Sponenburgh v. Wayne County

106 Mich. App. 628 (1981) 308 N.W.2d 589

SPONENBURGH
v.
WAYNE COUNTY.

Docket No. 44677.

Michigan Court of Appeals.

Decided June 3, 1981.

Charfoos & Charfoos, P.C. (by David W. Christensen and Lawrence S. Charfoos), and Hayim I. Gross (of counsel), for plaintiff.

Garan, Lucow, Miller, Seward, Cooper & Becker, P.C., and John J. McCann, for defendant.

Before: J.H. GILLIS, P.J., and N.J. KAUFMAN and R.M. MAHER, JJ.

N.J. KAUFMAN, J.

This is an appeal from a judgment in a medical malpractice case. The plaintiff in the instant action, Joan Sponenburgh, guardian of Brian Sponenburgh, a mentally incompetent person, claims that her son, Brian, suffered total and permanent brain damage as a result of the negligence of Wayne County General Hospital and its employees, physicians, and staff in failing to immediately institute proper treatment for carbon monoxide poisoning. On September 22, 1977, a Wayne County Circuit Court jury found for the plaintiff in the amount of $3,088,000. A motion for judgment notwithstanding the verdict or for a new trial was denied by order of that court on April 3, 1979. Defendant Wayne County, which operates Wayne County General Hospital, now appeals as of right, pursuant to GCR 1963, 806.1.

Because of the complexity of the case before us, a recitation of the pertinent facts is necessary. On August 2, 1968, Brian Sponenburgh, a 17-year-old male, was discovered by his aunt in an unconscious condition lying on the front seat of an automobile located in the garage of the Sponenburgh home. The garage doors were closed, and the automobile's engine was running. Brian had been seen last by his brother approximately one hour before being found by his aunt.

Soon after his discovery, Brian was taken by a rescue squad out to the yard in the open air. Firemen administered 100 percent oxygen via face mask to Brian, who was comatose. Shortly thereafter, Brian was taken by ambulance to a nearby hospital, St. Mary's Hospital in Livonia, where he arrived at approximately 10:10 a.m. While in the ambulance, oxygen was again administered to Brian by a face mask. Upon arrival at St. Mary's, Brian was taken into the emergency room, where his condition was recognized as being a result of carbon monoxide poisoning. A constant supply of 100 percent oxygen was administered to him through an endotracheal tube.

After being seen in the emergency room at St. Mary's, Brian was transferred by ambulance to Wayne County General Hospital. As testified to by the examining physician at St. Mary's, Dr. Napoleon Imperio, the reasons for the transfer were that St. Mary's did not have an intensive care unit or a hyperbaric oxygen chamber. Dr. Imperio knew Wayne County General had such a chamber, and he anticipated that it would be used with Brian.

At approximately 11:15 a.m., 20 minutes after leaving St. Mary's, Brian Sponenburgh arrived at Wayne County General Hospital. He remained in the emergency room there for approximately two hours. During this period of time he was not placed in a hyperbaric chamber, nor was he given 100 percent oxygen by endotracheal tube or face mask. A concentration of approximately 30 to 40 percent oxygen was administered to him via nasal prongs.

At 1:15 p.m., Brian Sponenburgh, still unconscious, was taken to the pediatric ward. There is some dispute as to whether the room to which he was admitted was considered an intensive care area within the pediatric section at the hospital. It was stated by Dr. Vaughn, one of defendant's witnesses, that the ward to which Brian was taken could be considered an intensive care unit if it contained the proper equipment for monitoring the patient and if such monitoring was done in fact. Dr. Vaughn testified that such monitoring would occur about every five minutes in an intensive care unit. Dr. Kuhns, another of defendant's witnesses, testified that Brian never was placed in intensive care. Dr. Imperio also stated that frequent monitoring was part of intensive care. Whether or not the room in which Brian was placed could have been considered an intensive care unit under the proper circumstances, it is uncontroverted that during the first two hours of Brian's hospital stay his condition was, in fact, monitored on only one occasion and with even greater infrequency thereafter.

The patient remained in Wayne County General Hospital from August 2, 1968, to December 9, 1968. He at no time was placed in the hyperbaric chamber, nor was he given oxygen via endotracheal tube or face mask. His basic treatment continued to be oxygen via nasal prongs. Testimony was heard to the effect that Brian Sponenburgh received no treatment for carbon monoxide poisoning but was treated instead for aspiration pneumonia.

Brian Sponenburgh was discharged from Wayne County General Hospital with permanent brain damage. It is undisputed that he suffers and in the future, will, continue to suffer from brain damage, spastic paralysis of his body, loss of vision, inability to communicate, inability to walk without external support, and loss of coordination of his limbs, hands, and feet. Brian Sponenburgh is totally and permanently disabled.

