Turner v. Elk & Elk, L.P.A. , 2011 Ohio 5499 ( 2011 )


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  • [Cite as Turner v. Elk & Elk, L.P.A., 
    2011-Ohio-5499
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 96271
    VINCENT TURNER, ADMINISTRATOR OF THE
    ESTATE OF GARDENIA TURNER, DECEASED
    PLAINTIFF-APPELLANT
    vs.
    ELK & ELK L.P.A., ET AL.
    DEFENDANTS-APPELLEES
    JUDGMENT:
    AFFIRMED
    Civil Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CV-695681
    BEFORE: Kilbane, A.J., Blackmon, J., and Celebrezze, J.
    RELEASED AND JOURNALIZED:                              October 27, 2011
    ATTORNEYS FOR APPELLANT
    Jack Morrison, Jr.
    Vicki L. Desantis
    Thomas R. Houlihan
    Amer Cunningham Co., L.P.A.
    159 South Main Street
    Key Building - Suite 1100
    Akron, Ohio 44308
    ATTORNEY FOR APPELLEES
    John P. O’Neil
    Reminger Co., L.P.A.
    1400 Midland Building
    101 Prospect Avenue, West
    Cleveland, Ohio 44115-1093
    MARY EILEEN KILBANE, A.J.:
    {¶ 1} Plaintiff-appellant, Vincent Turner (Turner), son of Gardenia Turner
    (Gardenia) and Administrator of her estate, appeals from the defense verdict rendered in
    his legal malpractice action against defendants Elk & Elk, L.P.A. and Martin Delahunty
    III.   For the reasons set forth below, we affirm.
    {¶ 2} On November 15, 2001, Dr. James Hessler performed a tubinate surgery with
    a tonsillectomy and palatoplasty on 60-year-old Gardenia at Wooster Community Hospital
    (Wooster Hospital).    Gardenia suffered from obstructive sleep apnea.   Following surgery,
    and after her breathing tube was removed, she experienced difficulty breathing.   She was
    reintubated, given a tracheostomy, placed on a ventilator, and given Demerol for pain at
    two-hour intervals. By around 8:30 a.m. the following morning, she was taken off the
    ventilator. Two hours later, she was put back on the ventilator. After about an hour,
    nurses maintaining the tracheostomy tube could not pass a suction catheter into her lungs.
    Responding to a stat call to the room, anesthesiologist Benjamin Weeman, Doctor Robert
    Sibilia, and Doctor Hessler administered an Ambu bag and attempted to re-establish
    ventilation through the tracheostomy, a breathing tube, and jet ventilation through a bore
    needle in Gardenia’s neck, but she went into cardiac arrest and died.
    {¶ 3} On February 17, 2003, plaintiff entered into a contingency fee agreement
    with defendant Delahunty of Elk & Elk. Delahunty filed suit against Doctor Hessler and
    Wooster Hospital on May 2, 2003. He voluntarily dismissed the lawsuit on June 2, 2004,
    and refiled it on May 26, 2006. By mid-2006, Delahunty concluded that Gardenia had
    died from an overdose of Demerol, but he was unable to retain an expert who met the
    requirements for testifying in court as to liability.1    The trial court awarded Doctor
    1
    Under Evid.R. 601(D), an individual is not competent to give “expert
    testimony on the issue of liability in any claim asserted in any civil action against a
    physician, * * * or hospital arising out of the diagnosis, care, or treatment of any
    person * * *, unless the person testifying is licensed to practice * * * by the state
    medical board or by the licensing authority of any state, and unless the person
    devotes at least one-half of his or her professional time to the active clinical practice
    in his or her field of licensure, or to its instruction in an accredited school.” See,
    also, R.C. 2743.43(A) (requiring, inter alia, that three-fourths of the person’s
    professional time to the active clinical practice and that the person practices in the
    same or a substantially similar specialty as the defendant).
    As set forth in Wise v. Doctors Hosp. North (1982), 
    7 Ohio App.3d 331
    , 455
    Hessler and Wooster Hospital summary judgment. Attorney Peter Traska of Elk & Elk
    perfected an appeal to the Ninth District Court of Appeals, but the appeal was dismissed
    for failure to timely file the appellant’s brief.
    {¶ 4} Plaintiff filed suit against Elk & Elk, Arthur Elk, David Elk, Delahunty, and
    Traska on June 12, 2009.      Plaintiff alleged that the defendants breached their duty of care
    in the matter by failing to sue the proper parties, failing to consult medical experts to
    assess the merits of the malpractice action, failing to identify medical experts to support
    the malpractice action, and failing to properly appeal the entry of summary judgment.
    {¶ 5} Arthur Elk and David Elk were subsequently granted summary judgment,
    and plaintiff voluntarily dismissed his claims against Traska.      The matter proceeded to a
    jury trial on November 15, 2010.
