Pierce v. Durrani , 2015 Ohio 2835 ( 2015 )

[Cite as Pierce v. Durrani, 2015-Ohio-2835.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
CRYSTAL PIERCE, : APPEAL NO. C-140276
TRIAL NO. A-1200265
Plaintiff-Appellee, :
O P I N I O N.
vs. :
ABUBAKAR ATIQ DURRANI, M.D., :
and :
CENTER FOR ADVANCED SPINE :
TECHNOLOGIES, INC.,
:
Defendants-Appellants,
:
and
:
THE CHRIST HOSPITAL, et al.,
Defendants. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 15, 2015
Erica Deters, for Plaintiff-Appellee,
Lindhorst & Dreidame Co., L.P.A., Michael F. Lyon and Bradley D. McPeek, for
Defendants-Appellants.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
M OCK , Judge.
{¶1} Defendants-appellants Abubakar Atiq Durrani, M.D., and Center for
Advanced Spine Technologies, Inc., (collectively “Durrani”) appeal from a judgment
entered in favor of plaintiff-appellee Crystal Pierce following a jury trial.
I. Facts and Procedure
{¶2} The record shows that Pierce had a history of back and neck pain. In
2007, Dr. Paul Cohen performed C6-C7 lumbar fusion on Pierce to try to relieve her
pain. But that procedure did not provide her with lasting improvement. In 2009, she
again saw Cohen, who proposed conservative treatment with steroids and physical
therapy. If those treatments failed, he proposed more surgery.
{¶3} Pierce sought a second opinion from Durrani, who told her that she
would be paralyzed if he did not perform surgery. He ultimately performed two
surgeries on Pierce. On January 28, 2009, he performed an anterior cervical discectomy
and fusion of the C5 and C6 vertebrae, to address her recurring symptoms of numbness
and pain. She reported to him after the first surgery that her symptoms were much
improved. Durrani told her that she still needed the second surgery or she would be
paralyzed.
{¶4} On January 30, 2009, Dr. Durrani performed a posterior cervical
laminoplasty at the C6 to C7 vertebrae, purportedly to relieve spinal cord stenosis and
the resulting pressure on Pierce’s spinal cord. Pierce awoke from that procedure in
excruciating pain. Despite receiving postoperative care and engaging in physical
therapy, her pain continued, forcing her to take a leave of absence from her job. She
eventually went to the Christ Hospital emergency room due to extreme pain. The
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emergency room personnel conducted a CT scan, which showed a displaced screw. They
advised her to follow up with her surgeon.
{¶5} When she went to see Durrani, he stated that the other medical
providers did not know what they were talking about and that he had meant to put the
screw that way. Pierce eventually saw a pain specialist, who advised her that the pain
would not resolve until the hardware was removed. Pierce returned to Cohen for
treatment. In October 2009, Cohen performed surgery and removed the hardware from
Durrani’s surgeries. Pierce’s pain resolved a short time later.
{¶6} Pierce subsequently filed a medical-malpractice suit against Durrani.
While the case was pending, Durrani was indicted for several criminal offenses. He lost
his medical license and, shortly before trial, he fled from Ohio to his native Pakistan. He
was also the subject of substantial media attention. The trial court found that the
criminal charges and Durrani’s flight were unrelated to Pierce’s claims against him.
Therefore, evidence related to those offenses would not be admissible. The court stated
that it would instruct the jury that Durrani had chosen not to be present at the trial, but
that he was represented by counsel and that the case would proceed without him.
{¶7} At trial, Pierce’s expert witness testified that the second surgery was
unnecessary, that Durrani had frightened Pierce into undergoing the surgery, and that
the surgery deviated from the standard of care for a spine surgeon. The expert also
testified that the improper placement of screws and plates during the second surgery
had caused some of the pain that Pierce subsequently experienced.
{¶8} After hearing the evidence, the jury returned a verdict in favor of Pierce.
