Gallagher v. Detroit-Macomb Hosp. Ass'n

• Decision Date: 10 November 1988
• Docket Number: DETROIT-MACOMB,Docket No. 95084
• Parties: Hugh GALLAGHER and Ann Gallagher, individually and as Personal Representative of the Estate of Hugh Gallagher, Plaintiff-Appellant, v.HOSPITAL ASSOCIATION, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 90

431 N.W.2d 90

171 Mich.App. 761

Hugh GALLAGHER and Ann Gallagher, individually and as Personal Representative of the Estate of Hugh Gallagher, Plaintiff-Appellant, v. DETROIT-MACOMB HOSPITAL ASSOCIATION, Defendant-Appellee.

Docket No. 95084.

Court of Appeals of Michigan.

Submitted May 19, 1988.

Decided Oct. 3, 1988.

Released for Publication Nov. 10, 1988.

Chambers, Steiner, Mazur, Ornstein & Amlin, P.C. by Angela J. Nicita, Detroit, for plaintiff-appellant.

Kitch, Saurbier, Drutchas, Wagner & Kenney, P.C. by Susan Healy Zitterman, Detroit, for defendant-appellee.

Before HOOD, P.J., and CYNAR and BURNS, ^* JJ.

HOOD, Presiding Judge.

This dispute involves a medical malpractice action for a fractured hip sustained by Hugh Gallagher while a patient at South Macomb Hospital, a division of defendant Detroit-Macomb Hospital Association (DMHA). Mr. Gallagher was deceased at the time of trial due to causes unrelated to this action. Plaintiff Ann Gallagher, individually and as personal representative of the estate of her husband Hugh Gallagher, appeals as of right following a jury verdict in favor of defendant. Specifically she takes issue with orders of the trial court prohibiting the introduction at trial of defendant's internal rules and regulations concerning nursing personnel and of an incident report prepared by the hospital staff. We affirm.

Hugh Gallagher was admitted to South Macomb Hospital on October 5, 1979. At the time of his admission, he was seventy-two years old and had a history of multiple health problems. On October 15, he underwent surgery for a urological problem and a catheter was inserted. He remained in the hospital after the surgery and, on October 26, the catheter was removed. Later that evening and into the early hours of October 27, he experienced physical discomfort. Sometime around 1:30 or 2:00 a.m. he was given medication to reduce his temperature.

Between the hours of 2:00 and 5:00 a.m., Gallagher appeared to be sleeping well and was not awakened by the nurses making their hourly rounds. At 5:30 a.m. a nurse found Gallagher sitting on the floor at the foot of his hospital bed. He appeared confused and was mumbling incoherently. He was placed back in bed and a restraining device was put on him. Although a doctor was called to examine Gallagher, it was not determined until later that he had fractured his hip as a result of a fall.

Subsequently, the Gallaghers filed a complaint against DMHA seeking damages in part for the hospital's negligence in failing to properly secure Gallagher to his bed by a posey jacket or other restraining device prior to his fall and failing to adequately train its staff and employ personnel experienced in the care and treatment of patients.

Prior to trial, the court granted defendant's motion to exclude from trial the hospital's internal rules and regulations concerning its nursing personnel. Plaintiff moved for immediate consideration and applied for emergency leave to appeal both in this Court and our Supreme Court. Both Courts granted the motion for immediate consideration but denied leave. The issue was raised again at trial and the court sustained the defendant's objection.

Plaintiff's first issue is whether the trial court erred in refusing to admit the internal rules and regulations. Defendant contends that plaintiff is precluded by the doctrine of law of the case from raising this issue on appeal because of the earlier denials of leave. That doctrine applies only to questions which were actually determined by the appellate court's prior decision and which were necessary to the prior decision. Jackson Printing Co., Inc. v. Mitan, 169 Mich.App. 334, 338-339, 425 N.W.2d 791 (1988). The previous determinations in this case did not rule upon the merits and therefore, having no precedential value, do not preclude our present review. Jackson, supra.