    {¶ 6} Turner testified that his family moved to Wooster, Ohio from West Virginia,
    and that the family was extremely close-knit.       At the time of her death, his mother was 60
    years old and had six children and 18 grandchildren.            She worked full time in the
    stockroom at Gertenslager’s Stamping Plant and earned between $28,000 and $30,000 per
    year.   Prior to the 2001 surgery, his mother had sleep apnea and snored, but had been in
    good health and had no lung problems.        In the evening after her surgery, Gardenia had an
    endotracheal tube and was in discomfort but was doing well. The next morning, his
    N.E.2d 1032, the “liability issues are duty and breach of duty, liability being defined
    as responsibility for conduct. The damage issues are proximate cause and
    damages.”
    sister, Felicia Jean Hart (Felicia), called and told him to come to the hospital. When
    Turner arrived minutes later, the doctors were working on his mother and they ushered
    him from the room. Doctors Hessler and Sibilia later spoke to him briefly and explained
    that they were trying to insert tubes into Gardenia’s lungs. A short time later, Doctor
    Hessler returned and said that Gardenia had died.     According to Turner, it appeared as
    though his mother had “swollen up.”
    {¶ 7} In 2003, he contacted Elk & Elk to pursue a medical malpractice action on
    behalf of his mother’s estate.     An investigator from the firm met with Turner, and
    subsequently Delahunty’s paralegal, Melanie Alvado (Alvado), called them and indicated
    that the firm would take the case.       Turner and Delahunty signed a contingency fee
    agreement, but whenever Turner called the firm, Alvado       rather than Delahunty would
    speak with him. He did not meet Delahunty until 2007.
    {¶ 8} Turner further testified that Delahunty at no time explained to him that he
    was having difficulty obtaining an expert to testify as to a breach of the standard of care,
    did not inform him that he had dismissed then refiled the case, and did not inform him that
    the appellate brief had not been timely filed.
    {¶ 9} On cross-examination, Turner admitted that the death certificate issued in
    this matter states that Gardenia died from “acute respiratory insufficiency, massive
    generalized edema, acute anaphylactic reaction, possibly secondary to Demerol injection.”
    {¶ 10} Delahunty testified on cross-examination that he had ultimate responsibility
    over the matter.   Delahunty stated that physicians retained as independent contractors by
    Elk & Elk, Doctor Stearns and Doctor Herman, did not believe that there was any viable
    cause of action, but he wanted to give the family a chance.          He stated that physicians
    from American Medical Forensic Specialists (AMFS)           reviewed the case and determined
    that Gardenia did not die due to a lost airway.     Doctor Herman also opined that it was not
    a lost airway case.   Some of the medical records, including the coroner’s report, indicated
    that Turner had a meperidine, i.e., Demerol,      level of five times the limit.   Delahunty, in
    reliance upon toxicologist Olen Brown, Ph.D., believed there was a good faith basis to
    conclude that Gardenia had died from a Demerol overdose.
    {¶ 11} Delahunty admitted that a paralegal erroneously inserted Gardenia’s name on
    a request for medical records in a dog bite case.    Another request for medical records was
    directed to a physician who never treated her, and a third contained a date of injury that
    was over a year after her death.     Also, the complaint at one point, referenced “Elaine
    Walden,” rather than Gardenia, and a punitive damages claim was dismissed for failing to
    state a viable claim against a municipal hospital.
    {¶ 12} Delahunty explained that he dismissed the complaint after learning that
    Doctor Brown could not testify for the plaintiff. After refiling the matter, Delahunty
    sought out numerous experts on the issue of the standard of care in this matter, but he
    could not find one. He subsequently retained Doctor Barry Gustin, who did not meet the
    requirements for testifying as to liability, but in regard to the issue of proximate cause, he
    believed that Gardenia suffered a fatal drug overdose.       According to Delahunty, Doctor
    Gustin was the only physician he could find who was willing to testify for the plaintiff.
    Moreover, Delahunty believed that the excessive amount of meperidine permitted the
    inference of negligence under res ipsa loquitur.2 However, the trial court ruled on July
    23, 2007, that the doctrine of res ipsa loquitur could not be used under the facts of the
    Turner medical malpractice case, and it entered summary judgment in favor of the
    defendants.
    {¶ 13} The firm commenced an appeal and Delahunty spoke with Traska, an
    appellate attorney for Elk & Elk, about the issues to be raised.   In January 2008, however,
    Delahunty began an extensive medical leave.        A paralegal did not properly docket the
    appeal and did not notify Traska of the deadline for the appellant’s brief, and therefore, the
    appeal was subsequently dismissed. The Ohio Supreme Court did not permit a further
    appeal, and he admitted that the opportunity to have a reviewing court examine the trial
    court’s ruling was lost.
