*1 728 WILLIAM HOSPITAL MAY v BEAUMONT 1988, 21, at Detroit. Decided Docket No. 93511. Submitted December 6, 1989. November Kolosowski, a May, the of Alan A. conservator of estate Robert Kolosowski, minor, Kolosowski, Jadwiga Stanley individu- and Kolosowski, brought ally an action of Robert and as next friend against Hospi- William Beaumont in the Oakland Circuit Court Marlowe, pre- Christopher alleging malpractice in the tal and injuries Jadwiga resulting in of Kolosowski natal treatment infant, a verdict in Robert Kolosowski. The returned $5,000,000,in favor of Mrs. favor of infant in the amount of $1,500,000 Mr. of in favor of Kolosowski in the amount and $500,000, Dr. of and found Marlowe Kolosowski in amount hospital thirty seventy percent percent responsible and court, injuries. L. responsible The Alice for Robert Kolosowski’s Gilbert, J., notwithstanding granted judgment verdict and the verdict of Mr. and Mrs. Kolosowski remitted claims $5,000,000 $106,696.01. appealed and Mar- Dr. of Plaintiffs appealed. lowe cross Appeals The Court of held: granting did err notwith- 1. court standing A claims. the verdict on Mr. and Mrs. Kolosowski’s society parent and of a has no action for loss child’s parent’s companionship. for a While there is a cause action injury, witnessing after a child’s emotional distress sustained requires physical parent proof harm the such an action proof physical plaintiffs presented harm to them- no and Last, theory plaintiffs’ an that Mrs. Kolosowski was selves. References 112, 939, 2d, 969; Damages Appeal Error Am Jur §§ 969-975, 1021-1025; §268; Fright, 1006-1008, §§945, Evidence 36; Judgments Shock, seq., 13 et and Mental Disturbance §§ 97-99; Physicians, Surgeons, seq.; Parent Child 106 et §§ §§ 6, 17, seq.; Summary Judgment et §§ Other Healers §§ 27. Remittitur; Ap- under Additur and See the Index to Annotations Judg- Children; Consortium; Injury; Error; peal Emotional Verdict; Notwithstanding Malpractice by Medical or Health ment Professions; Summary Judgment. v Wm Beaumont independent malpractice victim of fails for lack of evidence of physical injury to her. granting $5,000,000 2. The court erred in remittitur from $106,696.01. First, jury’s the court should reduced have damages present value, having award future to its the court *2 jury failed instruct the to make that calculation. The court determining wages further erred in future lost based on a salary $3.35 of hour an for life where the evidence indicated that, injured, had he been not Robert could have been em- ployed per Further, reducing $14.80 at hour. the court erred in wages payable future lost the amount of taxes income on the income. The court also in erred its assessment the evidence Thus, damages. appropri- of noneconomic while remittitur was ate, reducing the court abused its discretion in the award to $106,696.01. $315,843.84 support 3. The evidence will an award for $950,000 past Robert’s future economic losses and for and future noneconomic losses. requiring plaintiffs’ experts’ 4. There was no error in reversal testimony. arguments plaintiffs’ The improper. 5. counsel not were denying 6. The court did not err in defendant Dr. Marlowe’s judgment notwithstanding for motions a directed verdict and a verdict. the giving plaintiffs’ 7. The court did abuse its in discretion requested jury anguish. instruction on mental part, part Affirmed in reversed in and remanded with in- structions. Cynar, J., respects concurred in all the but determination of damages. supported judg- He the would hold that a evidence $1,800,000, present $5,000,000 jury ment the the value of verdict. — 1. and Motions Orders Directed Verdict. deciding grant In whether or not to a motion for a directed verdict, judge nonmoving party the trial must accord to the the viewing legitimate testimony benefit of the and all inferences may light in be drawn therefrom a most to the favorable evidence, nonmoving manner, party; if the when viewed in this case, prima establishes a facie the a verdict motion for directed be must denied. — Negligence — 2. Loss of Consortium. Parent and Child by parent society compan- A a for of a claim the loss child’s ionship negligently injured been where the child has is not recognized Michigan. the under common law of Judgment Notwithstanding — 3. the Ver- and Orders Motions dict. judgment grant notwithstand- of a defendant’s motion only ing appropriate if evidence is insufficient the is the verdict plaintiff; support judgment for the of law to as a matter decision, reaching evidence in the court must view the give plaintiff light plaintiff the the the most favorable every be drawn reasonable inference could the benefit of if, evidence; viewing this after the evidence in man- from the differ, ner, question one for the could is reasonable men notwithstanding improper. the verdict — — Parent and Child. 4. Torts Emotional Distress negligent injury parent to his infliction of A who witnesses as a conse- emotional and mental distress child and suffers negligence pro- quence may cause of action based have a (1) injury or inflicted was serious vided that: threatened mental disturbance to and of a nature such severe (2) follow; reasonably parent been have foreseen to would (3) harm; parent physical shock resulted actual injury actually present child or at the time of the contemporaneous injury; fairly least suffered shock *3 case-by-case injury of be examined on a the nature the must it was in order to determine whether foreseeable basis parent likely to to the was emotional and mental distress result. Damages — — — 5. Remittitur Verdicts Court Rules. justified greater the amount awarded is than Remittitur is where support; deciding highest the in the amount evidence will proofs, jury supported by a trial court the award is the whether may inquire the verdict was the result of im- also whether methods, proper prejudice, passion, partiality, sympathy, cor- fact, ruption, verdict or mistake of law or whether the just within the of what reasonable minds would deem limits sustained, compensation injury the and whether the for actually comparable to in amount awarded is awards similar (MCR jurisdictions 2.611[E][1]). cases the within state other Appeal — 6. Remittitur. remittitur, reviewing grant or a In trial court’s denial reviewing judge court must afford due deference the judge may not its for that of the trial substitute absent an abuse of discretion. Damages Damages — — 7. Future Present Value. damages present be An award of future must reduced to value v Wm Beaumont request so; even in the absence of a to do the trial court must
instruct on the or reduction must itself reduce the present award to value. Damages Wages. — 8. Lost proper determining wages injured in factor lost is what the person injury. could have earned but for the Damages Wages — —
9. Lost Future Income Taxes. statutory provision, disregard In the absence of courts must consequences fixing damages income tax for lost future earning personal capacity injury cases. Damages — Damages — — — 10. Future Present Value Inflation Jury Instructions. reducing value, damages present
In future the effects of (SJI2d 53.06). may inflation be taken into account Physicians Surgeons Malpractice. — 11. Medical treating physician damages A is liable it when is shown that departed he from the standard of care which is known as customary practice; measuring medical standard care is upon founded how other doctors in that field medicine would any particular act how doctor would act. — — 12. Evidence Written or Recorded Rules of Statements Evidence. writing part When a or recorded statement or thereof is intro- party, party require may duced an adverse him at that any part time any writing to introduce other or other or ought recorded statement which in fairness to be considered (MRE 106). contemporaneously with it Appeal Judgment — — Notwithstanding 13. Directed Verdict Verdict. applicable
The standard of review ato denial of a motion for a judgment notwithstanding or directed verdict a motion for Appeals is verdict that review Court is limited to party opposing upon whether the the motion offered evidence differ; whether, which reasonable minds could test view- ing light nonmoving party, facts in a most favorable *4 persons and, so, reasonable could reach a different conclusion if properly nonmoving party jury; case is one for the must given every be the benefits of reasonable inference that can be drawn from the evidence. Christensen, & Charfoos P.C. David W. (by App 728 180 Mich op Opinion the Court Gromek, & Thomas Christensen), Bendure (by Bendure), for plaintiff. R. Mark & Rutt, Watters, Stanczyk Plunkett, Cooney, Jacobs), P. Christo- Pedersen, John for Dr. P.C. (by Marlowe. pher Asher, P.C. Bone, &
Sullivan, Ward, Tyler, Fiott Thomas), Beaumont A. for William (by Michelle Hospital. Cynar E. P.J., and M. Mackenzie,
Before: Kobza,* JJ.
