Cox v. Flint Board of Hospital Managers

Full title: TERESA COX, as Next Friend of BRANDON COX, a minor, TERESA COX and CAREY…

Court: Michigan Court of Appeals

Date published: Oct 27, 2000

243 Mich. App. 72 (Mich. Ct. App. 2000)

620 N.W.2d 859

Opinion

No. 205025.

Submitted June 12, 2000.

Decided October 27, 2000 at 9:00 a.m. Updated December 8, 2000.

Appeal from Genesee Circuit Court, Michigan, LC No. 92-12247-NM.

Sommers, Schwartz, Silver Schwartz, P.C. (by Robert J. Schwartz, Stanley S. Schwartz, and Norman D. Tucker), and Stephen N. Leuchtman, for the plaintiffs.

Portnoy, Pidgeon Roth, P.C. (by Robert P. Roth and Marc S. Berlin), for the Board of Hospital Managers for the City of Flint.

Before: Hood, P.J., and Griffin and Markey, JJ.

ON REMAND

HOOD, P.J.

This case is on remand by order of the Supreme Court to consider defendant Board of Hospital Managers for the City of Flint's issues on appeal. 462 Mich. 859 (2000). We affirm.

At the commencement of the jury trial, the board (hereafter defendant) objected to the qualifications of plaintiffs' expert, Dr. Houchang Modanlou. Specifically, Dr. Modanlou had been deposed five months earlier as well as two weeks before the trial. During both depositions, Dr. Modanlou had indicated that he was not familiar with the local standard of care for nurses. The trial court held that a national standard of care governed because plaintiffs' theory of the case was based on the cumulative acts of doctors, nurses, and residents who worked in defendant's neonatal intensive care unit (NICU). Later in the trial, Dr. Carolyn Crawford testified as an expert for plaintiffs regarding the standard of care. She also stated that she was not familiar with the local standard of care. However, both experts testified that national standards of care applied to the care and treatment rendered by all staff members who participated in the treatment of newborns as a team. Over defense counsel's objection the trial court allowed Dr. Crawford to testify regarding the national standard of care.

Brandon Cox was born by cesarean section on February 8, 1990, at twenty-six to twenty-seven weeks' gestation. An umbilical arterial catheter (UAC) was inserted into Brandon's umbilicus to aid his treatment. The UAC allowed NICU personnel to monitor Brandon and take blood in a convenient fashion. The UAC was inserted by a doctor or resident. Doctors at defendant's hospital secured the UAC by suturing it. Further security was provided by taping the UAC, an act that was done by nurses who received specialized training to work in the NICU. Babies with UACs were monitored for activity level. The UAC was inserted into an artery and, if dislodged, the baby would have blood flow from the area of the umbilicus. Nurses could place babies in restraints to further ensure that the UAC would not be dislodged. While the medical records do not indicate Brandon's activity level, Brandon weighed a mere 907 grams or approximately two pounds and was given a sedative. There is no indication attending nurses found the need to place Brandon in restraints.

On February 9, 1990, Brandon did experience problems. Doctors attended to Brandon, and he stabilized. However, on that date, the UAC was moved out two centimeters. Nurse Edith Klupp performed this action at the request of a doctor. No one resutured the UAC, and Nurse Klupp testified that resuturing was not required, although this testimony contradicted the testimony of defendant's witness, Dr. Brian Nolan. A cranial ultrasound taken in the early afternoon of February 10, 1990, did not reveal any abnormality.

On February 10, 1990, at 4:00 p.m., Nurse Martha Plamondon attended to Brandon. She drew blood from the UAC and repositioned him. It was common practice to reposition premature babies. At 4:20 p.m., respiratory therapist Richard Scott notified Nurse Plamondon that there was blood on Brandon's abdomen. There is a dispute regarding what happened next. Nurse Plamondon testified that Dr. Roberto Villegas, a neonatalogist, was present. She allegedly called out to him about Brandon's condition, and he told her to give Brandon 20 cubic centimeters of Plasmanate. However, Dr. Villegas had no recollection of Brandon. Furthermore, he testified that he would not have ordered 20 cc of Plasmanate be administered at one time, but would have ordered 10 cc be administered at two separate times. While it was undisputed that orders for Plasmanate were to reflect which doctor requested the administration, the order for 20 cc of Plasmanate was recorded in the chart, but there was no indication which doctor gave the order. Dr. Amy Sheerer, a resident, testified that she was paged to the NICU "stat" and arrived by approximately 4:42 p.m. There, she learned from Nurse Plamondon that Brandon suffered 40 cc of blood loss, or approximately half of his blood volume, secondary to UAC dislodgment. Dr. Sheerer was advised that 20 cc of Plasmanate had been administered. She recorded that entry, but could not be certain regarding the ordering doctor. Brandon was treated with more Plasmanate and blood. Red blood cells are necessary because they carry hemoglobin for oxygenation. Plasmanate acts to improve blood volume and is convenient until blood can be obtained from the blood bank. While Brandon recovered from this incident, it was later discovered that he suffered from cranial bleeding. Brandon was later diagnosed with a form of cerebral palsy that involves the stiffening of the lower extremities. Plaintiffs' experts testified that Brandon's condition was a result of the incident on February 10, 1990, while defendant's experts testified that Brandon's premature birth and instability on February 9, 1990, caused his condition. In any event, Brandon will never be able to live alone and will require various therapies and surgeries for his difficulties.

Plaintiffs' theory as alleged in their amended complaint was that the treatment rendered in the NICU caused Brandon's injuries.¹ Specifically, plaintiffs alleged that the placement of the UAC, by doctors, and the subsequent monitoring, by nurses, resulted in the dislodgment; that following the dislodgment of the UAC, the treatment rendered was allegedly deficient; and that it took twenty minutes to administer help to Brandon, despite the fact that Dr. Villegas was allegedly present. Consequently, plaintiffs presented Dr. Eric Amberg to testify regarding damages. Dr. Amberg delineated the extensive therapy that Brandon would require. He also testified that Brandon could never live alone but would be required to live in a group home setting. Dr. Amberg estimated the cost of therapy and group housing. There was no objection to this damages testimony.

1 Specifically, the amended complaint contained paragraphs 12, 13, and 17(o)-17(t), that alleged that the cumulative negligence of employees of defendant's NICU was responsible for the injuries of plaintiffs. We will to reprint those allegations here.

Plaintiff Teresa Cox, Brandon's mother, testified that she intended to care for Brandon. Later, Dr. Robert Ancell testified regarding Brandon's limited employment options and his lost earning capacity. Dr. Ancell estimated damages at $1 million to $1.5 million. Dr. Ancell was asked to testify regarding the costs of attendant care. Defense counsel objected on the grounds that Teresa intended to care for Brandon. The trial court sustained the objection. Plaintiffs' counsel attempted to elicit the number of years that Brandon could be expected to outlive Teresa, but defense counsel objected on the grounds that the tables were based on normal healthy individuals. The objection was sustained. Defense counsel did not request that the trial court strike the earlier testimony of Dr. Amberg.

Defendant's expert, Dr. Steven Donn opined that the cause of Brandon's injuries was not the incident on February 10, 1990. Curiously, despite the fact that defendant continued to assert that the only breach alleged by plaintiffs was the alleged breach by Nurse Plamondon, defense counsel questioned Dr. Donn regarding an alleged breach of the standard of care by Scott, the respiratory therapist. Dr. Donn testified that he had reviewed the records and there was no breach of the standard of care by any individual. However, Dr. Donn testified that a national standard of care applied, although there may be individual variations. This testimony regarding the national standard of care was consistent with the testimony of plaintiffs' experts.

During closing argument, plaintiffs' counsel referred to the negligence of the NICU. Specifically, he noted the actions of Nurse Klupp in moving the UAC out two centimeters, Scott's failure to aid Nurse Plamondon either secure help or treat Brandon, Nurse Plamondon's failure to timely treat Brandon, Dr. Villegas' failure to come to Nurse Plamondon's aid if he was, in fact, present, and the twenty minutes in which Brandon did not receive treatment despite the discovery of the bleeding. Defense counsel did not object initially, but when individual allegations were later raised, he objected. The objection was sustained on the basis of the pleadings and proofs presented. Plaintiffs' counsel also referred to the testimony of Dr. Amberg. Defense counsel objected on the grounds that the testimony regarding attendant care costs had been excluded. However, the trial court judge stated that he could not recall that ruling and denied the objection. In any event, plaintiffs' counsel did not continue to discuss the damages testimony but proceeded to discuss the effect of Brandon's condition.

