Citation630 N.W.2d 356,245 Mich. App. 670
Decision Date10 July 2001
Docket NumberDocket No. 215311.
PartiesSandra and David HILGENDORF, as Next Friends to Christopher Hilgendorf, Plaintiffs-Appellants/Cross-Appellees, v. SAINT JOHN HOSPITAL AND MEDICAL CENTER CORPORATION, Saint John Hospital Corporation, Nicholas Carl Relich, M.D., Ali Rabbani, M.D., Defendants-Appellees/Cross-Appellants, and Benjamin F. Haddad, M.D., P.C., and Estate of Benjamin F. Haddad, M.D., Defendants-Appellees, and Calier H. Worrell, M.D., Eugene H. Crawley, M.D., Thelma T. Tumacder, M.D., P.C., Thelma T. Tumacder, M.D., and Grosse Pointe Pediatrics, Defendants.
CourtCourt of Appeal of Michigan (US)

Mark L. Silverman, M.D., J.D., P.C. (by Mark L. Silverman), Birmingham, for the plaintiffs.

Kitch Drutchas Wagner Denardis & Valitutti (by Susan Healy Zitterman and Anthony G. Arnone), Detroit, for the defendant.



Plaintiffs Sandra and David Hilgendorf, as next friends for their minor son, Christopher Hilgendorf, appeal as of right in this medical malpractice case.1 Through a combination of a directed verdict and the jury's verdict of no cause of action, the Hilgendorfs did not recover damages for their son's alleged injuries from the defendants who remained parties at trial. St. John Hospital and Medical Center Corporation, Dr. Nicholas C. Relich, M.D., and Dr. Ali Rabbani, M.D., cross-appeal as of right, offering alternative grounds for affirming in this case. We affirm in the appeal and, therefore, do not need to reach the issues raised in the cross-appeal.

I. Overview

This case concerns the treatment Hilgendorf received while at the defendant hospital after he and his twin sister, Heidi Hilgendorf, were born five to six weeks prematurely. On appeal, the Hilgendorfs claim that they are entitled to a new trial because defense counsel removed exhibits from the courtroom before the jury was able to deliberate, the trial court erred in declining to rule on their motion in limine to admit certain defense admissions before trial, the trial court committed instructional error, and the trial court erred in allowing the defense to use a learned treatise to rehabilitate its own witness. These procedural and evidentiary issues have very little to do with the medical malpractice Drs. Relich and Rabbani and the hospital allegedly committed. As a result, we relate only the barest of details concerning the parties' conflicting theories and the complicated evidence they each introduced to provide a context for this case. The facts relevant to each issue are related in the respective analytical sections, below.

II. Theories Of Liability

Hilgendorf and his twin sister were born at Bon Secours Hospital in December 1983. Because they were born prematurely, they were transferred to the Neonatal Intensive Care Unit (NICU) at the defendant hospital. Drs. Nicholas Relich and Ali Rabbani practiced in and directed the NICU during the time Hilgendorf was a patient there. Although he had no memory of treating Hilgendorf, Dr. Relich conceded that, on the basis of the schedule in place at the time, he, not Dr. Rabbani, actually treated Hilgendorf. Drs. Calier H. Worrell, Eugene H. Crawley, and Thelma T. Tumacder, pediatricians in Grosse Pointe Pediatrics, a group practice, treated Hilgendorf while he was in the NICU and after he was discharged.2 Dr. Benjamin F. Haddad was the neurosurgeon who consulted on Hilgendorf's care while he was in the hospital.3

The Hilgendorfs' theory was that, in the first three days after he was born, their son developed a subdural hematoma, an accumulation of blood under the dura, a membrane that surrounds the brain. The subdural hematoma caused intracranial pressure, ultimately harming Hilgendorf's brain tissue. They contended that several signs their son exhibited while in the NICU, including arm and leg tremors, half-open "sunset eyes," a full anterior fontanel, which is the soft spot on the back of a newborn baby's head, and a relatively rapid increase in the circumference of his head, were signs that he had intracranial pressure. Further, the Hilgendorfs believed that their son's low platelet count while in the NICU was evidence that he was experiencing bleeding associated with the subdural hematoma.