MacKenzie, agree Judge Cynar’s P.J. We except appeal, claims disposition of all raised damages Robert Kolosow of remitted the amount ski have been awarded. should rule, personal injury general awards
As a
fact.
of the trier of
the sound judgment
rest within
If
within
reasonably
awarded falls
the amount
the limits of what
and within
range of evidence
just compensation
minds would deem
reasonable
sustained,
not be
the verdict should
for the injury
Detroit,
457; 330
v
Precopio
disturbed.
(1982). However,
award
jury’s
where
NW2d
the evidence
greater
highest
than the
amount
is
v
See Palenkas
is
support,
proper.
remittitur
will
Hospital, 527;
In this court $5,000,000 $106,696.01. Judge As Cynar’s award details, reaching this opinion the trial court legal and committed a number of remitted amount cognizant duty of our errors. we are factual While the trial to the decision of to afford due deference Palenkas, supra, we these errors light of judge, discretion court abused its conclude that * Appeals by assignment. judge, sitting on the Court of Circuit *5 v Wm Beaumont 733 Opinion op the Court grant in its of remittitur. Based an upon objective evidence, Palenkas, review of the supra, we are of the opinion that the proofs reasonably support a $1,265,843.84. remitted total award of As Precopio, supra, Judge Cynar’s opinion indicate, damages in personal cases injury may compensate plaintiff the for both economic losses (such wages expenses as lost associated with the plaintiff’s for injury) and noneconomic losses (including pain, disability, lost enjoyment).
We agree Judge Cynar’s opinion that the remitted award for Robert Kolosowski’s economic losses an of constituted abuse discretion. For the reasons stated Judge Cynar’s opinion, we are satisfied that the in this evidence case warranted $315,843.84 an award to Robert Kolosowski of his future economic losses.
We also conclude that the trial court’s remitted plaintiff award to for his noneconomic losses con- stituted an abuse of In assessing discretion. appropriateness of an award for noneconomic losses, analogous provide cases sense a reason- Precopio, supra, range pp able of awards. 471-472. analogous awards in the cases must be ad- justed purchasing for the difference between power year in the of those judgments year Precopio, supra, p under judgment consideration. 474, n judgment 26. The in this case was rendered in 1985. involving injuries analogous Cases by those suffered Robert Kolosowski demonstrate range $182,000 approximately of awards from $1,111,500 in 1985 dollars.1 approximately Only damage by plaintiff where the brain sustained 1 adjust analogous judgments dollars, To have used we (cpi): following formula based the Consumer Price Index cpi cpi (Average 1985) (Average year analogous judgment) — ^ cpi analogous judgment Average year of analogous yields percentage by This formula must be which the purchasing power. to reflect 1985 increased Opinion Court accompa- profound retardation,2 or
resulted
disfigurement
disorders,3
and emotional
nied
range.4
exceeded
above
have courts
Gagliardi
Service,
AD2d
Bros
In Sewar v
(1979),
twelve-year-old
struck
In Coastal
2
(CA 1969),
Co,
See, e.g.,
411
48
v Parke-Davis &
F2d
Tinnerholm
329;
County,
Ill
90 Ill Dec
Co v
135
3d
and Northern Trust
Cook
(1985).
157;
In Stanley Co, v Ford Motor AD2d NYS2d (1975), plaintiff permanent suffered brain damage impairing his physical and mental coordination. Evidence established that his educa- tional ability was severely limited and future em- ployment would be confined to menial tasks. Addi- tionally, there was a likelihood plaintiff would develop seizure and emotional disorders. An award $315,000 $687,000 in (approximately 1985 dol- lars), which included the present value of lost future earnings, was upheld as not excessive.
In
Stanley v
(La
Wiley,
325
So 2d 661
App,
1975), the thirteen-year-old
plaintiff suffered head
injuries
in a
accident,
truck
resulting in intellec-
tual
impairment
to the dull-normal
range, physical
impairment
movement,
of skilled
impaired judg-
ment,
and impaired memory. Noting that
plaintiff’s changed appearance would diminish her
social
life and that her
prospects
vocational
were
poor, the court upheld
general
$275,000
award of
dollars).
$550,000
(approximately
in 1985
Alexander,
In Masters v
424
Pa
In Watts v Town 301 So 2d 729 1974), struck child was App, a seventeen-month-old resulting pole, a metal head with brain, con- skull, frequent fractured swollen eight days, vulsions. The child was unconscious At in her skull. and holes had to be drilled diminishing trial, was paralysis time of left side IQ gait, approximately her her was but affected due to to attend school fifty, she was unable she with Because problems associated convulsions. medi- supervision and continual required constant cation, The court she deemed to work. was unable $150,000 (approx- general damages remitted her dollars). $327,000 in 1985 imately Taulli, (La v in Smolinski So 2d Finally, fell, 1973), suffer- child App, a nineteen-month-old ing hyperki- a skull fracture. The child became netic, development and slow slow motor exhibited speech, and was had training, difficulty toilet A intelligence range. in the dull normal or below $182,000 $75,000 general (approximately award of dollars) in 1985 was held not excessive. and the above upon proofs
Based a review of the cases, persuaded we are survey analogous for Rob- highest justified which can be award past future noneconomic ert Kolosowski’s $950,000. neurological expert losses is Plaintiffs There mildly retarded. testified that Robert progress past ever little that Robert will likelihood and his vocational grade the fourth level school *8 age his limited. Children opportunities will be him, speech. tease and he exhibits difficulties support, require guidance will always Robert v Wm Beaumont Opinion op the Court and his chances of engaging "normal” social interactions and relationships are significantly re- Nevertheless, duced. although intellectually im- paired, Robert is far from being re- profoundly trial, tarded. At the time of he was attending school, was fully ambulatory, played with younger children, tricycle, rode a and enjoyed watching television going places with his mother. There disorders, was no evidence of seizure hearing or problems, visual or disfigurement as in some of the analogous cases. neurological Plaintiffs expert found Robert’s size and physical appearance, coor- dination, balance, posture, movement, strength all totally normal. His physical pain and suffering minimal, seems to have been involving headaches approximately every three months which were controlled by baby aspirin. Plaintiffs neurological expert testified that Robert could live independently. Taking a view of Robert Kolosow- ski’s him, loss most favorable an award of $950,000 for noneconomic losses is both within the range of proofs and the awards made in analo- gous cases.5
