Brahm v. DHSC, LLC. , 2019 Ohio 766 ( 2019 )

[Cite as Brahm v. DHSC, LLC., 2019-Ohio-766.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
JAMES E. BRAHM, INDIVIDUALLY : Hon. W. Scott Gwin, P.J.
AND AS EXECUTOR OF THE : Hon. Patricia A. Delaney, J
ESTATE OF MARY KATHLEEN : Hon. Craig R. Baldwin, J.
BRAHM, DECEASED :
:
Plaintiff-Appellant : Case No. 2018CA00100
:
-vs- :
: OPINION
DHSC, LLC, DBA AFFINITY
MEDICAL CENTER, ET AL
Defendants-Appellees
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Case No. 2014CV01545
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 4, 2019
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee Joseph Surmitis
STEPHEN GRIFFIN STEPHEN FUNK
4051 Whipple Ave. 222 South Main Street
Suite 201 Akron, OH 44308
Canton, OH 44718
For DHSC, LLC DBA Affinity Med. Center
MICHAEL OCKERMAN
3737 Embassy Parkway, Ste. 100
Akron, OH 44333
[Cite as Brahm v. DHSC, LLC., 2019-Ohio-766.]
Gwin, P.J.
{¶1} Appellant appeals the judgments in favor of appellees issued by the Stark
County Court of Common Pleas.
Facts & Procedural History
{¶2} On June 30, 2014, appellant James E. Brahm, individually and as executor
of the estate of Mary Kathleen Brahm, deceased, filed a complaint against appellee
DHSC, LLC D/B/A Affinity Medical Center (“Affinity”), appellee Joseph Surmitis, M.D.
(“Surmitis”), Paula Hostetler, R.N., Cinda Keener, R.N., Susan Kelley, R.N., and Kellee
Mears, R.T. Appellant alleged in his complaint that on July 10, 2013, decedent Mrs.
Brahm suffered a mild myocardial infarction, she was transported from her home to
Affinity by EMS, the cardiac catheterization team at Affinity was called to perform a
cardiac catheterization/stent procedure on Mrs. Brahm, and during the procedure, the
walls of Mrs. Brahm’s coronary artery were torn or ruptured. Appellant further averred
the rupture caused Mrs. Brahm’s blood volume to accumulate around her heart,
constricting her heart, restricting its ability to move blood volume throughout her body,
and placing her into cardiogenic shock. Appellant alleged subsequent efforts by Surmitis
and his team to mitigate the harm caused by the ruptured coronary artery further
comprised Mrs. Brahm’s condition and Mrs. Brahm expired after subsequent cardiac
surgery failed to repair and/or resume or restore her condition. Appellant included in his
complaint claims for medical negligence survivorship, loss of consortium, and wrongful
death.
{¶3} On December 8, 2014, the trial court granted appellant’s motion to file a first
amended complaint to add claims for punitive damages, negligent credentialing, and
Stark County, Case No. 2018CA00100 3
agency by estoppel. On February 20, 2015, the trial court ordered bifurcation of
appellant’s negligent credentialing and punitive damages claims from appellant’s medical
negligence claims, but ordered discovery be conducted on all claims.
{¶4} Appellant voluntarily dismissed his claims against Cinda Keener, Kellee
Mears, Paula Hostetler, and Susan Kelley on April 13, 2015.
{¶5} After multiple interlocutory appeals regarding discovery issues, the case
went to trial on June 18, 2018. Appellant provided this Court with a partial transcript of
the trial. The partial transcript contains an excerpt from June 20, 2018. The excerpt
covers a motion hearing on Affinity’s motion for directed verdict. Affinity argued that,
based upon appellant’s testimony that he signed a release, it was entitled to a directed
verdict. Appellant argued the release was not sufficient based upon the Clark theory.
The trial court granted Affinity’s motion for directed verdict.
{¶6} The June 22, 2018 excerpt contains the testimony of Surmitis and Dr. Kevin
Silver. On direct examination, Surmitis described the procedure he performed on Mrs.
Brahm. Surmitis placed a sheath in Mrs. Brahm’s right femoral vein and right femoral
artery, and then inserted a pacemaker. Surmitis passed the wire through the distal part
of the vessel and then moved on to the angioplasty, a procedure by which he uses
balloons or stents to restore proper blood flow to a blood vessel. Surmitis placed the
balloon into the midportion of the right coronary artery. Surmitis testified he used a 2.5
by 15 Maverick balloon, which is a compliant balloon that many interventionalists use. He
re-established a flow of blood through the vessel and then deflated the balloon. Surmitis
chose a Veriflex stent and inserted the stent, but sought to expand the stent further with
a post-dilatation inflation of another balloon. Surmitis chose a 3.5 mm by 20 mm long
Stark County, Case No. 2018CA00100 4
Maverick balloon. Surmitis does not believe the balloon he chose was oversized or that
he used the wrong type of balloon. Surmitis testified the choice between using a
compliant balloon and non-compliant balloon is based upon physician discretion and the
Maverick balloon he used has the indication for being used for post-dilatation. Surmitis
felt a non-compliant balloon could produce side effects due to the use of very high
pressure.
