 10, 1990, while defendant's experts testified that Brandon's premature birth and instability on February 9, 1990, caused his condition. In any event, Brandon will never be able to live alone and will require various therapies and surgeries for his difficulties.

Plaintiffs' theory as alleged in their amended complaint was that the treatment rendered in the NICU caused Brandon's injuries.¹ Specifically, plaintiffs alleged that the placement of the UAC, by doctors, and the subsequent monitoring, by nurses, resulted in the dislodgment; that following the dislodgment of the UAC, the treatment rendered was allegedly deficient; and that it took twenty minutes to administer help to Brandon, despite the fact that Dr. Villegas was allegedly present. Consequently, plaintiffs presented Dr. Eric Amberg to testify regarding damages. Dr. Amberg delineated the extensive therapy that Brandon would require. He also testified that Brandon could never live alone but would be required to live in a group home setting. Dr. Amberg estimated the cost of therapy and group housing. There was no objection to this damages testimony.

Plaintiff Teresa Cox, Brandon's mother, testified that she intended to care for Brandon. Later, Dr. Robert Ancell testified regarding Brandon's limited employment options and his lost earning capacity. Dr. Ancell estimated damages at $1 million to $1.5 million. Dr. Ancell was asked to testify regarding the costs of attendant care. Defense counsel objected on the grounds that Teresa intended to care for Brandon. The trial court sustained the objection. Plaintiffs' counsel attempted to elicit the number of years that Brandon could be expected to outlive Teresa, but defense counsel objected on the grounds that the tables were based on normal healthy individuals. The objection was sustained. Defense counsel did not request that the trial court strike the earlier testimony of Dr. Amberg.

Defendant's expert, Dr. Steven Donn opined that the cause of Brandon's injuries was not the incident on February 10, 1990. Curiously, despite the fact that defendant continued to assert that the only breach alleged by plaintiffs was the alleged breach by Nurse Plamondon, defense counsel questioned Dr. Donn regarding an alleged breach of the standard of care by Scott, the respiratory therapist. Dr. Donn testified that he had reviewed the records and there was no breach of the standard of care by any individual. However, Dr. Donn testified that a national standard of care applied, although there may be individual variations. This testimony regarding the national standard of care was consistent with the testimony of plaintiffs' experts.

During closing argument, plaintiffs' counsel referred to the negligence of the NICU. Specifically, he noted the actions of Nurse Klupp in moving the UAC out two centimeters, Scott's failure to aid Nurse Plamondon either secure help or treat Brandon, Nurse Plamondon's failure to timely treat Brandon, Dr. Villegas' failure to come to Nurse Plamondon's aid if he was, in fact, present, and the twenty minutes in which Brandon did not receive treatment despite the discovery of the bleeding. Defense counsel did not object initially, but when individual allegations were later raised, he objected. The objection was sustained on the basis of the pleadings and proofs presented. Plaintiffs' counsel also referred to the testimony of Dr. Amberg. Defense counsel objected on the grounds that the testimony regarding attendant care costs had been excluded. However, the trial court judge stated that he could not recall that ruling and denied the objection. In any event, plaintiffs' counsel did not continue to discuss the damages testimony but proceeded to discuss the effect of Brandon's condition.

Defendant first argues that the trial court erred in failing to disqualify plaintiffs' experts because they were unfamiliar with the local standard of care. We disagree. As an initial matter, we note that objection to the qualifications of plaintiffs' experts was not raised until the commencement of trial and during trial. A party must move to strike an expert within a reasonable time after learning the expert's identify and basic qualifications. Greathouse v....