Cox v. Flint Board of Hospital Managers

Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh

Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED JULY 25, 2002

TERESA COX, as a Next Friend of

BRANDON COX, a Minor, TERESA COX

and CAREY COX, Individually,

Plaintiff-Appellees,

v No. 118110

BOARD OF HOSPITAL MANAGERS FOR

THE CITY OF FLINT doing business

as HURLEY MEDICAL CENTER, a Municipal

Corporation,

Defendant-Appellant.

____________________________________

BEFORE THE ENTIRE BENCH

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 MCL 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 MCL 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

2

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 Plaintiffs 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

1
The parties stipulated to dismiss Dr. Moreno before
trial.

3

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

2
Unpublished order, entered December 14, 1994 (Docket No.
179366).
3
Unpublished opinion per curiam, issued November 22, 1996
(Docket No. 184859).

4

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

4
Unpublished opinion per curiam, issued April 6, 1999
(Docket No. 205025).
5
462 Mich 859; 613 NW2d 719 (2000).
6
243 Mich App 72; 620 NW2d 859 (2000).
7
464 Mich 877; 630 NW2d 625 (2001).
8
465 Mich 943; 639 NW2d 805 (2002).

5
 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 NW2d 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 NW2d 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:

9
Unmodified, SJI2d 30.01 provides:

6
 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

practitioner[10] 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

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

[name profession] of ordinary learning, judgment or

skill in [this community or a similar one/ name

particular specialty] would do, or the doing of

something which a [name profession] of ordinary

learning, judgment or skill 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 ordinary [name profession] of

ordinary learning, judgment or skill would do or

not do under the same or similar circumstances.

10
No evidence in the record suggests that Nurse Plamondon
was a “nurse practitioner,” which is a specialized term used
in nursing that refers to a registered nurse who receives
advanced training and is qualified to undertake some of the
duties and responsibilities formerly assumed only by a
physician. See Merriam-Webster’s Collegiate Dictionary. The
only evidence presented at trial indicated that Nurse
Plamondon was a registered nurse.

7

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 NW2d 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 NW2d 455 (1999), citing Bronson v

8

Sisters of Mercy Health Corp, 175 Mich App 647, 652; 438 NW2d

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 NW2d 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.11 Id.

at 480.

Vicarious liability is “indirect responsibility imposed

by operation of law.” Id. at 483. As this Court stated in

1871:

[T]he master is bound to keep his servants

within their proper bounds, and is responsible if

he does not. The law contemplates that their acts

are his acts, and that he is constructively present

at them all. [Smith v Webster, 23 Mich 298, 299-300

(1871) (emphasis added).]

In other words, the principal “is only liable because the law

creates a practical identity with his [agents], so that he is

held to have done what they have done.” Id. at 300. See also

Ducre v Sparrow-Kroll Lumber Co, 168 Mich 49, 52; 133 NW 938

11
Although plaintiffs’ first amended complaint contains
numerous charges of direct negligence by defendant hospital,
they offered no evidence of direct negligence at trial.

9

(1911).

Applying this analysis, defendant hospital can be held

vicariously liable for the negligence of its employees and

agents only. The “neonatal intensive care unit” is neither an

employee nor an agent of defendant. At most, it is an

organizational subsection of the hospital, a geographic

location within the hospital where neonates needing intensive

care are treated. No evidence in the record suggests that the

neonatal intensive care unit acts independently or shoulders

any independent responsibilities. Therefore, because no

evidence exists that the neonatal intensive care unit itself

is capable of any independent actions, including negligence,

it follows that the unit itself could not be the basis for

defendant’s vicarious liability.

The negligence of the agents working in the unit,

however, could provide a basis for vicarious liability,

provided plaintiffs met their burden of proving (1) the

applicable standard of care, (2) breach of that standard, (3)

injury, and (4) proximate causation between the alleged breach

and the injury with respect to each agent alleged to have been

negligent. The phrase “neonatal intensive care unit” is not

mere shorthand for the individuals in that unit; rather,

plaintiffs must prove the negligence of at least one agent of

the hospital to give rise to vicarious liability. Instructing

10

the jury that it must only find the “unit” negligent relieves

plaintiffs of their burden of proof. Such an instruction

allows the jury to find defendant vicariously liable without

specifying which employee or agent had caused the injury by

breaching the applicable standard of care.12

On this point, we agree with the Court of Appeals

decision in Tobin v Providence Hosp, 244 Mich App 626; 624

NW2d 548 (2001). In Tobin, the trial court refused to modify

SJI2d 30.01 to require the jury to determine whether each

individual category of specialist who attended the decedent

had violated the standard of care applicable to that

specialty. Instead, the trial court instructed:

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

12
Contrary to the dissent’s assertions, our holding does
not increase plaintiffs’ burden or insulate defendants from
liability. Rather, our holding merely requires plaintiffs to
establish which agent committed the negligence for which the
principal is liable as required by agency principles and
medical malpractice law. The dissent observes that no
authority directly addresses the “unit” instruction given
here, but our analysis is well-grounded in undisputed agency
principles. The dissent acknowledges that a plaintiff must
show that an agent of the hospital committed malpractice but
provides no authority for its conclusion that a “unit” is
considered an agent of a hospital. Further, the dissent cites
no authority for its assertion that plaintiffs who are unable
to establish which professional is negligent are somehow
relieved of the requirement of proving a violation of the
relevant standard of care by the particular agent for whom the
hospital is to be held vicariously liable. No principle of
law provides that plaintiffs are required to prove every
element of their case unless is it “too difficult” to do so.

11

 hospital's agents/servants/employees of ordinary

learning, judgment or skill in this community or a

similar one would do, or the doing of something

which a hospital's agents/servants/employees of

ordinary learning, judgment or skill 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 ordinary hospital's

agents/servants/employees or [sic, of] ordinary

learning, judgment or skill would do or would not

do under the same or similar circumstances. [Id. at

672.]

The Court of Appeals found that the refusal to modify was

error, stating:

The unmodified standard instruction, under the

circumstances of this case, was not specific

enough; it permitted the jury to find that, for

example, the nurse anesthetist violated the

standard of care applicable to a critical care unit

physician. The standard instruction is sufficient

to inform the jury of the definitions of

"professional negligence" and "malpractice" in the

ordinary case involving one or two named

defendants. However, in this case plaintiff chose

to bring suit against the hospital and its

(unnamed) agents, servants, or employees. Thus, it

was incumbent on the trial court to ensure that the

jurors clearly understood how they were to

determine whether any of defendant's employees

committed professional negligence or malpractice

under the particular standard of practice

applicable to their specialty. The unmodified

standard instruction did not fulfill that function.

[Id. at 673.]

Similarly, in this case, plaintiffs did not name any

specific agents of the hospital in their lawsuit at the time

12

of trial.13 Dr. Carolyn S. Crawford, an expert witness for

plaintiffs, criticized the care of several agents of

defendant, including a neonatologist, a respiratory therapist,

a resident, and Nurse Plamondon.14 The trial court’s “unit”

instruction did not specify the agents involved, nor did it

ensure that the jurors understood the applicable standards of

care. The respiratory therapist, for example, may not be held

to the standard of care of the neonatologist. The “unit”

instruction failed to ensure that the jury clearly understood

1) which agents were involved, and 2) that it could find

professional negligence or malpractice only on the basis of

the particular standard of care applicable to each employee’s

profession or specialty.15

13
Originally, the suit named Dr. Moreno, but the parties
stipulated to his dismissal before trial.
14
Justice Markman correctly observes that much of the
evidence at trial focused on Nurse Plamondon, but plaintiffs
presented evidence that other individuals were negligent as
well. In fact, the trial court ruled that the “unit”
instruction was proper because plaintiffs’ case included
evidence that individuals other than Nurse Plamondon were
negligent. Further, plaintiffs did not argue at trial that
the res ipsa loquitur doctrine applied. Because evidence of
negligence on the part of several individuals was presented,
we cannot ascertain which individual the jury found to have
been negligent. For this reason, the error was not harmless.
15
Plaintiffs did not present evidence regarding every
member of defendant’s NICU; therefore, the dissent’s
assertions that every member of the NICU is a specialist and
had a provider-patient relationship with Brandon are pure
speculation.

13

 We hold that, in order to find a hospital liable on a

vicarious liability theory, the jury must be instructed

regarding the specific agents against whom negligence is

alleged and the standard of care applicable to each agent. As

stated above, a hospital’s vicarious liability arises because

the hospital is held to have done what its agents have done.

Here, the general “unit” instruction failed to specify which

agents were involved or differentiate between the varying

standards of care applicable to those agents. The instruction

effectively relieved plaintiffs of their burden of proof and

was not specific enough to allow the jury to “decide the case

intelligently, fairly, and impartially.” Johnson, supra at

327. Under these circumstances, failure to reverse would be

inconsistent with substantial justice.

III

STANDARD OF CARE

Although we have already held that the erroneous “unit”

instruction requires reversal, we will also address the

applicable standard of care for nurses to provide guidance on

remand.

A

STANDARD OF REVIEW

This issue requires an interpretation of MCL 600.2912a.

Questions of statutory interpretation are reviewed de novo.

Oade v Jackson Nat’l Life Ins Co, 465 Mich 244, 250; 632 NW2d

14

126 (2001).16

B

DISCUSSION

In 1977, the Legislature enacted MCL 600.2912a, setting

forth the standards of care for general practitioners and

specialists. At the time of trial, MCL 600.2912a provided:

In an action alleging malpractice the

plaintiff shall have the burden of proving that in

light of the state of the art existing at the time

of the alleged malpractice:

(a) The defendant, if a general practitioner,

failed to provide the plaintiff the recognized

standard of acceptable professional practice in the

community in which the defendant practices or in a

similar community, and that as a proximate result

of the defendant failing to provide that standard,

the plaintiff suffered an injury.

(b) The defendant, if a specialist, failed to

provide the recognized standard of care within that

specialty as reasonably applied in light of the

facilities available in the community or other

facilities reasonably available under the

circumstances, and as a proximate result of the

defendant failing to provide that standard,

16
Further, we note that the applicable legal duty in a
negligence or malpractice action is a matter of law. Moning
v Alfono, 400 Mich 425, 438; 254 NW2d 759 (1977). The Court
of Appeals erred in holding that the standard of care was an
evidentiary matter reviewed for an abuse of discretion. Once
the correct standard of care is determined as a matter of law,
an appellate court reviews for an abuse of discretion a trial
court’s rulings regarding the qualifications of proposed
expert witnesses to testify regarding the specifics of the
standard of care and whether the standard has been breached.
Bahr v Harper-Grace Hospitals, 448 Mich 135, 141; 528 NW2d 170
(1995).

15

 plaintiff suffered an injury.[17]

The trial court held that a “general” standard of care

applied to Nurse Plamondon, ruling that because Nurse

Plamondon was not a party, the “local standard” could not

apply. The court stated:

[I] still don’t consider that you look solely

at the standard of care of the nurse, you look at

the hospital’s standard of care which I consider a

general standard.

* * *

[T]he standard of care of the hospital is

always going to be an issue when the hospital is

not a solely owned hospital owned by one doctor or

by one person, and so it’s a general standard.

Defendant objected, arguing that nurses were not specialists

and that a local standard of care applied. On remand, the

Court of Appeals affirmed the trial court’s ruling, holding

incorrectly that the issue was an evidentiary matter reviewed

17
The statutory standards of care set forth in MCL
600.2912a are often referred to as the “general” or “local”
standard of care for general practitioners and the “national”
standard of care for specialists. See, e.g., Bahr, supra at
138. The term “national,” however, is not an accurate

description of the statutory standard of care for specialists.

The plain language of subsection (b) states that the standard

of care is that “within that specialty as reasonably applied

in light of the facilities available in the community or other

facilities reasonably available under the circumstances.” MCL

600.2912a (emphasis added). Under the plain language of the

statute, then, the standard of care for both general

practitioners and specialists refers to the community.

16

for an abuse of discretion.18

The question, then, is whether nurses are held to the

standard of care of a general practitioner or a specialist

under MCL 600.2912a. We conclude that neither statutory

standard applies. MCL 600.2912a, by its plain language, does

not apply to nurses. The statute does not define “general

practitioner” or “specialist.” When faced with questions of

statutory interpretation, our obligation is to discern and

give effect to the Legislature’s intent as expressed in the

statutory language. DiBenedetto v West Shore Hosp, 461 Mich

394, 402; 605 NW2d 300 (2000); Massey v Mandell, 462 Mich 375,

18
We note that before reaching the issue, the Court of
Appeals held that defendant had forfeited the issue by not
objecting until trial, relying on Greathouse v Rhodes, 242
Mich App 221; 618 NW2d 106 (2000). This Court has since
overruled Greathouse, 465 Mich 885; 636 NW2d 138 (2001),
holding that “[t]here is no statutory or case law basis for
ruling that a medical malpractice expert must be challenged
within a ‘reasonable time.’”

Further, the Court of Appeals on remand again chastised

defendant for failing to bring a cross-appeal, stating:

Accordingly, even if we were to conclude that

defendant’s issues on appeal provided grounds for

relief, we would sua sponte apply the unclean hands

maxim to allow the trial judgment to stand. [243

Mich App 93.]

As the dissenting Court of Appeals judge noted, we stated in

our remand order, 462 Mich 859, that defendant has “properly

and persistently raised” the issues in its appeal. 243 Mich

App 94. There is no merit to the Court of Appeals contention

that defendant has “unclean hands” for failing to file a

cross-appeal.

17

379-380; 614 NW2d 70 (2000). Undefined statutory terms must be

given their plain and ordinary meanings. Donajkowski v Alpena

Power Co, 460 Mich 243, 248-249; 596 NW2d 574 (1999). When

confronted with undefined terms, it is proper to consult

dictionary definitions. Id.

Random House Webster’s College Dictionary (1997) defines

“general practitioner” as “a medical practitioner whose

practice is not limited to any specific branch of medicine.”

“Specialist” is defined as “a medical practitioner who deals

only with a particular class of diseases, conditions,

patients, etc.” “Practitioner” is defined as “a person

engaged in the practice of a profession or occupation.”

Therefore, for either subsection of MCL 600.2912a to apply, a

person must be a “medical practitioner,” or engaged in the

practice of medicine.

Nurses do not engage in the practice of medicine. MCL

600.5838a(1) provides that a medical malpractice claim may be

brought against any “licensed health care professional.” MCL

600.5838a(1)(b) defined “licensed health care professional” as

“an individual licensed or registered under article 15 of the

public health code . . . .” Turning to the Public Health

Code, MCL 333.17201(1)(c) defines “registered professional

nurse” as

an individual licensed under this article to engage

in the practice of nursing which scope of practice

18

 includes the teaching, direction, and supervision

of less skilled personnel in the performance of

delegated nursing activities.

MCL 333.17201(1)(a) defines “practice of nursing” as

the systematic application of substantial

specialized knowledge and skill, derived from the

biological, physical, and behavioral sciences, to

the care, treatment, counsel, and health teaching

of individuals who are experiencing changes in the

normal health processes or who require assistance

in the maintenance of health and the prevention or

management of illness, injury, or disability.

In contrast, MCL 333.17001(1)(c) defines “physician” as

“an individual licensed under this article to engage in the

practice of medicine.” “Practice of medicine” is defined in

MCL 333.17001(1)(d) as

the diagnosis, treatment, prevention, cure, or

relieving of a human disease, ailment, defect,

complaint, or other physical or mental condition,

by attendance, advice, device, diagnostic test, or

other means, or offering, undertaking, attempting

to do, or holding oneself out as able to do, any of

these acts.

As the above definitions demonstrate, nurses do not

engage in the practice of medicine. Therefore, by its plain

terms, neither subsection of MCL 600.2912a applies to nurses.

To determine the applicable standard of care for nurses, we

must turn to the common law.

Malpractice actions against nurses were not recognized at

common law. Adkins v Annapolis Hosp, 420 Mich 87, 94; 360

NW2d 150 (1984); Kambas v St Joseph’s Mercy Hosp, 389 Mich

249, 253; 205 NW2d 431 (1973). The Legislature has, however,

19

made malpractice actions available against nurses by statute.

MCL 600.5838a. Although the Legislature created a malpractice

cause of action against nurses, it did not enact an applicable

standard of care. Therefore, we review the rules of the

common law applicable to actions for medical malpractice for

the standard of care.19

A survey of our case law reveals that the standard of

care at common law was the degree of skill and care ordinarily

possessed and exercised by practitioners of the profession in

similar localities. In 1896, this Court rejected a

formulation of the standard of care that limited the scope to

the individual’s neighborhood, holding instead that the

standard of care would be the ordinary skill in the

individual’s locality or similar localities. Pelky v Palmer,

109 Mich 561, 563; 67 NW 561 (1896). In 1915, this Court

pronounced that “all the law demands is that [the defendant]

bring and apply to the case in hand that degree of skill,

19
The dissent characterizes our analysis as “outcome­
determined.” On the contrary, we have endeavored to
faithfully apply statutory rules of construction and the
common law. Interestingly, the dissent itself cites no
authority whatsoever for its novel legal proposition that a
national standard of care applies to a “unit” of defendant’s
hospital. No statutory or common-law basis for the dissent’s
assertion exists. The Legislature has prescribed the standard
of care for general practitioners and specialists, not for
“units.” The common law does not address the application of
a “national” standard of care for hospital “units.” The
dissent appears to have created its preferred legal scheme out
of whole cloth.

20

care, knowledge, and attention ordinarily possessed and

exercised by practitioners of the medical profession under

like circumstances (Pelky, [supra]; Miller v Toles, 183 Mich

252 [150 NW 118 (1914)]).” Zoterell v Repp, 187 Mich 319,

330; 153 NW 692 (1915). In Ballance v Dunnington, 241 Mich

383, 386-387; 217 NW 329 (1928), we held that the standard of

care of an x-ray operator was set “by the care, skill, and

diligence ordinarily possessed and exercised by others in the

same line of practice and work in similar localities.” See

also Rubenstein v Purcell, 276 Mich 433, 437; 267 NW 646

(1936). In Rytkonen v Lojacono, 269 Mich 270, 274; 257 NW 703

(1934), we held:

The rule is firmly established that defendant

was bound to use the degree of diligence and skill

which is ordinarily possessed by the average

members of the profession in similar localities.

We conclude that this common-law standard of care applies

to malpractice actions against nurses. Therefore, the

applicable standard of care is the skill and care ordinarily

possessed and exercised by practitioners of the profession in

the same or similar localities. The trial court on remand

shall instruct the jury regarding this standard.

IV

CONCLUSION

We conclude that to find a hospital liable on a vicarious

liability theory, the jury must be instructed regarding the

21

specific agents against whom negligence is alleged and the

standard of care applicable to each agent. An instruction

merely naming a unit of the hospital, without more, relieves

plaintiffs of their burden of proof and does not comport with

substantial justice. Further, we hold that MCL 600.2912a, by

its plain language, does not apply to nurses. Instead, nurses

are held to the common-law standard of care, i.e., the skill

and care ordinarily possessed and exercised by practitioners

of the same profession in the same or similar communities.

Accordingly, we reverse the judgment of the Court of Appeals

and remand to the trial court for a new trial.

WEAVER , TAYLOR , and YOUNG , JJ., concurred with CORRIGAN , C.J.

22

 S T A T E O F M I C H I G A N

SUPREME COURT

TERESA COX, as a Next Friend of

BRANDON COX, a minor, TERESA COX

and CAREY COX, Individually,

Plaintiffs-Appellees,

v No. 118110

BOARD OF HOSPITAL MANAGERS FOR

THE CITY OF FLINT doing business as HURLEY

MEDICAL CENTER, a Municipal

Corporation,

Defendant-Appellant.

____________________________________

MARKMAN, J. (concurring in part and dissenting in part).

I respectfully concur in part and dissent in part. I

fully concur with the majority’s legal determination that the

trial court improperly modified SJI2d 30.01 by substituting

“hospital neonatal intensive care unit” for the specific

profession or specialties at issue. However, I dissent from

the majority’s conclusion that this error requires reversal.

Instead, I believe that the instruction, albeit flawed,

adequately and fairly communicated the parties’ theories of

liability so that failure to reverse would not be inconsistent

with substantial justice.

I also fully concur with the majority’s legal

determination that MCL 600.2912a does not apply to nurses.

Instead, as the majority correctly observes, nurses are held

to the common-law standard of care, i.e., the skill and care

ordinarily possessed and exercised by practitioners of the

same profession in the same or similar localities. However,

as with the instructional error issue, I do not believe that

this error requires reversal. Instead, because, under the

facts of this case, the common-law standard of care and the

“national” standard of care were the same, failure to reverse

would not be inconsistent with substantial justice.

Although, under different circumstances, these

instructional errors might have been sufficient to warrant

reversal, under the particular circumstances of this case, I

do not believe that they can be so viewed.

I. JURY INSTRUCTION

A. STANDARD OF REVIEW

This case concerns the trial court’s deviation from the

standard instruction language set forth in SJI2d 30.01. This

Court reviews claims involving instructional errors by a de

novo standard. Case v Consumers Power Co, 463 Mich 1, 6; 615

NW2d 17 (2000).

In doing so, we examine the jury instructions

as a whole to determine whether there is error

requiring reversal. The 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.

Instructions must not be extracted piecemeal to

establish error. Even if somewhat imperfect,

instructions do not create error requiring reversal

if, on balance, the theories of the parties and the

2

 applicable law are adequately and fairly presented

to the jury. . . . We will only reverse for

instructional error where failure to do so would be

inconsistent with substantial justice. [Id.

(citation omitted); see also MCR 2.613(A).]

B. DISCUSSION

The standard jury instruction at issue reads as follows:

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

________ (name profession) of ordinary learning,

judgment or skill in [this community or a similar/

________ (name particular specialty)] would do, or

the doing of something which a ________ (name

profession) of ordinary learning, judgment or skill

would not do, under the same or similar

circumstances you find to exist in this case.

[SJI2d 30.01]

At trial, the court modified this standard instruction, and

instead read the following instruction to the jury:

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.

Comparing the standard instruction with the modified

instruction, it is clear that the trial court: (1)

substituted, in the first paragraph, “a hospital neonatal

intensive care unit” in place of a “name[d] profession”; (2)

omitted, in the first paragraph, the phrase “ordinary

3

learning, judgment or skill”; and (3) omitted, in the second

paragraph, the word “ordinary” appearing before and modifying

the clause “learning, judgment or skill.”1 Defendant

maintains that these modifications amounted to a “gross

deviation” from the standard instruction, thus depriving

defendant of a fair trial.

Upon review of the first modification, i.e., the “unit”

instruction, the majority finds that it was error requiring

reversal for the trial court to insert “unit” in place of the

specific profession or speciality at issue.2 In support of

its conclusion, the majority emphasizes that plaintiffs

focused upon several members of the unit including a

neonatologist, a respiratory therapist, a resident, and Nurse

Plamondon–individuals who were subject to differing standards

of care.3 Because of these differing standards:

1
The dissenting justice states that “[c]onsideration of the [third omission] is
inappropriate because defendant forfeited it.” Slip op, p 8, n 6. I respectfully disagree.
Defendant, in its application for leave to appeal, asserted that the trial court’s “gross
deviation from SJI2d 30.01 . . . deprived defendant of a fair trial.” This “gross
deviation” included, among other things, the omission of the word “ordinary” from the
standard jury instruction. In my view, analysis of this omission is a necessary part of
an overall determination whether defendant here was truly deprived of a fair trial.
2
Because the majority determined that the first modification amounted to error
requiring reversal, it did not address the remaining two standard jury instruction
modifications.
3
Specifically, the majority states, correctly in my judgment, that “[t]he
respiratory therapist, for example, may not be held to the standard of care of the
neonatologist.” Slip op at 13.

4
 The “unit” instruction failed to ensure that

the jury clearly understood 1) which agents were

involved, and 2) that it could find professional

negligence or malpractice only on the basis of the

particular standard of care applicable to each

employee’s profession or specialty. [Slip op at

13.]

Thus, the majority finds that the jury was undermined in its

task of determining whether any of defendant’s agents

individually fell below the appropriate standard of care and

that, under these circumstances, substantial justice requires

reversal. Id. at 14. I respectfully disagree. Although I am

certainly not oblivious to the potential that the modified

instruction had for confusing the jury, upon review of the

whole record, I simply do not believe that this is what

occurred here. I do not believe that such potential for

confusion reflects the reality of what transpired at this

trial. Rather, I believe that the jury clearly understood

that the allegations of negligence were principally focused

upon Nurse Plamondon, and that they understood Nurse

Plamondon’s specific standard of care.

In reviewing the particular instruction at issue, it must

be emphasized that this instruction further clarified the

“unit” reference by focusing on the “learning, judgment or

skill of its people.” When the trial court directed that the

jury must examine the “learning, judgment or skill” of

individual representatives of the defendant, the jury, based

5

upon the presentation of this case, almost certainly focused

on the alleged negligence of a single person, Nurse Plamondon.

First, during opening arguments, plaintiff specifically

and almost exclusively focused upon Nurse Plamondon’s alleged

negligence in: (1) allowing the umbilical arterial catheter

(UAC) to become dislodged from infant Brandon Cox,4 (2)

failing to summon, in a timely manner, the assistance of an

attending physician, and (3) medicating the infant without

proper authorization from a physician.

On the 10th at approximately four o’clock, a

nurse, Nurse Plamondon, Martha Plamondon, attended

to Brandon at four o’clock and she made a nursing

note. She drew fluid out of this umbilical

arterial catheter . . . and did other things to

attend to the baby, and then she left.

At 4:20 Brandon was found with the umbilical

arterial catheter dislodged and he had lost . . .

fifty-five to sixty percent of [his] blood. And

Plamondon noticed this at 4:20. It happened some

time between 4:00 and 4:20 that the catheter came

out. And that is just simply not supposed to

happen under ordinary circumstances . . . . That

only happens when somebody was inattentive.

* * *

So Plamondon arrives and does she call a

physician right away, does a physician respond

right away? No. She arrives at 4:20. It’s noted

that this has happened to Brandon and nothing is

done for him other than maybe some first aid to the

umbilicus for fifteen minutes. . . .

4
As explained in the majority opinion, Brandon Cox was born on February 8,
1990 at 26 or 27 weeks gestation, weighing approximately 900 grams, and was admitted
into defendant’s neonatal intensive care unit (NICU).

6
 * * *

Finally, he’s given Plasminate, which is a

fluid replacement. It’ll bring blood pressure up,

but it doesn’t really contribute to oxygenation.

Consistently with opening arguments, plaintiffs’

substantive evidence primarily focused on the alleged

negligence of Nurse Plamondon. Dr. Houchang Modanlou, an

expert witness for plaintiff, testified that, upon review of

Brandon’s chart, he had discovered essentially three

“criticisms” concerning the care that Brandon received at

defendant’s facility. Dr. Modanlou criticized Nurse

Plamondon’s maintenance of the UAC, Nurse Plamondon’s delay

in responding to the dislodgment of the UAC, and Nurse

Plamondon’s decisions concerning appropriate emergency care.

Dr. Modanlou’s testimony essentially excluded any other

potential tortfeasors. In particular, he stated that “from

birth to the accident I did not have major criticism,” and

affirmed that there was “no [significant] criticism of any of

the care rendered to Brandon Cox until the 4:00 to 4:20 p.m.

time period on February the 10th.”

Dr. Carolyn S. Crawford, another expert witness for

plaintiffs, also focused her testimony almost exclusively on

Nurse Plamondon. In part, she affirmed that “it [was]

incumbent upon the reasonably prudent nurse after

repositioning a baby to ascertain for certain that that

7

catheter’s in place and that the securing devices are still

secure.” With regard to the response pursuant to discovering

the dislodged catheter, Dr. Crawford stated there was a breach

in the standard of care “in not notifying the resident

immediately, and in not calling for help . . . [i]t appeared

that the nurse tried to handle the situation on her own for

about fifteen minutes before she called for a doctor.”

Plaintiff also labored to submit evidence discrediting

Nurse Plamondon’s version of the events surrounding the

dislodged catheter. With regard to the administration of

medication, Dr. Roberto Villegas, Jr., testified that, had he

given Nurse Plamondon a medical order to administer

Plasmanate, such an order would have been entered into

Brandon’s medical record either by himself or the nurse.

Further, he testified that he would not have ordered a full

20cc of Plasmanate to be administered to Brandon, but instead

would have ordered two separate 10cc dosages. Clearly, Dr.

Villegas was called to testify solely for the purpose of

proving that Nurse Plamondon had not received any medical

orders for the administration of Plasmanate from Dr. Villegas,

but instead administered it without proper authorization.

Similarly, Richard Scott, a respiratory therapist, was called

by plaintiffs to discredit Nurse Plamondon’s assertion that

she immediately called for a physician or resident upon

8

discovering the dislodged UAC, as well as to emphasize that

Brandon was inactive and, therefore, would have been unable to

dislodge the UAC connection as defendant speculated.

Indeed, defendant also made clear that the crux of this

case focused upon Nurse Plamondon. At opening argument,

defendant stated that “their expert is pointing to a nurse,

Nurse Martha Plamondon, who happened to be on that shift when

this was discovered.” Defendant’s subsequent proofs, not

surprisingly as a result, sought principally to refute any

negligence on the part of Nurse Plamondon.5 Further, on

appeal to this Court, defendant in its brief recognized that

the alleged negligent conduct was focused upon Nurse

Plamondon—“[a]t the outset it must be clearly understood that

plaintiffs’ experts’ testimony was restricted to criticisms of

the hospital’s nurses, particularly Nurse Plamondon . . . .”

On these bases, it seems reasonably clear, in my judgment,

that virtually the entire thrust of this case focused on the

negligence, or lack thereof, of one particular individual,

Nurse Plamondon.

Obviously, this conclusion is at odds with the

majority’s, and Justice Kelly’s, positions that this case

essentially involved the negligence of several agents. While

5
Defendant also sought to negate the causation element as part of its case in
chief.

9
plaintiff, during closing argument, may have expressed

concerns about individuals other than Nurse Plamondon, namely,

Respiratory Therapist Richard Scott and Nurse Edith Krupp,

reviewing the record in its entirety indicates to me that any

potential negligent conduct on the part of these actors was an

incidental inquiry here. Indeed, the primary purpose of even

eliciting testimony from these individuals was essentially to

support or negate the theories of negligence concerning Nurse

Plamondon. For example, Scott’s testimony focused on his

observations concerning movements on the part of Brandon

before the dislodgment of the UAC, as well as Nurse

Plamondon’s conduct after discovering the dislodged UAC.

Plaintiffs primarily elicited this testimony in an effort to

dispel defendant’s theory that Brandon pulled the UAC out with

his hands or feet as well as discredit Nurse Plamondon’s

testimony that she had immediately called out to Dr. Villegas

upon discovering the dislodged UAC. Further, the substance of

Ms. Krupp’s testimony essentially focused on Brandon’s medical

condition before the dislodgment of the UAC. Thus, this

testimony essentially was relevant to negating or supporting

the causation element. Nurse Krupp also testified about an

adjustment that she had made to the UAC the day before the

incident involving Nurse Plamondon. However, because of its

fleeting appearance in the record, I do not believe that it

10

materially altered the posture of this case, i.e., that the

focus was on Nurse Plamondon.6

Because the record indicates that the gravamen of this

dispute related to Nurse Plamondon, as opposed to other

potential tortfeasors, I believe that the jury, when told to

consider the “learning, judgment or skill” of defendant’s

representatives, principally focused on whether, one person,

Nurse Plamondon, committed malpractice when she (1) “allowed”

the UAC to come out of Brandon’s umbilicus, (2) delayed in

summoning the assistance of a physician, and (3) performed

medical procedures without appropriate authorization. Thus,

I believe that the instruction “adequately” and “fairly”

communicated the theories of this case as presented by the

parties to the jury, and that failure to reverse would not be

inconsistent with substantial justice.

With regard to the second and third modifications of the

standard instruction—the court’s deletion of the phrase “of

ordinary learning, judgement or skill” in the first paragraph

and its deletion of the word “ordinary” before the qualifying

phrase in the second paragraph, these modifications also, I

believe, constituted instructional error.

SJI2d 30.01 provides that an alleged tortfeasor must fail

6
Nor, of course, would Nurse Krupp be subject to any different standard of care
for purposes of jury consideration than Nurse Plamondon.

11
to do something that is normally required by such an

individual “of ordinary learning, judgment or skill,” or else

must do something which an individual “of ordinary learning,

judgment or skill” would not do under the same or similar

circumstances. As Judge Griffin in dissent asserted, these

phrases are contained within the standard jury instruction

because this “ordinary” care standard constitutes a limitation

upon a defendant’s duty. For example, in the context of legal

malpractice, this Court has stated:

[A]ccording to SJI2d 30.01, all attorneys have

a duty to behave as would an attorney “of ordinary

learning, judgment, or skill . . . under the same or

similar circumstances . . . .”

[A]n attorney does not have a duty to insure or

guarantee the most favorable outcome possible. An

attorney is never bound to exercise extraordinary

diligence, or act beyond the knowledge, skill, and

ability ordinarily possessed by members of the legal

profession. [Simko v Blake, 448 Mich 648, 656; 532

NW2d 842 (1995)]

As indicated in Simko, the limitation on one’s standard of

care is significant because it alerts the jury to the fact

that a professional defendant need not conform his conduct to

what is at a level above that of other members of his

profession. Instead, he needs only to conduct himself in way

that is consistent with others in his profession. For this

reason, the trial court indeed erred when it deleted the

phrase “of ordinary learning, judgement or skill” in the first

paragraph of the instructions as well as when it deleted the

12

word “ordinary” before the qualifying phrase in the second

paragraph. However, as with the first instructional error, I

am of the opinion that these errors were harmless, under the

particular circumstances of this case.

In reviewing the second modification, it is important to

emphasize that a substantial portion of this clause did appear

in the second paragraph. In part, the second paragraph of the

instruction stated that the jury must decide what a neonatal

unit, “with the learning, judgment or skill of its people

would do under the same or similar circumstances.” Although

this qualifying phrase was not stated twice within the

instruction, as it should have been, the essential concept

that a comparison must be had with others who are comparably

situated was reasonably communicated to the jury.

Further, a review of the record shows that both parties,

in presenting their theories of the case, clearly communicated

that Nurse Plamondon need not conduct herself in a way that

exceeded the standards of other members of her profession.

Instead, the parties exclusively focused on the conduct

normally, or ordinarily, exhibited by other reasonably prudent

nurses. Thus, the jury well understood that Nurse Plamondon’s

conduct need only be within the range of conduct exhibited by

other members of her profession.

In sum, while the instruction in this case was clearly in

13

error, I am not convinced that the correct instruction, one

devoid of these errors, would have resulted in any different

verdict. Thus, in my view, failure to reverse would not be

inconsistent with substantial justice.

II. STANDARD OF CARE

Finally, while I agree with the majority’s legal

conclusion that nurses are held to the common-law standard of

care, i.e., the skill and care ordinarily possessed and

exercised by practitioners of the same profession in the same

or similar localities, I believe that the trial court’s

decision to permit testimony asserting a “national” standard

of care was harmless under the circumstances of this case. An

error in a trial court’s ruling is “not ground for granting a

new trial, for setting aside a verdict, or for vacating,

modifying, or otherwise disturbing a judgment or order, unless

refusal to take this action appears to the court inconsistent

with substantial justice.” MCR 2.613(A).

A review of the testimony shows that Nurse Plamondon had

the duty to: (1) maintain and monitor the UAC, (2) summon a

physician or resident in a timely fashion upon discovering the

dislodgment of the UAC, and (3) provide medicinal treatment

only under the direction of a physician or resident. These

duties were apparently the same under either a “national”

standard of care or a “common-law” standard of care. Further,

14

and equally importantly, the applicable standards of care in

this case were simply not in dispute here. Instead, the

parties only disputed whether Nurse Plamondon had breached the

aforementioned duties and whether any resulting negligence was

the cause of Brandon’s injuries. Thus, because the duties of

this nurse were apparently the same under either standard of

care, and because the standards of care were not in dispute at

trial, I believe that failure to grant a new trial or set

aside the verdict would not be inconsistent with substantial

justice.

CONCLUSION

In conclusion, I believe that the trial court erred in

its instructions to the jury. Specifically, I agree with the

majority that the trial court improperly substituted the

“unit” for the specific profession or specialities at issue.

In addition, I believe that the trial court improperly deleted

“ordinary learning, judgment or skill” from the first

paragraph of SJI2d 30.01, and improperly deleted “ordinary,”

from its second paragraph. In a different circumstance, it is

quite easy to imagine that such errors would require reversal.

Indeed, it is not inconceivable that such instructions might

have confused the jury in this case. However, upon review of

the whole record, I am convinced that the instructions

“adequately” and “fairly” communicated the parties’ theories

15

so that failure to reverse would not be inconsistent with

substantial justice. The reality of this case is that the

jury was presented with the alleged negligence of one person,

Nurse Plamondon, and nothing in the jury instructions could

reasonably have shifted this focus for the jury.

For these reasons, I would affirm the Court of Appeals

decision.

16

 S T A T E O F M I C H I G A N

SUPREME COURT

TERESA COX, as next friend of

BRANDON COX, a minor, TERESA COX

and CAREY COX, individually,

Plaintiffs-Appellees,

v No. 118110

BOARD OF HOSPITAL MANAGERS FOR THE

CITY OF FLINT, doing business as

HURLEY MEDICAL CENTER, a municipal

corporation,

Defendant-Appellant.

___________________________________

KELLY, J. (dissenting).

I disagree with the majority's conclusions (1) that a

medical malpractice plaintiff must always allege the

negligence of a specific individual in an action for vicarious

liability and that jury instructions must reflect such

allegations, and (2) that nurses are not subject to the

standard of care for medical malpractice defendants as defined

by the Legislature in MCL 600.2912a. I would hold that, in

such cases, vicarious liability can be premised on proof that

an unidentified member or members of a discrete unit in a

hospital were professionally negligent.

I would hold also that the trial court did not err when

it applied a national standard of care to this case.

Moreover, nurses practicing advanced care that requires

special training are specialists within the meaning of MCL

600.2912a and therefore are subject to a national standard of

care. Thus, I would affirm the Court of Appeals decision to

uphold the jury verdict.

I. Factual and Procedural History

Plaintiffs' son Brandon was born at defendant Hurley

Medical Center extremely premature and underweight.

Immediately after birth, Brandon was placed in level three

neonatal intensive care. That neonatal intensive care unit

(NICU) is reserved for the most seriously ill newborn

patients. In the NICU, a doctor inserted an umbilical

arterial catheter (UAC) into Brandon's abdomen to monitor his

blood gas levels. The UAC was secured to Brandon with tape

and sutures. Later, the UAC was adjusted by the NICU nurses

and retaped.

Two days after Brandon's birth, Nurse Martha Plamondon

drew blood from the UAC to test Brandon's blood gases and

repositioned the baby. Twenty minutes later, at 4:20 p.m., a

respiratory therapist discovered that Brandon was bleeding.

2

Brandon's UAC had become dislodged and he was suffering the

effects of blood loss. He had lost approximately 40cc of

blood, or about half of his total blood volume. By at least

one account, Brandon had likely been bleeding the entire

twenty minutes. However, no alarm had sounded.

The events that followed are in dispute. Nurse Plamondon

testified that she applied pressure to stop the bleeding and

administered a 20cc push of Plasmanate at the order of Dr.

Robert Villegas. Dr. Villegas did not recall giving such an

order. Although the hospital's procedures require that the

physician who orders treatment be noted on a patient's chart,

no doctor's name appears on Brandon's chart authorizing the

20cc push of Plasmanate. The 20cc push is recorded at 4:40

p.m., twenty minutes after Brandon was discovered bleeding.

Dr. Villegas testified that he would have ordered two separate

pushes of 10cc of Plasmanate had he done anything at all.

A resident doctor, Dr. Amy Sheeder, arrived in answer to

a page from Nurse Plamondon. Dr. Sheeder ordered another push

of 10cc of Plasmanate, as well as 20cc of packed blood cells.

Brandon was also given additional oxygen through an increase

in his respirator rate and "bagging." The following day, he

was transferred to Children's Hospital, where an ultrasound

revealed that he had suffered intercranial bleeding, and he

was diagnosed as having cerebral palsy. Brandon has ongoing

3

mental and physical disabilities.

Plaintiffs filed a medical malpractice claim against

defendant and one of its doctors, Dr. Edilberto Moreno. Dr.

Moreno was dismissed by stipulation before trial, leaving no

member of defendant's hospital staff named as a defendant.

Plaintiffs alleged that the defendant medical center was

vicariously liable for the active and passive negligence of

the NICU staff (1) in allowing the UAC to become dislodged,

and (2) in failing to respond properly once the UAC became

dislodged. They claimed that the resulting blood loss and

treatment caused Brandon's mental and physical disabilities.

Plaintiffs were awarded $475,000 in mediation. They

accepted the award, but defendant rejected it. At trial,

defendant challenged plaintiffs' expert witnesses, Dr.

Houchang Modanlou and Dr. Carolyn Crawford. Each testified

about the standard of care in an NICU and each concluded that

defendant's NICU staff breached the standard of care.

Defendant argued that the doctors were unfamiliar with the

standard of care in the locality. The trial judge rejected

defendant's argument that a local standard of care applied to

the case.

Both of plaintiffs' expert doctors were permitted to

testify that members of defendant's NICU breached the standard

of care in their treatment of Brandon. Their testimony

4

established, also, that NICU staff negligence caused Brandon's

injuries. As the trial progressed, at times plaintiffs

focused on the negligence of Nurse Plamondon at times and at

other times advanced a broader theory of liability against the

entire NICU.