It awarded her $40,000 in economic damages, $500,000 in noneconomic damages,
and $500,000 in punitive damages. The trial court reduced the noneconomic damages
to $250,000, and entered judgment for Pierce in the amount of $790,000. Durrani filed
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motions for judgment notwithstanding the verdict (“JNOV”) and for a new trial. The
trial court overruled those motions, and this appeal followed.
II. Standards of Review
{¶9} Durrani presents two assignments of error for review. In both
assignments of error, he contends that the trial court erred in overruling his motions for
JNOV and for a new trial.
{¶10} We review a decision to grant or deny a motion for JNOV de novo. A
JNOV is proper if, upon viewing the evidence in a light most favorable to the nonmoving
party, reasonable minds could come to but one conclusion in favor of the moving party.
Goodyear Tire and Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-
2842, 769 N.E.2d 835, ¶ 3-4; Fehrenbach v. O’Malley, 1st Dist. Hamilton No. C-100730,
2011-Ohio-5481, ¶ 17. But where substantial evidence upon which reasonable minds
could reach different conclusions exists to support the nonmoving party’s side of the
case, the court must deny the motion. Osler v. Lorain, 28 Ohio St.3d 345, 347, 504
N.E.2d 19 (1986); Fehrenbach at ¶ 17. We review a motion for a new trial under an
abuse-of-discretion standard. Fehrenbach at ¶ 17; Eysoldt v. GoDaddy.com, Inc., 194
Ohio App.3d 630, 2011-Ohio-2359, 957 N.E.2d 780, ¶ 18 (1st Dist.).
III. Juror Misconduct
{¶11} Durrani argues that, because of juror misconduct, the trial court should
not have overruled his motion for a new venire, which denied him a fair trial. Therefore,
the court should have granted his post-trial motion for a new trial. This assignment of
error is not well taken.
{¶12} A trial court should not grant a new trial on the basis of juror
misconduct unless the complaining party has shown prejudice. Koch v. Rist, 89 Ohio
4OHIO FIRST DISTRICT COURT OF APPEALS
St.3d 250, 251, 730 N.E.23d 963 (2000); Suliman v. Open Door West, 8th Dist.
Cuyahoga No. 71582, 1997 Ohio App. LEXIS 2088, *4 (May 15, 1997).
Where there has been irregularity or misconduct on the part of the
jury, which might affect its judgment, or improperly influence the
verdict, a new trial should be granted. Where, however, it clearly
appears that no improper effect could arise from the alleged
misconduct, the verdict should stand.
Armleder v. Lieberman, 33 Ohio St. 77 (1877), paragraph one of the syllabus.
{¶13} The record shows that on the second day of trial, prospective juror
number 33 reported that while she was seated at a table with three other prospective
jurors, another prospective juror had been asking why Durrani had not been charged
criminally. The parties agreed that juror number 33 should be removed after she
stated that this discussion might affect her opinions on the case. Durrani moved to
dismiss the venire and call a second venire. The trial court said that it was not
denying the motion, but that it would like to question the jurors further.
{¶14} Subsequently, juror number 33 provided the names of the other three
people sitting at the table, and the court determined that those three people were not
on the panel. Voir dire continued and the jury was seated, without any major issues.
Durrani makes only vague assertions that other prospective jurors could have
overheard the comments, and that the jury could not have been impartial.
Therefore, he has failed to demonstrate prejudice. See Brooks v. Wilson, 98 Ohio
App.3d 301, 304-305, 648 N.E.2d 552 (9th Dist.1994).
{¶15} The trial court’s decision to overrule Durrani’s motion for a new trial
on the basis of juror misconduct was not so arbitrary, unreasonable or
unconscionable as to connote an abuse of discretion. See Blakemore v. Blakemore, 5
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Ohio St.3d 217, 218, 450 N.E.2d 1140 (1983); Cincinnati v. Harrison, 1st Dist.
Hamilton No. C-090702, 2010-Ohio-3430, ¶ 7. Therefore, the trial court did not err
in overruling his motion for a new trial on that basis, and we overrule Durrani’s first
assignment of error.