On the basis of the above we analysis, are of the opinion that evidence this case warranted total award to $1,265,843.84, Robert Kolosowski of interest, plus statutory for his economic and none- conomic losses. Because the trial court abused its in remitting $106,696.01, discretion the verdict we vacate the judgment of the trial court and $1,265,843.84 order the judgment remitted to plus interest. Plaintiff statutory will have twenty-eight from the date of days opinion this to file an acceptance of this with the trial court. analysis suggested by Precopio, Under the no further calculation reducing plaintiffs required, present future noneconomic losses to value is assumption apparently being the triers of fact in analogous already cases did so. *9 by Cynar, Partial Partial and Dissent P.J. Concurrence for a
Otherwise, this will be reversed new matter to of damages. trial limited the issue part in reversed in and re- part, Affirmed jurisdiction. We do not retain manded. Kobza, J.,
M.E. concurred. (part concurring part dissenting and Cynar, J. case, opinion). malpractice plaintiffs In this medical from trial court’s order granted leave appeal by Robert plaintiff remittitur verdict for $5,000,000 $106,696.01. from Kolosowski Plaintiffs of a appeal granting judg- further the trial court’s the claims notwithstanding ment the verdict on Jadwiga Stanley Kolosowski. Defend- plaintiffs Christopher Marlowe cross and raises appeals ant additional issues. several William against Plaintiffs filed suit defendant 1981, 7, Hospital alleging on October Beaumont monitoring in Mrs. Kolosowski’s negligence child, to her injuries which resulted Rob- labor hospital filed a counter- ert Kolosowski. Defendant Mrs. had been alleging claim Kolosowski 14, 1983, her labor. On March negligent during complaint made their a motion amend plaintiffs as a party. defendant Marlowe motion add 23, 1983. on March granted Kolosowski a Polish immi- Jadwiga Plaintiff 1978, she met arriving After from Poland grant. Kolosowski. Kolosowski Stanley and married Mrs. pregnant February, sometime around became 1979, August In Mrs. Kolosowski came under 1979. Marlowe, M.D., Christopher care of Dr. an Mrs. Kolo- gynecologist. Because obstetrician English, she was taken her speak did sowski her appointments friend inter- doctor’s Defendant Marlowe testified Halina Sobel. preter, good Kolosowski had been Mrs. v Wm Beaumont P.J. responsive patient appoint- when she came for her interpreter, Likewise, ments. Mrs. Kolosowski’s cooperative. Sobel, Mrs. had been Mrs. Kolosowski was informed Dr. Marlowe approximate due date of her child was December 1979. Dr. Marlowe had calculated this date on the basis of the date of Mrs. Kolosow- period ski’s last and the size of her uterus. An *10 performed. ultrasound test was not Dr. Marlowe testified that an estimated due date of December 25, 1979, would be consistent with Mrs. Kolosow- having period ski’s had her last 20, on March acknowledged 1979. Dr. Marlowe that his office records listed the date of Mrs. Kolosowski’s last period February 7, 1979, as but indicated that the by date had been written his office staff and not acknowledged him. Dr. Marlowe also that baby, certificate and the live birth for Mrs. Kolosowski’s sheet, confidential information listed her period February 1, last as 1979. Dr. Marlowe further testified that the estimated date of birth period February for a woman whose last 1, was 1979, would be November 1979. approximately 13, 1979,
On November 9:30 p.m., Mrs. Kolosowski’s water broke. Sobel, Halina designated who had been as Mrs. Kolosowski’s interpreter support person delivery, for the phoned Dr. Marlowe. Mrs. Sobel and Mrs. Kolo- immediately hospital. sowski left for defendant pains Mrs. Kolosowski testified that she had while way hospital. she was in the car on the to the Dr. Marlowe testified that Mrs. Sobel never Bather, called him. Dr. Bankhead, an intern at hospital, defendant called and advised him that hospital. Mrs. Kolosowski was at the Dr. Bankhead told Dr. Marlowe that Mrs. Kolosowski’s mem- ruptured, brane had that she was dilated to three percent centimeters, that she was one hundred App 728 by Cynar, P.J. effaced, head had descended. baby’s and that it he believed was Dr. testified that Marlowe rupture of the membrane and that premature Dr. told have to be induced. Marlowe birth would do a and enema on Mrs. prep Dr. Bankhead to Kolosowski, to an her on an get x-ray, put An or- heart monitor. was also external fetal iv Dr. testified that he arrived at dered. Marlowe p.m. 11:15 hospital around Mrs. Kolosowski Upon entering hospital, room and to an examination examined was taken was she not know. Mrs. Kolosowski by a doctor did a nurse explained then a room where taken baby dilated before the fully that she needed be happen nurse that it could would come. The stated until Mrs. Kolosow- morning. hours or not within however, had nurse said thought, ski morning. not be born until baby would given Mrs. Kolosowski was then an enema time, Kolo- x-ray. for an Prior Mrs. taken having pains. was sowski Thereafter, brought back Mrs. Kolosowski Mrs. Kolosowski then to her room a nurse. *11 room. Mrs. re- walk around the Sobel began from a nurse. Mrs. and received cover quested on the floor and laid put cover Kolosowski pain and the floor it because she was down on Later, nurse saw Mrs. Kolosow- cool. another was took the cover away. on the floor and lying ski nurse told her Mrs. testified neither Sobel into None of the get bed. tell Mrs. Kolosowski Mrs. Kolosowski into bed and she assisted nurses fetal monitor. on an iv or on a heart put was not that Dr. Marlowe then Kolosowski testified Mrs. him for and Mrs. Sobel asked into room came Dr. Marlowe for Mrs. Kolosowski. medication pain medication and subse- give any pain her would then room. Mrs. Kolosowski went left the quently v Wm Beaumont P.J. into the bathroom because she believed that she had to have a bowel movement. Dr. Marlowe came in to the again room while Mrs. Kolosowski inwas the bathroom. He told Mrs. Sobel to tell Mrs. Kolosowski to come out of the bathroom because the baby could fall down onto the floor. It unclear whether the statement about the baby falling onto the floor was ever communicated Mrs. Kolosowski. Mrs. Kolosowski told Mrs. Sobel that she would be out when she was going finished to the bathroom. Dr. Marlowe then left the room. Both Mrs. Sobel and Mrs. Kolosowski testified that the bathroom door was open while Dr. Marlowe was in the room.
Mrs. Kolosowski then came out of the bathroom began to scream in pain. At point, there were no nurses or doctors her room. Mrs. Kolo- sowski walked around the room screaming approximately one-half Kolosowski, hour. Mrs. who was standing, then put her head on the bed and screamed that the baby coming. was Mrs. Sobel went to the hallway screaming for help. Before any medical personnel get could to the room, Mrs. Kolosowski’s born, baby was dropping to the floor. Mrs. birth, Kolosowski given had at p.m., 11:55 approximately to a full-term baby boy, Robert Kolosowski. As a result of falling to the floor, Robert sustained a fractured skull.