{¶7} Surmitis testified he was trained and it is common practice to go over the
manufacturer’s burst pressure rating. Surmitis stated that, in this case, the balloon did
not burst. After Surmitis’ second inflation of the balloon, he had immediate problems, as
blood was escaping from the middle portion of the stent. Surmitis testified the vessel
perforated. Surmitis does not believe he was negligent in causing the rupture of the
vessel because this is a risk in between 1 and 200 or 500 procedures, even with good
technique. After Surmitis stopped the bleeding at the site, he felt Mrs. Brahm needed to
have pericardiocentesis to try to drain some of the fluid around the heart. The
pericardiocentesis procedure is where Surmitis would enter the pericardium, drain out the
blood, allow the heart to expand, and then bring up the blood pressure. Surmitis testified
he found out after surgery that the catheter tip was in the right ventricle, even though the
indications in the cath lab were that it was the pericardium. Surmitis stated he did not
believe he was negligent in placing the catheter because, while it was not in the desired
place, it is a known complication of the procedure.
{¶8} On cross-examination, counsel for appellant asked Surmitis about an article
written by Antonio Colombo in 2008 (“the Colombo article”). Counsel for Surmitis
objected to the questioning regarding the article because it was not produced in discovery
Stark County, Case No. 2018CA00100 5
and Surmitis did not have an opportunity to read it. The trial court overruled Surmitis’
objection. Counsel read portions of the article indicating the use of non-compliant
balloons for post-dilation inflation is preferred over compliant balloons and using a
compliant balloon at high pressure post-dilation increases the risk of perforation. When
being questioned about the data in the article regarding using a compliant or non-
compliant balloon in post-dilatation, Surmitis testified the Colombo article is “just a
snapshot of a few persons’ thoughts from Italy, without any, you know, FDA guidance or
anything. It’s just their opinion at that point in time.” Counsel for appellant asked, “And
published in the American College of Cardiology Journal, right?” Surmitis responded,
“Yeah. There is a large volume – this is only one article out of hundreds of thousands or
millions of articles.” Counsel for appellant then asked, “You’ve read that article, nowhere
in that article does it advocate anywhere the use of compliant balloons in post-stent
deployment dilatation?” Surmitis stated the article does not say that you cannot use
compliant balloons for post-dilatation and he was justified in choosing to do so.
{¶9} On re-direct examination, Surmitis testified he is sure there is plenty of
literature published on the topic from 2008 to 2013. Further, that from 2008 to 2013, there
have been many advances and revisions of recommendations of how to use stents.
Surmitis stated the balloon he chose for the post-dilatation was the appropriate size for
the vessel he was going to post-dilate.
{¶10} Prior to Dr. Kevin Silver’s (“Silver”) testimony, counsel for appellant
informed the trial court he intended to cross-examine Silver on several articles that Silver
had not read and were not provided in discovery. Counsel sought to utilize these articles
to impeach Silver. The trial court informed counsel he would permit such cross-
Stark County, Case No. 2018CA00100 6
examination and asked counsel how many articles he would be utilizing. Counsel stated
as follows: Well, I have three or four. But if we were going to use the article that we
identified this morning because I do understand that I haven’t – I don’t want to drag this
out this afternoon, everybody wants to get out this afternoon, I appreciate that. So rather
than have to give them copies and spend a half hour, 45 minutes doing it, I’ll just rely on
the article that we produced this morning.” When opposing counsel asked if the only
piece of literature counsel for appellant was going to bring out is the one already
discussed with Surmitis, counsel for appellant stated, “Yeah, just in the interest of judicial
economy.” The trial court stated if counsel for appellant chose to do something different
during the cross-examination, he should approach the bench for a sidebar.
{¶11} Counsel for Surmitis called Silver as an expert witness. Silver testified his
opinion is that Surmitis met the standard of care required of him. Silver noted Mrs. Brahm
was a 72-year old woman, hypertensive, and cigarette smoker. Silver went through each
step of Surmitis’ procedure and stated each step was within the standard of care. As to
the coronary artery perforation, Silver stated this is a well-recognized complication and
Surmitis followed the protocol after the complication. Further, that the placement of the
catheter into the right ventricle was a complication. Silver testified neither the perforation
of the right coronary artery nor the placement of the catheter into the right ventricle was
due to negligence by Surmitis. Silver stated the “blind” method Surmitis used in placing
the catheter was reasonable, appropriate, and pursuant to the standard of care in such
an emergency situation.