Defendant first argues that the trial court erred in failing to disqualify plaintiffs' experts because they were unfamiliar with the local standard of care. We disagree. As an initial matter, we note that objection to the qualifications of plaintiffs' experts was not raised until the commencement of trial and during trial. A party must move to strike an expert within a reasonable time after learning the expert's identify and basic qualifications. Greathouse v Rhodes, 242 Mich. App. 221; 618 N.W.2d 106 (2000). The failure to timely do so results in forfeiture of the issue. Id. A party may not seek to sabotage another party by depleting the substance of the case without warning. Id.; See also State Hwy Comm v Redmon, 42 Mich. App. 642, 646; 202 N.W.2d 527 (1972) ("[C]ounsel cannot sit idly by and then for the first time interpose objections at trial."). In the present case, defendant was aware of the qualifications of Dr. Modanlou at least five months before trial. Despite this knowledge, defendant did not take issue with the qualifications until the time of trial. If the trial court had granted defendant's motion, plaintiffs would have been forced to implore the court for a costly adjournment to seek a new expert or proceed to trial without experts to testify regarding the standard of care, a futile endeavor. Accordingly, the issue was forfeited. Greathouse, supra.²

2 The dissent contends that the `sole authority' for our conclusion is the Greathouse decision and that that decision is limited to examining qualification as defined by statute. Our review to the Greathouse decision indicates that a it was not intended to be limited to examining statutory qualifications. The decision noted that it was relying on numerous instances wherein issues were held to be forfeited because of a deficiency or delay. If such deficiency in delay were allowed, parties could essentially lie in wait and sabotage the case of a party at or just before trial. Also, the dissent ignores or citation of the Redmon decision. In that case, the plaintiff's expert suffered a heart attack in February 1970, the plaintiff notified the defendant that there would be a substitute for the expert witness, with trial scheduled for May 11, 1970. At trial, after the jury was sworn and the first witness was examined, the defendant moved to exclude the substituted expert because his name was not listed on the plaintiff's pretrial summary statement. We noted that the defendant was aware of the first expert's disability for five months and knew of the substitution for fifty-six days. Redmon, supra at 644-645. Despite this knowledge, the defendant failed to act until the time of trial. This Court stated that the defendant did not appear to act in good faith by raising the objection at trial and failed to "raise timely objection" to the proposed new expert witness. Id. at 645. Therefore, the trial court's refusal to strike the substituted witness was affirmed on appeal. Id. at 646. Likewise, in the present case, defendant was aware of the qualifications of Dr. Modanlou five months before trial and his inability to testify regarding a local standard of care. Despite this knowledge, defendant did not act to exclude the testimony of Dr. Modanlou until the first day of trial. We cannot condone a course of conduct that leaves a party at the mercy of the trial court's discretion to allow adjournments when the means of challenging any deficiency were readily discernible and available for months before trial. In any event, we note that although we conclude that the challenge to the ability to testify regarding the standard of care was forfeited, we nonethelesss address the merits of the issue.

In any event, the qualifications of an expert rest in the discretion of the trial court, and we will interfere with the trial court's ruling only to correct an abuse of discretion. Mulholland v DEC Int'l Corp, 432 Mich. 395, 402; 443 N.W.2d 340 (1989). The high standard of review in this area is warranted because a determination of the expert's qualifications in light of the proposed testimony involves complicated factual reviews, cross-examination of an expert is an ample safeguard, and the issue of qualifications is considered too trifling to warrant appellate review. Id. Review of the amended complaint in this litigation reveals that plaintiffs alleged a theory of a chain of negligent acts that resulted in Brandon's injuries. Furthermore, the discovery presented by plaintiffs supported the theory. That is, the medical records and depositions of defendant's personnel indicated that, after the UAC was inserted, it was pulled out two centimeters. Brandon was not placed in restraints. He was repositioned. Twenty minutes later, it was discovered that the UAC was dislodged. Despite the discovery, it took fifteen to twenty minutes to take measures to increase Brandon's blood pressure and blood volume. Defendant was placed on notice that the theory was premised on the acts of the NICU that operates as a team in caring for premature babies. This information was provided to defendant in the amended complaint and in the discovery depositions. Plaintiffs' experts testified that the team unit is governed by a national standard of care. This testimony was corroborated by defendant's expert, Dr. Donn. Defendant was provided with sufficient notice of the theory of liability before the trial and the theory was supported by the evidence. See Dacon v Transue, 441 Mich. 315, 329-330; 490 N.W.2d 369 (1992). Accordingly, we cannot conclude that the trial court abused its discretion in allowing plaintiffs' experts to testify regarding a national standard of care. Mulholland, supra.

Even if we could conclude that the admission of this evidence was erroneous, reversal is not required unless there is prejudicial error. Lenzo v Maren Engineering Corp, 132 Mich. App. 362, 365; 347 N.W.2d 32 (1984). See also Schutte v Celotex Corp, 196 Mich. App. 135, 142; 492 N.W.2d 773 (1992) ("[T]he conduct of a trial is within the control of the presiding judge and does not result in error warranting reversal unless there is some proof of prejudice."). While defendant contends that the standard of care is governed by a local community standard, there is no evidence in the record to support that contention. While defendant may not have had the burden of proof to demonstrate the standard of care, defendant's failure to present proofs in a separate record that the standard of care is governed by a local standard precludes any conclusion that the trial court's ruling resulted in prejudicial error. Furthermore, defendant's expert, Dr. Donn, testified that a national standard applied. Accordingly, even if we could conclude that the evidentiary ruling was an abuse of discretion, there is no foundation in the record to conclude that the ruling led to prejudicial error. Lenzo, supra.³

3 While the dissent contends that there is no requirement that defendant present an offer of proof regarding the local standard of care, without any offer of proof to demonstrate that the national standard of care differs from any local standard, we would be ordering a new trial not on the basis of prejudicial error, but, rather, on the basis of speculation that the standard differs. This course of action, to order a new trial without examining the standard, is particularly suspect in light of the fact that defendant's expert testified that a national standard of care applied, in concurrence with the opinions of plaintiffs' experts.

Defendant next argues that the trial court committed error requiring reversal in identifying the wrong alleged tortfeasor and the wrong standard of care in the Standard Jury Instruction, SJI2d 30.01, read to the jury. We disagree. We review jury instructions in their entirety. Stoddard v Manufacturers Nat'l Bank of Grand Rapids, 234 Mich. App. 140, 163; 593 N.W.2d 630 (1999). It is error to instruct a jury about an issue unsustained by the evidence or the pleadings. Murdock v Higgins, 454 Mich. 46, 60; 559 N.W.2d 639 (1997). "However, there is no error requiring reversal if, on balance, the theories of the parties and the applicable law were adequately and fairly presented to the jury." Id. The determination whether an instruction is accurate and applicable to a case rests within the sound discretion of the trial court. Stevens v Veenstra, 226 Mich. App. 441, 443; 573 N.W.2d 341 (1997). Review of the instruction given in this case reveals that the trial court took the Standard Jury Instruction and inserted a reference to the neonatal intensive care unit to reflect the theory of plaintiffs that was supported by the evidence. Defendant's continued assertion, that plaintiffs' theory of the case was premised solely on the negligence of Nurse Plamondon, is completely unsupported by the record. Dr. Crawford testified that she took issue with the placement of the UAC, its subsequent movement, the failure to resuture it after the movement, the monitoring of the line, and the response to the bleeding once it was discovered that the UAC had been displaced. The instruction was properly modified to reflect plaintiffs' theory of the case, that is, a chain of events in the placement and monitoring of the UAC and the subsequent response to the displacement of the UAC resulted in the injuries to the child. The trial court did not abuse its discretion in modifying the instruction to reflect plaintiffs' theory of the case. Stevens, supra. Furthermore, defendant contends that only the liability of Nurse Plamondon was at issue and that the standard of care governing her conduct was local. Again, as already noted, plaintiffs' theory was premised on a chain of liability of individuals who worked in the NICU and experts for both plaintiffs and defendant were in agreement that a national standard of care applied. Accordingly, we cannot conclude that the trial court abused its discretion in instructing the jury. Id.

We note that the dissent takes issue with the instruction as given on grounds other than those raised by defendant. Specifically, the dissent alleges that the trial court's failure to instruct in accordance with the strict language contained within the Standard Jury Instruction requires reversal. We disagree with the dissent. The trial court modified the Standard Jury Instruction to comport with plaintiffs' theory of the case. That is, the trial court did not name an individual profession, but, rather, utilized the term "neonatal intensive care unit."⁴ However, in the course of modifying the instruction, the trial court omitted the phrase "ordinary learning, judgment or skill" from the first paragraph of the instruction. However, the phrase is also repeated in the second paragraph of the Standard Jury Instruction. The trial court included the majority of this phrase in reading the second paragraph of the instruction to the jury, but omitted the word "ordinary" from the phrase.

4 Irrespective of the fact that the term "unit" was presented to the jury, this does not mean that a building or wing of the hospital was held accountable as opposed to individuals. Review of the proofs and numerous arguments before the trial court regarding this issue reveals that the evidence presented to the jury was that the "unit" referred to the individuals, including nurses, neonatalogists, residents, and respiratory therapists, who worked togher "as a unit" in the care and treatment of newborns. We note that defendant merely wanted the instruction to address the negligence of Nurse Plamondon only. The term "unit" could have easily been modified to list the neonatalogists, nurses, residents, and respiratory therapists that comprised the unit and treated Brandon. However, defendant did not make such a request and would only have been satisfied if the instruction was limited to allege liability of Nurse Plamondon only, in spite of plaintiffs' theory to the contrary.