Defendant Dr. Marlowe testified that he first saw Mrs. 13, Kolosowski on November when she being brought back from the room x-ray and was wheeled him past 11:15 approximately p.m. At p.m., approximately 11:20 Dr. Marlowe went to Mrs. Kolosowski’s room. entering, Before he noticed that lying she was on the floor on a room, blanket. Without entering the Dr. Marlowe instructed some get nurses to Mrs. Kolosowski off the floor so that she could be checked. Dr. Mar- *12 by Cynar, P.1. he to nurses told not remember which
lowe could nurses He observed several Mrs. Kolosowski. help He left the area. her off the floor. then helping up that, approximately testified at Dr. Marlowe room 11:30 he to Mrs. Kolosowski’s p.m., returned in the bathroom with and found Mrs. Kolosowski him if Ms. Kolo- the closed. Mrs. Sobel asked door Dr. Marlowe pain could have medication. sowski not until she came out responded that she could was he find out what could bathroom not sure Dr. Marlowe could be which going on. knew the room at the time but he nurses were in present. Mrs. that there were at least two them Sobel, Marlowe, Mrs. through told Dr. Kolosowski pain. Dr. having was too much Marlowe that she to her get nurses Mrs. Sobel then asked the he left the room. Dr. out of bathroom and having Marlowe stated that Mrs. Kolosowski was time was in labor. contractions at the she that, ten approximately Dr. Marlowe testified later, to room and Mrs. minutes he came back in the bathroom with several Kolosowski was still Dr. to Marlowe tried present. nurses Defendant talk- out of the get Mrs. Kolosowski bathroom ing through her the door. Mrs. Kolosowski to the bathroom door. She was seated on opened approxi- Dr. in the room for toilet. Marlowe stood minutes asking her come ten fifteen mately told her that if she out of bathroom. He also into baby did come she deliver not out would laughed at him and said toilet. Mrs. Sobel during At stupid.” point is that some "nobody ten fifteen minutes in which Dr. Marlowe was door. Mrs. Kolosowski shut the bathroom present, that, point, he was Dr. Marlowe testified that Mrs. Kolosowski was labor. certain fairly However, he he allowed believed *13 v Wm Beaumont by Cynar, P. J. Partial Concurrence and Partial Dissent go into bathroom the to assist her out because it eyes would be an assault in the of the law.
Dr. left Marlowe the room to see if he could find someone else to communicate with Mrs. Kolosow- walking hallway, ski. As he was down the a few room, minutes after he had left he heard Mrs. screaming coming. baby Sobel was When room, he arrived at the ready another doctor was al- present picked up baby and had off the floor. Rupert
Nurse Geraldine testified that on Novem- p.m. working ber she was 1979, the 3:00 13, p.m. hospital. Rupert shift at Nurse 11:30 stated last time she saw Mrs. Kolosowski x-ray. was at 10:40 when sent she her to At p.m., change nursing shift occurred in the p.m., 11:00 gave twenty report staff and she minute to the coming Rupert duty. nurses onto testified that usually signs, pressure, a mother’s vital blood contractions, and fetal heart tones are checked every hour. half All of these had items been checked at were but not done p.m., 9:30 10:00 any prior or at time to Mrs. p.m., p.m., 10:30 going x-rays. Rupert Kolosowski’s for Nurse fur- ther testified that an fetal external heart monitor applied had not been to Mrs. Kolosowski at all due problems getting to the later her into bed. Nurse Pamela testified admin- Masters that she istered the enema to Mrs. Kolosowski. When Mrs. finished, Kolosowski was Masters checked see if bed, was, she was in which she and then sent her x-rays. sending x-rays, for Prior to her for Masters visually checked Mrs. Kolosowski to see if she was having apparently contractions, she which probably not. Masters also testified that she fetal checked for heart tones at the time but did not chart it. Marquard
Nurse Diane testified that worked she 180 Partial Dissent P.J. p.m. evening on the the 11:00 to 7:30 a.m. shift had been 1979. She stated she November once to the only prior room Mrs. Kolosowski’s could not remember what birth of the child. She room. she entered time she was When Kolosowski, and Mrs. room, Marlowe, Mrs. Dr. that she stated present. Marquard were all Sobel or minutes. only three four was in room time, talking saw Dr. Marlowe During that she Kolosowski, Dr. was in the bathroom. who Mrs. out. Mrs. get her to come trying Marlowe was *14 that Mrs. was Marquard told Kolosowski Sobel out. Mar- pain too much to come Nurse having that, room, Dr. she left quard stated when Marlowe was still there. she worked Margot Kessner testified that Nurse p.m 13,
the 11:00 to 7:30 a.m. shift on November that, of Mrs. prior 1979. She birth stated child, in Mrs. Kolosow- she had Kolosowski’s been or minutes for about two three ski’s room once p.m. making 11:15 and 11:20 As she was between night, Kessner entered Mrs. her rounds that Nurse sitting on the room and found her Kolosowski’s It that Mrs. Kolosowski was appeared floor. her told Mrs. Sobel comfortable. Nurse Kessner very to be in bed have that Mrs. Kolosowski needed respond. Mrs. Mrs. Sobel did baby her checked. to Nurse Kessner. gave curt nod Kolosowski left the room. Kessner Nurse Kessner then Nurse fetal heart not checked the stated she had it would baby Kolosowski’s because tones Mrs. to do with Mrs. Kolosow- impossible have been so Kessner further stated ski on floor. Nurse assisting Kolosowski thought bodily Mrs. she about it would be an assault. up off floor but felt remember that she did not Nurse Kessner stated prior to the of Mrs. Dr. Marlowe at all birth seeing baby. Kolosowski’s v Wm Beaumont P. J. Partial Dissent Nurse Jan Gustafson testified that she was the p.m.
charge nurse for the 11:00 to 7:30 a.m. shift on November 1979. She testified that part of a nurses’s in monitoring duties patients is to take the patient’s signs vital and heart tones and to time signs contractions. These are to be checked approximately one-half every receiving hour. After her report, shift Nurse Gustafson began making her rounds. When she came to Mrs. Kolosowski’s room, only Mrs. Kolosowski and Mrs. Sobel were in the room. Mrs. Kolosowski was sitting floor. Nurse Gustafson told Mrs. Sobel that Mrs. Kolosowski could not sit on the floor. Mrs. Sobel replied that they did not do this Poland and laughed. Mrs. Kolosowski got up then off the floor and went into the bathroom. As Mrs. Kolosowski getting was it up appeared to Nurse Gustafson that she cramping. was Nurse Gustafson then took the blanket which Mrs. Kolosowski had been lying on and left the room. The hospital records indicate that Nurse Gustafson the room between p.m. 11:20 and 11:25
Nurse Gustafson then went to another room where she conducted admitting procedures on sev- patients. eral As she was leaving room, the other *15 she saw Sobel in Mrs. the hall crying help. Nurse Gustafson then went to another room to discard a tray entered Mrs. Kolosowski’s room after the baby had been born. She stated that first time she saw Dr. Marlowe that night was after the baby was born. She further stated that none of the nurses had reported to her that they had been in Mrs. Kolosowski’s room after 11:20 p.m. Additionally, none of the reported nurses having problems night. Mrs. Kolosowski that Nancy Stambaugh that,
Nurse testified between p.m., 11:15 and 11:30 in she was Mrs. Kolosowski’s room several times. She remembered that other App 180 P.J. Partial Dissent room could not remem-
people had been in the but seeing remember were. She did not they ber who she in the Dr. in the room. When was Marlowe up and room, standing was walk- Mrs. Kolosowski ing around. an Dr. Collea as presented Joseph
Plaintiffs gynecology. Dr. Collea expert on obstetrics Mrs. management that Kolosow- testified prac- standards ski’s labor was below medical due assessing baby’s tice. errors in began perform get in an ultrasound to failing date and misdiag- Dr. also an accurate due date. Marlowe entering upon nosed condition Mrs. Kolosowski’s which would hospital premature as a birth Further, Dr. according to have to be induced. Collea, practice it standards of to fail was below it had baby monitor when been ordered. When Mrs. communicated that she was Kolosowski if she pain, should have checked see someone testified that Mrs. Kolo- was in labor. Dr. Collea need to move pain statement and her sowski’s symptoms baby her were classic bowels Mrs. to be Dr. Collea stated that was about born. into been coerced gently Kolosowski should have and into bed. It was getting out the bathroom that, Mrs. opinion Dr. because Kolosowski Collea’s had ne- patient, had a difficult she been been glected while labor. expert. nursing Bacso testified as a Kay
Nurse not conduct was She nurses’ testified had followed the order they not acceptable because Kolosowski, monitor on Mrs. put a fetal heart heart for 1 hours not fetal tones Vi they did check born, did assist they baby before Mrs. into bed. Kolosowski neurologist, testified Redding,
Dr. Foster 2, August he Robert Kolosowski had examined Dr. years old. was almost five when Robert *16 v Wm Beaumont P. J. Redding found that Robert had impaired intellec- language tual and functioning and was mildly retarded, ballpark with a iq sixty. about He stated that go Robert would never farther than the fourth-grade level in school. Dr. Redding opined that Robert’s retardation had been caused by his fall birth. expert,
Defendants’ Dr. Seymour Ziegelman, tes- tified as to the standard of care for an obstetrician Dr. gynecologist. Ziegelman that Dr. testified Mar- complied lowe had with the practice standards of being present render treatment pa- tient. It was Dr. beyond Marlowe’s control patient would not accept the care. He stated that the error in the estimated date of did not delivery have an adverse effect on the delivery Robert monitor, and that the fetal heart which was never Kolosowski, put Mrs. was unnecessary.