{¶12} As to the balloon selected and the pressure utilized, Silver testified there
are two types of balloons, compliant balloons and noncompliant balloons, and under the
Stark County, Case No. 2018CA00100 7
same pressures, the compliant balloons will stretch more than the noncompliant balloons.
Silver stated the FDA has approved both type of balloons to be used to post-dilate stents.
Silver testified it was reasonable of Surmitis to conclude if he inflated a balloon to the
same pressure once, he would not oversize the balloon if he used it again under the same
pressure. Silver opined there was a rupture because calcium in the artery pushed through
the vessel wall. Silver testified the Maverick balloon Surmitis used was one of several
balloons that are equally acceptable for post-dilation inflation and that Surmitis inserted
the balloon appropriately and the balloon was expanded appropriately.
{¶13} When Silver was asked how he could inflate a balloon to higher
atmospheres of pressure when the manufacturer says the limit is lower, Silver testified as
follows:
They typically go to high pressures. And there were studies back in
the 1990’s, late 1990’s, supporting this. I believe one of the articles was
pulled for that. And that’s a review article, but there are many articles and
there are many studies done. Now it’s become standard of care. I go to
between two and three interventional courses every year where we watch
anywhere from 10 to 50 live cases being done from around the world, and
these cases are brought in by satellite, you watch them on a big screen,
and you can go up to a microphone, you can talk to the operator while
they’re doing these cases and you ask them questions: Why are you
inflating? Why’d you use that balloon? Why did you use this pressure? You
know, and this is not just in Cleveland, this is throughout the United States,
Stark County, Case No. 2018CA00100 8
this is throughout the world. This is standard of care. I’ve seen people go
very, very high atmospheres just to get the balloon to be the right size.
{¶14} Silver testified the numbers on the manufacturer’s literature are a rough idea
and every patient is different. Silver stated he goes over the manufacturer’s limit on
pressures greater than fifty percent of the time. Further, his partners, who have trained
in a variety of different places, all go over the rated burst when they post-dilate a stent
because this has become a standard of care.
{¶15} On cross-examination, Silver confirmed that he did not have the names of
any of the articles supporting high pressures. Silver testified “there are many different
articles, it would be hard for me to list them all. So, no, I did not give him the names.”
Silver confirmed that in his deposition, he did not give the names of any of the articles,
but referred to various journals such as the Journal of the American College of Cardiology
and New England Journal of Medicine. Silver also gave counsel the name of Antonio
Colombo. Counsel inquired as to why, seven months after his deposition, Silver still
didn’t have the name of one article that he is basing his opinions on and Silver testified,
“I did not bring an article or book with me.”
{¶16} Later in cross-examination, counsel for appellant inquired as to whether the
literature differentiates between complications that are negligent and those that are not.
Silver testified the literature does not. The end of Silver’s testimony and cross-
examination is the end of the transcript excerpt provided to this Court.
{¶17} On June 25, 2018, the jury found in favor of Surmitis on both appellant’s
survivorship claim and wrongful death claim. In the jury interrogatories, the jury found
appellant did not prove by a preponderance of the evidence that the care provided to Mrs.
Stark County, Case No. 2018CA00100 9
Brahm by Surmitis was negligent. The trial court issued a judgment entry on the verdict
on June 26, 2018, awarding judgment to Surmitis.
{¶18} Appellant filed a motion to enforce settlement agreement on July 5, 2018.
Attached to the motion is the affidavit of counsel for appellant, stating all factual
allegations set forth in the motion are verified and authenticated and all attached
exhibits/correspondence were prepared by him. The exhibits consist of several e-mails
between counsel for appellant, counsel for Affinity, and their office staff.
{¶19} Counsel for appellant e-mailed Affinity on Thursday, June 21, 2018, stating
the family appreciated the $50,000 offer to settle as communicated by the trial judge and
stating he was authorized to offer Affinity a full and final release for $120,000. On Friday,
counsel for Affinity responded that the carrier was not interested in increasing their offer,
but if counsel for appellant wanted to talk, he should call counsel for Affinity. The following
Monday, counsel for appellant sent an e-mail stating appellant accepted the offer of
$50,000 as a cost settlement and, in exchange, no appeal would be filed on the court’s
ruling awarding Affinity a directed verdict and, further, appellant would file a voluntary
dismissal with prejudice to Affinity on the negligent credentialing claim. Counsel for
Affinity thanked him for his response.