Plaintiff claims that the brain damage proximately was caused by the negligence of Wayne County General Hospital and its employees, physicians, and staff in failing immediately to institute proper treatment for carbon monoxide poisoning and specifically in failing to utilize the hyperbaric chamber or administer 100 percent oxygen in some other form, in failing to place the patient in an intensive care unit, and to test and monitor him in accordance with required medical standards.

Defendant claims that the brain damage had occurred in the garage or immediately thereafter and was irreversible. Defendant further claims that the standard of care in 1968 did not mandate use of a hyperbaric chamber nor of any of the other measures claimed by plaintiff.

Defendant's first contention of error is twofold. Defendant argues that there was insufficient evidence of negligence in breaching the 1968 standard of care regarding treatment of carbon monoxide poisoning and the use of hyperbaric chambers adduced at trial to have submitted the question of professional negligence to the jury. If, however, a submissible question of fact was presented, defendant alleges that the jury's verdict was against the great weight of the evidence. Defendant asserts that due to the insufficiency of evidence on the standard of care, plaintiff did not establish a prima facie case of professional negligence and that the trial court, therefore, should have granted a directed verdict.

Plaintiff argues that the 1968 standard of care requiring defendant to provide Brian Sponenburgh with 100 percent oxygen in the most efficient manner available and to place him in an intensive care unit, frequently monitoring his condition, indeed, has been established. Furthermore, plaintiff asserts that defendant's breach of this standard also has been established.

In reviewing denial of a directed verdict for defendant on completion of plaintiff's proofs, this Court considers proofs and reasonable inferences therefrom in a light most favorable to the plaintiff. Signs v The Detroit Edison Co, 93 Mich. App. 626; 287 NW2d 292 (1979). A motion for directed verdict is properly denied when, upon viewing the evidence in a light most favorable to the nonmovant, the facts are such that reasonable persons could honestly reach different conclusions. Tiffany v The Christman Co, 93 Mich. App. 267; 287 NW2d 199 (1979).

A judgment notwithstanding the verdict (n.o.v.) on defendant's motion is appropriate only if the evidence is insufficient as a matter of law to support a judgment for the plaintiff. In reviewing a motion for a judgment n.o.v., an appellate court must give the nonmoving party the benefit of every reasonable inference which could have been drawn from the evidence. If reasonable minds honestly could disagree as to whether plaintiff has satisfied his burden of proof on the necessary elements of his cause of action, a judgment n.o.v. is improper. Cormack v American Underwriters Corp, 94 Mich. App. 379; 288 NW2d 634 (1979), Sabraw v Michigan Millers Mutual Ins Co, 87 Mich. App. 568, 571; 274 NW2d 838 (1978), Fitzpatrick v Ritzenhein, 367 Mich. 326; 116 NW2d 894 (1962).

In McPhee v Bay City Samaritan Hospital, 10 Mich. App. 567, 570; 159 NW2d 880 (1968), the Court stated:

"A treating physician is responsible in damages for unfortunate results when it is shown that he has departed from that standard of care which is known as customary medical practice. Skeffington v Bradley, 366 Mich. 552 [115 NW2d 303] (1962), Zoterell v Repp, 187 Mich. 319 [153 N.W. 692] (1915). The burden of proving that standard of care is upon the complainant, and such proof must come, in most cases, with the aid of expert testimony from those learned in the profession. Lince v Monson, 363 Mich. 135 [108 NW2d 845] (1961), Skeffington v Bradley, supra."

See Mitz v Stern, 27 Mich. App. 459; 183 NW2d 608 (1970).

In Lince v Monson, 363 Mich. 135, 140-141; 108 NW2d 845 (1961), the Court stated the following regarding the standard of care to be established by a plaintiff in a malpractice suit or negligence action:

"`In order to submit a case of alleged malpractice to the jury, the plaintiff must produce medical testimony to the effect that what the attending physician or surgeon did was contrary to the practice in that or similar communities, or that he omitted to do something which was ordinarily done in that or similar communities.'" (Citation omitted.)

