Cox v. Flint Bd. of Hosp. Managers

• Decision Date: 25 July 2002
• Docket Number: Docket No. 118110, Calendar No. 2.
• Citation: 467 Mich. 1,651 N.W.2d 356
• Parties: Teresa COX, as a Next Friend of Brandon COX, a Minor, Teresa Cox and Carey Cox, Individually, Plaintiff-Appellees, v. BOARD OF HOSPITAL MANAGERS FOR THE CITY OF FLINT doing business as Hurley Medical Center, a Municipal Corporation, Defendant-Appellant.
• Court: Michigan Supreme Court

651 N.W.2d 356

467 Mich. 1

Teresa COX, as a Next Friend of Brandon COX, a Minor, Teresa Cox and Carey Cox, Individually, Plaintiff-Appellees, v. BOARD OF HOSPITAL MANAGERS FOR THE CITY OF FLINT doing business as Hurley Medical Center, a Municipal Corporation, Defendant-Appellant.

Docket No. 118110, Calendar No. 2.

Supreme Court of Michigan.

Argued May 8, 2002.

Decided July 25, 2002.

Sommers, Schwartz, Silver & Schwartz, P.C. (by Richard D. Toth), Southfield, and Stephen N. Leuchtman, Grosse Pointe, for the plaintiffs-appellees.

Portnoy & Roth, P.C. (by Robert P. Roth and Marc S. Berlin), Bloomfield Hills, for the defendant-appellant.

Dickinson, Wright, P.L.L.C. (by Barbara H. Erard and Shari M. Oberg), and Honigman, Miller, Schwartz & Cohn, L.L.P. (by Chris E. Rossman), Detroit, for amici curiae the Michigan Health and Hospital Association.

Olsman, Ganos & Mueller, P.C. (by Jules B. Olsman), Berkley, and Kepes, Wine & McNeilage, P.C. (by Carol A. McNeilage), Southfield, for amici curiae the Michigan Trial Lawyer's Association.

Opinion

CORRIGAN, C.J.

In this medical malpractice case, we consider two issues: 1) whether a court may instruct a jury that it may find a hospital vicariously liable for the negligence of a "unit" of the hospital, and 2) whether M.C.L. § 600.2912a sets forth the standard of care for nurses in malpractice actions and, if so, which standard applies.

We hold that vicarious liability may not be premised on the negligence of a "unit" of a hospital and that substantial justice requires reversal. The "unit" instruction relieved plaintiffs of their burden of proof and did not provide the jury with sufficient guidance. For a hospital to be held liable on a vicarious liability theory, the jury must be instructed regarding the specific agents of the hospital against whom negligence is alleged and the standard of care applicable to each agent.

Further, we hold that the plain language of M.C.L. § 600.2912a does not prescribe the standard of care for nurses because they do not engage in the practice of medicine. Absent a statutory standard, the common-law standard of care applies. Under the common-law standard of care, nurses are held to the skill and care ordinarily possessed and exercised by practitioners of their profession in the same or similar localities.

I FACTUAL BACKGROUND AND PROCEDURAL POSTURE

On February 8, 1990, Brandon Cox was born at 26 or 27 weeks gestation, weighing approximately 900 grams. He was placed in the neonatal intensive care unit (NICU) of defendant hospital, and an umbilical arterial catheter (UAC) was inserted into his abdomen to monitor his blood gases, among other uses. At 4:00 p.m. on February 10, Nurse Martha Plamondon drew blood from the UAC and repositioned Brandon. At 4:20 p.m., it was discovered that the UAC had become dislodged, causing Brandon to bleed from his umbilical artery and lose approximately half his blood supply. No cardiac or respiratory alarm sounded. The events that followed are in dispute. Nurse Plamondon testified that she immediately applied pressure to stop the bleeding and summoned Dr. Robert Villegas, who ordered a push of 20cc of Plasmanate. Dr. Villegas did not recall the event. Nurse Plamondon also testified that she paged Dr. Amy Sheeder, a resident in the NICU. Dr. Sheeder ordered another 10cc of Plasmanate and 20cc of packed red blood cells. On February 11, Brandon was transferred to Children's Hospital. On February 13, a cranial ultrasound showed that Brandon had suffered intracranial bleeding. He was subsequently diagnosed with cerebral palsy as well as mild mental retardation.

In 1992, plaintiffs filed this medical malpractice action against defendant and one of its doctors, Dr. Edilberto Moreno.¹ Plaintiff's presented expert testimony at trial that Nurse Plamondon and others had breached the applicable standard of care. Defendant offered expert testimony supporting a contrary view. Defendants argued that plaintiffs could not prove that the removal of the UAC caused Brandon's injuries, as the injuries were not uncommon for infants born at 26 or 27 weeks gestation. The judge ruled, over defense objection, that a "national" standard of care applies to nurses and the other individuals alleged to have been negligent.