By closing argument, plaintiffs settled on the broader

theory that substandard basic care in the NICU caused

Brandon's injuries. Although plaintiffs named Nurse Plamondon

in the closing argument, they left it to the jury to determine

whether anyone in the NICU committed malpractice. At the very

least, these were alternate theories of defendant's liability.

Defendant offered expert testimony supporting a contrary view,

arguing that Brandon, born at just twenty-six or twenty-seven

weeks' gestation and 900 grams, was likely to have mental and

physical disabilities without an intervening cause.

Defendant requested jury instructions confining the

negligence issue to an evaluation of a neonatal nurse

practitioner in the same or similar circumstances. Defendant

argued that plaintiffs' case was confined to allegations about

Nurse Plamondon. The trial court rejected the argument,

concluding that plaintiffs' case was not limited to Nurse

Plamondon. On its own initiative and over defendant's

objection, the trial judge modified the standard jury

instructions. SJI2d 30.01. He instructed the jury that it

5

should consider whether the NICU failed to do what an NICU

would do under the same or similar circumstances. The jury

found in plaintiffs' favor and awarded $2,400,000.

Defendant moved for judgment notwithstanding the verdict,

a new trial, or remittitur. The trial judge granted

remittitur, ordering a new trial unless plaintiffs accepted

the $475,000 awarded at mediation. Plaintiffs appealed to the

Court of Appeals, which remanded the case to the trial court

for a detailed opinion supporting the remittitur amount.1 On

remand, a different judge reversed the remittitur and granted

JNOV for defendant. Plaintiffs appealed again, and the Court

of Appeals reversed and reinstated the jury verdict, which the

panel found was supported by sufficient evidence.2 The panel

refused to reach issues raised by defendant because it had not

properly filed its cross appeal.

Rather than appeal from that decision, defendant returned

to the trial court where, over plaintiffs' objection, the

judge entered a new order on the jury verdict. When defendant

sought review of that order, the Court of Appeals affirmed the

original judgment on procedural grounds. It held in a split

decision that the trial court lacked the authority to issue a

1
Unpublished order, entered December 14, 1994 (Docket No.
179366).
2
Unpublished opinion per curiam, issued November 22, 1996
(Docket No. 184859).

6

new order and that the law of the case barred defendant's

appeal.3

Defendant sought leave to appeal here and, in a split

decision, this Court vacated the most recent Court of Appeals

decision and remanded for consideration of defendant's

arguments.4 On remand, the Court of Appeals resolved the

issues against defendant and again upheld the jury verdict in

a split decision.5 Defendant again filed an application for

leave to appeal to this Court. After initially denying leave,

a majority of this Court granted defendant's motion for

reconsideration and granted leave to appeal. 465 Mich 943

(2002).

II. Jury Instruction

We review claims of instructional error de novo. Case v

Consumer Powers Co, 463 Mich 1, 6; 615 NW2d 17 (2000).

However, to the extent that the review requires an inquiry

into the facts, we review the trial court's decision on

underlying factual issues for an abuse of discretion. See

Hilgendorf v St John Hosp & Medical Center, 245 Mich App 670,

694-695; 630 NW2d 356 (2001); Isagholian v Transamerica Ins

3
Unpublished opinion per curiam, issued April 6, 1999
(Docket No. 205025).
4
462 Mich 859 (2000).
5
243 Mich App 72; 620 NW2d 859 (2000).

7
Corp, 208 Mich App 9, 16; 527 NW2d 13 (1994).

The trial court did not abuse its discretion in this case

when it rejected defendant's argument that plaintiffs' case

was confined to allegations of Nurse Plamondon's negligence.

It was correct to modify the standard jury instructions to

reflect plaintiffs' theory of the case, rather than deliver

defendant's requested instructions focusing on Nurse

Plamondon.6

A trial court is permitted, in fact required, to modify

the standard jury instructions to fit the facts of a

particular case. See Case, supra at 6; see also Tobin v

Providence Hospital, 244 Mich App 626, 672-673; 624 NW2d 548

(2001). This case is unusual in that every member of the NICU

is a specialist, subject to a national standard of care. See

part III. Moreover, plaintiffs did not allege a highly

technical failure that could be a breach of the standard of

care for one member of the NICU and not another.

The evidence here was that, in an NICU, a UAC should not

6
In his dissenting and concurring opinion, Justice
Markman discusses the trial court's omission of the word
"ordinary" from the jury instructions. Slip op, pp 12-14.
Consideration of the issue is inappropriate because defendant
forfeited it. Defendant did not raise it until, six years
after the jury verdict, the dissenting judge on the Court of
Appeals panel identified the omission as grounds for reversal.
See 243 Mich App 96-98. The issue had not been brought before
that Court, was not raised in the trial court, and is only now
argued by defendant for the first time.

8

become dislodged. A baby should not bleed for twenty minutes.

And a baby of Brandon's size should not be given a single push

of 20cc of Plasmanate, let alone a total volume of 50cc

Plasmanate and blood within one hour and twenty minutes.

Moreover, there was evidence that Brandon's respirator was set

too high, causing his lungs to rupture and contributing to a

diminished oxygen supply. Regardless of whether it was a

nurse or doctor responsible for these errors, there was

evidence of a breach of the general standard of care

appropriate for a level three NICU.

In many if not the majority of medical malpractice cases,

the instructions modeled after SJI2d 30.01 must specify the

individual medical professionals alleged negligent and

articulate a standard of care for each professional. However,

the negligence alleged in this case mingles the culpability of

several members of defendant's NICU staff. Plaintiffs were

not able to determine which member of the staff was

responsible for certain actions because the hospital records

were incomplete and the NICU staff members implicated one

another.

Considering all the circumstances, it was permissible to

instruct the jury regarding the negligence of the discrete

hospital unit. The trial court did not err when it instructed

the jury:

9

 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. . . .[7]

To establish medical malpractice, a plaintiff must prove:

"(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." Wischmeyer v

Schanz, 449 Mich 469, 484; 536 NW2d 760 (1995). To establish

vicarious liability against a hospital, a plaintiff must show

7
I recognize that the instructions are a significant
departure from the standard jury instructions, SJI2d 30.01,

which, when unmodified, provide:

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

[name profession] of ordinary learning, judgment or

skill in [this community or a similar community/

name particular specialty] would do, or the doing

of something which a [name profession] of ordinary

learning, judgment or skill 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 ordinary [name profession] of

ordinary learning, judgment or skill would do or

not do under the same or similar circumstances.

10

that an agent of the hospital committed malpractice. The

principal is held to have done what the agent did. Smith v

Webster, 23 Mich 298, 299-300 (1871); see also Ducre v

Sparrow-Kroll Lumber Co, 168 Mich 49, 52; 133 NW 938 (1911).

As is true in any malpractice claim, the individual or

individuals alleged to be negligent must have breached the

standard of care within the course of the physician-patient

relationship. See Dorris v Detroit Osteopathic Hosp Corp, 460

Mich 26, 45; 594 NW2d 455 (1999); Bronson v Sisters of Mercy

Health Corp, 175 Mich App 647, 652; 438 NW2d 276 (1989).

The majority adopts defendant's position that a plaintiff

has not proven a case of medical malpractice vicarious

liability until the plaintiff has (1) identified the specific

individual professional or professionals who breached the

standard of care and (2) proven that the individual breached

the applicable standard of care. It asserts that the unit

instructions in this case improperly limited the burden of

proof for plaintiffs.

However, neither defendant nor the majority identifies

any authority for the proposition that a medical malpractice

plaintiff must always allege the negligence of a specifically

named individual. This is because there is no such authority.

Whether unit liability instructions, such as were given in

this case, are ever permissible is an issue of first

11

impression.8

Where a plaintiff alleges the discrete negligent act of

a hospital's agent, the jury must be instructed on that

individual's obligation to meet a specific standard of care.

Here, plaintiffs alleged that the NICU staff failed to

properly maintain a UAC as a level three NICU should.

Where no unit member can be shown negligent, but

negligence is established, plaintiffs need not prove which one

breached the generally applicable standard of care to find the

principal vicariously liable. In this unusual case,

plaintiffs shouldered and satisfied the burden of proving

malpractice supporting their vicarious liability claim using

the unit theory.

A medical malpractice plaintiff must prove (1) duty,

though a physician-patient relationship, (2) breach of duty,

through a breach of the standard of care, (3) proximate

causation, and (4) harm. A plaintiff does not escape this

burden when, as in this case, the jury is instructed

concerning the liability of a discrete hospital unit.