    2
    Under the evidentiary rule of res ipsa loquitur, a jury is permitted to draw
    an inference of negligence from circumstantial evidence. Estate of Hall v. Akron
    Gen. Med. Ctr., 
    125 Ohio St.3d 300
    , 
    2010-Ohio-1041
    , 
    927 N.E.2d 1112
     (explaining
    that the rule had traditionally been permitted “in the cases where expert medical
    testimony was not necessary because the negligence was so obvious that jurors
    could determine from their own knowledge and common sense that the physician
    had been negligent — for example, when a physician failed to remove a sponge or
    other foreign object from the patient’s body during surgery.”) Under Hall, the court
    held that a court must determine on a case-by-case basis whether the doctrine of res
    ipsa loquitur applies, but the instruction is not warranted in a medical malpractice
    action where medical experts present opposing opinions regarding cause of an
    injury, and one that was not attributable to negligence, and the injury is a known
    risk and complication of the procedure even when performed in compliance with
    standard of care.
    {¶ 14} Traska admitted on cross-examination that he was aware that        dismissal is a
    possible sanction for failure to timely file an appellate brief, but this severe sanction is
    unusual.   He stated, however, that he believed that the outcome of the case would have
    been the same if the court had heard the appeal on its merits.
    {¶ 15} Doctor John Kress, a pulmonary critical care physician who is board
    certified in internal medicine, anesthesiology, pulmonary medicine, and critical care,
    opined to a reasonable degree of medical certainty that the circumstances of Gardenia’s
    death were inconsistent with a Demerol overdose in that the amount that she had been
    given was within the typical range and the high post- mortem amounts were due to the fact
    that the final injection did not get distributed throughout her body prior to her death. He
    additionally opined that the findings were not consistent with anaphylaxis, which would
    cause a rash and hives, and close the airway at the larynx but not at the trachea.    Further,
    this type of reaction would be unlikely here, upon Gardenia’s seventh dose of Demerol.
    {¶ 16} According to Doctor Kress, the medical records indicate that Gardenia had
    lost her airway, since a nurse reported noises indicative of a leak in the area of the tube and
    because a suction catheter could not be inserted into the tube.        In addition, Gardenia
    complained of being short of breath, and resistence was noted by Doctor Weeman when he
    attempted to ventilate Gardenia using an Ambu bag. In Doctor Kress’s opinion, the
    endotracheal tube came out and became embedded in the surrounding tissue.                 The
    resulting attempts to administer air resulted in air being sent into the tissue, giving the
    patient a swollen appearance.
    {¶ 17} Although the medical malpractice defendants attempted to insert a 5.0 size
    endotracheal tube through the 6.0 tube that had already been inserted, this only
    exacerbated the problem. When they tried to re-establish the airway by inserting another
    breathing tube, they were too late because Gardenia’s neck had already become swollen.
    Jet ventilation was also administered too late. Doctor Kress stated that, although it is not
    substandard to fail to insert an endotracheal tube, the medical malpractice defendants had
    violated the standard of care by failing to promptly recognize that the crisis and the
    resulting delays caused Gardenia’s death.        Although the autopsy states that “an
    Endotracheal tube is in place through a tracheostomy,” this is simply in reference to the
    external examination, and there is no mention of the precise positioning of the tube upon
    the internal examination.
    {¶ 18} On cross-examination, Doctor Kress acknowledged that trachea care had
    been provided without incident, but the doctor’s notes indicate that the ventilator alarm
    sounded two minutes after Gardenia received her seventh dose of Demerol.           He also
    noted that if during ventilation attempts, air had come out of Gardenia’s nose, this could
    indicate that the trachea was in its proper position.   He also admitted that the coroner
    found “massive generalized edema,” and “acute anaphylactic reaction, possibly due to
    Demerol[,]” and also concluded that the subcutaneous air found in her system developed
    later.   He acknowledged that Demerol can cause an anaphylactic reaction.
    {¶ 19} David Elk testified that Delahunty and Traska are employed by the firm.
    He stated that by entering into the contingency fee agreement, the firm agreed to
    investigate the matter, determine if it was worthy of recovery, and incur all of the expenses
    involved with the case.      He admitted that if an attorney violates the standard of care,
    then that constitutes neglect, and that the firm was responsible for the paralegal’s mistake
    in failing to docket the appeal, which resulted in the firm failing to file the brief.
    {¶ 20} David Elk further testified that Delahunty had gone “above and beyond” in
    trying to get a medical expert to establish a breach in the standard of care owed to
    Gardenia, as he contacted an expert referral service, which in turn contacted a critical care
    expert, a forensic pathologist, and a toxicologist.     The firm then paid for each of those
    individuals to review the medical records, but all subsequently opined that there had been
    no breach. Delahunty then attempted to establish liability through res ipsa loquitur, but this
    argument was rejected by the trial court.        At that point, the firm had expended over
    $13,000.
    {¶ 21} Former Judge Robert Glickman testified as an expert for plaintiff.