Defendants also called Dr. John Manica as an expert on child Dr. neurology. Manica testified that he examined Robert found that he had an in the sixty-to-eighty range. Robert also had iq diffuse clumsiness his motor coordination In Dr. speech. Manica’s opinion, Robert’s retarda- tion had not been caused the fracture to his skull at birth.
The jury returned a verdict finding that defen- dant Dr. malpractice Marlowe’s per- was seventy cent responsible for Robert’s injuries defendant hospital percent responsible. was thirty further found that Mrs. had Kolosowski negligent. not been The jury awarded Robert $5,000,000, Mrs. Kolosowski awarded $1,500,000, Mr. Kolosowski was awarded $500,000. Defendants moved for a judgment not- verdict, trial, withstanding a new and remitti- grounds. tur on several granted The trial court judgment notwithstanding defendants’ motion for App 180 *17 by Cynar, P.J. Partial Partial and Dissent Concurrence Mr. Mrs. claims of and Kolosow- the verdict the jury the verdict Robert from ski and remitted $106,696.01. All of other $5,000,000 to defendants’ denied. motions were trial plaintiffs argue that the court appeal,
On
on Jadwiga
in
directed verdict
granting
erred
a
Kolosowski’s claim for loss
consor-
Stanley
and
that a parent may
tium. Plaintiffs maintain
obtain
from the
arising
for the
losses
parent’s
redress
parent-child relationship.
of the
quality
diminished
not to
a motion for
deciding
grant
whether or
In
verdict,
judge
trial
must accord
the
directed
the
the
nonmoving
viewing
the benefit of
testi-
party
may
all
inferences
be
mony
legitimate
light
therefrom in a
favorable
the
drawn
most
Fox,
v
401,
Caldwell
394 Mich
nonmoving
party.
(1975).
evidence,
If the
when
407;
A
claim
loss
loss
consortium
of the
companionship,
per-
and services
society,
Jones, 386 Mich
Washington v
injured.
son
Smock,
(1971).
Sizemore v
In
234
472; 192 NW2d
(1988),
the Michigan
430 Mich
422 NW2d
the
law of Mich-
Court held that
common
Supreme
parent’s
a
action for loss of
recognize
does
igan
society
companionship. Accordingly,
a child’s
Sizemore,
supra,
we find that
trial
based on
granting
not err in
directed verdict on
court did
loss
consortium claim in this case.
parents’
argue
court
Plaintiffs
further
notwithstanding
granting
judgment
erred
Stanley
Kolosowski’s claim
Jadwiga
verdict on
after
they sustained
witness-
for emotional distress
disagree.
We
ing
injury.
their son’s
motion for
notwith-
judgment
faced with a
When
court
view
evi-
must
standing
verdict
v Wm Beaumont
P. J.
light
nonmoving
dence
most favorable to the
party
presented preclude
if the facts
and decide
nonmoving
judgment
party
for the
as a matter of
law. If the evidence is such that
men
reasonable
question
differ,
could
is one for the
judgment notwithstanding
improper.
the verdict is
Hampshire
Co,
Smart v The
Ins
New
(1985),
App 724, 731;
In the instant the trial court notwithstanding judgment on the basis the verdict proofs at trial there had been no submitted shock witness- that Mr. and Mrs. Kolosowski’s ing injury physical in actual their child’s resulted upon review of the evi- Based our careful harm. 180 by Cynar, P.1. record, did not dence of we find that the trial court granting notwithstanding a judgment err plaintiffs pres- verdict to defendants since did showing trial that Mr. and any ent evidence at sustained actual harm. physical Mrs. Kolosowski argue Plaintiffs next that a notwith- Mr. and Mrs. Kolo- standing against the verdict improper sowski’s claims was since Mrs. Kolosow- malpractice indepen- a victim of ski herself was dent from her son. Plaintiffs further maintain Kolosowski, malpractice Mr. of a spouse as victim, he suf- may recover the derivative losses on his malpractice fered because of the committed disagree. wife. We of defen- allegations duty
Plaintiffs’
owed
relate to Mrs. Kolosow-
duty
dants and a breach
are entwined
birthing
ski’s status as a
mother and
allegations
malpractice
respect
with
child,
the care of the newborn
Robert Kolosowski.
Furthermore,
specific
the evidence of record lacks
or
injuries
proofs by plaintiffs
any physical
suffered
Mr. and Mrs.
damages
independently
only
plaintiffs’ proofs
Kolosowski.
child. The
injury
showed actual
to the
physical
Mr. and Mrs.
proofs
damages
submitted on
only
center on their distress
Kolosowski’s claim
not constitute
an
concern for their
son and do
we
independent
malpractice. Accordingly,
claim of
*19
in
granting
find that
the trial court did not err
the verdict
to defen-
judgment
notwithstanding
evidence
where
there was insufficient
dants
on Mr. and Mrs.
jury
make
an issue for
malpractice.
claim of
independent
Kolosowski’s
supra.
Willoughby,
trial court erred in
argue
next
Plaintiffs
motion for
remittitur
granting
defendants’
for Robert Kolo-
reducing
jury
verdict
thereby
$5,000,000
$106,696.01.
agree.
We
sowski from
v Wm Beaumont
P.J.
