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STATE OF MICHIGAN
COURT OF APPEALS


BARBARA SCOTT, Personal Representative of the Estate of MINNISE J. HOLT, Plaintiff-Appellee, v BRUCE ADELMAN, M.D., Defendant-Appellant.

UNPUBLISHED February 21, 2008

No. 273859 Ingham Circuit Court LC No. 03-002131-NH

Before: Markey, P.J., and Meter and Murray, JJ. PER CURIAM. In this medical malpractice action, defendant appeals by leave granted from the trial court's order granting plaintiff's motion for a new trial. We reverse and remand for reinstatement of the jury verdict. Plaintiff's decedent Minnise Holt underwent surgery to remove a mole from his face. At the time, Holt was a 79-year-old resident of a nursing home suffering from "dementia with a lot of psychiatric problems" as a result of advanced Alzheimer's disease. Because of his condition, Holt was sedated during the surgery. Defendant was the anesthesiologist involved in Holt's procedure. Defendant testified that he was present for the initial induction of the anesthetic and then left the operating room. Sandra Robe, a certified registered nurse anesthetist (CRNA) remained in the room throughout the procedure and, among other things, monitored the oxygen delivery to Holt. Dr. Edward Lanigan, the plastic surgeon who operated on Holt, testified by deposition that during the procedure a fire erupted, which was sparked by the close use of a Bovie cauterizing device to the oxygen from the nasal cannula attached to Holt's face. Evidence at trial suggested that oxygen had accumulated under the surgical drape Robe placed over Holt's face, which increased the risk of such a fire. The fire was quickly extinguished, and defendant returned to the operating room "almost immediately" and intubated Holt within minutes. The fire resulted in first- and second-degree burns to Holt's face and airway. Holt died approximately two and a half months later of aspiration pneumonia, a complication of the injuries that he sustained in the fire.

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Plaintiff, Holt's daughter, brought a medical malpractice action against, among others, Lanigan, Robe, and defendant. As a result of pre-trial settlement agreements, the sole defendant in the instant trial was Adelman, the anesthesiologist. After the close of plaintiff's proofs at trial, both parties unsuccessfully moved for directed verdicts. The jury ultimately found in favor of defendant. Plaintiff then moved for judgment notwithstanding the verdict (JNOV) and a new trial. The trial court granted plaintiff's motion for a new trial, and this appeal followed. Defendant's sole argument on appeal concerns the lower court's grant of plaintiff's motion for a new trial. We review this decision for an abuse of discretion. People v Cress, 468 Mich 678, 691; 664 NW2d 174 (2003). An abuse of discretion occurs when the result is outside of "the principled range of outcomes." People v Carnicom, 272 Mich App 614, 617; 727 NW2d 399 (2006). In contrast, we review questions of law and claims of instructional error de novo. Kelly v Builders Square, Inc, 465 Mich 29, 34; 632 NW2d 912 (2001); Cox v Flint Bd of Hosp Managers, 467 Mich 1, 8; 651 NW2d 356 (2002). At the close of proofs, plaintiff's attorney asked that a special instruction be given to the jury. The proposed instruction reads as follows: In the operating room, while a patient is undergoing surgery, the anesthesiologist is ordinarily regarded, in law, as having exclusive responsibility and control of the anesthesia. The anesthesiologist can thus be held responsible for any acts of negligence committed during the operation by any member of the anesthesia care team who is under the anesthesiologist's direction, no matter whether or not such assistant is an employee of another. For the purposes of the surgery, such a person is often called a "borrowed servant" for whose acts the anesthesiologist must respond as an employer for the acts of a servant performed in the course of that employment. If you find from the evidence in this case that the injury which is the subject of this action was due to the act of a person other than the defendant anesthesiologist, but who was under the anesthesiologist's direct supervision and control, you may find the defendant liable. If, on the other hand, you find that whether or not the act took place while the anesthesiologist was present, the person so acting was not acting under the anesthesiologist's direct supervision and control, your verdict should be for the defendant. Plaintiff's attorney argued that the instruction was warranted by the American Society of Anesthesiologists (ASA) "guidelines" and by defendant's concession at trial that he maintains ultimate responsibility for the anesthesia care team. In contrast, defense counsel argued that there was conflicting testimony as to the effect of the ASA guidelines and that the requested instruction would simply reiterate plaintiff's trial arguments and present them as law, virtually requiring the jury to find for plaintiff.

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Ultimately, the trial court agreed with defense counsel and refused to give the requested instruction, reasoning that plaintiff's attorney could still make the argument to the jury. The standard jury instructions were given. After three hours of deliberating, the jury returned a verdict of no cause of action in favor of defendant. In granting plaintiff's motion for a new trial, the trial court stated: Okay. The Court has read your motion and your brief and the Defendant's response. And I have to say I was shocked by the verdict in this case, and I also went and talked to the jury, as you indicated, and at least one said, well, if there was an instruction saying that . . . [defendant] was responsible for the nurse anesthetist, they would have found differently. I know Mr. Boss [a juror] said there was some comment about the, um, Plaintiff's expert didn't work with nurse anesthetists, but I believe it was . . . [Juror] Boss who also said if he had that instruction, he would have probably

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