{¶20} On Tuesday, counsel for appellant’s assistant e-mailed counsel for
appellant, stating counsel for appellee’s office told her Brahm had to be on the check
since it is being settled on their behalf. The assistant sent an e-mail to the office staff of
Affinity’s counsel informing them who to make the check out to and Affinity’s counsel’s
staff responded, “Got it.” Later than afternoon, counsel for Affinity sent counsel for
appellant an e-mail stating it was their position that when they offered $50,000 and
Stark County, Case No. 2018CA00100 10
appellant countered at $120,000 and they refused the demand of $120,000, the offer of
$50,000 was off the table and thus there was no offer on the table to be accepted by
appellant on June 25th.
{¶21} In his motion, appellant argues Affinity did not limit their offer in time or
duration and appellant accepted the offer prior to the verdict; thus the parties resolved
their claims for $50,000 in exchange for a promise not to appeal the directed verdict ruling
and a dismissal of the negligent credentialing claim with prejudice. Appellant also
contends the office staff of the attorneys acted in conformity with a meeting of the minds
for settlement. Appellant stated in his motion that all supportive exhibits were attached.
Appellant did not request a hearing on the motion to enforce.
{¶22} Appellant filed a notice of voluntary dismissal, with prejudice, of his
negligent credentialing claim, but subsequently filed a notice of withdrawal of the
dismissal after the trial court overruled appellant’s motion to enforce.
{¶23} The trial court overruled appellant’s motion to enforce settlement agreement
on July 12, 2018.
{¶24} Appellant appeals the judgments in favor of appellees issued by the Stark
County Court of Common Pleas and assigns the following as error:
{¶25} “I. THE TRIAL COURT ERRED IN PERMITTING DR. SURMITIS AND HIS
EXPERTS TO TESTIFY THAT THEIR OPINIONS REGARDING THE SELECTION AND
DEPLOYMENT OF A COMPLIANT BALLOON IN A POST-DILATION INFLATION WERE
SUPPORTED BY THE ‘MEDICAL LITERATURE.’
Stark County, Case No. 2018CA00100 11
{¶26} “II. THE TRIAL COURT ERRED IN PERMITTING DR. SURMITIS’ EXPERT
TO TESTIFY THAT ‘EVERYONE’ OVERINFLATES COMPLIANT BALLOONS IN A
POST-DILATION INFLATION.
{¶27} “III. THE TRIAL COURT ERRED IN DIRECTING A VERDICT IN FAVOR
OF AFFINITY MEDICAL CENTER UPON PLAINTIFF’S AGENCY BY ESTOPPEL
LIABILITY THEORY.
{¶28} “IV. THE TRIAL COURT ERRED IN FAILING TO CONDUCT A HEARING
ON PLAINTIFF’S MOTION TO ENFORCE THE SETTLEMENT BETWEEN PLAINTIFF
AND AFFINITY MEDICAL CENTER.
{¶29} “V. THE TRIAL COURT’S ERRONEOUS RULINGS COLLECTIVELY
DEPRIVED PLAINTIFF OF A FAIR TRIAL AND CONSTITUTED CUMULATIVE ERROR,
WARRANTING A NEW TRIAL.”
I. & II.
{¶30} In his first and second assignment of error, appellant argues the trial court
erred in allowing Surmitis and Silver to refer to certain medical literature during their
testimony. Appellant also contends the trial court erred in allowing Silver to testify about
his observations at medical conferences and to the techniques used by his colleagues.
{¶31} Decisions regarding the admissibility of evidence are within the broad
discretion of the trial court. Beard v. Meridia Huron Hospital, 106 Ohio St.3d 237, 834
N.E.2d 323 (2005). A decision to admit or exclude evidence will be upheld absent an
abuse of discretion. Id. Abuse of discretion is more than an error of law or judgment;
rather, it implies that the court’s attitude is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
Stark County, Case No. 2018CA00100 12
{¶32} “An improper evidentiary ruling constitutes reversible error only when the
error affects the substantial rights of the adverse party or the ruling is inconsistent with
substantial justice.” Beard v. Meridia Huron Hospital, 106 Ohio St.3d 237, 834 N.E.2d
323 (2005). To determine if a ruling affects the substantial rights of the adverse party or
is inconsistent with substantial justice, a “reviewing court must not only weigh the
prejudicial effects of those errors but also determine that, if those errors had not occurred,
the jury * * * would probably have made the same decision.” Id.{¶33} We first note that appellant did not object to any of the testimony he now
seeks to argue that the trial court erred in admitting. It is well-settled that a party must
object in order to preserve an issue for appeal. See, e.g., State v. Jones, 91 Ohio St.3d
335, 2001-Ohio-57, 744 N.E.2d 1163; State v. Robb, 88 Ohio St.3d 59, 723 N.E.2d 1019(2000).