    Glickman stated that Elk & Elk failed to meet the standard of care in Turner’s medical
    malpractice action by failing to include the nurses and Doctors Sibilia and Weeman as
    defendants in the case, failing to depose the defendants or the defendant’s medical experts
    in the medical case, failing to obtain an expert to establish a breach of the standard of care,
    attempting to establish negligence via res ipsa loquitur, failing to timely file the appellant’s
    brief, and failing to have an organized and coordinated approach to safeguard against
    errors.    According to Glickman, the failure to file the appellant’s brief deprived the
    Turner family of their right to appeal the trial court’s decision.
    {¶ 22} Felicia, one of Gardenia’s six children, testified that the doctors informed
    her that “the muscles of her mother’s throat had collapsed,” and she had been intubated.
    As Felicia sat with her mother, the ventilator alarm sounded and her mother made gurgling
    sounds. The nurse suctioned the airway, but the ventilator alarm continued to sound, and
    Gardenia’s blood pressure dropped.       She died a short time later.
    {¶ 23} At the close of the plaintiff’s case, the trial court denied a defense motion for
    a directed verdict.   Defendants then presented testimony from Delahunty, Doctor Hessler,
    Doctor Weeman, Doctor Frederick Bunge, and attorney Paul Perantinides.
    {¶ 24} Delahunty stated that he has been an attorney since 1987.       He has handled
    over 300 medical malpractice cases, including 50 from Wayne County, and about 20 that
    proceeded to trial.   At Elk & Elk, attorneys and staff keep computerized Needles notes
    regarding the progress of their cases.     Referencing the Needles notes, he explained that
    when the firm received the case in February 2003, the one-year statute of limitations had
    already expired on the survivorship claims, and the two-year statute of limitations was
    approaching on the remaining claims. Turner’s previous attorneys at the law firm of
    Scanlon & Gearinger, had sent out a 180-day letter to extend this period only as to Doctor
    Hessler and Wooster Hospital.
    {¶ 25} Delahunty next obtained a complete set of Gardenia’s medical records from
    Jonathan Mester from Nurenberg, Paris, Heller & McCarthy, which had also briefly
    represented Gardenia’s Estate.    The packet of material from Mester also included a letter
    from Mester’s expert, Dr. Penek, who opined that the standard of care was not breached.
    Then in May 2003, Delahunty filed suit on the theory that the coroner’s toxicology
    analysis demonstrated that Gardenia had five times the accepted level of Demerol in her
    system.   He attempted to retain an expert through AMFS, an expert locating service that
    he had used in the past. At AMFS, the file was subjected to an interdisciplinary review
    process that highlighted a potential theory of a Demerol overdose and referred Delahunty
    to Dr. Olen Brown, Ph.D.
    {¶ 26} Independently of AMFS, Delahunty sought review of the case from the
    perspectives of critical care, forensic pathology, pulmonology, and anesthesiology.       He
    did not obtain an expert to establish liability under these disciplines, however, and he
    dismissed the case. At that point, Delahunty explained to Turner that the dismissal was a
    strategy to avoid a dismissal with prejudice for failing to identify an expert within the
    court’s deadline.   He did not depose the defense experts because he had no focus for
    questioning on liability.
    {¶ 27} Later, Delahunty refiled the matter in 2005.          By that time, he was
    dissatisfied with Doctor Brown, and he contacted Doctor Gustin, President of the AMFS,
    who indicated that Gardenia’s symptomology was consistent with a Demerol overdose.
    Because Dr. Gustin spent only about 10 percent of his time treating emergency room
    patients, he could not testify as to liability but could testify as to causation and damages.
    In light of this information, Delahunty determined that he could proceed on the basis of res
    ipsa loquitur, but continue to search for a doctor.
    {¶ 28} Delahunty planned to take the coroner’s deposition, but after reaching
    stipulations with the medical defendants regarding the coroner’s testing, he determined
    that he did not need to do so. Delahunty also spoke with Doctor Eric Gluck, a physician
    who is board certified in critical care and pulmonology. At no point did any of the
    physicians Delahunty spoke with suggest that the medical defendants had breached the
    standard of care by failing to maintain Gardenia’s airway.   In the meantime, the medical
    defendants presented expert reports that opined Gardenia had died due to an anaphylactic
    reaction to Demerol.
    {¶ 29} The videotaped deposition of Doctor Hessler was then played for the jury.
    Doctor Hessler, who is board certified in otolaryngology and head and neck surgery,
    treated Gardenia for severe obstructive sleep apnea syndrome. He performed        tubinate
    surgery with a tonsillectomy and palatoplasty to open the airway. Following surgery,
    Gardenia was doing well and was extubated.          Minutes later, she was having more
    obstruction, so she was reintubated.   Her pharyngeal tissues were swollen and puffy.   He
    decided to perform a tracheostomy with a No. 6 tracheostomy tube to maintain her airway
    and facilitate recovery.
