(dissenting). I respectfully dissent and continue to adhere to the analysis set forth in Theophelis v Lansing General Hospital, 141 Mich App 199; 366 NW2d 249 (1985).
The majority vacates our earlier opinion and sets aside a jury verdict on the basis of issues raised by defendant hospital for the first time on appeal by way of a motion for rehearing. In its original brief on appeal, defendant hospital never argued that allegations of independent and concurrent acts of the hospital’s negligence had been struck from the complaint on defendant hospital’s motion after the close of proofs and prior to submission of the case to the jury. To the contrary, defendant hospital expressly and repeatedly asserted in its brief that it had never moved to strike allegations of independent and concurrent negligence:
"It is not disputed that plaintiffs’ complaint, while it did allege separate, independent acts of negligence *569against defendant Lansing General Hospital, also premised liability on the allegation that Lansing General Hospital was vicariously liable for the separate acts of its agents, Palmer and Gilmore. It must be made clear that defendant moved to have stricken only those claims against Palmer and Gilmore. It, of course, could not have any claims based on alleged independent tortious acts against the hospital stricken.”
Moreover, defendant hospital never argued in its original brief on appeal that plaintiffs’ proofs were insufficient on the hospital’s standard of care. Defendant hospital challenged only the trial court’s refusal to strike certain allegations from the amended complaint regarding the acts of nurse anesthetist Jana Palmer and anesthesiologist Dr. Jack Gilmore. We interpreted this issue for its evidentiary implications and held that the acts of the settling tortfeasors may be introduced where "critical to the ability of plaintiffs to prove their independent claims against the hospital”. 141 Mich App 205.
On rehearing, the majority concludes that the only allegation properly before the jury with regard to defendant hospital’s liability was whether it had been negligent in failing to require the use of the precordial stethoscope as standard operating procedure. The majority finds that the record is insufficient as to the standard of care required by hospitals in delivering anesthesiology services.
I note initially that while the trial court did strike certain allegations of independent hospital negligence from plaintiffs’ complaint upon defendant hospital’s motion at the close of plaintiffs’ proofs, the trial court at the same time granted plaintiffs’ motion to amend their complaint to conform to the proofs. I am thus most concerned on rehearing with whether the record supports the jury’s finding of independent hospital negligence. *570Plaintiffs’ expert witness, Dr. Zsigmond, testified about breaches of the standard of care by the respiratory therapy department and by the intensive care unit in the treatment of the deceased, Gene Christopher Schneider. Dr. Zsigmond also testified about the standard of care in anesthesiology required of the nurse-anesthetist and the anesthesiologist. Plaintiff introduced into evidence a bulletin of the American Osteopathic Association as to the responsibility of a hospital to supervise and oversee its department of anesthesiology and staff. I believe that, when viewed in its entirety, the evidence introduced at trial does support the jury’s vierdict. I would affirm.