{¶34} Because appellant failed to object to the testimony during the trial, we must
determine whether the trial court committed plain error in allowing the testimony. To
invoke the plain error doctrine, the party claiming error must establish: (1) that an error,
i.e., a deviation from a legal rule, occurred; (2) that the error was an “obvious” defect in
the trial proceedings; and (3) that this obvious error affected substantial rights, i.e., the
error must have affected the outcome of the trial. State v. Morgan, 153 Ohio St.3d 196,
2017-Ohio-7565, 103 N.E.3d 784. In appeals of civil cases, the plain error doctrine is not
favored and may be applied only in the extremely rare case involving exceptional
circumstances where error seriously affects the basic fairness, integrity, or public
reputation of the judicial process itself. Goldfuss v. Davidson, 79 Ohio St.3d 116, 679
N.E.2d 1099 (1997). The Ohio Supreme Court stated the public’s confidence is rarely
Stark County, Case No. 2018CA00100 13
upset merely by forcing civil litigants to live with the errors they themselves or the attorney
chosen by them committed at trial. Id. Plain error does not exist unless it can be said
that but for the error, the outcome of the trial would have clearly been otherwise. State v.
Moreland, 50 Ohio St.3d 58, 552 N.E.2d 58 (1990); In the Matter of D.M., 5th Dist.
Guernsey No. 18 CA 18, 2018-Ohio-4737.
{¶35} Appellant first contends the trial court erred in allowing the testimony of
Surmitis that, “There is a large volume – this is only one article out of hundreds of
thousands or millions of articles.” This testimony was given by Surmitis on cross-
examination, when counsel for appellant questioned him about the Colombo article and
whether the Colombo article was published in the American College of Cardiology
Journal.
{¶36} Appellant also argues the trial court erred in allowing the testimony of Silver
that “we typically go to high pressures. And there were studies back in the 1990’s
supporting this. I believe that one of the articles was pulled for that. And that’s a review
article, but there are many articles and there are many studies done.”
{¶37} Appellant contends the trial court erred in admitting Silver’s testimony about
watching “anywhere from 10 to 50 live cases being done from around the world * * * this
is not just in Cleveland, this is throughout the United States, this is throughout the world.
This is standard of care. I’ve seen people go very, very high atmospheres just to get the
balloon to be the right size.”
{¶38} In Beard v. Meridia Huron Hospital, the Ohio Supreme Court held that “an
expert witness may testify that his or her opinions are based, in part, on a review of
professional literature.” 106 Ohio St.3d 237, 834 N.E.2d 323 (2005). The Supreme Court
Stark County, Case No. 2018CA00100 14
reasoned that experts are permitted to testify regarding the information that provides the
basis for their opinions and because experts are permitted to base their opinion on their
education, including review of professional literature, training, and experience, it follows
that experts are also allowed to testify regarding that information. Id.{¶39} As stated by the Ohio Supreme Court and previously cited by this Court,
“there is a difference between a witness’s referring to specific statements in professional
literature as substantive evidence and an expert witness’s referring to the literature as
being part of the basis for that expert’s opinion. While the former reference would be
inadmissible hearsay, numerous courts in Ohio have held that the latter reference is
admissible. We agree with the decisions in those cases.” Id.; State v. Cheesman, 5th
Dist. Fairfield No. 15 CA 59, 2016-Ohio-5040.
{¶40} Evidence Rule 803(18) allows for a learned-treatise exception to the
hearsay rule. The exception to the hearsay rule contained in Evidence Rule 803(18) was
adopted in acknowledgment of the fact that “every expert brings a certain amount of
‘background hearsay’ to his or her opinion, in the form of the out-of-court statements of
textbook authors, colleagues, and others that forms much of the basis of the expert’s
training and education. Ohio law now allows experts to rely on that knowledge in
establishing their qualifications and in forming opinions.” 2006 Staff Notes to Evid.R.
803(18).
{¶41} In this case, the reference to medical literature by Surmitis and Silver is not
inadmissible hearsay. The testimony by Surmitis was in response to a question by
counsel for appellant on cross-examination about the Colombo article. Surmitis did not
seek to introduce any specific article as substantive evidence in violation of Evid.R.