The jury found in favor of plaintiffs and awarded $2,400,000 in damages. Defendant moved for judgment notwithstanding the verdict, a new trial, or remittitur. The trial court found that little evidence of causation existed and ruled that it would grant a new trial unless plaintiffs accepted remittitur to $475,000. Plaintiffs appealed, and the Court of Appeals ordered the trial court to produce a detailed opinion indicating the basis for remittitur.² On remand, the trial court reversed the prior grant of remittitur and granted a judgment notwithstanding the verdict in favor of defendant, holding that plaintiff had failed to establish negligence on the part of any particular nurse or doctor.

Again plaintiffs appealed, and the Court of Appeals reversed and reinstated the original jury verdict.³ The Court held that sufficient circumstantial evidence of negligence existed and that defendant had not preserved its arguments by filing a cross-appeal. Defendant then filed a cross-appeal, which was dismissed because defendant had not submitted a copy of the circuit court order. The circuit court then vacated the order granting judgment notwithstanding the verdict and reinstated the jury verdict. Defendant appealed, and the Court of Appeals held, over a dissent, that defendant's appellate issues were not preserved because it had failed to file a cross-appeal from the original circuit court order.⁴

Defendant appealed to this Court. We vacated the decision of the Court of Appeals and remanded for consideration of defendant's issues.⁵ On remand, the Court of Appeals again affirmed, over a dissent, in a published decision.⁶ Defendant filed an application for leave to appeal to this Court. We denied leave to appeal.⁷ We then granted defendant's motion for reconsideration and granted leave to appeal.⁸

II

JURY INSTRUCTION

A STANDARD OF REVIEW

We review claims of instructional error de novo. Jury instructions should include "all the elements of the plaintiff's claims and should not omit material issues, defenses, or theories if the evidence supports them." Case v. Consumers Power Co., 463 Mich. 1, 6, 615 N.W.2d 17 (2000). Instructional error warrants reversal if the error "resulted in such unfair prejudice to the complaining party that the failure to vacate the jury verdict would be `inconsistent with substantial justice.'" Johnson v. Corbet, 423 Mich. 304, 327, 377 N.W.2d 713 (1985); MCR 2.613(A).

B DISCUSSION

We hold that the trial court improperly modified SJI2d 30.01 by substituting "hospital neonatal intensive care unit" for the specific profession or specialties at issue. Further, we hold that the error requires reversal because failure to do so would be inconsistent with substantial justice.

When the trial judge discussed the jury instructions with the parties, he indicated that he would phrase SJI2d 30.01 "in [his] own way."⁹ The judge stated:

Well, I'm going to indicate that with respect to Defendant's conduct, the failure to do something which a hospital with a neonatal intensive care unit would do or would not do. That's the way I'm going to phrase this.

Defendant objected, requesting that the instructions state the standard of care "with regard to a neonatal nurse practitioner¹⁰ of ordinary learning or judgment or skill in this community or similar one." Defense counsel contended that the case had focused on Nurse Plamondon and her responsibility regarding the UAC and was not as broad as the entire unit. The judge overruled defendant's objection. When he instructed the jury, the judge significantly modified SJI2d 30.01, stating:

When I use the words professional negligence or malpractice with respect to the Defendant's conduct, I mean the failure to do something which a hospital neonatal intensive care unit would do or the doing of something which a hospital neonatal intensive care unit would not do under the same or similar circumstances you find to exist in this case.

It is for you to decide, based upon the evidence, what the hospital neonatal intensive care unit with the learning, judgment or skill of its people would do or would not do under the same or similar circumstances.

In other words, the jury instruction as modified eliminated any reference to any particular profession, person, or specialty, substituting instead the phrase "neonatal intensive care unit." The modified jury instruction also failed to differentiate between the various standards of care applicable to different professions and specialties.

The plaintiff in a medical malpractice action "bears the burden of proving: (1) the applicable standard of care, (2) breach of that standard by defendant, (3) injury, and (4) proximate causation between the alleged breach and the injury. Failure to prove any one of these elements is fatal." Wischmeyer v. Schanz, 449 Mich. 469, 484, 536 N.W.2d 760 (1995). Crucial to any medical malpractice claim "is whether it is alleged that the negligence occurred within the course of a professional relationship." Dorris v. Detroit Osteopathic Hosp. Corp., 460 Mich. 26, 45, 594 N.W.2d 455 (1999), citing Bronson v. Sisters of Mercy Health Corp., 175 Mich.App. 647, 652, 438 N.W.2d 276 (1989). A hospital may be 1) directly liable for malpractice, through claims of negligence in supervision of staff physicians as well as selection and retention of medical staff, or 2) vicariously liable for the negligence of its agents. Id.; Theophelis v. Lansing Gen. Hosp., 430 Mich. 473, 478, n. 3, 424 N.W.2d 478 (1988) (opinion by GRIFFIN, J.). Here, plaintiffs have not advanced claims of direct negligence on the part of defendant hospital. Therefore, defendant's liability must rest on a theory of vicarious liability.¹...