Despite these symptoms, the doctors had not diagnosed Hilgendorf's ailment by the time he was discharged from the hospital. At home, he suffered a rapid growth in the circumference of his head, which his mother noted and which finally prompted the physicians to take action. Dr. Alexa Canady, not Dr. Haddad, ultimately performed neurosurgery on Hilgendorf four months after he was born. Her preoperative diagnosis was that he had an "[a]rachnoid cyst, right templeregion, with mass effect." During surgery she found cerebrospinal fluid "under significant pressure," which was xanthochromic, meaning a yellowish color. Following surgery, Dr. Canady diagnosed Hilgendorf's condition as a "porencephalic cyst right temple region with mass effect and increased intracranial pressure."

The Hilgendorfs claimed that Drs. Relich and Rabbani committed malpractice by failing to diagnose their son's condition and by failing to treat it with a subdural tap, i.e., by inserting a needle through the fissures naturally present in his skull to drain the accumulated blood in order to relieve the pressure on his brain. The Hilgendorfs also asserted that Drs. Relich and Rabbani were negligent in failing to make sufficient notes concerning his progress and care in his medical chart, especially notations regarding the circumference of his head during his first week of life, and in following Dr. Haddad's recommendation that they merely monitor the situation. They argued that Dr. Canady's findings supported their theory that their son had a subdural hematoma. Pointing out that accumulated blood, such as in a bruise, turns xanthochromic as it is resolving itself and disappearing, they claimed that his subdural hematoma was chronic and resolving itself, although still causing harmful intracranial pressure, when Dr. Canady operated. In other words, the Hilgendorfs apparently theorized that the blood in the subdural hematoma had clotted or solidified to the extent that it appeared to be a cyst. Had their son received the tap at an early time, the Hilgendorfs claimed, he would not have experienced intellectual delays that will, according to his experts, always require him to live in a supervised setting and deprive him of the ability to earn a living in anything but a special program.

Drs. Relich and Rabbani and the hospital (hereinafter "defendants") had a different opinion on the cause of Hilgendorf's developmental delays. First, they claimed that many of the signs the Hilgendorf's claimed were symptoms of intracranial pressure or a subdural hematoma are in fact common to babies born prematurely, not necessarily evidence that Hilgendorf was experiencing any problems while hospitalized. For instance, their witnesses testified that a sleepy baby who is trying to awake will often have half-open eyes that may be described as "sunset eyes." Also, though a bulging fontanel is a sign of intracranial pressure, a full, flat, or soft fontanel is not a sign of intracranial pressure. Though there were a few nursing notes that showed Hilgendorf's fontanel was "full," no one observed him with a bulging fontanel. Further, a baby's position (lying or being held upright), disposition (calm or crying), and the subjective nature of the person observing the fontanel will affect how the person describes the fontanel. Defendants believed that the circumference of Hilgendorf's head was not growing at an usually high rate while he was in the hospital, that his parents were properly instructed to measure the circumference of his head while he was at home, and that only while he was at home did it grow at an alarming rate.

Defendants provided testimony that suggested that Hilgendorf's platelet levels were appropriate for his age and that he was given a blood transfusion the one time the levels were too low. These low platelet levels could have been caused by something other than a subdural hematoma and, even if he had a subdural hematoma in the place the Hilgendorfs claimed, it was impossible for physicians to perform a subdural tap in the area because needles do not curve and the only direct route to the area was through brain tissue. Destroying brain tissue would have been inappropriate. The doctors were aware that other tests revealed that Hilgendorf may have had a subdural hematoma, but, as Dr. Haddad recommended, a conservative approach was best in light of the risks of surgery on a premature baby and the possibility that Hilgendorf may have had some other condition, as Dr. Canady later confirmed. Defendants claimed that at the time he was discharged, Hilgendorf was doing well and did not need any immediate intervention. Dr. Relich believed that some sort of trauma before or during birth caused Hilgendorf's developmental delays. Defense expert Dr. Karen Hufnagel, M.D., a neonatologist, concluded that Hilgendorf had been infected with cytomegalovirus, a common virus, before he was born, causing the injury to his brain.

III. Disappearing Exhibits

A. Facts On the last day of trial, following closing arguments and the trial court's instructions to the jury, but before the jury began deliberating, the trial court informed counsel that they should gather and organize the exhibits used at trial. The attorneys then proceeded to comb through the exhibits, challenging any items they claimed had not been admitted and stipulating that certain enlarged exhibits would be admissible in lieu of the originals.

When the parties reconvened the next morning, the attorneys continued to dispute whether certain exhibits had been admitted into evidence and would be submitted to the...

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