While the trial court did omit the terms "learning, judgment or skill" from the first paragraph of the instruction, that language was included in the second paragraph read to the jury. Jury instructions are to be viewed as a whole rather than extracted piecemeal to establish error. Lansing v Hartsuff, 213 Mich. App. 338, 348; 539 N.W.2d 781 (1995); Larzelere v Farmington Twp, 63 Mich. App. 465, 468; 234 N.W.2d 568 (1975). The omission of an instruction is not error warranting reversal if the instructions as a whole cover the substance of the omitted instruction. Hartstuff, supra. Review of the instructions as a whole reveals that the substance of any omission from the first paragraph was presented in the second paragraph. Error warranting reversal did not occur. Id.; Murdock, supra.⁵ The dissent contends that the omission of the word "ordinary" requires reversal. We disagree. In Cody v Marcel Electric Co, 71 Mich. App. 714, 720-721; 248 N.W.2d 663 (1976), the plaintiff alleged that the omission of the word "necessarily" from the instruction regarding the plaintiffs theory of negligent design required reversal. We held that omission of the word did not render the instruction erroneous and also that its inclusion would have made the instruction misleading. Id. Additionally, in Van Every v Southeastern Michigan Transportation Authority, 142 Mich. App. 256, 259-260; 369 N.W.2d 875 (1985), the plaintiff alleged that the trial court's omission of the word "disability" from the instruction and the failure to correct the omission after objection constituted error requiring reversal. This Court held that where it was perfectly clear that no prejudice could have resulted from the slight omission from the standard instruction, reversal was not required. Id. at 261. Generally, expert testimony is required to establish the standard of care and to demonstrate the defendant's alleged failure to conform to that standard. Birmingham v Vance, 204 Mich. App. 418, 421; 516 N.W.2d 95 (1994). In the present case, plaintiffs presented the testimony of Dr. Crawford to establish that the acts of unit members working in the NICU were not in accordance with the standard of care. However, defendant did not take issue with that conclusion and did not argue that Nurse Plarnondon's actions comported with the actions expected of an individual nurse with "ordinary learning, judgment or skill."⁶ Defendant's experts challenged causation. Specifically, defendant's experts alleged that the brain injuries suffered by Brandon were not the result of the bleeding incident following the displacement of the UAC on February 10, 1990, but were the result of his premature birth and complications that arose on February 9, 1990. Accordingly, we cannot conclude that the omission of the word "ordinary" from the modified instruction resulted in prejudice to defendant when it did not take issue with this instruction on this basis below or on appeal and did not challenge the "learning, judgment or skill" of NICU employees, ordinary or otherwise, but, rather, challenged any liability on the basis of causation. Van Every, supra; Cody, supra.

5 Defendant relies on Danner v Holy Cross Hosp, 189 Mich. App. 397, 398; 474 N.W.2d 124 (1991), for the proposition that the jury could not be instructed regarding the negligence of the unit. Review of that decision reveals that it does not support defendant's position. Rather, the plaintiff in Danner alleged in the circuit court a claim of negligence against the defendant hospital in order to avoid application of arbitration. Despite the plaintiffs artful pleading in characterizing the claim as one of corporate negligence, we held that the claim, in fact, alleged a claim of medical malpractice that was governed by arbitration. The decision did not abolish vicarious liability for members of a team in a neonatal intensive care unit that allegedly act negligently in rendering care to a premature newborn.

6 Curiously, we note that while defendant continually argued that plaintiffs' theory of the case was premised on the liability of Nurse Plamondon solely, it did not present proofs to match that allegation. That is, it did not present a nurse to testify regarding the local standard of care in an attempt to justify Nurse Plamondon's actions. Instead, the defense of the action consisted of testimony of neonatalogists who did not comment on the propriety of Nurse Plamondon's actions and any fifteen to twenty minute delay in rendering treatment, but emphasized their opinions regarding causation.

Furthermore, review of the history of the evolution of the Standard Jury Instructions (SM) reveals that deviations from the standard language no longer mandate reversal. Shortly after the SJI were originally mandated by GCR 1963 516.6 (2), our Supreme Court ruled that where accurate SJI were properly requested at trial, but not given, and the omission or deviation was brought to the attention of the trial court before jury deliberations, prejudicial error would be presumed. Javis v Ypsilanti Bd of Ed, 393 Mich. 689, 702- 703; 227 N.W.2d 543 (1975). In such cases, reversal was mandated. This "automatic reversal" rule was reaffirmed four years later in Socha v Passino, 405 Mich. 458; 275 N.W.2d 243 (1979). There, the Court stated:

We have reconsidered the Javis rule in the factual context of this case. We reaffirm what we said in Javis:

"The SJI were compiled in an effort to uniformly present juries in civil cases with clear, concise and unbiased instructions to guide their deliberations. Secondarily, the SJI were also designed to conserve the energies of trial counsel and the trial courts by eliminating the need to draft and select proposed instructions on commonly encountered subjects for jury resolution. These enumerated benefits of the SJI are present, of course, only if the SJI are regularly employed by the trial courts."

We have reevaluated the arguments for and against the strict rule announced in Javis and reassert:

"Whatever wasted effort that will result from the reversal of those few cases wherein a trial court erroneously deviates from the sit will be overcome by the benefits of conserved trial court time at the instruction stage, certainty to trial counsel as to how the law will be stated to the jury, and a clear and concise instruction for the jury to work with." [ Id. at 467-468 (citations omitted).]

By 1985, however, the Court concluded that the goals of Javis had been achieved and that continuation of the "automatic reversal" rule was no longer warranted. In Johnson v Corbet, 423 Mich. 304, 324; 377 N.W.2d 713 (1985), the Court opined that trial courts have become accustomed to using the SJI and that the ""strict standard for SJI error' announced in Javis" was. no longer needed in order to assure compliance with the court rule or to achieve the policy goals that moved the Javis Court to adopt the rule of that case. The Court concluded that, from that point forward, review of claimed error for violations of MCR 2.516 must be tested according to the harmless error standard of MCR 2.613:

While the appellate court should not hesitate to reverse for a violation of Rule 2.516, it should not do so unless it concludes that noncompliance with the rule resulted in such unfair prejudice to the complaining party that the failure to vacate the jury verdict would be "inconsistent with substantial justice." Johnson, supra at 327.

The Court's rationale in Johnson is particularly applicable in this case, as has been pointed out earlier herein. We reemphasize here what is clearly now the rule. A failure to give a verbatim rendition of the language of a Standard Jury Instruction is not grounds for reversal if, when the instructions are viewed in their entirety, the theories of the parties and the applicable law are adequately presented to the jury. We find that to be the case here.

Defendant next argues that comments made by plaintiffs' counsel during closing arguments regarding the claimed negligence of Nurse Klupp and Dr. Villegas and violations of policy and procedure were improper because there was no evidence to support such claims. We disagree. "'When reviewing asserted improper comments by an attorney, we first determine whether the attorney's action was error and, if it was, whether the error requires reversal.'" Kubisz v Cadillac Gage Textron, Inc, 236 Mich. App. 629, 638; 601 N.W.2d 160 (1999) (citation omitted). Unless the attorney's comments indicate a deliberate course of conduct designed to prevent a fair and impartial trial, there is no cause for reversal. Id. Reversal is required where prejudicial statements are made that reflect a studied attempt to inflame the jury or deflect the jury's attention from "the issues involved. Id. Review of plaintiffs' closing argument reveals that the comments were proper commentary on the evidence. Nurse Klupp admitted moving the UAC two centimeters. There was no additional action taken to secure the UAC after that movement. Brandon was not placed in restraints. Brandon was later repositioned, and the UAC was found dislodged. Dr. Villegas either was not present on the scene or was negligent in rendering treatment by failing to come to the aid of Nurse Plamondon, causing a fifteen- to twenty-minute delay in treating Brandon. Furthermore, any commentary on defendant's policies and procedures was not used for the purpose of demonstrating a breach of the standard of care. Rather, it was merely noted that while Dr. Donn testified that suturing the UAC was unnecessary, Dr. Donn taught the procedure to new residents and it was defendant's policy to suture the UAC in place. Accordingly, the making of the comments did not result in error. Furthermore, there is no indication that the comments were designed to prejudice or deflect the jury's attention from the issues. Kubisz, supra.

Lastly, defendant argues that plaintiffs' counsel improperly referred to damages testimony that had been excluded. We disagree. Review of the record reveals that Dr. Ancell's testimony regarding attendant care costs was excluded on the basis of the preceding testimony given by Brandon's mother, Teresa. However, Dr. Amberg testified regarding the therapies needed and the costs of living in a group home setting. Defendant did not move to exclude this testimony at any time. Accordingly, defendant's argument is without, merit. Furthermore, there is no indication in the record that defendant requested that any verdict be divided to indicate the type of damages awarded. Accordingly, any contention that this commentary had any bearing on the verdict, even if improper, is speculative. Finally, we note that defendant never challenged the amount of damages attested to by plaintiffs' experts. Rather, defendant's theory was that the injuries were due to the premature birth and complications arising from the prematurity and did not take issue with any damages award.