Stark County, Case No. 2018CA00100 15
803(18) and did not present any testimony that violated Beard. Silver’s testimony about
the “studies back in the 1990’s” was made while Silver was explaining the basis for his
opinion on the standard of care. Silver did not seek to admit any medical literature itself
as substantive evidence. Such testimony is specifically allowed pursuant to Beard and
Evid.R. 803(18). Further, Silver’s testimony about medical procedures in Cleveland and
throughout the world is not testimony about what others “told” him at the medical
conferences, but was testimony by Silver as to what he actually observed at medical
conferences, watching via satellite on a big screen. Thus, Silver was testifying about his
own background and experience in order to explain the basis of his opinion in compliance
with Beard and Evid.R. 803(18).
{¶42} Appellant cites Piotrowski v. Corey Hospital in support of his arguments.
172 Ohio St. 61, 173 N.E.2d 355 (1961). In Piotrowski, the Court found it was prejudicial
error to admit an Ohio State Medical Journal article as an exhibit over objection and with
the comments favorable to the plaintiff underlined in ink. Id. The Court held, “generally,
it is prejudicial error to admit in evidence over objection, medical articles or treatises as
independent evidence of the theories and opinions therein expressed, and this is
particularly true where the evidence in the case is conflicting * * *.” The same reasoning
is not applicable in this case. Appellant did not object to the testimony. Neither Surmitis
nor Silver acted as a conduit for the out-of-court statements of others. Surmitis was
answering a question on cross-examination regarding the Colombo article. Silver utilized
information from various sources, including medical literature, to reach his own opinion
about the applicable standard of care. Silver testified to his opinion and was cross-
Stark County, Case No. 2018CA00100 16
examined regarding that opinion during which counsel for appellant challenged his
reasoning and attacked the basis for his opinion.
{¶43} Appellant lastly argues that because neither Surmitis nor Silver ever
produced one specific piece of literature to support their testimony, he had no way to
effectively cross-examine Surmitis or Silver to counter the effect of their testimony about
medical literature. Additionally, appellant states he could not effectively cross-examine
Silver with specific articles due to the length of time it took to elicit the testimony regarding
appellant’s introduction and cross-examination with the Colombo article.
{¶44} Appellant essentially advances the argument of the dissent in Beard that a
party suffers significant prejudice when an expert is permitted to refer to unspecified and
vague medical literature. Beard v. Meridia Huron Hospital, 106 Ohio St.3d 237, 834
N.E.2d 323 (2005). However, as detailed above, this is not the holding of the majority in
Beard. See also Morris v. McQuillen, 5th Dist. Richland No. 2008-CA-87, 2009-Ohio-
2848 (finding no plain error when there was no objection to the testimony and when the
appellant had the opportunity to cross-examine appellee on the testimony); State v.
Henderson, 6th Dist. Ottawa No. OT-15-047, OT-15-048, 2017-Ohio-412 (overruling
appellant’s argument that the trial court abused its discretion in allowing the expert to
make repeated references to literature, but never identifying specific literature or admitting
it into evidence and finding no abuse of discretion in allowing expert to reference literature
that assisted him in forming his opinion); Werden v. The Children’s Hosp. Med. Ctr., 1st
Dist. Hamilton No. C-040889, 2006-Ohio-4600 (overruling appellant’s argument that
permitting an expert to mention various studies without specifying the particular literature
prevented effective cross-examination and finding it was proper to allow the expert to
Stark County, Case No. 2018CA00100 17
refer to articles and literature to support his opinion); Schultz v. Mayfield Neurological
Inst., 1st Dist. Hamilton No. C-120764. 2013-Ohio-4146 (overruling appellant’s argument
that the trial court erred by permitting expert to cite medical literature without providing
specific citation or source and preventing effective cross-examination and finding the trial
court properly allowed the expert to make general references to professional literature in
support of opinions).
{¶45} The trial court permitted counsel for appellant to cross-examine both
Surmitis and Silver about the statements they made regarding medical literature. Counsel
for appellant specifically cross-examined Silver about his testimony on medical literature.
Further, it was counsel for appellant’s choice to limit cross-examination to the Colombo
article “in the interest of judicial economy,” as the trial court stated it would permit counsel
for appellant to cross-examine Silver and/or Surmitis in similar fashion as was done with
the Colombo article. It was additionally counsel for appellant’s choice not to produce these
articles in discovery such that the jury was excused for a period of time while the expert
read each article and confirmed the text was authoritative. Evidence Rule 803(18) states
a party may use a medical journal article to cross-examine an expert witness, but it does
not prohibit a trial court from allowing the expert witness to read the article prior to cross-
examination.
