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
Cox v. Flint Board of Hospital Managers
Court: Michigan Supreme Court
Date filed: 2002-07-25
Citations: 651 N.W.2d 356, 467 Mich. 1
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