Finally, we would be remiss in failing to address the circumstances that led to this third claim of appeal from the same jury verdict. In Cox v Flint Rd of Hosp Managers, unpublished opinion per curiam, issued November 22, 1996. (Docket No. 184859), a panel of this Court concluded that defendant's issues were not properly raised because of the failure to file a cross appeal. Defendant filed a motion for rehearing from that decision, but rehearing was denied in an order entered January 14, 1997. At that time, defendant had received the November 22, 1996, opinion from this Court regarding the procedural defect and had the right to file with the Supreme Court an application for leave to appeal the decision. Defendant did not do so. Instead, defendant filed a new claim of appeal in the Court of Appeals, assigned Docket No. 200943, but defendant did not attach a trial court order to establish jurisdiction. After being notified of the defective filing by a letter that requested a copy of the circuit court order, defendant submitted a copy of the Court of Appeals order denying rehearing in Docket No. 184859. The appeal in Docket No. 200943 was dismissed in an unpublished order of the Court of Appeals, entered June 11, 1997, because of defendant's failure to cure the deficiency. Defendant failed to identify any provision in the court rules that provides for a lateral appeal to the Court of Appeals from a Court of Appeals decision. MCR 7.203 (A) sets forth the jurisdiction for a claim of appeal of right and does not provide for an appeal to this Court from a Court of Appeals decision.

At that time, defendant did not seek to file a delayed application for leave to appeal with the Supreme Court. Instead, defendant filed a motion in the circuit court. There, defense counsel represented that the Court of Appeals had rendered a decision and had requested that the trial court sign an order incorporating the judgment of the Court of Appeals in order for the defendant to file a claim of appeal. Defense counsel asserted that this representation regarding the procedure to be followed had been made by Court of Appeals staff.⁷ The trial court indicated that it was disturbed by the fact that the Court of Appeals issued an order but "they [sic] don't bother to draft one and implement it and they [sic] want the circuit court to order what they [sic] say?" Defense counsel stated that he was "similarly puzzled" and that this Court gave no direction in its unpublished opinion. Plaintiffs' counsel advised the trial court that defendant's issues were not raised on cross appeal and were not addressed on appeal, and therefore, defendant needed a new trial court order to enable it to file a new claim of appeal. Despite the statement of plaintiffs' counsel, the trial court signed the order because it did not want to deprive either side of an opportunity to pursue a remedy on appeal and noted that the judgment for plaintiffs would accrue interest during the pendency of the appeal. The trial court's ruling on the motion occurred more than three years after the trial.

7 Our staff is precluded from giving legal advice. Even if a member of the staff did advise defense counsel to take this course of action, defense counsel fails to cite any authority for the proposition that oral advice may supersede or circumvent the appellate rules governing jurisdiction.

We cannot allow parties who disagree with a decision of the Court of Appeals to seek redress by returning to the trial court for entry of a new order for a second claim of appeal as of right. A decision rendered by this Court would never be final if such conduct were permitted. In that instance, a party would have the opportunity to ask a subsequent panel of this Court to provide relief that the first panel did not grant.⁸ 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. Stachnik v Winkel, 394 Mich. 375, 382-383; 230 N.W.2d 529 (1975). Defense counsel stated to the trial court that it had "several options" when he sought to have a new trial court order entered that incorporated the judgment of the Court of Appeals. Defense counsel has failed to provide a plausible explanation for filing a new claim of appeal from the prior opinion of the Court of Appeals and failed to explain why he did not seek leave to appeal to the Supreme Court. The lack of an explanation for the conduct and the failure to substantiate the conduct with citation of the court rules could indicate that defendant was attempting to lengthen the time frame for resolution of any decision in an attempt to force plaintiffs to settle the litigation.

8 To preclude "judge shopping" in the circuit court, MCR 8.111 (D) requires that parties inform the court whether another action governing the same transaction or occurrence was filed or is pending.

It has been six years since the judgment was rendered by a jury. If defendant had filed an application for leave to appeal following this Court's decision in 1997, the appellate process would be exhausted by now. We caution members of the bar that seeking a new trial court order to avoid the effect of a Court of Appeals decision in lieu of seeking an application for leave to appeal to the Supreme Court will not benefit the litigant that comes before this Court with such unclean hands. Stachnik, supra.

Affirmed.

MARKEY, J., concurred.

HOOD, P.J.

APPENDIX STATE OF MICHIGAN COURT OF APPEALS

TERESA COX, as Next Friend of BRANDON COX, a minor, TERESA COX AND CAREY COX, individually, Plaintiff-Appellees/Cross-Appellants, v. BOARD OF HOSPITAL MANAGERS FOR THE CITY OF FLINT d/b/a HURLEY MEDICAL CENTER, a municipal corporation, Defendant-Appellant/Cross-Appellee, and EDILBERTO MORENO, M.D., Defendant. No. 205025. April 6, 1999.

Genesee Circuit Court LC No. 95-12247NM.

Before: Hood, PJ, and Griffin and Markey, JJ.

PER CURIAM.

Judgment was entered in favor of plaintiffs on June 13, 1994 following a jury trial. Defendant moved for judgment notwithstanding the verdict (JNOV), and in the alternative a new trial or remittitur. The trial court granted defendant a new trial unless plaintiffs were willing to accept remittitur to the amount of $475,000. Plaintiffs appealed and this Court vacated the order granting a new trial. This Court also remanded for reconsideration of the motion for new trial and instructed the trial court to prepare a detailed analysis of economic and non-economic damages if it deemed remittitur appropriate. Cox v Flint Bd of Hospital Mgrs, unpublished order of the Court of appeals, entered December 14, 1994 (Docket No. 179366). Subsequently, the trial court entered an order granting defendant JNOV and conditionally granting a new trial if the JNOV was reversed on appeal. In Cox v. Flint Bd of Hospital Mgrs, unpublished per curiam opinion of the Court of Appeals, issued November 22, 1996 (Docket No. 184859), this Court reversed the grant of JNOV. In its opinion, the prior panel refused to decide several substantive issues raised by defendant because defendant had failed to file a cross-appeal. After unsuccessfully attempting to convince this Court to hear its issues relating to the June 13, 1994 judgment,¹ defendant had the trial court enter a new order of judgment against it on July 21, 1997. From that order, defendant appeals as of right, raising substantially the same issues as previously briefed for this Court in docket number 184859. Plaintiffs cross-appeal claiming that defendant's appeal should be dismissed because the issues it raises are improperly before this Court. We agree with plaintiffs and dismiss defendant's appeal.

1 Defendant filed a motion for rehearing in docket number 194859 and when that was denied, it filed a severely tardy claim of appeal from the June 13, 1994 judgment, which claim of appeal was dismissed in docket number 200943.

In Cox, supra at 3, this Court stated:

Although defendant asserts in its brief on appeal that other issues warranted a new trial, these claims were not raised by way of a cross-appeal. Accordingly, review of these issues is precluded. Barnell v Taubman Co, Inc, 203 Mich. App. 110, 123; 512 N.W.2d 13 (1993).

Defendant filed a motion for rehearing, specifically arguing that this Court should have heard and decided the other issues because they could have warranted a new trial. This Court denied the motion for rehearing on January 14, 1997. Defendant did not appeal that order to the Supreme Court.

Under the law of the case doctrine, an appellate court ruling on a particular issue binds the appellate court and all lower tribunals with regard to that issue. The law of the case mandates that a court may not decide a legal question differently where the facts remain materially the same. The doctrine applies to questions specifically decided in an earlier decision and to questions necessarily determined to arrive at that decision. The rationale supporting the doctrine is the need for finality of judgment and the want of jurisdiction in an appellate court to modify its own judgments except on rehearing. Two exceptions to the doctrine exist: (1) when the decision would preclude the independent review of constitutional facts and (2) when there has been an intervening change of law. [ Webb v Smith (After Second Remand), 224 Mich. App. 203, 209-210; 568 N.W.2d 378 (1997) (citations omitted).]

In Driver v Hanley (After Remand), 226 Mich. App. 558, 565; 575 N.W.2d 31 (1997), this Court recently stated the doctrine as follows:

The law of the case doctrine provides that a ruling by an appellate court with regard to a particular issue binds the appellate court and all lower tribunals with respect to that issue. Thus, a question of law decided by an appellate court will not be decided differently on remand or in a subsequent appeal in the same case. This rule applies without regard to the correctness of the prior determination. . . . (emphasis added).

In docket number 184859, plaintiffs raised the issue of law as to whether defendant's substantive issues relating to the underlying judgment should be reviewed absent a cross-appeal. This Court decided that they should not. Cox, supra. This Court reinforced its ruling that a cross-appeal was necessary when it denied defendant's motion for rehearing. In the cross-appeal currently before this Court, we are once again asked to decide whether defendant's substantive issues relating to the underlying judgment should be reviewed when a cross-appeal was never filed at the time the initial appeal was briefed, argued and decided. We are bound by the prior panel's decision that it was necessary for defendant's to file a cross-appeal, after plaintiffs filed their initial appeal, if it wanted its substantive issues heard. We therefore need not address defendant's arguments that a cross-appeal was not necessary.