    {¶ 30} The following day, Gardenia’s trach tube had been cleaned and she had been
    given Demerol.     At around 11:26 a.m., Doctor Hessler received a page to respond
    immediately to Gardenia’s room in the ICU because she was experiencing difficulty
    breathing.   Doctor Hessler observed that her face, lips, tongue, and eyelids were
    protuberant and swollen.    There was no evidence of subcutaneous air in her system.
    Doctor Hessler probed the tracheostomy site and because he could not feel the balloon cuff
    of the tube and because the trach was secure and sutured, he determined that the
    endotracheal tube was still in place.   Doctor Weeman then attempted to insert a smaller
    endotracheal tube into the site, but he could not do so. He tried inserting a breathing
    tube, but could not.   The team then tried jet ventilation through a small bore needle into
    the trachea, below the tracheostomy site.   This pushed air into her system but all of their
    efforts were unsuccessful and Gardenia went into cardiac arrest and died.
    {¶ 31} According to Doctor Hessler, Gardenia had an anaphylactic reaction that
    caused angioedema that prevented ventilation.       He stated that the exact cause of the
    anaphylactic reaction would involve conjecture.
    {¶ 32} The videotaped deposition of Doctor Weeman was played for the jury.
    Doctor Weeman responded to a code call to Gardenia’s room, and the nurse explained that
    she had been performing tracheostomy care by suctioning mucous from the tube, but could
    not get the catheter past the tracheostomy site.   Doctor   Weeman determined that it was
    in place because the pressure on the cuff balloon of the apparatus was adequate.   He tried
    to ventilate her with an Ambu bag and 100 percent oxygen but could not hear breath
    sounds.   He rechecked the trach and reapplied the Ambu bag but could not hear breath
    sounds in her lungs. He next attempted to intubate her orally, but her tongue and lips
    were swollen and he could not insert the intubation blade due to edema in this area.
    {¶ 33} He believed that Gardenia was experiencing an anaphylactic reaction so he
    administered Epinephrine.    Doctors Hessler and Sibilia arrived, and Doctor Weeman next
    attempted to pass a smaller endotracheal tube through the tracheostomy site but still could
    not establish ventilation. Doctor Sibilia examined the tracheostomy site with a fiber optic
    scope to determine its position but could not visualize any of the anatomical structures of
    the area. Doctor Sibilia then attempted jet ventilation. At this point, air exuded from
    the nose and mouth, indicating that the tracheostomy was in the proper position, but the
    doctors could not hear breath sounds in the lungs, and subcutaneous air went into her chest
    and leg. Gardenia went into cardiac arrest and the team administered cardiopulmonary
    resuscitation, but she died.
    {¶ 34} According to Doctor Weeman, Gardenia had an anaphylactic reaction that
    caused generalized edema throughout her body and blocked ventilation.
    {¶ 35} Doctor Bunge opined that Gardenia died as a result of an anaphylactic
    reaction to Demerol.     According to Dr. Bunge, the reaction worsened with each dose,
    caused swelling, dilation of her blood vessels, and produced fluid in the lungs and loss of
    airway.
    {¶ 36} Dr. Bunge further opined that the endotracheal tube was in its proper
    position because the cuff pressure was good and the tracheostomy was sutured into place.
    It was also noted to be in place in the autopsy. He testified that the medical defendants
    acted within their standard of care by trying any means necessary to save Gardenia, and
    they did not waste time in attempting to introduce the smaller tube into the tracheostomy
    site.   He admitted, however, that the litigation theory of a Demerol overdose was not a
    viable theory in this matter.
    {¶ 37} Finally, attorney Perantinides testified that Delahunty acted within his
    standard of care by having the case reviewed by physicians for possible medical
    malpractice, as an attorney is required to simply make an honest effort to secure an
    independent, scholarly expert. Perantinides admitted, however, that res ipsa loquitur was
    not a viable theory in the legal malpractice action.
    {¶ 38} The jury subsequently rendered a general verdict in favor of defendants
    Delahunty and Elk & Elk, and in special interrogatories, concluded that Doctor Hessler,
    Doctor Weeman, and Wooster Hospital did not deviate from the standard of care in
    treating Gardenia and did not proximately cause her death.
    {¶ 39} Plaintiff now appeals, assigning two errors for our review.
    {¶ 40} Plaintiff’s first assignment of error states:
    {¶ 41} “The trial court erred in instructing the jury.”
    {¶ 42} Within this assignment of error, plaintiff argues that the trial court erred in
    giving a prejudicial “battle of the experts” instruction and in including the issue of
    foreseeability in a “hindsight” instruction.
    {¶ 43} On appeal, this court must consider the jury charge as a whole in order to
    determine whether the jury charge probably misled the jury in a matter materially affecting
    the complaining party’s substantial rights. Kokitka v. Ford Motor Co., 
    73 Ohio St.3d 89
    ,
    93, 
    1995-Ohio-84
    , 
    652 N.E.2d 671
    , quoting Becker v. Lake Cty. Mem. Hosp. (1990), 
    53 Ohio St.3d 202
    , 208, 
    560 N.E.2d 165
    .           However, an inadequate jury instruction that
    misleads the jury constitutes reversible error. Groob v. KeyBank, 
    108 Ohio St.3d 348
    ,
    ¶32, 
    2006-Ohio-1189
    , 
    843 N.E.2d 1170
    .