Very recently, in Patelczyk v Olson, 95 Mich. App. 281, 290; 289 NW2d 910 (1980), this Court, in assessing the correctness of a directed verdict for the defendant-physician, adopted a very strict view as to when a standard of care has been established. The Court suggested that an expert testifying to the applicable standard of care should state that a certain procedure is standard for physicians exercising ordinary care and that failure to follow such procedure constitutes malpractice. However, in Moore v Foster, 96 Mich. App. 317, 321-322; 292 NW2d 535 (1980), another panel of this Court enunciated the traditional test for the establishment of negligence in a medical malpractice case:

"[T]he plaintiff must produce medical testimony to the effect that what the attending physician did was contrary to the practice in that or similar communities, or that he omitted doing something which was ordinarily done in that or similar communities. * * * In other words, a physician is responsible in damages for unfortunate results when it is shown that he has departed from that standard of care which is known as customary medical practice." (Citations omitted.)

In her complaint, plaintiff alleged that defendant had breached its standard of care in several ways, including failure to administer sufficient oxygen, failure to treat Brian in an intensive care unit, and failure to use the hyperbaric chamber. On appeal, defendant argues as though the plaintiff has alleged that the hospital's failure to use its hyperbaric chamber was the sole breach of the standard of care. This is not the case.

It is true that the trial transcript reveals no expert testimony that unequivocally states that use of a hyperbaric chamber was standard practice in 1968 or that failure to administer oxygen to a carbon monoxide victim via such chamber would constitute breach of the standard of care. See Patelczyk, supra. Thus, if plaintiff's claim were based solely on defendant's failure to use the chamber in treating Brian, this Court might agree that a prima facie case for submission to a jury had not been made and that a directed verdict for defendant could have been proper. However, because plaintiff clearly asserted that administration of 100 percent oxygen by some means and that placement of Brian in an intensive care unit as required to meet the standard of care for treatment of carbon monoxide poisoning, our inquiry does not end here.

Dr. Vaughn, one of the physicians who treated Brian at defendant hospital, stated that administration of 100 percent oxygen in the most efficient way was the preferred mode of treating carbon monoxide poisoning. This concentration of oxygen could have been administered by face mask, by endotracheal entubation, or by hyperbaric chamber. It nowhere is denied that defendant hospital used the only method which could not deliver 100 percent oxygen: nasal prongs — a treatment which provided only a 30-40 percent concentration of oxygen. This was the sole means by which oxygen ever was delivered to Brian.

Dr. Imperio, the physician who treated Brian in the emergency room at St. Mary's Hospital, testified that endotracheal administration of oxygen was part of Brian's treatment at St. Mary's and that he anticipated that Brian would receive better treatment at Wayne County General. Dr. Imperio also stated that Brian's condition, upon arrival, was critical, and that intensive care and frequent monitoring were indicated.

Although, as previously noted, there was considerable equivocation on this subject by some of defendant's staff, the evidence is clear that Brian never was provided with the monitoring typical of that given in an intensive care unit.

Although Dr. Vaughn testified that he was unsure whether Brian was ever placed in an intensive care unit, he also testified that intensive care was indicated for Brian and that Brian's vital signs should have been monitored and that 100 percent oxygen should have been administered.

Dr. Kuhns, a resident in charge of Brian's case, testified as follows:

"Q. Now, during the month of August, was Brian placed in intensive care?

"A. No.

"Q. Did you have the authority yourself to order intensive care if you thought it was indicated?

"A. At that time I didn't know what authority I had or did not have since I had just been at Wayne County for one day, I didn't know if I had it or not.

"Q. Did you ever attempt to have him placed in intensive care?

"A. No."

Dr. Kuhns also testified that Brian was treated only for aspiration pneumonia during his hospital stay after his treatment for carbon monoxide poisoning via nasal prongs was ended and after the doctors had received results from their carboxyhemoglobin tests.

It is our view that sufficient expert testimony was presented to establish the appropriate standard of care for a carbon monoxide victim as consisting of intensive care with frequent monitoring and administration of 100 percent oxygen. Viewing the record as a whole in the light most favorable to the plaintiff, reasonable men could differ as to whether defendant had breached the applicable standard of care in not placing Brian in intensive care and in failing to administer 100 percent oxygen by any available means. Therefore, the trial court did not err in refusing to direct a verdict in defendant's favor and in submitting the issue to the jury.

Defendant further contends that the jury's verdict was against the great weight of the evidence. In Patterson v Thatcher, 273 Mich. 597, 600; 263 N.W. 882 (1935), the Supreme Court stated the following in regard to the issue of the great weight of the evidence:

"We confine ourselves to a comprehensive review of all of the evidence, having in mind the burden of proof and according due allowance to the advantage had by the jury in facing the witnesses, and from the record determine whether or not the verdict is so plainly a miscarriage of justice as to call for a new trial."

In view of expert testimony concerning the desirability of administration of 100 percent oxygen and of placing the victim in intensive care with proper monitoring and other testimony indicating that the defendant did not meet this standard of care, the verdict was not against the great weight of the evidence.

Defendant next alleges that the trial court erred in allowing plaintiff's counsel, during final argument, to read to the jury from a medical textbook, a passage not previously in evidence relating to the standard of care to be applied.

During closing argument, plaintiff's counsel read the following excerpt from a 1976 article by Dr. Donald McDonald published in the British Medical Journal:

"Emergency treatment of a patient suspected of carbon monoxide poisoning includes removal of the victim from the source of poisoning, administration of 100 percent oxygen by tight fitting face mask and immediate transportation to a hospital where hyperbaric treatment is available."

The reading was done in the context of impeaching the testimony of Dr. Spitz, who had testified that use of the hyperbaric chamber was a "fad" and that he would not have recommended it for treatment of Brian.

The trial judge twice indicated that only words or passages which had already been read into evidence could be read to the jury during closing argument. The McDonald article, along with several other articles, had been properly used by the plaintiff to impeach Dr. Spitz's testimony earlier. Dr. Spitz had recognized this article and stated that he had used it in preparation for his testimony. Dr. Spitz had been cross-examined at length on the material in the article and expressed agreement with its assertion that every patient exposed to carbon monoxide should receive prompt and efficient oxygen from a hyperbaric chamber where available. However, the record does not indicate that the exact sentence quoted during final argument had been read into evidence.

Before and after the passage in question was read, two passages from other medical texts were properly read into evidence. The first stated:

"Such patients should be given pure oxygen by mask and treatment in a hyperbaric chamber if this is available."

The passage read after the McDonald passage stated:

"In a severe CO [carbon monoxide] poisoning with loss of consciousness, the treatment of choice is oxygen at Two Atmospheres of Pressure [a level administered by a hyperbaric chamber]."

Defendant's dispute is not with these two passages but with plaintiff's counsel's use of the sentence from the McDonald article in closing argument.

Michigan law regarding the admission of learned treatises into evidence is quite strict. In Bivens v Detroit Osteopathic Hospital, 77 Mich. App. 478; 258 NW2d 527 (1977), rev'd 403 Mich. 820 (1978), this Court allowed a three-page passage to be read during closing argument (not during cross-examination for the purpose of impeachment). The Bivens Court admitted the textbook as substantive evidence and instructed the jurors that the textbook could be considered as such. Citing Jones v Bloom, 388 Mich. 98; 200 NW2d 196 (1972), which allowed textbooks to be used for the purpose of impeaching an expert witness on cross-examination, the Bivens Court stated:

"`We, therefore, hold that medical textbooks or other publications may be used to cross-examine expert witnesses if the expert recognizes the publication as authoritative or if the trial court takes judicial notice of the publication as authoritative.'" Jones v Bloom, supra at 118." Bivens, supra, 490.

As to the reading of the passage in the case before it, the Bivens Court concluded:

"We believe the trial court exceeded the authority provided by Jones. The court's allowance of the text material as `impeachment evidence' was clearly proper under Jones. However, when he provided the material might be allowed `for whatever substantive value it may have', he exceeded the stated perimeters of Jones by giving effect to the Jones dicta as well. We believe this extension was error.

"Nevertheless, upon examining the record, we find that the effect of reading this section of the textbook was probably minimal." Id., 491.

In a memorandum opinion reversing this Court, the Supreme Court stated:

"As we held in Jones v Bloom, 388 Mich. 98 [200 NW2d 196] (1972), learned treatises are admissible for impeachment purposes. We declined to make learned treatises admissible as substantive evidence in the recently promulgated Michigan Rules of Evidence. Compare Federal Rule of Evidence 803(18). The trial judge thus erred by allowing plaintiff's counsel to read to the jury excerpts from a medical textbook. Given counsel's extended references to the textbook during his closing argument, we cannot agree with the Court of Appeals that the effect of this evidence `was probably minimal'." 403 Mich. 820-821. (Emphasis supplied.)

See, also, MRE 707, permitting use of learned treatises to be admitted "for impeachment purposes only".^[1]

In the instant case, in contrast to the actions of the trial court in Bivens, the trial court did not admit the passage as substantive evidence but only for impeachment purposes and insisted that the material read had to have been read previously into evidence. As it happened, the excerpt which plaintiff's counsel proceeded to read was not in evidence; however, it was a very brief excerpt of only one sentence and did not constitute or come close to constituting the "extended references" condemned by the Supreme Court in Bivens. While the passage read from the McDonald article does tend to recommend a standard of care, and to that extent would be impermissible as substantive evidence, the passage was read in the context of plaintiff's impeachment of Dr. Spitz's testimony and the trial court did not intend or state that the excerpt was to be read for any reason other than impeachment. Furthermore, in view of the fact that this passage seems to restate the material of the two properly admitted passages, it appears to be clearly cumulative in nature.

The determination of whether the error in plaintiff's reading from a portion of an article not in evidence was prejudicial may be made according to the standards set forth in Ilins v Burns, 388 Mich. 504, 510-511; 201 NW2d 624 (1972):

"The question then arises as to whether or not the error was harmless under GCR 1963, 529. A finding of prejudicial error depends on the circumstances of each case (3 Honigman & Hawkins, Michigan Court Rules Annotated [2d ed], Comments, p 228); the excessiveness or unfairness of the verdict (Ford v Cheever, 105 Mich. 679 [63 N.W. 975 (1895)]; McDonald v Champion Iron & Steel Co, 140 Mich. 401 [103 N.W. 829 (1905)]); the intent of counsel in introducing such evidence (Cluett v Rosenthal, 100 Mich. 193 [58 N.W. 1009 (1894)]; Nemet v Friedland, 273 Mich. 692 [263 N.W. 889 (1935)]); and whether the evidence went to the substantive issues of the case (Burns v Kieley's Estate, 242 Mich. 668 [219 N.W. 743 (1928)]).

"Once prejudicial error is found, the cases call for reversal regardless of whether the trial judge gave an instruction in an attempt to cure the error. Potentially prejudical error can be cured. Prejudical error, however, implies a conclusion that the substantial rights of the party were affected. Such error calls for reversal and new trial." (Footnote omitted, emphasis in original.)

Applying this standard, this Court does not find the claimed error to be sufficiently prejudicial to defendant's substantial rights even to warrant the final step of the above-cited analysis, especially in view of the fact that Dr. Spitz had recognized the article and had acknowledged reading it in his trial preparation.

Defendant's next issue on appeal involves a hypothetical question posed to one of defendant's expert witnesses during cross-examination. Defendant contends that it constituted error for the trial court to admit into evidence the hospital records of a subsequently treated patient whose treatment by defendant hospital formed the basis of plaintiff's hypothetical question.

The facts which lead to the rather complex basis for defendant's contention are as follows: during cross-examination, Dr. Spitz, expert witness for the defense, stated that he would not recommend use of a hyperbaric chamber for Brian, who was admitted to defendant hospital approximately two hours after he was exposed to carbon monoxide, because such treatment would have been useless and, in fact, harmful in Brian's case, too much time having elapsed since Brian's initial exposure to the fumes. Plaintiff's counsel then presented Dr. Spitz with a hypothetical fact situation regarding a carbon monoxide victim and asked him if he would recommend use of the chamber in that instance. Dr. Spitz said he would not. Plaintiff's counsel, out of the jury's presence, then proposed for admission certain records of defendant hospital on which the hypothetical situation was based. The records, especially Exhibits 13-K and 34, related to the hospital's hyperbaric treatment of 17-year-old Kathleen Brown for carbon monoxide poisoning and to the patient's total cure, even though she had been transferred to defendant hospital over four hours after her arrival at Mt. Clemens Hospital. Plaintiff's counsel proposed the record as an admission against interest. Defense counsel objected because the hypothetical and the hospital record contained facts with respect to a patient at a later date in a "completely different circumstance". Defense counsel also objected to admission of the record as hearsay with respect to the history and diagnosis contained therein.

In the context of protracted argument, the trial court stated, "The contents is [sic] hearsay, but it is [sic] admitted into evidence everyday because it is an admission * * *". The court apparently meant that the information contained in the record was an admission against interest at the time made. The court explained:

"You see, at the time it was made, there was — there was no question involved by the usual kind of admission which when made tends to — how shall I say it, it is admitted into evidence because at the time it is made it tends to reflect adversely on oneself. This is not an admission in that sense. It is a series of events which tends to impeach the position of the defendant — is more properly phrased.

* * *

"Now the only danger involved in all of this is that — if there is danger at all — is that this would be somehow taken, bearing on the standard of care. But that is cured, I hope, in a sense by the obvious fact that this occurred later than the treatment of Brian Sponenburgh.

"In effect, this is being introduced only to establish a question of scientific fact if we can put it that way.

* * *

"Now the next thing is — now it is in evidence and he is [sic] given his opinion. I have admitted it on the grounds that it occurred in defendant's hospital. It does contradict his opinion."

More important to our determination of this issue is the fact that in the presence of the jury, before resting his case, plaintiff's counsel stated:

"Your Honor, in the absence of the jury, counsel for the Plaintiff and Defendant have entered into a stipulation regarding certain exhibits regarding this young lady, Kathleen Vera Brown, and it is stipulated between the parties or agreed between the parties that the material I used in my hypothetical question was actually [accurately] portrayed. And I am now going to read first from the Mt. Clemens General Hospital the relevant material as if it was being offered into evidence.

"This is Kathleen Vera Brown in the emergency. She arrived there at six a.m., that was November 1st, 1968; that she had a blood pressure of 100 over 50; pulse 120; and that she was given 100 percent oxygen while there; that she arrived at Wayne County General at 10:45 a.m. And that in addition to the material that has already been given to the jury as an exhibit, additionally to these materials, which are already in evidence, it is found that the pupils are equal and do react sluggishly to light.

"To make it clear to those of you who are not familiar, we are not actually giving these as evidence."

On appeal, defendant raises the same objections to admission of this record as were raised in the motion for new trial or judgment n.o.v. In denying that motion, the trial judge gave several reasons for the admissibility of the record in question. The trial court stated that the record was admissible as a business record under MRE 803(6) and also as prior inconsistent conduct of defendant, and under MRE 407 as a subsequent remedial measure to rebut defendant's claim that such would be unfeasible and because defendant stipulated at trial to the facts contained in the history.

We shall first address the issue of whether defense counsel stipulated at trial to the disputed history contained in the hypothetical question, for our resolution of this issue will be dispositive of defendant's contention. Defendant, on appeal, alleges that the admissibility of the history and opinion or diagnosis contained in the records never was stipulated to by defendant, defendant only having stipulated to acts, events, transactions, and occurrences in the hospital record. (We here note that defendant's characterization of the stipulation as being only to acts, events, etc., without the history, would render the stipulation meaningless.) Defendant states that the history that Kathleen Brown, the patient in question, was found in a closed garage with three friends who were pronounced dead on arrival at Mt. Clemens Hospital was highly prejudicial in light of plaintiff's suggestion that Brown could have been revived by the hyperbaric chamber and sent home totally asymtomatic despite the unfavorable circumstances under which she was found. In this Court's opinion, this testimony also could have been viewed as supportive of Dr. Spitz's contention that because Brian, unlike Kathleen Brown, was in a comatose condition, administration of 100 percent oxygen in his case would have been futile.

The defendant normally has a heavy burden in asserting that a stipulation made in open court is other than what was stated in court:

"The litigant who so asserts to a stipulation freely entered into in open court carries a heavy burden of persuasion. Every presumption of judicial care, of professional competence, and of decretal stability is against the overthrow, in the appellate court, of such stipulation and of orders and decrees based thereon." Wagner v Myers, 355 Mich. 62, 68; 93 NW2d 914 (1959).

See also Meyer v Rosenbaum, 71 Mich. App. 388; 248 NW2d 558 (1976).

In the instant case, defendant asserts that the record indicates that its stipulation was made only to certain specific facts in defendant's hypothetical question to Dr. Spitz and not to the history and diagnosis contained in the hypothetical question. We cannot agree with this strained reading of what appears to us to be a clear stipulation, freely offered.

Defendant argues that plaintiff's counsel's statement that "it is stipulated between the parties * * * that the material I used in my hypothetical question was [accurately] portrayed" cannot be read reasonably as meaning that defense counsel stipulated to all material in the hypothetical. We do not see how it can be read to mean otherwise.

When defendant's counsel vigorously resisted admission of the hospital records of Kathleen Brown, plaintiff's counsel sought a stipulation regarding certain facts contained in the Mt. Clemens Hospital record not contained in the Wayne County General record. The following colloquy occurred:

"Mr. Koulouras [defense counsel]: Let me ask this of counsel, if I may.

"What facts does he intend to prove by this document?

"Mr. Charfoos [plaintiff's counsel]: The same I gave in my hypothetical.

"The Court: But he wants to know.

"Mr. Charfoos: Roughly it starts with the time which is listed at six a.m. and goes through the vital signs, goes through the treatment that was rendered on emergency basis and the time of transfer.

"Mr. Koulouras: We will stipulate to those facts if the facts contained in the hypothetical are essentially correct."

The trial court concluded that defendant had stipulated to everything that happened to Kathleen Brown on the date in question, beginning with 6 a.m. and going through the time of transfer, including all facts in the plaintiff's hypothetical, and thus the stipulation included reference to the three companions who died of carbon monoxide poisoning. We agree. Although defendant contends that he believed plaintiff's counsel only was seeking to establish the specific items mentioned, it appears from the plain words of the stipulation and from the context in which it was offered that plaintiff's counsel was speaking of all facts in the record from the 6 a.m. reference to the time of transfer. Plaintiff's counsel had just said that he wished to establish the facts in his hypothetical and, when pressed for specifics, his answer indicated that he wanted everything from 6 a.m. to the time of transfer. The transfer record from Mt. Clemens clearly indicates the diagnosis and history at the time of transfer, and it strains the credulity of this Court to hear defendant argue that defendant's counsel was unaware of this when he stipulated to facts going through the time of transfer.

It must be further noted that oral arguments were heard on the question of the stipulation in the course of defendant's motion for a new trial. The trial court made its findings on this issue in a written opinion. Because the trial court was able to observe the demeanor of the attorneys at trial, an advantage not afforded this Court, it is our belief that the trial judge was in the better position to determine the scope of the stipulation. See Wagner, supra.

Additionally, the diagnosis of carbon monoxide poisoning might be described more properly as a physical condition than as a diagnosis. In Osberry v Watters, 7 Mich. App. 258, 263; 151 NW2d 372 (1967), the Court stated that hospital records were admissible despite the notations that the diagnosis was whiplash of the neck because "[t]he four words can scarcely be classified as a diagnosis and would seem to fall in the classification of description of physical condition mentioned in Caccamos's Case (1944), 316 Mass 358, 362 (55 NE2d 614, 616) * * *".

It is our view that the facts contained in the hospital record, other than those relating to history and diagnosis, were admissible under the business records exception to the hearsay rule, MRE 803(6) as acts, transactions, occurrences, or events which could be used to impeach Dr. Spitz's testimony that hyperbaric treatment two hours after a carbon monoxide victim has been exposed to the gas would be futile, where defendant hospital did, in fact, render such treatment after four hours. Underlying this holding is the assumption that Dr. Spitz was an agent of Wayne County and that he was not testifying as an independent expert. We believe that such assumption is justified on the basis that Dr. Spitz was a salaried employee of Wayne County and had not decided at the time of trial whether to take his regular county salary or an expert witness fee, the choice, apparently, having been left to him.

The hospital records also were properly admitted, as the trial court noted, as admissions (by conduct) against interest and as prior inconsistent conduct. 31A CJS, Evidence, § 291, pp 739-741, states:

"An admission may be made by conduct as well as orally or in writing. Thus, as a general rule, any act or conduct on the part of a party which may fairly be interpreted as an admission against interest on a material issue may be shown in evidence against him. Where a party on the trial of an action advances contentions which are inconsistent with his prior conduct with respect to the matter in controversy, such prior conduct may be shown as being in the nature of an admission.

"Evidence of this character takes a wide range and may be received for example where the matter in controversy is the ownership, value, or control of property; the existence of a relative mental state, such as assent or lack thereof, intent, motive, knowledge, or recklessness; or the existence of such matters as claim, disclaimer, fraud, probable cause, and ratification." (Footnotes omitted.)

Because the hypothetical question and the hospital records were not identical, the records should not have been used to impeach Dr. Spitz's answers to the hypothetical question. The hypothetical question as stated by plaintiff's counsel involved an unconscious victim, whereas Kathleen Brown's hospital records indicate that she was semicomatose upon admission to Wayne County General. Defendant properly did object on the grounds of lack of identity between the hypothetical question and the hospital records. Dr. Spitz himself indicated the differences between the two. Because the hospital records were admissible for other purposes, however, no prejudice requiring reversal occurred because of this lack of identity. Furthermore, it remains our abiding conviction that the admission of the disputed material was the result of the stipulation between defendant's and plaintiff's counsels.

Defendant raises two more claims of error, which we deem merit only brief discussion.

Defendant first argues that the trial judge erred in admitting into evidence a newspaper clipping for the purpose of cross-examining the hospital administrator. This issue concerns an article which appeared in a Detroit newspaper in June of 1966 showing a photograph of a hyperbaric chamber and containing the following caption:

"Taking part in the unveiling of a $10,000 hyperbaric chamber for treatment of poison victims in the new Wayne Glas Memorial Intensive Care Unit at Wayne County General Hospital are Dr. H.J. Wells, Hospital Superintendent; Dr. Glas' Widow and W.G. Grant, Chairman of the County Board of Institutions.

"The chamber was installed as a memorial to Dr. Glas, former chief of surgery of the hospital, who was shot to death October 2 by an off-duty plant guard."

Dr. Emma Conklin, administrator of Wayne County General Hospital, testified on direct examination that the hyperbaric chamber was purchased by the hospital for the purpose of research and investigation. On cross-examination, plaintiff's counsel marked and offered Exhibit 28, the previously described newspaper clipping.

Defendant objected to introduction of the contents of the caption, stating that it was not attributable to the defendant and had no probative value. Defense counsel did not object to introduction of the picture "to show there was available a `hyperbaric chamber'". The trial court admitted the exhibit, stating to the jury:

"Ladies and gentlemen, we have admitted into evidence Exhibit No. 28. Well, the portion that's material is a photograph and the caption under it appearing in a newspaper and I just wanted to tell you that this is offered for the purpose of demonstrating that it appeared in the newspaper, and not for the purpose of showing that the caption the information contained in the caption emanated from Wayne County General Hospital. As of the present there is no evidence of that.

"But as I say, just for the purpose of showing that it appeared in the newspaper." (Emphasis supplied.)

Because the trial court did not admit the article as proof of the contents therein, the court did not impermissibly admit hearsay evidence under MRE 801(c). It is our opinion that the trial court did not abuse its discretion in admitting the article for the limited purpose of showing that it appeared in the paper.

The final issue which we shall address is defendant's contention that the trial court improperly denied defendant's request for the court to preview the video deposition of plaintiff's expert, Dr. William Hulet. Defendant claims that this denial prevented it from interposing certain substantive objections to this deposition.

On August 30, 1977, the defendant filed a request for the viewing of the video tape deposition by Dr. Hulet pursuant to GCR 1963, 315.6(2). The trial started on the scheduled trial date six days later, September 6, 1977. GCR 315.6(2) provides:

"(2) Before any visual deposition shall be introduced in evidence, either party may request that the trial judge view the visual deposition for the purpose of making rulings on objections to all or any portion of the deposition, whether such objections were made at the deposition recording or not. Failure to request such viewing at least 10 days before trial shall constitute waiver of objections. Where the trial judge has presided at the taking of the deposition and has ruled upon objections, the provisions of this subrule shall not apply." (Emphasis supplied.)

After the unedited video deposition had been seen by the jury, the defendant asked to make a record, and the court stated that the basis for letting the entire video deposition into evidence was (1) the lateness of the request under the court rule, (2) that there was no written transcript for the court to review, and (3) that it would have inconvenienced the jury due to the delay involved in previewing the tape.

The defendant contends that the video deposition contained some prejudicial testimony, as well as comments by attorneys present at the deposition. However, the record does not suggest that the deposition was so manifestly prejudicial to the defendant as to deny it a fair trial. Furthermore, it is just as plausible to surmise that some of the comments regarding Brian's history of glue-sniffing and his prior suicide attempt could have prejudiced the plaintiff's case in the minds of some jurors. The trial court did not err in admitting the unedited deposition testimony for the reasons stated by the trial court, primarily the lateness of the defendant's request for court review of the videotape.

The defendant further claims that GCR 315.6 is in conflict with GCR 302.5 which states:

"Subject to the provisions of subrule 308.3, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying."

We disagree with defendant's contention. The interests of judicial convenience and efficiency may be different when video depositions, as opposed to written depositions, are at issue. Defense counsel was free to provide a written transcript of Dr. Hulet's deposition prior to admission of the deposition in evidence. Problems of delay which may arise when a court is asked to view a taped deposition, after which the tape must be edited before presentation to the jury, validly may require a time limit after which a party waives objections to the deposition. Absent such prejudice as would deny the defendant a fair trial, failure to comply with the court rule waives any objection to the deposition testimony. Because no manifest injustice is present here, reversal is not required.

The defendant's final contention, that GCR 315.6(2) cannot be performed in Wayne County Circuit Court because parties do not know who the trial judge will be ten days before trial, is without merit. The rule requires only the timely filing of the request, after which the trial judge, before trial, will view the video deposition. In the instant case, there is no question but that timely filing was not made.

In our opinion, the crux of this case was whether whatever damage had occurred to Brian Sponenburgh in the garage was irreversible, defendant's position, or whether there was a possibility that certain treatment could have improved Brian Sponenburgh's condition, the position asserted by plaintiff. Essentially, this was a question of fact for the jury. Each side's contention was vigorously argued in a prolonged trial, the transcript of which covers over 1600 pages and is encompassed in ten volumes. In reading the record, it is our belief that both plaintiff and defendant were given the best assistance our adversarial system could afford them. It was the conclusion of the jury that plaintiff's position was the most tenable.

A trial of the magnitude of that in the instant case cannot be totally free of error. However, our detailed study of the briefs, records, and transcript in this complex case leaves us with the firm conviction that none of the errors complained of by defendant was sufficiently prejudicial to require reversal.

Affirmed. Costs to appellee.

NOTES

[1] "MRE 707. Use of Learned Treatises for Impeachment.

"To the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice, are admissible for impeachment purposes only."