We note, however, that there is a conflict regarding whether a cross-appeal to the original appeal was necessary. We believe the prior panel's decision that a cross-appeal was necessary was correct. See VanderWall v Midkiff, 186 Mich. App. 191, 201-203; 463 N.W.2d 219 (1990) and Shipman v Fontaine Truck Equipment Co, 184 Mich. App. 706, 714; 459 N.W.2d 30 (1990). In Shipman, this Court reversed a grant of JNOV in favor of defendant Fontaine. In its brief on appeal, Fontaine argued, in the alternative, that if this Court reversed the JNOV, a new trial should be granted because plaintiffs failed to supplement discovery responses and because of allegedly improper jury instructions given during trial. The trial court had rejected these alternative arguments. This Court ruled that because the issues were not cross-appealed, they were not properly before this Court and would not be addressed. Id. See also 3 Martin, Dean Webster, Michigan Court Rules Practice, p 230:

To preserve any issue on appeal, not raised in an appellant's brief, an appellee must file a cross appeal.

While the authors have been unable to find any Michigan case which thoroughly discusses an appellee's obligation to file a cross appeal in Michigan if the appellee merely wishes to defend, and not to enlarge, the judgment below, the purpose for the Michigan rule does appear in St. John v Nichols, 331 Mich. 148, 49 N.W.2d 113 (1951). The court there states that this rule serves the desirable purpose of placing both parties in the same position as relates to the necessity of apprising each other and the court of their claims of error and limiting the scope of their appeals thereto. In other words, it prevents an appellee from raising an issue in his or her brief to which the appellant has no opportunity to respond by way of reply brief.²

2 We agree that from a practitioner's standpoint, requiring a cross-appeal is more equitable. An appellant is limited to a ten page reply brief. MCR 7.212(G). If appellee is allowed to file a fifty page response brief detailing numerous grounds for either sustaining the favorable trial court result or granting a new trial, the appellant is prejudiced in filing a meaningful response to those arguments. Motions for leave to file briefs in excess of page limitations are disfavored by this Court. See MCR 7.212(B).

There are, however, cases that have ruled to the contrary, finding that cross-appeals are not necessary where a party is urging alternate grounds to support a trial court's decision. See ABATE v Public Service Comm, 192 Mich. App. 19; 280 N.W.2d 585 (1991) and Akyan v Auto Club Ins Ass'n (On Rehearing), 208 Mich. App. 271, 274-275 (1994). In ABATE, this Court was asked to decide issues relating to a Public Service Commission (PSC) decision in favor of Michigan Consolidated Gas Co. On appeal, the gas company raised an issue, which had been specifically rejected by the PSC, as an alternative means of upholding the PSC decision. This Court stated that "an appellee who has taken no cross appeal may still urge in support of the judgment in its favor reasons that were rejected in the lower court." Id. at 24. In Akyan, defendant also urged an alternate ground for sustaining a dismissal that was granted in its favor. The alternate ground was raised and apparently rejected by the trial court in granting defendant a dismissal on other grounds. This Court indicated that although it would normally be precluded from hearing the issue because a cross-appeal was not filed, it would hear the issue because the argument was an alternate ground for sustaining the judgment. Akyan, supra at 274.

While we acknowledge that there is a conflict in our case law over whether a cross-appeal is necessary, we conclude that the better rule of law is to require a cross-appeal under the circumstances. Shipman, supra. Where defendant decided not to file a cross-appeal, it did so at its own peril. Resolution of that conflict, however, is not necessary for a resolution of this case. We reiterate that even if a cross-appeal was not required because an alternate ground was being urged, defendant's claim in this case would nevertheless need to be dismissed. Correctly or incorrectly, this Court already ruled that defendant was required to file a cross-appeal. That decision was never appealed to our Supreme Court and it is the law of the case. Driver, supra. After this Court denied defendant's motion for rehearing in docket number 184859 and defendant decided not to appeal to our Supreme Court, it directly filed a claim of appeal (Docket No. 200943) from the June 13, 1994 judgment entered in plaintiffs favor and attempted to raise the issues that this Court had already precluded from review. This claim of appeal was grossly tardy. It was filed on January 30, 1997, which was well in excess of the twenty-one day time limit set forth in MCR 7.204(A)(1)(a). By January 30, 1997, defendant had also lost the right to have a delayed application for leave to appeal granted on the June 13, 1994 judgment. See MCR 7.205(F)(3), which provides that if an application for leave to appeal is filed more than twelve months after entry of the order or judgment on the merits, leave to appeal may not be granted (emphasis added). This Court dismissed defendant's claim of appeal in docket number 200943 without prejudice on June 11, 1997 "for failure to pursue the case in conformity with the rules. MCR 7.216(A)(10)."

Defendant thereafter had the trial court enter a new order of judgment on July 21, 1997. The new order simply that the JNOV order was reversed pursuant to this Court's opinion in Cox, supra. It then also mirrored the June 13, 1994 judgment. Defendant appeals this new judgment as of right and again raises the issues that this Court previously precluded from review. The July 21, 1997 order was unnecessary. The prior ruling of this Court in Cox, supra intended that the June 13, 1994 judgment be enforced after the JNOV order was reversed. Notably, the prior panel did not remand the case for further proceedings or entry of a new judgment.

Moreover, even if the new order was necessary because the prior opinion failed to specify that the June 13, 1994 judgment should be reinstated, there is no authority to support that defendant was entitled to take an appeal as of right from this new judgment, which simply restated or reinstated the prior judgment. If we allowed defendant to appeal as of right from this new order, it would be tantamount to allowing defendant to escape the prior ruling of this Court that defendant was required to file a cross-appeal to plaintiffs' previous appeal. It would also ignore all applicable time limits within the court rules and would flaunt the policies of this Court, which advocate judicial economy and the closure of cases. It would encourage other parties to seek new orders after appeal in order to restart the time limits for filing an appeal and would allow an appeal as of right from an underlying judgment each time a JNOV or new trial order is simply reversed by this Court. For those reasons, we find that defendant did not have an appeal as of right from the July 21, 1997 judgment, which was entered solely for the purpose of providing defendant with an opportunity to appeal the substantive issues from the June 13, 1994 judgment.

Finally, we note that on August 1, 1997, plaintiffs filed a motion to dismiss this appeal for want of jurisdiction. That motion was denied by a panel of this Court without comment on January 28, 1998. The denial of the motion to dismiss does not preclude this Court from deciding the jurisdictional issues, which were first raised in the motion to dismiss and are now raised in plaintiffs' cross-appeal. The denial of a motion to dismiss is a preliminary disposition of the issue. In DAIIE v McMillan, 97 Mich. App. 687; 296 N.W.2d 147 (1980), rev'd on other grounds 417 Mich. 946, for example, plaintiffs filed a claim of appeal. Defendants filed two motions to "dismiss", which were treated by this Court as motions to affirm the lower court. The motions were dismissed without comment. On appeal, defendants attempted to raise the issues, which were found to be without merit when this Court denied the motions to dismiss. This Court ruled that because no cross-appeal was filed, the issues would not be reconsidered. Id. at 695-696.

Michigan Court Rules Practice, Rule 7.211, states, when discussing motions to dismiss and affirm:

Dismissal may be sought on the grounds that the appeal is not within the Court's jurisdiction, that the appeal was not filed or pursued in conformity with the court rules, or that the appeal is moot. MCR 7.211(2). To fully preserve an issue raised in a motion to dismiss, however, an appellee may also be required to file a cross appeal. See DAIIE v McMillan and Author's Comment, MCR 7.204, pint 1. (emphasis added).

The Author's Comment to MCR.704, indicates that both a motion to dismiss raising jurisdictional issues and a cross-appeal raising the same issues may be filed:

Counsel should note, however, that only the filing of a cross appeal fully preserves the issue for appellate review. An appellee's attempt to raise an issue on appeal found to be without merit in preliminary orders disposing of a motion to dismiss will not be considered further if a cross appeal is not also filed. (emphasis added).

It necessarily follows that the ruling of the motion docket panel which denied the motion to dismiss without comment does not constitute "law of the case" with regard to jurisdictional issues and does not preclude our consideration of those issues in plaintiffs' cross-appeal.

Defendant's appeal is dismissed, and the July 21, 1997 judgment is vacated. The trial court should enforce the June 13, 1994 judgment.

GRIFFIN, J. ( dissenting).

The strained, overly technical arguments accepted by the majority to bar defendant from raising its meritorious issues on appeal are unpersuasive particularly when viewed in the overall context of this case. In light of the ambiguities contained in the previous opinion of Cox v Bd of Hosp Managers for the City of Flint, unpublished opinion per curiam (after remand) of the Court of Appeals issued 11/22/96 (Docket No. 184859) (herein Cox opinion), and our conflicting decisions on the cross appeal rule, I conclude that we should address the merits of defendant's appeal. See, generally, MCR 1.105.¹ After doing so, I would reverse and remand for a new trial.

1 MCR 1.105 provides:

These rules [Michigan Court of 1985] are to be construed to secure the just, speedy, and economical determination of every action and to avoid the consequences of error that does not affect the substantial rights of the parties.

I

First, I disagree with the majority's selective application of the "law of the case" doctrine. Although plaintiffs' jurisdictional and issue preclusion arguments were previously raised and rejected by our Court when we denied plaintiffs' motion to dismiss (MCR 7.211(C)(2)(a)), the majority has chosen not to follow our previous ruling. Instead, the majority has revisited these issues and has reversed our decision on plaintiffs' motion to dismiss.