    Jury Instructions
    1. So called “Battle of the Experts” Instruction
    {¶ 44} Here, plaintiff maintains that the trial court’s instructions identified this
    matter as a “battle of the experts,” which prevented the jury from considering the medical
    records and any other admissible evidence that came in during the trial on the issue of the
    standard of care.   Plaintiff notes that similar instructions were deemed prejudicially
    erroneous in Withers v. Mercy Hosp. of Fairfield, Butler App. No. CA2010-02-033,
    
    2010-Ohio-6431
    . In Withers, the trial court gave the following instructions:
    “* * * You must determine the standard of professional learning, skill
    and care required of [the doctor] only from the opinions of the various
    physicians and experts, including the defendant himself, who testified as
    expert witnesses in this case as to such a standard.
    You must not attempt to determine the standard of care or skill from
    any personal knowledge, experience or by any other means. * * *”
    {¶ 45} In this matter, however, the trial court instructed the jury as follows:
    “In determining whether an issue has been proved by a preponderance
    of the evidence, you should consider all of the evidence, regardless of
    who produced it. * * * Evidence is all the testimony received from
    the witnesses including depositions, exhibits admitted into evidence
    during the trial, facts agreed to by counsel and any facts which the
    Court requires you to accept as true.
    ***
    You are the judges of the facts, the credibility or believability of the
    witnesses and the weight of the evidence. * * *
    You may believe or disbelieve all or any part of the testimony of any
    witness. It is your duty * * * to determine what testimony to believe
    and what testimony not to believe. * * *
    In a case such as this, the issue of whether a physician has exercised
    ordinary care requires the plaintiffs who have the burden of proof to
    produce the testimony of the expert witness who can establish the
    recognized standard of care in the medical community under the
    circumstances and also establish that [the medical defendants] failed to
    exercise ordinary care.
    An expert witness is one who, through study or experience or both * * *
    whose guidance is necessary for the jury to reach an informed
    judgment.
    Such expert opinion also is required in order for you to determine
    whether any such claimed negligence deviated from the appropriate
    standard of care [and] was a proximate cause of the injury which is the
    subject of plaintiff’s complaint.
    Defendants are also entitled to present expert testimony that [the
    medical defendants] rendered reasonable[,] appropriate medical care
    and that their actions or inactions were not the proximate cause of
    injury.
    Obviously, where there is a conflict* * * in the expert testimony on
    issues of negligence and proximate cause, you must decide which expert
    testimony is more credible or believable.
    In order to find for plaintiffs, you must find that the opinions of
    plaintiff’s experts are more likely to be true.”
    {¶ 46} We find no prejudicial error.   The trial court’s instructions did not restrict
    the jury’s consideration of all of the evidence and did not limit their consideration to an
    evaluation of competing expert testimony.       To the contrary, the jury was properly
    instructed that the evidence included testimony received from the witnesses including
    depositions and exhibits admitted into evidence, and that they were to weigh all of the
    evidence.   The jury was also instructed that “if there is a conflict * * * in the expert
    testimony on issues of negligence and proximate cause, you must decide which expert
    testimony is more credible or believable.”        The court’s instructions clearly and fairly
    expressed the law regarding the plaintiff’s burden of proof. The instructions were not
    misleading to the jury and were not prejudicial to plaintiff.
    {¶ 47} This portion of the instructions was not erroneous.
    2. Foreseeability
    {¶ 48} Plaintiff next maintains that the trial court’s “hindsight” instruction
    improperly included consideration of foreseeability. Plaintiff relies upon Needham v.
    Gaylor (Sept. 20, 1996), Montgomery App. No. 14834, in which the court held that the
    trial court erred in including the consideration of foreseeability of the injury in its charge
    because this could have misled the jury into thinking that the medical defendants were
    required to foresee the particular injury sustained in order to find them to be liable.   The
    Needham Court also held that even a correct foreseeability instruction had no place in the
    trial court’s instructions on the standard of care.
    {¶ 49} In Needham, however, the court instructed the jury that:
    {¶ 50} “In determining whether ordinary care was used, you will consider whether
    Dr. Gaylor ought to have foreseen under the circumstances that the natural and probable
    result of his act would cause harm.”
    {¶ 51} The court held that the test for foreseeability is not whether the defendant
    should have foreseen the result exactly as it happened, the test is whether under all the
    circumstances a reasonably prudent physician in his specialty would have anticipated the
    result to the patient.
