May v. William Beaumont Hosp.

• Decision Date: 21 November 1989
• Docket Number: Docket No. 93511
• Citation: 448 N.W.2d 497,180 Mich.App. 728
• Parties: Alan A. MAY, as conservator of the Estate of Robert Kolosowski, a minor, and Stanley Kolosowski, Plaintiffs-Appellants, Cross-Appellees, and Jadwiga Kolosowski, individually and as next friend of Robert Kolosowski, a minor, Plaintiff, Counter-Defendant, Appellant, v. WILLIAM BEAUMONT HOSPITAL, a Michigan nonprofit corporation, Defendant, Counter-Plaintiff, Appellee, and Christopher Marlowe, M.D., Defendant-Appellee, Cross-Appellant. 180 Mich.App. 728, 448 N.W.2d 497
• Court: Court of Appeal of Michigan — District of US

Page 497

448 N.W.2d 497

Alan A. MAY, as conservator of the Estate of Robert

Kolosowski, a minor, and Stanley Kolosowski,

Plaintiffs-Appellants, Cross-Appellees,

and

Jadwiga Kolosowski, individually and as next friend of

Robert Kolosowski, a minor, Plaintiff, Counter-Defendant, Appellant, v. WILLIAM BEAUMONT HOSPITAL, a Michigan nonprofit corporation, Defendant, Counter-Plaintiff, Appellee, and Christopher Marlowe, M.D., Defendant-Appellee,

Cross-Appellant.

Docket No. 93511.

180 Mich.App. 728, 448 N.W.2d 497

Court of Appeals of Michigan.

Submitted Dec. 21, 1988.

Decided Nov. 6, 1989.

Released for Publication Nov. 21, 1989.

[180 MICHAPP 731]

Charfoos & Christensen, P.C. by David W. [180 MICHAPP 732] Christensen, and Gromek, Bendure & Thomas by Mark R. Bendure, Detroit, for plaintiffs-appellants, cross-appellees.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C. by John P. Jacobs, Detroit, for Dr. Christopher Marlowe.

Sullivan, Ward, Bone, Tyler, Fiott & Asher, P.C. by Michelle A. Thomas, Detroit for William Beaumont Hosp.

Before MacKENZIE, P.J., and CYNAR and KOBZA, ^* JJ.

CYNAR, Judge.

In this medical malpractice case, plaintiffs appeal by leave granted from the trial court's order of remittitur of the jury verdict for plaintiff Robert Kolosowski from $5,000,000 to $106,696.01. Plaintiffs further appeal the trial court's granting of a judgment notwithstanding the verdict on the claims of plaintiffs Jadwiga and Stanley Kolosowski. Defendant Christopher Marlowe cross-appeals and raises several additional issues.

Plaintiffs filed suit against defendant William Beaumont Hospital on October 7, 1981, alleging negligence in the monitoring of Mrs. Kolosowski's labor which resulted in injuries to her child, Robert Kolosowski. Defendant hospital filed a counterclaim alleging that Mrs. Kolosowski had been negligent during her labor. On March 14, 1983, plaintiffs made a motion to amend their complaint to add defendant Marlowe as a party. The motion was granted on March 23, 1983.

Plaintiff Jadwiga Kolosowski is a Polish immigrant. After arriving from Poland in 1978, she met and married Stanley Kolosowski. Mrs. Kolosowski became pregnant sometime around February, 1979. In August 1979, Mrs. Kolosowski came under the care of Dr. Christopher Marlowe, M.D., an obstetrician and gynecologist. Because Mrs. Kolosowski did not speak English, she was taken to her doctor's appointments by her friend and interpreter, Halina Sobel. Defendant Marlowe testified at trial that Mrs. Kolosowski had been a good and [180 MICHAPP 739] responsive patient when she came for her appointments. Likewise, Mrs. Kolosowski's interpreter, Mrs. Sobel, had been cooperative.

Mrs. Kolosowski was informed by Dr. Marlowe that the approximate due date of her child was December 25, 1979. Dr. Marlowe had calculated this date on the basis of the date of Mrs. Kolosowski's last period and the size of her uterus. An ultrasound test was not performed. Dr. Marlowe testified that an estimated due date of December 25, 1979, would be consistent with Mrs. Kolosowski's having had her last period on March 20, 1979. Dr. Marlowe acknowledged that his office records listed the date of Mrs. Kolosowski's last period as February 7, 1979, but indicated that the date had been written by his office staff and not by him. Dr. Marlowe also acknowledged that the certificate of live birth for Mrs. Kolosowski's baby, and the confidential information sheet, listed her last period as February 1, 1979. Dr. Marlowe further testified that the estimated date of birth for a woman whose last period was February 1, 1979, would be November 8, 1979.

On November 13, 1979, at approximately 9:30 p.m., Mrs. Kolosowski's water broke. Halina Sobel, who had been designated as Mrs. Kolosowski's interpreter and support person for the delivery, phoned Dr. Marlowe. Mrs. Sobel and Mrs. Kolosowski immediately left for defendant hospital. Mrs. Kolosowski testified that she had pains while she was in the car on the way to the hospital.