As noted recently
our
by
Supreme Court
Palenkas v
Beaumont
Hospital,
(1989),
752 by Cynar, P.J. Partial Dissent Partial Concurrence $5,000,000 remitting jury the verdict from $106,696.01. trial made several
We first note that the court instant The remitting jury in the verdict. errors the investment incorrectly trial court calculated $5,000,000 in percent per year of at ten potential excessive. determining jury the award was $5,000,000 calculations, the the trial court’s Under $14,265,493 by the yield verdict would lump-sum eighteen time that Robert Kolosowski became $25,173,245 when twenty- old and he became years in However, the trial court’s calculations four. determining of the verdict had the excessiveness in Michigan no basis law. the trial court have instructed jury
The should damages present future reduction Co, 185, Goins v Motor Ford 131 Mich value. (1983), Mich 184 lv 424 879 347 NW2d den (1986) Furthermore, request of a . in absence instruction, the trial itself should for this court Id. Thus, present reduced value. have the award excessive, determining in if the verdict was present determined trial court should have than what value of award rather rate at the yielded award could have investment Also, failed per the trial court percent year. ten damages. assessing plaintiffs’ consider inflation Co, & O R 647, Chesapeake Kovacs v 426 Mich (1986), 651; 397 reh den 428 NW2d (1987) . determining court further erred in
The wages supported highest amount lost $293,760, reflected a which the evidence was The trial court an hour life. salary $3.35 value of Robert Kolo- present then calculated the $33,900.46. fac- proper lost as wages sowski’s wages determining lost to be considered tor could earned but for person have injured what Wmv Beaumont P. J. Lott, Prince v the injury. 610; *21 (1963). NW2d 780 case, In the present evidence was presented that, trial showing had Robert not been injured, he could have been a construc- tion worker or a factory worker. Evidence was also presented that an average construction worker per earned Therefore, $14.80 hour in 1984. trial court abused its discretion in determining the evidence only supported a wage of $3.35 an hour.
The trial court further
compounded its error by
reducing the future
wages
lost
by the amount of
income taxes that would have to be paid on the
earnings.
provided
Unless
statute,
for by
courts
must disregard income tax consequences
in fixing
damages
for lost future
earning
in
capacity
per-
sonal
Dep’t
Gorelick v
injury cases.
High-
State
ways,
(1983).
The trial court further by finding erred plaintiffs offered almost no evidence to support noneconomic damages for pain suffering, men- anguish, tal denial of pleasures, social embarrass- ment, and humiliation. The trial court clearly abused its discretion by concluding that the high- est award that supported evidence for noneco- $250,000 damages nomic before reduction to present value. that,
The evidence of record reveals as a result injuries, of his Robert Kolosowski was rendered mildly retarded and there is little likelihood that he will progress ever past fourth-grade level in school. Robert has had very slow development suffers from speech and motor coordination dys- functions. Due to handicap, his he has been teased App 728 Partial P.J. Partial Dissent Concurrence children. also
and ridiculed other Robert com- plains frequent Since he is mentally headaches. retarded, span it is life expected Robert’s will Addi- by approximately percent. ten be shortened normal social tionally, ability Robert’s have is of his interactions with others limited because Thus, proofs on the submitted retardation. based it the trial plaintiffs, judge is inconceivable that there was almost no evidence could conclude that Robert’s claim noneconomic dam- support ages. the evidence thorough
After our
examination
record,
that,
find
remittitur
in the
we
while
court
its discretion in
abused
appropriate,
$106,696.01.
reducing
award
awards,
damage
Michigan
In
reappraising
*22
just compen-
Court has followed
rule of
Supreme
Detroit,
v
Precopio
upon
sation based
the evidence.
(1982); Kellom
v
457,
470;
In
for future
economic and
losses,
lump
sum award must be
noneconomic
Chesapeake &
present
to its
cash value.
reduced
630;
36
60 L
Kelly,
O R Co v
241
Ct
Ed
US
S
(1916); Goins,
supra.
dispute
There
as
1117
is some
personal
injury
to be used in
to the discount
rate
one,
cases,
October
such as this
commenced before
Textron,
Speidel
1986. See Katch v
Division
1,
1984).
(CA
Inc,
6,
For
1136,
746 F2d
cases
1, 1986, all future
on or after October
commenced
must be dis-
losses
economic
noneconomic
v Wm Beaumont
P. J.
counted at the statutory rate of five
percent.
(MCL
27A.6306).
PA
600.6306; MSA
§6306
percent
SJI2d 53.03 provides
rate,
a five
discount
but
companion
there was no
jury instruction
Chesapeake
for inflation. Since Kovacs v
account
Co,
&
O R
(1986),
States, 1981). (CA 10, 666 F2d 1353 This rate (currently percent) nine approximately may then be offset an (approxi allowance inflation Hoskie, four in mately percent years). recent See supra, 1355-1356, pp n 2. Under these any approaches, percent a five discount appropriate to apply here. tables,
According statutory mortality Rob- ert’s life expectancy injuries the absence of his court, would seventy years. noting be Robert’s life expectancy consequence reduced as a of his injuries, awarded lost income on the basis of a working ages life from or eighteen sixty-three, forty-five years. improper; plaintiff This was must be compensated for the seven of his years lost life expectancy both terms the income he would produced have as well enjoyment as the of life that *23 Moreover, light will thus lost. the limita- be of tions on under 29 USC mandatory retirement plaintiff having working be with must credited a life to from expectancy, age his normal life or eighteen of seventy, fifty-two years. total $5,000,000
Dividing by seventy the verdict jury $71,428.57 per in a of years figure year. results old at approximately Since Robert was six years 180 by Cynar, P.J. Partial Dissent past is trial, for losses the of the award time 5,000,000 $428,571.42, the and the remainder of Using percent the five must be for future losses. discount MCLA, Tables, employing rate, the interest table p pocket part Supp, 1988 Cum (and plaintiffs extrapolating life 42 expectancy to account for judgment), years sixty-four the after of present figure losses, the future of the added value approxi- past yields losses, a total
for mately $1,800,000. must now consider whether We is that amount excessive. Eco- economic losses.
We first examine Robert’s
earning
wages, loss
include lost
nomic losses
past
expenses
capacity, and
and future
associated
Obviously,
plaintiff
plaintiff’s injury.
this
with the
wage
present
Further,
did not sustain a
loss.
regarding past or
evidence
record is devoid of
only
expenses
future
tion to made
the
his care. The
determina-
for
regard
to economic losses
be
regard-
highest
proofs
award reasonable on the
earning capacity.
ing
loss
Robert Kolosowski’s
earnings
Damages
are measured
as
future
plaintiff
but for
what
could have earned
disabling injury.
Lott,
v
Prince
(1963).
plaintiff
duty
to miti-
NW2d 780
A
has
damages,
gate
mining
Therefore,
however.
in deter-
his
earning capacity,
these
for”
"but
loss
may
by wages
earnings
it
should be offset
which
anticipated
plaintiff
reasonably
will earn.
be
jury
proofs
case,
this
In
were such that
reasonably
that,
for his
could
have found
but
per
injury, plaintiff
in the
would earn
hour
$14.80
per
industry,
year.
$30,784
or
construction
proofs
have
could
also such
were
perform
that,
Robert would be able to
found
while
competition
work, the
such
low-level unskilled
entering
preclude
work
him from
work would
wage
becoming
in a
earner. Viewed
force and
*24
Wmv
Beaumont
757
P. J.
Partial Concurrence
Partial
Dissent
light
plaintiff, therefore,
most favorable to
Robert’s
earning capacity
per year.
$30,784
lost
This
may
amount
not be reduced
an allowance for
being
statutory authority
taxes,
income
there
no
Dep’t
for such a deduction. Gorelick v
of State
Highways,
324, 341-342;
Once the interest table at Supp, part pocket p Tables, MCLA, 1987 Cum 1988 principal percent pay- 24, for and five interest fifty-two years ments of for each of accumulat- $1 ing year eighteen, until will Robert turn approximately current investment of $10.26 Multiplying wages needed.1 of that amount annual yields present $30,784.00 value Robert’s earning capacity $315,843.84. lost future all in We are agreement represents that amount this highest support amount that the evidence will respect damages. to economic MCR 2.611(E)(1). respect damages
However, with to noneconomic 1 MCLA, may Tables, It be noted table at 1987 interest Supp, pocket 24, part p year Cum 1988 ends at the sixtieth after until judgment, present computed whereas this case value must be (the sixty-fourth age year year plaintiff, the time of his interest after six at the trial, seventy expectancy turn would reach his life but for injuries.) Extrapolating percent the five column of the from table, sixty-fourth sixty-first the discount for the factors years are calculated to be as follows: Factor
Years
61
18.98028
62
19.02884
63
19.07508
19.11912
old,
jury’s
years
Since at the
of the
time
verdict Robert was six
discount factor of 19.11912 must be reduced to
reflect
Robert’s
earning capacity
years,
award for lost
can accumulate for twelve
until
old).
working age (eighteen years
percent
he reaches
The five
column
MCLA, Tables,
pocket
Supp,
part, p
1987 Cum
indicates a
years.
discount rate of 8.86325 for twelve
19.11912 less 8.86325 is
10.25587,
approximately
or
10.26.
App 180 by Cynar, P.J.
Partial Dissent
opinion
colleagues
agree. My
are of the
do not
we
damages
high-
$950,000
is the
in noneconomic
disagree.
support.
will
I
est amount the evidence
*25
past and future dis
losses include
Noneconomic
(McDuffie
disfigurement
ability
Root, 300
v
and
[1942]),
mortifi
286; 1
shame and
Mich
cation,
NW2d 544
(Beath Rapid
pain,
anxiety
R
v
mental
and
[1899]), annoyance,
Co,
512;
537
119 Mich
78 NW
(Grenawalt
Ny
v
discomfiture, and humiliation
[1952]),
phuis,
76;
of
335
opinions
some
which
County,
Ill
Co v
In Northern Trust
Cook
(1985),
157;
329;
3d
90 Ill
In Glomb v 366 Pa 530 A2d (1987), Pennsylvania Superior Court af- general $1,500,000 firmed a award to a fourteen- girl baby girl month-old beaten sitter. The bruising face, suffered severe her head damage resulting brain in the loss normal lan- guage age and, motor three, skills at the yet trial, the time of was as walk unable to noting expected prog- herself. While better than recovery, ress towards the court found she *26 significant problems would continue to suffer for rest life. the of her (CA States,
In Colleen v United 843 F2d 3219 1988), permanent damage an infant suffered brain during delivery. diagnosed She as was later devel- opmentally handicapped, disabled or when and likely first-grade level, mature was to read at be unable to and walk be to of unable be free assis- supervision. magistrate tance and A United States $4,500,000 rendered an award of to infant the and parents $300,000 her which included in noneco- damages parents. appeal, nomic government challenged to the the On only part
as excessive parents, the to the of award which was affirmed. Appeals However, Court of the the did remand expert regarding appro- testimony for the award priate applied. discount rate to be Hospital,
In v Herman Milwaukee Children’s (1984), ten-year- 531; 361 121 Wisc 2d NW2d (dull iq girl eighty-five of old suffered reduced by Cynar, P. J. Partial Dissent and malpractice. range) as of medical normal a result past plaintiff jury $2,609,000 for A the awarded suffering, disability. ap- pain, On and future peal, $925,000, as that reduced to the award was plaintiff’s attorney highest was the requested amount award. opinions, light I conclude In of these the limited judgment and noneco- that a total economic damages present $1,800,000, is of which nomic value of the
$5,000,000 awarded amount may jury, proper. While that amount be towards range high of of awards the possible end a reasonable case, it is still under the facts of this highest sup- amount the evidence will within "the port,” ing 2.611(E)(1) govern- provided under MCR as Accordingly, I would remittitur. reverse $106,696.01, trial verdict of court’s remitted plus judgment $1,800,000 remitted to order the statutory plaintiff in interest Robert Kolosowski damages, past compensation full future, of all of his supported by proofs. only I dissent as damages to be as the amount of noneconomic agree plaintiff twenty- will have opinion We awarded. eight days file an from the date this acceptance the trial court. this Otherwise, this matter be reversed re- will damages. new trial on the issue manded for a argues appeal, Dr. defendant Marlowe
On cross place the testi- took serious errors which expert require mony plaintiffs’ witnesses granting new of a this case. Dr. maintains that
Defendant Marlowe first *27 Redding speculative testimony Dr. was not of degree premised upon any of medical reasonable performed disagree. Redding certainty. We Dr. approximate iq Robert’s several tests determine findings vary not much from the and his did expert. findings concerning iq made defendants’ v Wm Beaumont P.J. Redding’s opinion Furthermore, Dr. causa- speculative. of tion Robert’s retardation was not proximate There was sufficient evidence of causa- support Redding’s opinion tion Dr. and the plaintiffs. Defendant Dr. Marlowe also contends that one plaintiff’s hypothetical questions Redding of Dr. contained assumed facts which were irrelevant controversy. disagree. instant We Our review of the record indicates that the assumed facts were controversy. Moreover, not irrelevant to the actual hypothetical each one of the facts were later Thus, testified to Mr. Kolosowski. we find no error.
Defendant Dr. Marlowe further maintains that expert testimony Dr. Collea’s constituted error requiring phrased improperly it reversal since was personalized in terms of a standard. treating physician damages
A
is liable for
when
departed
it is shown that he
from the
of
standard
customary
prac-
care which is known as
medical
Bluhm,
216, 224;
tice. Carbonell v
(1983).