In contrast, the majority has chosen to vigorously apply the law of the case doctrine in regard to the Cox opinion.² The law of the case doctrine, however, is inapplicable to Cox. First, as noted by the majority, the doctrine only applies to "an appellate court ruling on a particular issue." Majority opinion, p 2, emphasis added. By the majority's own characterization, the prior Cox panel made no rulings on the defendant's issues but rather "[i]n its opinion, the prior panel refused to decide several substantive issues raised by defendant because defendant had failed to file a cross appeal." Majority opinion, p 2, emphasis added. Refusing to decide issues is not the equivalent of ruling on the merits. Rather, it is more akin to our Court or the Supreme Court denying leave to appeal for failure to persuade as to the need for immediate appellate review. Such actions are not precedentially binding. For instance, in Jackson Printing Co, Inc v Mitan, 169 Mich. App. 334, 338-339; 425 N.W.2d 791 (1988), this Court, when confronted with a similar situation, stated:

2 The majority in its attempt to mechanically apply the doctrine fails to recognize its discretionary nature. "Justice Holmes recognized almost a century ago, unlike the later doctrines, the law of the case doctrine `merely expresses the practice of the courts generally to refuse to reopen what has been decided, not a limit to their power." Locricchio v Evening News Ass'n, 438 Mich. 84, 109; 476 N.W.2d 112 (1991).

Initially, we must address plaintiff's claim that defendant's appeal is barred by the law of the case. Plaintiff claims that this Court's July 2, 1986, denial of defendant's application for leave to appeal "for lack of merit in the grounds presented" bars the reraising of this issue.

"The term `law of the case,' as generally used, designates the principle that if an appellate court has passed on a legal question and remanded the cause to the court below for further proceedings, the legal questions thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain the same. [ Allen v Michigan Bell Telephone Co, 61 Mich. App. 62, 65; 232 N.W.2d 302, lv den 395 Mich. 793 (1975).]"

The only issue raised in defendant's previous application was whether she should have had an appeal as of right; no substantive challenge to the award of exemplary damages was presented. Because this Court did not previously decide the issue of the propriety of the jury instructions on the merits, the doctrine of the law of the case does not preclude defendant's appeal.

In Gallagher v Detroit-Macomb Hospital Assn, 171 Mich. App. 761, 764; 431 N.W.2d 90 (1988), a medical malpractice action,

Prior to trial, the court granted defendant's motion to exclude from trial the hospital's internal rules and regulations concerning its nursing personnel. Plaintiff moved for immediate consideration and applied for emergency leave to appeal both in this Court and our Supreme Court. Both courts granted the motion for immediate consideration but denied leave. The issue was raised again at trial and the court sustained the defendant's objection.

Plaintiff's first issue is whether the trial court erred in refusing to admit the internal rules and regulations. Defendant contends that plaintiff is precluded by the doctrine of the law of the case from raising this issue on appeal because of the earlier denials of leave. That doctrine applies only to questions which were actually determined by the appellate court's prior decision and which were necessary to the prior decision. Jackson Printing Co, Inc v Mitan, 169 Mich. App. 334, 338-339; 425 N.W.2d 791 (1988). The previous determinations in this case did not rule upon the merits and therefore, having no precedential value, do not preclude our present review. Jackson, supra. [Emphasis added.]

The majority concludes that defendant's issues on appeal have been relinquished by operation of the following statement made in the Cox opinion:

Although defendant asserts in its brief on appeal that other issues warranted a new trial, these claims were not raised by way of a cross appeal. Accordingly, review of these issues is precluded. Barnell v Taubman Co, Inc, 203 Mich. App. 110, 123; 512 N.W.2d 13 (1993).

The sole authority cited in Cox is Barnell v Taubman Co, Inc, 203 Mich. App. 110, 123; 512 N.W.2d 13 (1993), which does not support the majority's decision. On the contrary, in Barnell, the issue defendant failed to raise on cross appeal and the court did not rule on appeal, was whether plaintiff may recover damages, although plaintiff allegedly failed to mitigate his damages. However, in Barnell, this issue was not relinquished, but rather the case was remanded for further proceedings at which time the defendant presumably could reargue the mitigation issue. Accordingly, the result reached by the majority in the present case is not supported by the authority relied on by the prior Cox panel.

Next and most importantly, the majority misconstrues our rule on cross appeals. At the present time, despite the resolution of conflicts rule, MCR 7.215(H), the Court of Appeals is hopelessly in conflict on the construction of our rule on cross appeals. MCR 7.207. In view of this abyss, I urge the Supreme Court to grant leave on this case in order to resolve the conflict. Contrary to the majority, I favor construing our cross appeal rule consistently with federal practice and with the practice of nearly all other states. As has been stated by commentators Martin, Dean Webster, Michigan Court Rules Practice, Rule 7.207, author's comment, p 229:

In the federal courts and in most state courts an appellee may object to the rulings of the trial court (and to preliminary actions taken by the appellate court, such as accepting a claim of appeal) without cross appealing so long as the appellee does so to preserve, and not to enlarge, rights obtained in the trial court. Thus, in effect, an appellee may claim that the trial court erred on one issue in order to uphold its ruling on another. For example, the appellee may argue an alternative ground for the lower court's ruling, even though the lower court rejected that ground.

Although Martin, Dean Webster originally opined that Michigan's cross appeal practice was inconsistent with federal practice and with that of nearly all other states, in their supplemental comment, they now conclude:

There is now, however, some question as to whether or not an appellee must cross appeal before he or she is permitted to argue an alternative ground for affirmance not raised in appellant's brief. [ Id. at 27.]

An extraordinary plea to resolve the conflict is made by these commentators:

At present the authors can only state that caselaw on both sides of the issue exists, and that both decisions noted above were released in 1994. For the benefit of all, they suggest that the Court of Appeals examine the issue in depth the next time it is raised. [I d. at 27.]

The language and framework of our cross appeal rule runs contrary to the construction adopted by the majority. In particular, MCR 7.207(B) provides that when a cross appeal is filed its form is governed by MCR 7.204(D). MCR 7.204(D) provides that when a claim of appeal is filed, it must specify that "plaintiff or defendant claims an appeal from the judgment or order entered." It is axiomatic that a prevailing party may not appeal from an order or judgment of complete relief in its favor. Ford Motor Co v Jackson (On Rehearing), 399 Mich. 213, 225-226; 249 N.W.2d 29 (1976) (opinion by Coleman, J.). See also, Kocenda v Archdiocese of Detroit, 204 Mich. App. 659, 666; 516 N.W.2d 132 (1994); Gray v Pann, 203 Mich. App. 461, 463-464; 513 N.W.2d 154 (1994). Accordingly, the case law holding that cross appeals must be made as to "issues" as opposed to claims appears to be inconsistent with our rules.

In addition, MCR 7.207(D) provides that if the appellant abandons the initial appeal or the court dismisses it, the cross appeal may be prosecuted to its conclusion. If cross appeals are issue based rather than claim based, subsection (D) makes no sense because a cross appeal would obviously be moot when the principal appeal has been abandoned or dismissed. See, generally, Derbeck v Ward, 178 Mich. App. 38 (1989), for the claim/theory distinction.

Although the majority acknowledges a conflict in the Court of Appeals regarding the construction of the cross appeal rule, it fails to cite our most recent decision on this issue, In re Herbach Estate, 230 Mich. App. 276, 284; 583 N.W.2d 541 (1998), which holds in pertinent part:

Although a cross appeal is necessary to obtain a decision more favorable than that rendered by the lower tribunal, a cross appeal is not necessary to urge an alternative ground for affirmance, even if the alternative ground was considered and rejected by the lower court. Middlebrooks v Wayne Co, 446 Mich. 151, 166, n 41; 521 N.W.2d 774 (1994); Ass'n of Businesses Advocating Tariff Equity v Public Service Comm, 192 Mich. App. 19, 24; 480 N.W.2d 585 (1991). But see Barnell v Taubman Co, Inc, 203 Mich. App. 110, 123 ; 512 N.W.2d 13 (1993).

In addition, and most strikingly, the majority fails to acknowledge or follow Supreme Court precedent on this issue which is contrary to their position. In Middlebrooks v Wayne Co, 446 Mich. 151, 166, n 41; 521 N.W.2d 774 (1994), our Supreme Court summarized the rule of cross appeals as follows:

Wayne County has not claimed that this Court should decline to reach the Michigan constitutional issue because Middlebrooks did not cross appeal. A cross appeal was not necessary to urge an "alternative ground for affirmance."

It is well established that an appellee who has taken no cross appeal may still urge in support of the judgment in its favor reasons that were rejected by a lower court. Burns v Rodman, 342 Mich. 410, 414; 70 N.W.2d 793 (1955), and authorities cited therein. It is true that an appellee that has not sought to cross appeal cannot obtain a decision more favorable than was rendered by the lower tribunal. McCardel v Smolen, 404 Mich. 89, 94-95; 273 N.W.2d 3 (1978). Michigan Consolidated Gas Company does not seek to enlarge the scope of the relief granted by the PSC, but merely argues an alternate ground for affirmance that was rejected by the PSC. [ ABATE v Public Service Comm, 192 Mich. App. 19, 24; 480 N.W.2d 585 (1991).]