Regarding the merits of this issue, the principle that an institution's internal rules and regulations do not add to its obligations to the public or establish a standard of care was first set forth in Michigan in McKernan v. Detroit C. S. R. Co., 138 Mich. 519, 101 N.W. 812 (1904). McKernan involved a negligence action in which a fireman was injured in a collision between a trolley car and a fire truck. At trial, the injured fireman sought to establish that the trolley operator had been travelling at a speed in violation of the defendant's own internal rules. Our Supreme Court refused to allow the railway's internal rules as evidence of the trolley operator's negligence and held that the existence of the rules did not add to the railway's obligation to the public. Id., p. 524, 101 N.W. 812. The concurring opinion expanded upon this principle, explaining that the law regulates "by rules which do not depend upon the existence or nonexistence of corporate regulations. It neither permits corporations to legislate away their responsibilities by rules, nor imposes discriminating liabilities upon them by reason of their efforts to lessen public danger." Id., p. 532, 101 N.W. 812.

This distinction between private regulations which assist in the orderly and prudent conduct of business and the law which fixes obligations and liabilities was also made in Dixon v. Grand Trunk W.R. Co., 155 Mich. 169, 173, 118 N.W. 946 (1908). In Dixon, the Court refused to base negligence on the railway's failure to enforce its own rule. Id., p. 174, 118 N.W. 946.

More recently this Court relied on Dixon in Wilson v. W.A. Foote Memorial Hospital, 91 Mich.App. 90, 95, 284 N.W.2d 126 (1979), when it stated in dictum that the internal rules and regulations of a hospital do not establish the applicable standard of care in malpractice actions. This position is consistent with Michigan's rule that expert testimony is required to establish the standard of care required of a hospital unless the lack of professional care is so manifest that the ordinary layman would recognize it. Sullivan v. Russell, 417 Mich. 398, 407, 338 N.W.2d 181 (1983); Wilson v. Stilwill, 411 Mich. 587, 611, 309 N.W.2d 898 (1981). Similarly, where the question is one of medical judgment, expert testimony is required to establish the applicable standard. Wilson, supra, at p. 611, 309 N.W.2d 898. In general, the standard required of physicians and nurses is that they possess and carefully apply such skill and learning as are ordinarily possessed by practitioners in their community. See Jones v. Porretta, 428 Mich. 132, 144-145, 405 N.W.2d 863 (1987); Anno, Nurse's liability for her own negligence or malpractice, 51 A.L.R.2d 970. It is not established by internal, administrative rules. Under the above standards, the court did not err in refusing to admit the hospital's nursing manual or internal rules.

Plaintiff questions the validity of Dixon and Foote by referring us to Davis v. Detroit, 149 Mich.App. 249, 386 N.W.2d 169 (1986), lv. den. 426 Mich. 856 (1986), and Young v. Ann Arbor (On Remand), 147 Mich.App. 333, 382 N.W.2d 785 (1985), lv. den. 425 Mich. 862 (1986). In both Davis and Young, persons who were arrested hanged themselves in their detention cells. In both cases, this Court held that the Department of Corrections' rules governing the practice and conditions of jails and the defendants' failure to comply with them could be used as evidence of negligence at trial. Davis, supra, 149 Mich.App. at p. 257, 386 N.W.2d 169; see Young v. Ann Arbor, 119 Mich.App. 512, 517-518, 326 N.W.2d 547 (1982). In both instances, compliance with the department's rule was mandated by statute. Similarly, a violation of a regulation promulgated pursuant to statutory authority is admissible in a medical malpractice action, Kakligian v. Henry Ford Hospital, 48 Mich.App . 325, 210 N.W.2d 463 (1973). That is not the case here.

Here, the provisions in the hospital's nursing manual appear to be more in the nature of guidelines for the day-to-day operations of that hospital. The record does not suggest that compliance with these internal rules and regulations was mandated by law as in Davis or Young.

Plaintiff also suggests that the manual should have been admitted under Owens v. Allis-Chalmers Corp., 414 Mich. 413, 422-423, 326 N.W.2d 372 (1982). However, the record does not indicate that the manual was indicative of relevant industry standards or customary usage and practice and therefore Owens is not controlling.

Plaintiff has also referred us to decisions in other jurisdictions in which courts found hospital policy relevant to determining the standard of care. The most potentially persuasive reasoning appears in Darling v. Charleston Community Memorial Hospital, 33 Ill.2d 326, 211 N.E.2d 253 (1965). However, in Darling, the court was not ruling on the admissibility of a hospital manual, but on regulations, industry accreditation...