{¶46} Additionally, appellant has not demonstrated the admission of the testimony
at issue affected his substantial rights. To determine if a ruling affects appellant’s
substantial rights, we must find that “if those errors had not occurred, the jury * * * would
probably have made the same decision.” Beard v. Meridia Huron Hospital, 106 Ohio
St.3d 237, 834 N.E.2d 323 (2005). In this case, because appellant only provided a partial
Stark County, Case No. 2018CA00100 18
transcript of a multiple day trial, we must presume the regularity of the proceedings.
Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 300 N.E.2d 384 (1980).
{¶47} Based on the foregoing, we find appellant cannot show that a deviation from
a legal rule occurred, that the alleged error was an “obvious” defect in the trial proceedings
and that this error affected the outcome of the trial. Accordingly, the plain error doctrine
does not apply. Appellant’s first and second assignment of error are overruled.
III.
{¶48} In his third assignment of error, appellant contends the trial court erred in
directing a verdict on his claim against Affinity.
{¶49} Our standard of review for the grant or denial of a motion for a directed
verdict is whether there is probative evidence which, if believed, would permit reasonable
minds to come to different conclusions as to the essential elements of the case,
construing the evidence most strongly in favor of the non-movant. Sanek v. Duracote
Corp., 43 Ohio St.3d 169, 539 N.E.2d 1114 (1989). A motion for a directed verdict
therefore presents a question of law, and an appellate court conducts a de novo review
of the lower court’s judgment. Shadle v. Morris, 5th Dist. Stark No. 2012CA00073, 2013-
Ohio-906.
{¶50} Appellant contends the trial court failed to properly apply the law in Clark v.
Southview. In Clark, the Ohio Supreme Court held that a hospital may be held liable
under the doctrine of agency by estoppel for the negligence of independent medical
practitioners practicing in the hospital where: (1) it holds itself out to the public as a
provider of medical services; and (2) in the absence of notice or knowledge to the
contrary, the patient looks to the hospital, as opposed to the individual practitioner, to
Stark County, Case No. 2018CA00100 19
provide competent medical care. 68 Ohio St.3d 435, 628 N.E.2d 46 (1994). With regard
to notice to the patient that care is being provided by independent medical practitioners,
“such notice, to be effective, must come at a meaningful time.” Id.{¶51} Appellant argues the trial court’s ruling ignored evidence in the record
establishing a prima facie case for the jury to decide whether Mrs. Brahm looked to Affinity
to provide her care. Specifically, appellant alleges Mrs. Brahm expressly requested
Affinity when she was transported by EMS and cites to an exhibit in his supplemental brief
in opposition to Affinity’s motion in limine to support his argument. However, the excerpt
of the transcript provided to this Court does not demonstrate that appellant presented this
evidence at trial, as the only portion of the trial transcript presented to this Court prior to
the directed verdict is the excerpt containing the oral arguments of the parties regarding
the directed verdict and motions in limine regarding the testimony of Surmitis and Silver.
Accordingly, we must presume the regularity of the proceedings. Knapp v. Edwards
Laboratories, 61 Ohio St.2d 197, 300 N.E.2d 384 (1980).
{¶52} Appellant also argues the trial court failed to properly apply the second
portion of Clark because the release signed by appellant did not constitute notice at a
“meaningful time.” In the portion of the transcript submitted to this Court, during oral
argument on Affinity’s motion for directed verdict, Affinity argued the release signed by
appellant was sufficient to constitute meaningful notice, whereas appellant argued the
notice was not meaningful because it was given after Mrs. Brahm arrived at Affinity.
{¶53} While the Ohio Supreme Court stated in Clark that notice after a patient
arrives at a hospital “rarely” provides the patient with the ability to choose at a meaningful
time, without the portion of the trial transcript containing the testimony about the release
Stark County, Case No. 2018CA00100 20
or evidence and testimony concerning the language contained in the release, we must
presume the regularity of the proceedings. Knapp v. Edwards Laboratories, 61 Ohio
St.2d 197, 300 N.E.2d 384 (1980).
{¶54} Moreover, we find the rule in Clark inapplicable in this case because, due
to the verdict of favor of Surmitis, the jury would not have considered appellant’s agency-
by-estoppel claim against Affinity. Germanoff v. Aultman Hosp., 5th Dist. Stark No.
2001CA00306, 2002-Ohio-5054; Waikem v. Cleveland Clinic Found. 5th Dist. Stark No.
2011CA00234, 2012-Ohio-5620. The jury found no underlying “negligence of
independent medical practitioners” for which Affinity could be vicariously liable. Our
disposition of appellant’s first, second, and fifth assignments of error affirms the jury’s
verdict with respect to Surmitis and thus Clark is inapplicable.
{¶55} Appellant’s third assignment of error is overruled.
IV.