8
The majority criticizes my position as unsupported by
authority. Slip op at 11, n 12. However, it also offers no
authority for the notion that an individual agent of a
hospital must be named and proven negligent in every case of
vicarious liability. Tobin, supra, stands for the proposition
that jury instructions must be modified to fit the facts of
the case. It does not hold that they must always identify
specific individuals and different standards of care.

12

 Here, evidence was presented that supported the jury's

conclusion that (1) every member of the NICU had a physician­

patient relationship with Brandon, and therefore a duty to

meet the standard of care, (2) the care Brandon received in

the NICU was sub-standard, under the established standard for

basic care given in an NICU, (3) the breach of care caused

prolonged oxygen deprivation and an intercranial bleed, and

(4) the oxygen deprivation and bleed permanently harmed

Brandon. Under the circumstances of this case, the unit

theory of liability did not relieve plaintiff of any burden

whatsoever.

The rule of law adopted by the majority actually

increases a plaintiff's burden in vicarious liability medical

malpractice cases. In this case, evidence supports the jury's

conclusion that the patient's care was mishandled by a

discrete hospital unit. It shows that an agent of the

hospital committed malpractice, either alone or as part of a

system's mismanagement. In such a case, it should not be

necessary for the plaintiff to prove which individual is

culpable. A rule requiring such a showing allows hospitals to

benefit from their employees' fingerpointing and poor record

keeping.

The dissenting Court of Appeals judge believed that,

because a hospital must render treatment through its

13

physicians and nurses, a plaintiff must specifically identify

the individuals who are negligent, citing Danner v Holy Cross

Hosp, 189 Mich App 397, 398-399; 474 NW2d 124 (1991). I do

not dispute that it is the doctors and nurses in the NICU that

are alleged to be negligent in this case. However, to

conclude that, because there is no specifically named

individual, there is no physician-patient relationship to

support plaintiffs' claim against defendant is fatuous.

In this case, every member of defendant's NICU had a

provider-patient relationship with Brandon. Thus, no matter

which individual was named, that requirement would be

satisfied. It would have been satisfied if plaintiffs and the

trial court had listed each member of the NICU and it was

satisfied by referring to those individuals collectively as

"the hospital neonatal intensive care unit."9

9
The majority tries to paint the NICU as only a physical
thing, "a geographic location within the hospital," rather
than a discrete collection of defendant's employees or agents.
Slip op at 10. While I would agree that a physical unit
itself cannot form the basis of defendant's vicarious
liability, the term was an apt description of a group of
individuals. It is the group that breached the standard of
care in this case. It distorts reason to conjecture that the
jury understood "the hospital neonatal intensive care unit" to
be a physical thing and not a descriptive term encompassing
those employees of defendant responsible for Brandon's care.

Moreover, defendant argued that Nurse Plamondon was the

sole member of its staff that plaintiffs claimed to be

negligent. The trial court was justified in rejecting that

argument on the basis of evidence. I agree with the Court of

(continued...)

14

 My view is consistent with the Court of Appeals holding

in Tobin, supra. There, the panel held that SJI2d 30.01 must

be modified to fit the facts of the case at hand. It

concluded that the trial court erred when it delivered the

following generalized instructions:

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's agents/servants/employees of ordinary

learning, judgment or skill in this community or a

similar one would do, or the doing of something

which a hospital's agents/servants/employees of

ordinary learning, judgment or skill 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 ordinary hospital's

agents/servants/employees or [sic, of] ordinary

learning, judgment or skill would do or would not

do under the same or similar circumstances. [Id. at

672.]

Tobin correctly determined that the standard instructions

were too nonspecific to allow the jury to determine whether

any of the defendant's employees breached the standard of

care. Id. at 673. As in this case, the alleged malpractice

in Tobin was limited to the vicarious liability of a hospital

defendant. However, in sharp contrast to the case at hand,

the allegations of medical negligence in Tobin were complex.

9
(...continued)

Appeals that defendant should have requested more specific

instructions naming the people within the NICU if it objected

to identifying the wrongdoer as the unit. It did not do so.

15

Also, each of the individuals alleged to be negligent was

subject to a different standard of care. The plaintiff in

Tobin essentially alleged that a nurse anaesthetist, medical

technician, emergency room surgeon, and critical care

physician, or a combination of them, breached the applicable

standards of care. See id. at 660. She claimed that those

breaches caused her husband to receive an unauthorized blood

transfusion and that the blood was contaminated with bacteria,

causing her husband's death. Id. at 631.

Whereas the instructions modeled after SJI2d 30.01 needed

to be specific in Tobin, they were more appropriately general

in this case. A trial court must consider the facts of every

case and deliver instructions that best convey the applicable

legal theories to the jury. Accordingly, I would endorse the

Court of Appeals clear directive to trial courts in Tobin:

"[I]nstruct the jury using a modification of SJI2d 30.01 that

accurately delineates the standards of care applicable to the

various medical personnel who plaintiff contends committed

malpractice . . . ." Id. at 675.

This is not a case of res ipsa loquitur, even as that

doctrine has been loosely construed in Michigan.10 In a

10
Michigan courts do not apply true res ipsa loquitur in
medical malpractice cases. Strictly applied, res ipsa
loquitur relieves a plaintiff of proving the exact negligent
act that caused an injury, looking only to the result when the
(continued...)

16

medical malpractice case, a plaintiff may present expert

testimony that, but for a breach of the standard of care, the

result in the case would not have occurred. This is

sufficient evidence of the breach to go to a jury. See Jones

v Poretta, 428 Mich 132, 154-155; 405 NW2d 863 (1987). Res

ipsa loquitur refers to circumstantial evidence of negligence

where the specific incidence of negligence cannot be

identified. Id. at 150, citing Mitcham v Detroit, 355 Mich

182, 186; 94 NW2d 388 (1959). Here, the incidents of

negligence were identified, but the specific actor was not.

This is a stronger case for liability than the ordinary

claim of res ipsa loquitur. It is not necessary to speculate

that someone must have been negligent on the basis that there

is direct evidence of negligence. This case does not rely on

expert testimony that, but for someone's negligence, Brandon

would not be impaired, a conclusion unsupported by the

evidence. Here, there was expert testimony that a UAC would

not become and remain dislodged for twenty minutes in a level

10
(...continued)
plaintiff's condition must have happened through some
negligence. Jones v Poretta, 428 Mich 132, 150; 405 NW2d 863
(1987); See Prosser, Torts (4th ed), § 39, p 222-224. In
contrast, the Michigan rule requires that the plaintiff prove
the breach of the standard of care, or "more than a bad
result." This is accomplished in a medical malpractice case
with expert testimony that the result would not have happened
had the plaintiff been treated in accordance with the standard
of care. Jones, supra 151-156.

17

three NICU if the staff had complied with the standard of

care. That was direct evidence that the staff breached that

standard.

Moreover, this is not a case of the discrete negligence

of an individual caregiver. Rather, what the evidence

established was a systemic failure of the NICU. Several

errors were made related to the maintenance of the UAC.

First, there was evidence that the UAC should not have become

dislodged. This could have happened because it was improperly

inserted by one of the physicians or it could have happened

because Nurse Plamondon dislodged it when she checked Brandon.

Second, once the UAC became dislodged, there was evidence

that someone in the NICU should have noticed sooner that

Brandon was in distress. Both Nurse Plamondon and Dr.

Villegas were present. Third, there was evidence that either

Nurse Plamondon or both she and Dr. Sheeder gave Brandon too

great a volume of Plasmanate and red blood cells within too

short a time.

Finally, there was evidence that Brandon's respirator was

set too high in response to his blood loss, causing ruptured

alveoli in his lungs and contributing to his depleted oxygen

level. This, like the administering of Plasmanate, was a

medical decision that should not have been made by Nurse

Plamondon.

18

 The evidence does not reveal with certainty which member

of the NICU staff was responsible for each of these failures.

It does establish that the members of the NICU as a group

breached the standard of care for a NICU. Had the jury been

instructed on the negligence of Nurse Plamondon, Dr. Villegas,

or Dr. Sheeder, individually, it might not have been able to

identify which was negligent. Evidence of who was responsible

for the negligent acts was much more readily accessible to

defendant than to plaintiffs. For that reason and because

this is a case of vicarious liability, plaintiffs did not need

to specify which members of the NICU staff breached the

general standard of care.

The unit negligence instruction does not relieve

plaintiffs of their burden of proof under the circumstances of

this case. On the contrary, the majority's blanket rule

oversimplifies the case and increases the burden on

plaintiffs. Although the majority's holding would be sound if

the responsible individual or individuals could be identified,

in this case it was not possible. The hospital staff failed

to record who took what action. The effect of the holding,

rather than reduce plaintiff's burden, is to insulate the

malpractice defendants from vicarious liability.