Dr. Marlowe testified that Mrs. Sobel never called him. Rather, Dr. Bankhead, an intern at defendant hospital, called and advised him that Mrs. Kolosowski was at the hospital. Dr. Bankhead told Dr. Marlowe that Mrs. Kolosowski's membrane had ruptured, that she was dilated to three centimeters, that she was one hundred percent [180 MICHAPP 740] effaced, and that the baby's head had descended. Dr. Marlowe testified that he believed it was a premature rupture of the membrane and that the birth would have to be induced. Dr. Marlowe told Dr. Bankhead to do a prep and enema on Mrs. Kolosowski, to get an x-ray, and to put her on an external fetal heart monitor. An IV was also ordered. Dr. Marlowe testified that he arrived at the hospital around 11:15 p.m.

Upon entering the hospital, Mrs. Kolosowski was taken to an examination room and examined by a doctor she did not know. Mrs. Kolosowski was then taken to a room where a nurse explained that she needed to be fully dilated before the baby would come. The nurse stated that it could happen within hours or not until morning. Mrs. Kolosowski thought, however, that the nurse had said that the baby would not be born until the morning. Mrs. Kolosowski was then given an enema and taken for an x-ray. Prior to that time, Mrs. Kolosowski was having pains.

Thereafter, Mrs. Kolosowski was brought back to her room by a nurse. Mrs. Kolosowski then began to walk around the room. Mrs. Sobel requested and received a cover from a nurse. Mrs. Kolosowski put the cover on the floor and laid down on it because she was in pain and the floor was cool. Later, another nurse saw Mrs. Kolosowski lying on the floor and took the cover away. Mrs. Sobel testified that neither nurse told her to tell Mrs. Kolosowski to get into bed. None of the nurses assisted Mrs. Kolosowski into bed and she was not put on an IV or on a fetal heart monitor.

Mrs. Kolosowski testified that Dr. Marlowe then came into the room and Mrs. Sobel asked him for pain medication for Mrs. Kolosowski. Dr. Marlowe would not give her any pain medication and subsequently left the room. Mrs. Kolosowski then went [180 MICHAPP 741] into the bathroom because she believed that she had to have a bowel movement. Dr. Marlowe came in to the room again while Mrs. Kolosowski was in the bathroom. He told Mrs. Sobel to tell Mrs. Kolosowski to come out of the bathroom because the baby could fall down onto the floor. It is unclear whether the statement about the baby falling onto the floor was ever communicated to Mrs. Kolosowski. Mrs. Kolosowski told Mrs. Sobel that she would be out when she was finished going to the bathroom. Dr. Marlowe then left the room. Both Mrs. Sobel and Mrs. Kolosowski testified that the bathroom door was open while Dr. Marlowe was in the room.

Mrs. Kolosowski then came out of the bathroom and began to scream in pain. At that point, there were no nurses or doctors in her room. Mrs. Kolosowski walked around the room screaming for approximately one-half hour. Mrs. Kolosowski, who was standing, then put her head on the bed and screamed that the baby was coming. Mrs. Sobel went to the hallway screaming for help. Before any medical personnel could get to the room, Mrs. Kolosowski's baby was born, dropping to the floor. Mrs. Kolosowski had given birth, at approximately 11:55 p.m., to a full-term baby boy, Robert Kolosowski. As a result of falling to the floor, Robert sustained a fractured skull.

Defendant Dr. Marlowe testified that he first saw Mrs. Kolosowski on November 13, 1979, when she was being brought back from the x-ray room and was wheeled past him at approximately 11:15 p.m. At approximately 11:20 p.m., Dr. Marlowe went to Mrs. Kolosowski's room. Before entering, he noticed that she was lying on the floor on a blanket. Without entering the room, Dr. Marlowe instructed some nurses to get Mrs. Kolosowski off the floor so that she could be checked. Dr. Marlowe [180 MICHAPP 742] could not remember which nurses he told to help Mrs. Kolosowski. He observed several nurses helping her up off the floor. He then left the area.

Dr. Marlowe testified that, at approximately 11:30 p.m., he returned to Mrs. Kolosowski's room and found Mrs. Kolosowski in the bathroom with the door closed. Mrs. Sobel asked him if Ms. Kolosowski could have pain medication. Dr. Marlowe responded that she could not until she came out of the bathroom and he could find out what was going on. Dr. Marlowe could not be sure which nurses were in the room at the time but he knew that there were at least two of them present. Mrs. Kolosowski told Dr. Marlowe, through Mrs. Sobel, that she was having too much pain. Dr. Marlowe then asked the nurses and Mrs. Sobel to get her out of the bathroom and he left the room. Dr. Marlowe stated that Mrs. Kolosowski was having contractions at the time and that she was in labor.

Dr. Marlowe testified that, approximately ten minutes later, he came back to the room and Mrs. Kolosowski was still in the bathroom with several nurses present. Defendant Dr. Marlowe tried to get Mrs. Kolosowski out of the bathroom by talking to her through the door. Mrs. Kolosowski opened the bathroom door. She was seated on the toilet. Dr. Marlowe stood in the room for approximately ten to fifteen minutes asking her to come out of the bathroom. He also told her that if she did not come out she would deliver the baby into the toilet. Mrs. Sobel laughed at him and said "nobody is that stupid." At some point during the ten to fifteen minutes in which Dr. Marlowe was present, Mrs. Kolosowski shut the bathroom door. Dr. Marlowe testified that, at that point, he was fairly certain that Mrs. Kolosowski was in labor. However, he believed that he was not allowed to [180 MICHAPP 743] go into the bathroom to assist her out because it would be an assault in the eyes of the law.

Dr. Marlowe left the room to see if he could find someone else to communicate with Mrs. Kolosowski. As he was walking down the...