    {¶ 52} In this matter, however, the trial court instructed the jury as follows:
    “In determining whether a physician was negligent, you should consider
    their judgment in light of all the attendant circumstances on the date
    and at the time of the alleged negligent event. The test of the existence
    of medical negligence is not hindsight, but one of foresight, considering
    all of the then known facts and with the state of medical knowledge at
    the time the physician acted.”
    {¶ 53} In Holda v. Blankfield, Cuyahoga App. No. 84350, 
    2005-Ohio-766
    , this
    court observed that such instruction is a correct statement of the law.   Accord Clements v.
    Lima Mem. Hosp., Allen App. No. 1-09-24, 
    2010-Ohio-602
    , citing Grabill v. Worthington
    Industries, Inc. (1994), 
    98 Ohio App.3d 739
    , 744, 
    649 N.E.2d 874
    .               This claim is
    therefore without merit.
    {¶ 54} The first assignment of error is without merit.
    {¶ 55} Plaintiff’s second assignment of error states:
    “The jury’s verdict in this matter was against the manifest weight of the
    evidence.”
    {¶ 56} The standard for determining whether a civil judgment is supported by the
    manifest weight of the evidence provides that judgments “supported by some competent,
    credible evidence going to all the essential elements of the case will not be reversed by a
    reviewing court as being against the manifest weight of the evidence.” C.E. Morris Co.
    v. Foley Constr. Co. (1978), 
    54 Ohio St.2d 279
    , 
    376 N.E.2d 578
    . The reviewing court
    must indulge every reasonable presumption in favor of the trial court’s judgment and
    findings of fact, and if the evidence is susceptible to more than one interpretation, we must
    construe it consistently with the lower court’s judgment. Gerijo v. Fairfield, 
    70 Ohio St.3d 223
    , 226, 
    1994-Ohio-432
    , 
    638 N.E.2d 533
    .
    {¶ 57} In order to establish a cause of action for legal malpractice based on
    negligent representation, a plaintiff must show (1) that the attorney owed a duty or
    obligation to the plaintiff, (2) that there was a breach of that duty or obligation and that the
    attorney failed to conform to the standard required by law, and (3) that there is a causal
    connection between the conduct complained of and the resulting damage or loss. Vahila
    v. Hall, 
    77 Ohio St.3d 421
    , 
    1997-Ohio-259
    , 
    674 N.E.2d 1164
    , at syllabus, following
    Krahn v. Kinney (1989), 
    43 Ohio St.3d 103
    , 
    538 N.E.2d 1058
    .
    {¶ 58} The Vahila court recognized that depending on the situation, a plaintiff may
    be required to provide some evidence of the merits of the underlying claim, but it declined
    to “endorse a blanket proposition that requires a plaintiff to prove, in every instance, that
    he or she would have been successful in the underlying matter.”                   Id. at 428.     Thus,
    plaintiffs are not required to prove their “case within a case.”3 Rather, the correct focus
    is whether the alleged negligence caused “damage or loss regardless of the fact that [the
    3
    An action for medical malpractice requires the plaintiff to show that the physicians who
    treated the patient failed to meet their duty to employ that degree of skill, care, and diligence that a
    physician or surgeon of the same medical specialty would employ in like circumstances, which
    proximately caused the patient’s death. See Berdyck v. Shinde, 
    66 Ohio St.3d 573
    , 579,
    
    1993-Ohio-183
    , 
    613 N.E.2d 1014
    , citing Bruni v. Tatsumi (1976), 
    46 Ohio St.2d 127
    , 
    346 N.E.2d 673
    .
    plaintiffs] may be unable to prove that they would have been successful in the underlying
    matter(s) in question.”   Id. at 427.
    {¶ 59} In this matter, plaintiff asserts that the judgment is not supported by
    competent, credible evidence because the opinion testimony of defense expert, Doctor
    Bunge, was premised upon his erroneous view that “ventilator alarms were not going off
    at the time the deceased received her last dose of Demerol,” and all of the experts agreed
    that it is a breach of the standard of care for a medical provider to fail to realize that a
    patient is not being adequately ventilated. Plaintiff also asserts that the jury’s responses
    to the special interrogatories demonstrate that it lost its way in evaluating the evidence
    because the jury concluded that the defendants did not deviate from the standard of care,
    yet went on to consider the issue of causation.
    {¶ 60} With regard to the evidence presented in this matter on the issue of legal
    malpractice, there was competent, credible evidence to establish that physicians retained as
    independent contractors by Elk & Elk informed Delahunty that they did not believe that
    there was any viable cause of action, but he wanted to give the family a chance.    Relying
    upon the coroner’s report, which indicated that Gardenia had a Demerol level of five times
    the limit, and toxicologist Olen Brown, Ph.D., Delahunty eventually determined that there
    was a good faith basis to conclude that Gardenia had died from a Demerol overdose.      The
    firm made several scrivener’s errors on the pleadings and requests for records, and
    improperly included a claim for punitive damages against a municipal hospital.
    {¶ 61} Delahunty did not depose the defense medical experts, but he did not want to
    do so until he had retained an expert.    Delahunty dismissed the complaint after learning
    that Doctor Brown could not testify for plaintiff, in order to avoid a court ordered
    dismissal for failure to identify an expert. After refiling the matter, Delahunty sought out
    numerous experts on the issue of the standard of care in this matter, through AMFS and
    independently of this service. He subsequently retained Doctor Gustin, who did not meet
    the requirements for testifying as to liability, but believed, with regard to the issue of
    proximate cause, that Gardenia suffered a fatal drug overdose.     At that point, the firm had
    expended over $13,000, a sum which was not charged back to the Turner family.
    Moreover, at no point did any of the physicians Delahunty spoke with suggest that the
    medical defendants had breached the standard of care by failing to maintain Gardenia’s
    airway.   Based upon this evidence, the jury could reasonably determine that Delahunty
    satisfied his duty of care.   Although the Demerol overdose theory was later considered to
    be without merit, Delahunty was nonetheless within his duty of care as he undertook an
    extensive, multifaceted approach to obtaining evidence in support of the medical
    malpractice action.
    {¶ 62} Delahunty then determined that based upon the overdose theory,          plaintiff
    could rely upon the doctrine of res ipsa loquitur to establish liability. The trial court held,
    however, that res ipsa loquitur could not be applied to the matter and, after attempting to
    effect a settlement, dismissed the matter.    Inasmuch as the Ohio Supreme Court did not
    fully define the limitations of res ipsa loquitur in a medical malpractice case until 2010 in
    Estate of Hall v. Akron Gen. Med. Ctr., 
    125 Ohio St.3d 300
    , 
    2010-Ohio-1041
    , 
    927 N.E.2d 1112
    , and inasmuch as Delahunty could not locate an expert despite a lengthy and costly
    search, we conclude that he was within his duty of care in advancing this theory.
    {¶ 63} The firm commenced an appeal, and during Delahunty’s medical leave, the
    appeal was dismissed after Traska failed to timely file the appellant’s brief, due to a
    paralegal’s docketing error.   Pursuant to Estate of Hall, the instruction is not warranted in
    medical malpractice action where medical experts present opposing opinions regarding
    cause of an injury, and one which was not attributable to negligence, and the injury is a
    known risk and complication of the procedure even when performed in compliance with
    standard of care.   Thus, the jury could have determined that the outcome of the case
    would not have changed, even if the appellant’s brief had been timely filed, so legal
    malpractice was not established in the appellate proceedings.
    {¶ 64} Moreover, there was extensive competent, credible evidence to establish that
    Gardenia did not die due to improper placement of the tracheostomy tube and/or the
    medical defendants’ failure to recognize and correct that improper placement.         Rather,
    according to Doctor Hessler and Doctor Weeman, the trach remained in its proper
    position; and, according to the coroner, Doctor Hessler, Doctor Weeman, and Dr. Bunge,
    Gardenia died due to acute respiratory insufficiency with massive generalized edema from
    an acute anaphylactic reaction, after the medical defendants undertook a variety of
    measures to save her.
    {¶ 65} Although Doctor Kress opined that Gardenia died as a result of a lost airway
    and not an anaphylactic reaction, the autopsy states that “an Endotracheal tube is in place
    through a tracheostomy,” and the doctors who cared for her confirmed that it was in proper
    position.   Further, regardless of the dispute as to whether the ventilator alarms were
    sounding prior to the final Demerol injection, Gardenia experienced massive edema.
    Further, Doctor Kress admitted that if during ventilation attempts air had come out of
    Gardenia’s nose, this could indicate that the trachea was in its proper position and that
    Demerol can cause an anaphylactic reaction.
    {¶ 66} Finally, with regard to the fact that the jury concluded in the special
    interrogatories that the medical defendants were not negligent, then proceeded to consider
    the issue of causation, we note that the interrogatories are neither inconsistent with one
    another nor inconsistent with the general defense verdict.        Rather, they advance the
    essential purpose of testing the correctness of the general verdict. Cincinnati Riverfront
    Coliseum, Inc. v. McNulty Co. (1986), 
    28 Ohio St.3d 333
    , 
    504 N.E.2d 415
    .               The
    interrogatory responses do not undermine the manifest weight of the evidence supporting
    the defense verdict.
    {¶ 67} The second assignment of error is without merit.
    Judgment affirmed.
    It is ordered that appellees recover from appellant costs herein taxed.
    The court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate be sent to said court to carry this judgment into
    execution.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
    Rules of Appellate Procedure.
    MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE
    PATRICIA A. BLACKMON, J., and
    FRANK D. CELEBREZZE, JR., J., CONCUR
    

Document Info

Docket Number: 96271

Citation Numbers: 2011 Ohio 5499

Judges: Kilbane

Filed Date: 10/27/2011

Precedential Status: Precedential

Modified Date: 10/30/2014