{¶56} In his fourth assignment of error, appellant argues the trial court erred in
failing to conduct a hearing on his motion to enforce settlement agreement with Affinity.
Appellant cites Rulli v. Fan Company in support of his argument.
{¶57} In Rulli, the trial court refused to consider additional evidence plaintiff
attempted to admit at the oral argument on the motion to enforce settlement. Rulli v. Fan
Co., 79 Ohio St.3d 374, 683 N.E.2d 337 (1997). The Ohio Supreme Court held the trial
court erred by enforcing a purported settlement agreement between the parties without
first conducting an evidentiary hearing where there was a legitimate dispute between the
parties as to the existence of a settlement agreement because a court may not force an
agreement upon the parties. Id. In this case, unlike the situation in Rulli, the trial court
Stark County, Case No. 2018CA00100 21
refused to enforce what appellant purported to be an enforceable agreement, finding the
parties never actually reached an agreement. See FirstMerit Bank, N.A. v. Ashland
Lakes, LLC, 5th Dist. Ashland No. 11-COA-017. Unlike in Rulli, the appellant in this case
submitted the evidence, via an affidavit and authenticated exhibits, that he alleged
demonstrated a settlement agreement and averred in his motion that “all supportive
exhibits and an affidavit are attached.” Appellant’s affidavit and exhibits do not establish
the parties reached a meeting of the minds as to all the terms. In the absence of a
legitimate factual dispute, the trial court was not required to conduct an evidentiary
hearing. Id.{¶58} Further, appellant did not request a hearing on his motion to enforce
settlement. As this Court has previously stated, the failure of a party to request a hearing
constitutes waiver of the right to an evidentiary hearing on a motion to enforce settlement.
M&G Automotive Services, Inc. v. Bouscher, 5th Dist. Tuscarawas No. 2014 AP 03 009,
2014-Ohio-5370; Brown v. Spitzer Chevrolet Co., 5th Dist. Stark No. 2012 CA 00105,
2012-Ohio-5623; Monea v. Campisi, 5th Dist. Stark No. 2004CA00381, 2005-Ohio-5212.
An appellate court need not consider any error which counsel could have, but did not, call
to the trial court’s attention when the error could have been avoided or corrected. Id.Appellant waived his right to an evidentiary hearing by failing to request such a hearing.
Id.{¶59} Appelllant’s fourth assignment of error is overruled.
V.
{¶60} In his fifth assignment of error, appellant contends the cumulative effect of
the trial court’s errors denied him a fair trial. Appellant cites the following as cumulative
Stark County, Case No. 2018CA00100 22
error in this case: allowing the hearsay statements of Surmitis and Silver regarding
medical literature; appellant could not properly and effectively cross-examine Surmitis
and Silver on their assertions regarding medical literature; and the jury was left to wonder
mid-trial why Affinity was no longer at the trial table.
{¶61} Pursuant to the cumulative error doctrine, which is usually presented in
criminal cases, a conviction will be reversed where the cumulative effect of errors in a trial
deprives the defendant of the constitutional right to a fair trial even though each individual
error by itself does not constitute cause for reversal. State v. Garner, 74 Ohio St.3d 49,
656 N.E.2d 623 (1995). Ohio courts have found “the extension of the cumulative error
doctrine to civil cases is warranted where the court is confronted with several errors, which
either are harmless individually or have marginally prejudicial effects, but combine to
require a new trial.” Edge v. Fairview Hospital, 8th Dist. Cuyahoga No. 95215, 2011-
Ohio-2148.
{¶62} In this case, as detailed above, we do not find any error in the testimony
and/or cross-examination of Surmitis or Silver. Further, as to Affinity’s dismissal during
the trial, the trial court issued a curative instruction as soon as he dismissed Affinity,
stating, “Ladies and gentleman, as you will note, Affinity Medical Center is no longer
involved in this case. You are not to speculate as to the reason why or draw any inference
therefrom as a result of their absence in the courtroom.” Accordingly, we do not find the
cumulative error doctrine applicable here where there have not been multiple errors. See
Snell v. Snell, 5th Dist. Richland No. 13CA80, 2014-Ohio-3285. Additionally, without a full
transcript of the trial, we cannot say that any alleged errors were so prejudicial that
Stark County, Case No. 2018CA00100 23
appellant was deprived of a fair trial, as we must presume the regularity of the
proceedings. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 300 N.E.2d 384 (1980).
{¶63} Appellant’s fifth assignment of error is overruled.
{¶64} Based on the foregoing, appellant’s assignments of error are overruled.
{¶65} The judgments in favor of appellees by the Stark County Court of Common
Pleas are affirmed.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur