COX v. FLINT BOARD OF HOSPITAL MANAGERS (ON REMAND), 243 Mich. App. 72

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 bom 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 five 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. 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. 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 NW2d 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 NW2d 527 (1972) (“[CJounsel 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. 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 NW2d 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 NW2d 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 NW2d 32 (1984). See also Schutte v Celotex Corp, 196 Mich App 135, 142; 492 NW2d 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. 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 NW2d 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 NW2d 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 NW2d 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.” 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.

While the trial court did omit the terms “learning, judgment or sMll” 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 NW2d 781 (1995); Larzelere v Farmington Twp, 63 Mich App 465, 468; 234 NW2d 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. Hart-stuff, 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. 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 NW2d 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 NW2d 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 NW2d 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 Plamondon’s actions comported with the actions expected of an individual nurse with “ordinary learning, judgment or skill.” 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. Furthermore, review of the history of the evolution of the Standard Jury Instructions (sji) 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 NW2d 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 NW2d 243 (1979).

There, the Court stated: We have reconsidered the Javis rale 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 rale 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 SJI 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 NW2d 713 (1985), the Cotut 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. Ville-gas 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 NW2d 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. Dorm 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 Bd 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. 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.

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. 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 NW2d 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. 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. 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 not reprint those allegations here.

The dissent contends that the “sole authority” for our conclusion is the Greathouse decision and that that decision is limited to examining qualifications as defined by statute. Our review of the Greathouse decision indicates that 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 our citation of the Redmon decision. In that case, the plaintiff’s expert suffered a heart attack in February 1970 and was rendered unable to testify. In March 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 acUournments 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 nonetheless address the merits of the issue. 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. 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 together “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. Defendant relies on Danner v Holy Cross Hosp, 189 Mich App 397, 398; 474 NW2d 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 coiporate 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.

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.

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. 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.