IV. Attorney Misconduct
{¶16} In his second assignment of error, Durrani contends that the trial court
should have granted his motion for a new trial because misconduct by Pierce’s attorney
denied him a fair trial. He argues that counsel improperly attacked him on irrelevant
topics, particularly on his absence from the trial in violation of the trial court’s order,
and that counsel’s improper comments prejudiced him. We find no merit in this
argument.
{¶17} A trial atmosphere tainted with passion and prejudice is grounds for
reversal. Wynn v. Gilbert, 1st Dist. Hamilton No. C-060457, 2007-Ohio-2798, ¶ 34.
Remarks or arguments that are not supported by the evidence and are designed to
arouse passion or prejudice to the extent that there is a substantial likelihood that the
jury may be misled are improper. Roetenberger v. Christ Hosp., 163 Ohio App.3d 555,
2005-Ohio-5205, 839 N.E.2d 441, ¶ 9 (1st Dist.); Furnier v. Drury, 163 Ohio App.3d
793, 2004-Ohio-7362, 840 N.E.2d 1082, ¶ 10 (1st Dist.). Counsel must refrain from
unwarranted attacks on opposing counsel, the opposing party, and the witnesses.
Roetenberger at ¶ 9; Furnier at ¶ 10.
{¶18} The trial court has a duty to see that counsel’s statements stay within
proper limits and to prohibit counsel from creating an atmosphere of passion and
prejudice. Roetenberger at ¶ 9; Furnier at ¶ 10. It should not permit abusive conduct,
and it has a duty to intervene sua sponte to correct the prejudicial effect of misconduct.
Pesek v. Univ. Neurologists Assn., Inc., 87 Ohio St.3d 495, 501, 721 N.E.2d 1011 (2000);
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OHIO FIRST DISTRICT COURT OF APPEALS
Fehrenbach, 1st Dist. Hamilton No. C-100730, 2011-Ohio-5481, at ¶ 19. But a trial
court’s duty to intervene does not apply where counsel’s arguments are based on the
evidence. Fehrenbach at ¶ 19; Wynn at ¶ 34.
{¶19} The record does not show any egregious conduct on Pierce’s counsel’s
part that denied Durrani a fair trial. Pierce’s counsel commented on Durrani’s
absence, but generally in response to arguments by Durrani’s counsel, especially
Durrani’s inference that Pierce’s witnesses were not to be believed because they did
not testify in person but by deposition. He also discussed Durrani’s absence in the
context of not being able to cross-examine him during the trial, but only at a
deposition taken years before. Simply put, the trial was not the “dog and pony show”
that Durrani portrays it to be. Pierce’s counsel used the trial court’s language, that
Durrani “had elected” not to attend the trial, and did not specify why Durrani was
not present. Durrani’s counsel did not object to many of the remarks, and they were,
for the most part, fair comments on the evidence.
{¶20} Counsel’s conduct did not affect the basic fairness and integrity of the
proceedings and did not rise to the level of the sort of gross and abusive tactics that
this court has found in the past to be plain error. See Blair v. McDonagh, 177 Ohio
App.3d 262, 2008-Ohio-3968, 894 N.E.2d 377, ¶ 35 (1st Dist.). Where the record
supports the trial court’s finding that counsel’s conduct did not affect the outcome of
the trial, an order denying a new trial is not an abuse of discretion. Fehrenbach at ¶
23. On the record before us, we cannot hold that the trial court’s decision to overrule
Durrani’s motion for a new trial on the basis of attorney misconduct was so arbitrary,
unreasonable or unconscionable as to connote an abuse of discretion. See
Blakemore, 5 Ohio St.3d at 218, 450 N.E.2d 1140; Fehrenbach at ¶ 24.
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OHIO FIRST DISTRICT COURT OF APPEALS
V. Jury Interrogatories
{¶21} In his second assignment of error, Durrani also contends that the trial
court erred in denying his motion for JNOV on Pierce’s fraud claim. He argues that the
jury’s finding that Durrani misrepresented the need for Pierce’s second surgery is
inconsistent with its finding that Pierce gave informed consent for the procedure. We
find no merit in this argument.
{¶22} Civ.R. 49(B) states that when one or more of the answers to the jury
interrogatories are inconsistent with the general verdict, the trial court may enter
judgment in accordance with the answers, return the jury for further deliberation, or
order a new trial. But, if the jury’s interrogatories are consistent with the general verdict,
the court should enter judgment in accordance with the verdict. Colvin v. Abbey’s
Restaurant, 85 Ohio St.3d 535, 709 N.E.2d 1156 (1999), paragraph one of the syllabus;
Bleh v. Biro Mfg. Co., 142 Ohio App.3d 434, 439, 756 N.E.2d 121 (1st Dist.2001).
{¶23} The party challenging a general verdict bears the burden to show that the
interrogatories are inconsistent with the general verdict. Nowell v. Aldridge, 1st Dist.
Hamilton No. C-930168, 1994 Ohio App. LEXIS 3450, *10-11 (Aug. 10, 1994), citing
Becker v. BancOhio Natl. Bank, 17 Ohio St.3d 158, 162-163, 478 N.E.2d 776 (1985). In
the event of inconsistent answers to interrogatories, the court has a duty to harmonize
them if possible. Klever v. Reid Bros. Express, 151 Ohio St. 467, 476, 86 N.E.2d 608(1949). “It is only where the answers to interrogatories are inconsistent or in direct
conflict with each other so that it is impossible to harmonize them that they cancel each
other and should be disregarded by the court.” Nowell at *11, citing Klever at 476.
{¶24} In the second interrogatory, the jury stated that it had found “by the
greater weight of the evidence that, plaintiff, Crystal Pierce, gave informed consent” for
the second surgery. In the fifth interrogatory, the jury stated that it had found “by the
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greater weight of the evidence that defendant, Dr. Durrani, fraudulently misrepresented
the necessity” for the second surgery. It also found in a separate interrogatory that the
fraudulent misrepresentation was a proximate cause of Pierce’s injury. Durrani
contends that the answers to the second and fifth interrogatories were inconsistent and
irreconcilable. We disagree.
{¶25} At trial, Pierce argued that Durrani had fraudulently misrepresented the
need for the second surgery, falsely stating that she would be paralyzed without it.
Regarding informed consent, she made more of a technical argument. She contended
that Durrani had never had her sign a written consent form, and that the only consent
forms she had signed were from Christ Hospital where the surgeries were performed.
{¶26} Pierce presented into evidence a written consent form from Christ
Hospital that she had signed on January 28, 2009, the day of the first surgery. In that
form, she gave Durrani and his associates permission to perform a “C-5, C-6 anterior
cervical discectomy and fusion with instrumentation; C3 to C6 posterior cervical
laminoplasty.” On January 28, Durrani performed only the discectomy. He had
planned to do the laminoplasty on the same day, but, due to a snowstorm, he felt that
not enough staff was available.
{¶27} Even though Pierce reported that her pain improved immensely
following the first surgery, Durrani told her she would be paralyzed if she did not have
the second surgery. On January 29, 2009, Pierce signed another written consent form
from Christ Hospital for the “C3 to C6 posterior cervical laminoplasty,” which was the
surgery performed on January 30, 2009.
{¶28} In opening argument, Pierce’s counsel argued that “medical records of
Dr. Durrani are going to show that he did not get his typical written consent signed by
her. You are going to see an acknowledgment from Christ Hospital of that consent.”
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Additionally, he argued that “there is no consent of the C6 to C7. It’s written on the
records, C3 to C6, and he went ahead and did the C7 too.” Again, in closing argument,
Pierce’s counsel argued that “[t]here was no consent at all for C7. * * * She had had the
C6-C7 surgery from Cohen two years earlier. And [Durrani] goes and does it again,
without putting on the consent.”
{¶29} On the issue of informed consent, the trial court instructed the jury that
“[p]laintiff claims that she did not give informed consent to Dr. Durrani” for the second
surgery involving the C6-C7 vertebrae and that “the lack of informed consent
proximately caused her injury.” The court then discussed when written consent is “valid
and effective.” It stated:
Dr. Durrani must prove by the greater weight of the evidence that the
written consent sets forth in general terms the nature and purpose of the
second surgery * * * and what the surgery * * * [was] expected to
accomplish, together with all reasonably known risks and the names of
the physicians who performed the intended second surgery.