There was evidence here of substandard care given by a

hospital unit. The trial court's modified instructions

19

properly conveyed a legitimate legal theory to the jury

without risk of added confusion. It was correct.

III. Standard of Care

Defendant argues that because (1) the only negligence

alleged in this case was that of Nurse Plamondon, and (2) all

nurses are subject to a local standard of care, the trial

court erred when it concluded that a national standard of care

applied in this case. As the majority notes, the Court of

Appeals did not address this issue. Instead, it focused on

whether the trial court abused its discretion when it admitted

Dr. Modanlou's expert testimony concerning the national

standard of care. This is understandable, as defendant has

consistently fused two distinct issues. Even in its brief

before this Court, defendant asserts the standard of review

for an evidentiary error. It does not identify what standard

of care applies to the alleged malpractice, a legal question.

Hence, the majority reaches an issue that was never clearly

argued or properly raised.

Whether all nurses are subject to a local standard of

care is a legal question that requires statutory

interpretation, which this Court reviews de novo. See

Cardinal Mooney High School v Michigan High School Athletic

Ass'n, 437 Mich 75, 80; 467 NW2d 21 (1991). It is an issue of

first impression.

20

 Defendant relies on cases that do not reach whether

nurses can ever be considered specialists. I would reject its

argument for two additional reasons: First, the trial court

correctly determined that plaintiffs alleged the negligence of

more people than just Nurse Plamondon. Because I believe it

was permissible to allege the negligence of the NICU, the

standard of care here should be that applicable to the NICU as

a whole, a national standard of care. See part II.

This is not to be confused with the standard of care for

an NICU physician, a neonatologist, or an NICU nurse. In a

medical malpractice case where a plaintiff alleges a more

technical breach, the more specific standard of care for the

individual alleged to have been negligent must be applied. In

this case, only the standard of basic care was at issue.

Second, even if Nurse Plamondon were the only individual

alleged to be negligent, a nurse who is specially trained to

give advanced care is a specialist under MCL 600.2912a,

subject to a national standard of care. Therefore, I disagree

with the "guidance" the majority offers to the trial court.

Here, every member of the NICU staff, both doctors and nurses,

had been specially trained to care for critically ill newborn

infants. Therefore, every individual and the unit as a whole

were subject to the national standard of care for maintaining

a UAC in a level three NICU.

21

 It has been established that healthcare providers are

subject either to a national or a local standard of care. In

1975, faced with the argument that the locality rule should be

abandoned for a more national standard,11 the Legislature

codified the two different standards of care for medical

malpractice defendants. MCL 600.2912a. The local standard

was designated for the "general practitioner" and the national

for the "specialist." It falls to this Court to determine

which medical caregivers fit into the category of "general

practitioner" and which are "specialists." On the basis of

the Legislature's directive in MCL 600.2912a, I would conclude

that a nurse may be either, depending on the level of training

and expertise the job requires.

MCL 600.2912a(1) provides, in relevant part:

[I]n an action alleging malpractice, the

plaintiff has the burden of proving that in light

of the state of the art existing at the time of the

alleged malpractice:

(a) The defendant, if a general practitioner,

failed to provide the plaintiff the recognized

standard of acceptable professional practice or

care in the community in which the defendant

practices or in a similar community, and that as a

proximate result of the defendant failing to

provide that standard, the plaintiff suffered an

injury.

11
In his concurring opinion in Siirila v Barrios, 398 Mich 576, 625-630; 248 NW2d
171 (1976), Justice Williams argued for abandonment of the locality rule in favor of a
national standard of care for all medical caregivers. He urged local practice as but one
consideration in evaluating the standard of care.

22

 (b) The defendant, if a specialist, failed to

provide the recognized standard of practice or care

within that specialty as reasonably applied in

light of the facilities available in the community

or other facilities reasonably available under the

circumstances, and as a proximate result of the

defendant failing to provide that standard, the

plaintiff suffered an injury.

Therefore, general practitioners usually are subject to a

local standard of care and specialists are held to a national

standard. The language of MCL 600.2912a quite clearly does

not distinguish between physicians and nurses when it

classifies "the defendant" in a medical malpractice case as a

specialist or general practitioner. There is no reason to

depart from the statute and treat physicians and nurses

differently, where the relevant issue is the level of the

defendant's training and knowledge.

The majority, in an analysis that has the appearance of

being outcome determined, departs from the Legislature's

directive when it concludes that MCL 600.2912a does not apply

to nurses. It claims to rely on the plain language of MCL

600.2912a in concluding that the specialist-general

practitioner dichotomy does not apply to nurses.12 However,

after disregarding the obvious scope of MCL 600.2912a, the

majority bases its conclusion solely on the definitions of

"general practitioner," "specialist," "practitioner," "medical

12
Slip op at 17.

23

practitioner," "licensed health care professional,"

"registered professional nurse," "physician," and "practice of

medicine." In so doing, it looks far afield of the statute,

which plainly and unambiguously applies to every defendant in

a medical malpractice action.

Next, given that all medical malpractice defendants are

subject to MCL 600.2912a, one must determine whether a nurse

may ever be considered a specialist for the purposes of the

statute. A specialist is "a person devoted to one subject or

to one particular branch of a subject or pursuit," or "a

medical practitioner who deals only with a particular class of

diseases, conditions, patients, etc." Random House Webster’s

College Dictionary (1997).

It is well established that one engaging in the prenatal

care of an infant is generally considered a specialist,

subject to a national standard of care. See, e.g., Thomas v

McPherson Community Health Center, 155 Mich App 700, 708; 400

NW2d 629 (1986); Swanek v Hutzel Hosp, 115 Mich App 254, 257;

320 NW2d 234 (1982); McCullough v Hutzel Hosp, 88 Mich App

235, 241; 276 NW2d 569 (1979). However, a specialist is

classified as such by virtue of advanced training, not merely

by having concentrated in a specific area of practice. See

Jalaba v Borovoy, 206 Mich App 17, 21-22; 520 NW2d 349 (1994);

Dunn v Nundkumar, 186 Mich App 51, 53; 463 NW2d 435 (1990).

24

 Applying the facts of this case to that law, a nurse can

specialize in an area of care that requires advanced training

particular to a type of practice. For example, Nurse

Plamondon specialized in neonatal intensive care. She

received intensive training before she could work in the NICU.

There was evidence that she was able to perform procedures

necessary for the needs of an infant in the level three NICU,

for which even the resident doctor was untrained. All staff

members specially trained to care for patients in a

specialized hospital unit, including nurses, must be subject

to a national standard of care for their individual roles.

Thus, if the only issue were Nurse Plamondon's negligence, the

national standard of care would apply to this case.

Even if the majority were correct that MCL 600.2912a

applies only to physicians, a local standard of care should

not apply. Plaintiffs alleged that the NICU as a unit failed

to give Brandon the care he should have received there. The

evidence supported plaintiffs' theory that Brandon's UAC

should not have been dislodged long enough to spill half his

blood volume, and the NICU should not have responded as it

did. Where the care given in a unit is specialized, all of it

should be measured against the national standard for the basic

care offered to patients in such a unit.

It is apparent to me that defendant is employing smoke

25

and mirrors when asking for a new trial because a national

rather than a local standard of care was applied. Defendant

never articulated, either before the trial court or here, how

the two standards are different. Upon examination, it is

apparent that the local and national standards for a

practitioner in an NICU are one and the same. If, on remand,

the trial court were to conclude that plaintiffs advanced a

claim against only Nurse Plamondon, her care of Brandon would

be measured by the same standard applied earlier. Merely the

name, "local standard of care," would be changed.

IV. Conclusion

I would affirm the Court of Appeals decision to uphold

the jury verdict against defendant. On the particular facts

of this case, I cannot conclude that it was error to instruct

the jury regarding the negligence of the hospital unit. The

instructions properly conveyed a valid legal theory of

vicarious liability to the jury without additional risk of

confusion. Moreover, the trial court was correct to apply a

national standard of care to this case. Plaintiffs advanced

a claim against more than just Nurse Plamondon.

Also, I would hold that nurses who (1) have received

specialized training to give advanced care and (2) practice

exclusively within an area of medicine recognized as a

specialty are specialists within the meaning of MCL 600.2912a.

26

Thus, even if plaintiffs' medical malpractice claim were

premised only on Nurse Plamondon's actions, the care she gave

Brandon should be weighed on a national standard.

CAVANAGH , J., concurred with KELLY , J.

27