Plaintiff appellant claims that defendant appellee, having taken no cross appeal, may not urge in support of the judgment in his favor, reasons rejected by the trial court. However, in favor of the contrary proposition, see [ten citations of decisions of this Court omitted]. [ Burns v Rodman, 342 Mich. 410, 414; 70 N.W.2d 793 (1955).]

Plaintiffs urge that because the trial judge, after holding plaintiffs were not proper parties plaintiff, nonetheless considered the case on the merits and defendants have taken no cross appeal, they may not now, on appeal, question plaintiffs' capacity to sue. [Three citations of decisions of this Court omitted.] These cases hold, directly to the contrary, that an appellee need not take a cross appeal in order to urge, in support of relief afforded him below, reasons other than those adopted by or those rejected by the lower court. [ Menendez v Detroit, 337 Mich. 476, 483; 60 N.W.2d 319 (1953).]

For arguable authority supporting a conflict on this issue within the Supreme Court, see Pulver v Dundee Cement Co, 445 Mich. 68, 70, n 2; 515 N.W.2d 728 (1994),³ and Peters v Aetna Life Ins Co, 282 Mich. App. 426; 276 N.W. 504 (1937).

3 Since the Constitution of 1963 and establishment of the Court of Appeals, the jurisdiction of the Supreme Court has been largely discretionary. It has become the practice of the Supreme Court not to grant plenary review, but narrow review usually "limited to the issues raised in the application for leave to appeal." MCR 7.302(D)(4)(a). In Pulver, supra, the Supreme Court refused to consider an alternative basis for affirmance raised by the plaintiff in response to the defendant's appeal. Although the Pulver footnote states that the issue "is not properly preserved because plaintiff failed to cross appeal on this issue," a more accurate explanation is that by operation of the Supreme Court's order limiting the grant of appeal to the issues raised in defendant's application, the issue argued by plaintiff was simply not before the Court.

The majority asserts in footnote two of its opinion that if an appellee were allowed to argue alternative grounds for affirmance, that the appellant would be prejudiced. This argument was previously rejected by the Supreme Court:

Plaintiff appellant claims that defendant appellee, having taken no cross appeal, may not urge in support of the judgment in his favor, reasons rejected by the trial court. However, in favor of the contrary proposition, see Grant v Merchants' and Manufacturers' Bank of Detroit, 35 Mich. 515; Robertson v Gibb, 38 Mich. 165; Lambert v Griffith, 44 Mich. 65; Bundy v Youmans, 44 Mich. 376; Regents of the University of Michigan v Rose, 45 Mich. 284. Also, Township of Pontiac v Featherstone, 319 Mich. 382; Morris v Ford Motor Company, 320 Mich. 372; Fass v City of Highland Park, 321 Mich. 156; Bostrom v Jennings, 326 Mich. 146; and Menendez v City of Detroit, 337 Mich. 476.

While it might simplify the briefs filed in this Court if the appellee had served on the appellant, before the appellant filed his brief, a statement of what reasons rejected by the trial court, if any, the appellee would rely upon to sustain his case in this Court, still we feel constrained to consider appellee's claims in this Court as to matters which were presented to the trial court. [ Burns v Rodman, 342 Mich. 410, 414; 70 N.W.2d 793 (1955).]

In addition, it should be noted that the ten-page limitation for appellant's reply brief (MCR 7.212(G)) may be waived by this Court in the exercise of its discretion. MCR 7.216(A)(7).

In conclusion, I would follow In re Herbach Estate, supra, and the Supreme Court precedent as noted in Middlebrooks, supra, and hold that "[a]lthough a cross appeal is necessary to obtain a decision more favorable than that rendered by the lower tribunal, a cross appeal is not necessary to urge an alternative ground for affirmance, even if the alternative ground was considered and rejected by the lower court." In re Herbach Estate, supra at 284.

II

As an alternative basis for affirmance, the majority has also reconsidered the issue of jurisdiction. Again, plaintiffs' argument that defendant has no appeal as of right was previously raised and decided against plaintiffs when we denied plaintiffs' motion to dismiss. In denying plaintiffs' motion to dismiss on its merits, we were fully informed by the clerk of our Court of her actions as well as the reliance on her directions by defendant. See affidavit of Marc S. Berlin.

The majority, however, has chosen not to afford deference to the clerk of our Court and has disregarded her directions to the parties as to how to proceed. In particular, the majority states "[t]he prior ruling of this Court in Cox, supra, intended that the June 13, 1994, judgment be enforced after the JNOV order was reversed." Majority op, p 6. The clerk of our Court, however, took the opposite position and advised defense counsel accordingly. The Clerk of the Court of Appeals determined that the Cox opinion which simply reversed without direction was not self-executing. Accordingly, Assistant Clerk Linda Sherer advised defense counsel that an order of the trial court reinstating the 1994 judgment was necessary for the filing of an appeal as of right of the judgment. Pursuant to our clerk's direction, the lower court thereafter issued a July 21, 1997, order which reinstated the 1994 judgment. Defendant timely appealed and its appeal was docketed as an appeal of right. Despite this history, the majority concludes "[t]he July 21, 1997, order was unnecessary." I respectfully disagree and will not ignore the history of the case and the involvement of the clerk of our Court.

Additionally, the majority fails to understand that after the trial court entered its order granting judgment notwithstanding the verdict (JNOV), the earlier judgment in favor of plaintiffs was vacated and therefore could not be appealed as of right. After the vacation of the judgment by the order granting JNOV, the only "final judgment or final order of the circuit court," MCR 7.203(A)(1), which was appealable as of right was the JNOV order. Simply put, there was no right (or requirement) to appeal (or cross appeal) the 1994 judgment during the period that it was vacated by the grant of new trial, remittitur, and JNOV. As such, defendant was not required or permitted to appeal as of right the 1994 judgment until after this Court's decision in Cox and after the trial court's order reinstating the judgment.

III

In the trial court and on appeal, defendant raises two issues of error that require reversal. First, over defendant's objection, the trial court gave the jury an instruction regarding professional negligence/malpractice which substantially departed from SJI2d 30.01. Specifically, the trial court deleted the crucial phrase, "of ordinary learning, judgment, or skill" which limits the duty owed by the defendant. The nonstandard jury instruction given by the trial judge in effect imposed strict liability for any wrong committed by defendant irrespective of the standard of care. The jury was instructed:

When I use the words professional negligence or malpractice with respect to defendant's conduct, I mean the failure to do something which a hospital neo-intensive care unit would do or the doing of something which a hospital neo-intensive care unit would not do under the same or similar circumstances you find to exist in this case.

Conspicuously omitted from the instruction was the limitation "of ordinary learning, judgment, or skill" which is the standard of care applicable to defendant's conduct. The error was critical to a fundamental material issue in the case. See, generally, Kirby v Larson, 400 Mich. 585, 607; 256 N.W.2d 400 (1977).

Second, the court erred in allowing the jury to find that a "neonatal intensive care unit" could commit professional negligence/malpractice as opposed to individuals within defendant's neonatal intensive care unit. See Danner v Holy Cross Hosp, 189 Mich. App. 397, 398-399; 474 N.W.2d 124 (1991): "Despite plaintiff's attempt to characterize his claim as one of corporate negligence, his claim is, in fact, one for medical malpractice. * * * The only way a hospital can render treatment is through its nurses and physicians." The error was further compounded by the trial court's refusal to apply a local, as opposed to a national, standard of care to the "unit." See Whitney v Day, 100 Mich. App. 707, 710, 712; 300 N.W.2d 300 (1980).

The above errors were sufficiently prejudicial that to allow the judgment to stand would be "inconsistent with substantial justice." Johnson v Corbet, 423 Mich. 304, 326; 377 N.W.2d 713 (1985). In view of the above errors requiring reversal, I would find it unnecessary to address the additional issues raised by defendant.

I respectfully dissent. I would reverse and remand for a new trial.

GRIFFIN, J. (dissenting).

This case returns to us on remand from the Supreme Court, which, in lieu of granting leave to appeal, vacated our previous unpublished opinion per curiam in this matter and remanded for a ruling on the issues "which defendant has properly and persistently raised." Cox v Flint Rd of Hosp Managers, 462 Mich. 859, 860 (2000). I would reverse and remand for a new trial.

In the trial court and on appeal, the Board of Hospital Managers for the City of Flint (hereafter defendant) raised two issues of error that require reversal. First, over defendant's objection,¹ the trial court gave the jury an instruction regarding professional negligence/malpractice that substantially departed from SJI2d 30.01. Specifically, the trial court intentionally deleted the crucial phrase "of ordinary learning, judgment or skill" that limits the duty owed by defendant. The nonstandard jury instruction given by the trial court in effect imposed strict liability for any wrong committed by defendant's "employees irrespective of the standard of care. The following nonstandard instruction was given to the jury with regard to professional negligence or malpractice and defendant's duties:

1 "Mr. Roth [defense counsel]: . . . I would of course preserve my objection in that regard, your Honor, and would request, as I've submitted in my proposed instructions, that it state with regard to a neonatal nurse practitioner of ordinary learning or judgment or skill in this community or similar one. And obviously, based upon my earlier positions as stated on the record, that I believe under Bahr v Harper-Grace Hosps, 448 Mich. 135; 528 N.W.2d 170 (1995) and under the statute a local standard is applicable to nurses in this state.

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.

The Standard Jury Instruction, SJI2d 30.01, provides:

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 would not do under the same or similar circumstances. [Emphasis added.]

The majority acknowledges the deviation from the Standard Jury Instruction, noting that the trial court omitted the terms "ordinary learning, judgment or skill" from the first paragraph of the instruction that defined defendant's duty. Furthermore, the second paragraph of the nonstandard jury instruction given by the trial court did not include the word "ordinary." The purpose of the "ordinary learning, judgment or skill" standard of duty is explained in Dobbs, Law of Torts, § 242, pp 631-633:

The professional-peer standard . . . . In the absence of some specific undertaking, the patient normally understands and expects that physicians acting within the ambit of their professional work will exercise the skill, knowledge, and care normally possessed and exercised by other members of their profession of the same school of practice in the relevant medical community. Similarly, the physician implicitly undertakes to meet at least such a standard.

* * *

[T]he professional standard asks the trier [of fact] only to determine whether the defendant's conduct conformed to the medical standard or medical custom in the relevant community. Thus under the traditional rule, as long as a doctor follows the medical standard or custom, he is not negligent, regardless of how risky the custom or how unnecessary. [Emphasis added.]

The deletion of the limitation of duty of "ordinary" care in the nonstandard instruction is inconsistent with Michigan law as set forth in SJI2d 30.01 and numerous cases such as Johnson v Borland, 317 Mich. 225, 231; 26 N.W.2d 755 (1947), wherein the Supreme Court reiterated:

"'The law is well settled that a patient who is treated by a physician is entitled to a thorough and careful examination, such as the condition of the patient and the attending circumstances will permit, with such diligence and methods of diagnosis for discovering the nature of the ailment as are usually approved and practiced by medical men of ordinary or average learning, judgment, and skill in that community or similar localities.'" [Quoting with approval Fortner v Koch, 272; Mich 273; 261 N.W. 762 (1935), quoting from Ramberg v Morgan, 209 Iowa 474; 218 N.W. 492 (1928) (emphasis added).]

In the context of legal malpractice, the Supreme Court in Simko v Blake, 448 Mich. 648, 656; 532 N.W.2d 842 (1995), explained that the ordinary care standard is an important limitation on a defendant's duty:

[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. [Emphasis added.]

See also Cleveland v Rizzo, 99 Mich. App. 682, 686; 298 N.W.2d 617 (1980) ("[A] medical practitioner warrants that he possesses the professional skill ordinarily possessed by medical practitioners... ."). (Emphasis added.)

In the present case, the nonstandard jury instruction given by the trial court conspicuously omitted in both paragraphs the limitation of the duty of "ordinary" care that is the standard applicable to defendant's employees. The instructional error was critical to a fundamental and material issue in this case. Kirby v Larson, 400 Mich. 585, 607; 256 N.W.2d 400 1977) (opinion by WILLIAMS, J.); Getman v Mathews, 125 Mich. App. 245; 335 N.W.2d 671 (1983). Here, the trial court's violation of MCR 2.516 (D)(2) ² was unfairly prejudicial to defendant to such an extent that to allow the judgment to stand would be" "inconsistent with substantial justice.'" Johnson v Corbet, 423 Mich. 304, 326; 377 N.W.2d 713 (1985); Pontiac School Dist v Miller, Canfield, Paddock Stone, 221 Mich. App. 602, 622; 563 N.W.2d 693 (1977); Duke v American Olean Tile Co, 155 Mich. App. 555, 565; 400 N.W.2d 677 (1986).

2 2 MCR 2.516 (D)(2) states:
Pertinent portions of the Michigan Standard Jury Instructions (SJI) must be given in each action in which jury instructions are given if:
(a) they are applicable,
(b) they accurately state the applicable law, and
(c) they are requested by a party.

While the instructional error alone compels reversal, in the interest of completeness I will address defendant's other issues. Defendant argues that the trial court committed error requiring reversal in allowing, over defendant's objection, the jury to find that the "neonatal intensive care unit" could commit professional negligence/malpractice as opposed to individuals within defendant's neonatal intensive care unit. I agree. As we stated in Danner v Holy Cross Hosp, 189 Mich. App. 397, 398-399; 474 N.W.2d 124 (1991): "Despite plaintiff's attempt to characterize his claim as one of corporate negligence, his claim is, in fact, one for medical malpractice . . . The only way a hospital can render treatment is through its nurses and physicians." (Emphasis added.) Defendant corporation acts through the conduct, errors, and omissions of its agents and employees. Defendant's liability, if any, arises out of its respondent superior liability for its employees and agents. Plaintiffs' attempt to depersonalize the alleged malpractice is without authority and contrary to the established law of malpractice. Furthermore, the error of permitting the jury to find the "unit" liable for malpractice was compounded by the trial court's refusal to apply a local standard of care to defendant's nurses. See MCL 600.2912a; MSA 27A.2912 (1), Bahr v Harper-Grace Hosps, 448 Mich. 135; 528 N.W.2d 170 (1995), and Whitney v Day, 100 Mich. App. 707, 710, 712; 300 N.W.2d 380 (1980) (a nurse anesthetist, possessing greater qualifications than an ordinary nurse, is subject to a local, not national, standard of care).

Next, although not raised or argued by plaintiffs in the lower court or on appeal, the majority sua sponte asserts that defendant "waived" objections to the substance of plaintiffs' experts' testimony by failing to file a motion to strike plaintiffs' experts within a reasonable time after learning the experts' identities and basic qualifications. Again, I disagree.

The sole authority relied on by the majority for its waiver argument is the recently released decision Greathouse v Rhodes, 242 Mich. App. 221; 618 N.W.2d 106 (2000). However, Greathouse is readily distinguishable and does not support the majority's position. The issues in Greathouse were whether the defendant's expert was a qualified specialist as defined by MCL 600.2169 (1); MSA 27A.2169 (1) and, if not, whether the plaintiff had relinquished her objections to his qualifications by failing to make a timely motion to strike the defendant's expert.

As explained by the Greathouse Court:

[C]hallenges to an opponent's expert under subsection 2169 (1)(a) such as the one plaintiff advanced in this case generally do not require extensive discovery. A simple interrogatory question, a request for the expert's curriculum vitae, or other basic research would reveal whether the expert satisfies the licensure, specialty, or certification requirements set forth in subsection 2169(1)(a) . . .

. . . It is patently unfair for a party to waist until the brink of trial to challenge the basic qualifications of the opponent's expert, thereby catching the opponent surprised, unprepared, and at an extreme disadvantage. [ Greathouse, supra at 235-236.]

Unlike Greathouse, in the present case there was no issue whether plaintiffs' experts were qualified specialists in their field of expertise. Rather, the objections in the instant case pertained to the substance of the experts' testimony (introducing evidence of a national, as opposed to local, duty of care) not to their basic qualifications. Under our rules of evidence (MRE 103[a][1]), defendant's objection to the testimony was timely and therefore not forfeited. In re Weiss, 224 Mich. App. 37,39; 568 N.W.2d 336 (1997); Westphal v American Honda Motor, Co, Inc, 186 Mich. App. 68, 70; 463 N.W.2d 127 (1990).

Next, without any citation of authority, the majority holds "[w]hile defendant may not have had the burden of proof to demonstrate the standard of care, defendant's failure to present proofs in a separate record that the standard of care, is governed by a local standard precludes any conclusion that the trial court's ruling resulted in prejudicial error." Ante at ________________.

Because the applicable legal duty is an issue of law, Moning v Alfono, 400 Mich. 425, 436-437; 254 N.W.2d 759 (1977); Papadimas v Mykonos Lounge, 176 Mich. App. 40, 45; 439 N.W.2d 280 (1989), an evidentiary offer of proof is not appropriate or required. See, generally, MRE 103(a)(2). Again, this waiver argument raised by the majority is not supported by our rules of evidence or any authority.

In regard to defendant's final arguments concerning plaintiffs' counsel's closing argument, I agree with and join the majority's opinion.

Finally, the majority disagrees with the Supreme Court's order of remand by holding: "Accordingly, even if we were to conclucLe 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." Ante at 82. The majority's previous position on the necessity of filing a cross appeal to urge an alternative ground for affirmance has been rejected in this case by the Supreme Court: "[T]he Court [of Appeals] erred in refusing to review four arguments raised by defendant on the erroneous ground that defendant was required to file a cross appeal to raise them. Middlebrooks v Wayne Co, 446 Mich. 151, 166, n 41; [ 521 N.W.2d 774] (1994)." Cox, supra at 859-860. Similarly, the majority's resurrected "unclean hands, " jurisdictional, and law of the case arguments have been dismissed by the Supreme Court in its order: "In these unique circumstances, it would be unjust for the Court to refuse to rule on these issues which defendant has properly and persistently raised." Id. at 860. Because the Supreme Court has ruled that defendant's substantive issues are properly before us, I find the majority's criticism of the procedural history of this appeal to be inappropriate and unwarranted. For the benefit of the bench and bar, I attach as an appendix our previous unpublished opinion per curiam and dissent, Cox v Flint Rd of Hosp Managers, issued April 6, 1999 (Docket No. 205025), vacated May 16, 2000.

I respectfully dissent. I would reverse and remand for a new and fair trial.