(1982),
any would doctor act. testifying appropriate Id. In as to the standard expert’s pronoun care, an use of the "I” is im- proper. Id. significant portions case,
In the instant testimony Dr. Collea’s established the standard upon of an care obstetrician and was based personally Dr. what though Collea would have Al- done. may briefly Dr. Collea have mentioned personally done, he what would have there presented by plaintiffs sufficient evidence appropriate on the of medical standard care and we find requiring no error reversal. *28 App 728 180 Mich by Cynar, P.J. Partial Concurrence maintains further Dr. Marlowe
Defendant
deprived
Ancell
testimony
Robert
expert
the
upon refer
it
based
fair trial since
was
him of a
testi
support Ancell's
did not
records which
enced
to
However,
object
did not
defendant
mony.
average
testimony regarding
of Ancell's
admission
circumstances,
this
Under
such
wages at
trial.
relief absent
any
defendant
will not afford
Court
Manson, Jackson &
injustice. Francisco v
manifest
Kane, Inc,
255,
260;
Defendant Dr. Marlowe specula testimony conjectural AncelFs was not testimony was disagree. tive. Mr. AncelFs We of a the nature conjectural speculative. or When or a damages permits only case an estimation it is damages certainty, proper of the part all the facts circum place before prob to show their tendency which have a stances Chandler, 11 Mich amount. Allison v able Inc, v Bell Rustproofing Michigan (1863); Body 385, 391; Co, Telephone 385 NW2d (1986). case, earnings In this future lost minor be ascertained with could not injured Thus, under the facts and complete certainty. case, it not or improper circumstances of this aver present evidence on what an unreasonable age semi-skilled or skilled laborer earns. further contends
Defendant Dr. Marlowe to the stan- impermissibly Bacso testified as Nurse and that she further physician dard of care of a personally testified as what she improperly rather than standard of care would have done Wm v Beaumont and Partial P. Dissent J. in general. However, for nurses while defendant objected qualifications to Nurse Bacso’s as an ex- pert nursing, he did object to her testifying as standard care for a doctor or to her stating what she personally would have done. *29 Since defendant did not make a specific objection trial, to this testimony at we will not afford any supra, Francisco, relief absent manifest injustice. p Furthermore, 260. nurse Bacso’s reference to professionals health care was not error seen from testimony context her in repeat- which she Thus, edly referred to nurses and not doctors. no presented. manifest injustice is Dr. Defendant Marlowe next argues plain- that tiffs’ arguments counsel’s jury and trial conduct him of fair deprived disagree. a trial. We Co,
In Reetz v Kinsman Marine Transit 97, 102-103; (1982), NW2d the Michi- gan Supreme Court stated: reviewing
When an appeal asserting improper an attorney, appellate conduct of court should first determine whether or not the claimed error and, so, was in fact error if it harm- whether harmless, If less. court must the claimed error was not then ask if the properly error was preserved by objection request for instruction or motion then If the preserved, mistrial. error is so right review; not, there is a appellate if the court must inquiry. still make one further It must decide whether a new trial should neverthe- less be ordered may because what occurred have large played part caused the result or may too a party have denied fair If trial. the court affected, that say cannot new trial the result was not then a may granted. be Defendant Dr. plain- Marlowe maintains tiffs’ coun- improperly counsel stated that defense being sel was in reading only portions unfair App 728 by Cynar, P.J. Dissent and Partial Concurrence Partial witnesses impeaching testimony when deposition However, provides: MRE 106 on cross-examination. part statement or writing or recorded aWhen party party, an adverse is introduced thereof may any to introduce require at time him state- writing or recorded part any or other other considered be ought fairness ment which contemporaneously with it. Thus, and comments plaintiffs’ objections failure read all counsel’s regarding defense had deposition testimony of the pertinent portions law not error. Plain- Michigan and was basis request object and tiffs’ was entitled to counsel part other any counsel introduce that defense which should have been deposition testimony on fair- considered contemporaneously ness grounds. Dr. further contends
Defendant Marlowe *30 the suggested improperly plaintiffs’ counsel medical Dr. Marlowe had falsified that defendant records. supra, Supreme Reetz, p Michigan
In the Court stated: case, If, testimony of a witness for as in this the directly testimony the plaintiff contradicts the defendant, the and there is no reason
witness for made, has been that an honest mistake believe fabricating, each that witness must be so one his right argue witness has the that counsel speaks presents a fabri- truth the other the while cation. case, argued counsel plaintiffs’
In present the Marlowe, conjunction Dr. that defendant nurses, had created a false medical hospital the Mrs. Kolosowski had indicated that record that v Wm Beaumont P. J. received constant attention and had been told numerous get times to out of the bathroom and into bed. The allegedly falsified record was pre- plaintiffs sented by and admitted as an exhibit. Plaintiffs produced also record, a second hospital purportedly the original, which contained no such evidence of numerous visits to Mrs. Kolosowski’s Furthermore, room. at trial did testimony appear to support the comments written on defen- dants’ version of the medical records. Accordingly, we find that the evidence plaintiffs’ substantiated claim of false documentation and that plaintiffs’ counsel’s arguments were not improper.
Defendant Dr. argues Marlowe next court erred in denying his motion for a judgment notwithstanding the verdict on the basis that Mr. and Mrs. Kolosowski’s claims were barred However, statute of limitations. we need not address this issue on appeal since we have already determined that a judgment notwithstand- ing verdict granted was properly against Mr. and Mrs. Kolosowski’s grounds. claims on other
Defendant Dr. Marlowe next argues trial court erred by improperly submitting por- plaintiffs’ tion of case to the jury by denying his partial motions for a directed verdict and a notwithstanding the verdict. Defendant 20(a) Dr. Marlowe paragraphs maintains (b) plaintiffs’ amended complaint should have been stricken by a directed verdict and that trial court’s error was compounded when court grant judgment notwithstanding refused to disagree. verdict. We for a standard review this Court *31 of a
denial motion for a directed verdict and a judgment notwithstanding motion for a the verdict give nonmoving is the same. This Court must of inference party every benefit reasonable App 728 180 by Cynar, P.J. and Dissent Partial Partial Concurrence If, the evidence. be drawn from could to most favorable viewing light evidence in a to as minds could differ plaintiff, reasonable has his or her burden plaintiff a met whether nor verdict neither a directed proof, and appropriate the verdict is notwithstanding v Dickerson jury. decided case should be Nichols, 103, 107; App 161 Mich 409 NW2d (1987). 20(a) (b) plaintiffs’ paragraphs
In a rea- plaintiffs alleged that complaint, amended obstetrician, in circumstances prudent sonable Dr. Mar- to defendant those confronted similar his lowe, arrangements made to have would have Plain- placed in a labor bed. patient examined Dr. Marlowe alleged that defendant tiffs further his arrangements and that failed to make such stan- acceptable breach of failure constituted in a Viewing the evidence of record dard care. minds reasonable light plaintiffs, most favorable Dr. failed differ as to whether Marlowe could arrangements get Kolosow- make Mrs. adequate There- placed into the labor ski examined and bed. fore, err the trial court did not we find for a Dr. motions denying defendant Marlowe’s notwithstanding and judgment directed verdict on this issue. verdict a new argues Dr. lastly
Defendant Marlowe it granted inappropriate trial should be since for a grant request plaintiffs for the trial court 50.02. anguish, on mental SJI2d jury instruction requested A instruction standard properly if given accurately if it states the law must be v Grand to the case. Houston applicable it is Co, Trunk W R NW2d (1987). re The determination whether and accu applicable instruction is quested jury of the the discretion the law within rately states *32 Wm v Beaumont P.J. p Id., trial court. 609. If the instruction is inadequate, required only erroneous or reversal failure reverse where would be inconsistent supra, justice. p Willoughby, with substantial 336. upon record, Based review I find that the determining court did not abuse its discretion in plaintiffs’ requested jury instruc- anguish accurately tion mental stated the law applicable proofs and was to this Plaintiffs’ case. adduced sufficient evidence to warrant instruc- anguish. Furthermore, tion on mental even if the erroneous, instruction were I would find no sub- injustice requiring to defendant stantial reversal. part part. I would affirm and reverse in Additionally, respect proper I to the dissent damages. amount to be awarded noneconomic