{¶30} The court then added:
The plaintiff claims that her written consent to the second surgery * * * is
invalid. If Dr. Durrani has proven the previous requirements, then the
written consent is valid unless the plaintiff proves by the greater weight of
the evidence that (A) in seeking the written consent Dr. Durrani did not
act in good faith, or (B) the signing of the written consent by the plaintiff
was obtained by fraudulent misrepresentation.
The court then proceeded to define the elements of fraudulent misrepresentation.
{¶31} The jury returned a general verdict in favor of Pierce. In addition to its
finding that Durrani had fraudulently misrepresented the need for the second surgery,
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the jury also found that Durrani was negligent in performing that surgery. Its stated
reasons were: (1) “[n]o other less-aggressive options considered,” (2) “[i]nsufficient time
between surgeries to evaluate results of 1st surgery,” and (3) “scare tactic used to
advance idea of quick surgery.”
{¶32} The jury awarded noneconomic damages in the following percentages:
(1) 40 percent for negligence in the performance of the second surgery, (2) 0 percent for
the lack of informed consent in performing the second surgery, (3) 40 percent for the
fraudulent misrepresentation for the necessity for the second surgery, and (4) 20
percent for an issue unrelated to this appeal.
{¶33} Our review of the record shows that the two interrogatories can be
harmonized and are consistent with the general verdict. The elements of an informed-
consent claim are: (1) the physician failed to disclose to the patient material risks and
dangers inherent in the proposed procedure, (2) the undisclosed risks and dangers in
fact occurred and proximately caused the patient’s injuries, and (3) a reasonable person
would have declined the procedure if the risks and dangers had been disclosed. Nickell
v. Gonzalez, 17 Ohio St.3d 136, 477 N.E.2d 1145 (1985), syllabus; Joiner v. Simon, 1st
Dist. Hamilton No. C-050718, 2007-Ohio-425, ¶ 42. Informed consent may be given
orally. Joiner at ¶ 30. The jury could have rejected Pierce’s technical arguments about
whether the written consent forms were “valid and effective” and determined that she
was adequately informed about the risks and dangers of the second surgery, including
the benefits of the procedure, potential problems that might occur during recuperation,
the side effects of the procedure, and the likelihood of achieving satisfactory results.
{¶34} In contrast, the elements of fraud are (1) a representation or, where there
is a duty to disclose, concealment of a fact, (2) which is material to the transaction at
hand, (3) made falsely, or with such utter disregard and recklessness as to whether it is
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true or false that knowledge may be inferred, (4) with the intent of misleading another
into relying upon it, and (5) justifiable reliance upon the representation or concealment,
and (6) a resulting injury proximately caused by reliance. Burr v. Stark Cty. Bd. of
Commrs., 23 Ohio St.3d 69, 491 N.E.2d 1101 (1986), paragraph two of the syllabus;
Wiley v. Good Samaritan Hosp., 1st Dist. Hamilton Nos. C-030131 and C-030181,
2004-Ohio-763, ¶ 9.
{¶35} The record shows that the jury found that Durrani had lied about the
necessity of the second surgery with the intent of misleading Pierce, that she justifiably
relied on his representation, and that her injuries were proximately caused by his
representation. Those findings are not inconsistent with its finding that despite her
claim that she was never informed of or gave consent in writing to the second surgery,
she was informed of the benefits and risks of that surgery.
{¶36} Durrani relies upon Gaines v. Preterm-Cleveland, Inc., 33 Ohio St.3d
54, 514 N.E.2d 709 (1987), and its progeny in which courts have discussed the issue of
whether a fraud claim is a “medical claim” independent of a malpractice claim for
purposes of determining whether a statute of limitations has run. The court in Gaines
held that while an action in fraud may give rise to a cause of action independent from an
action in medical malpractice, it is only separate where the decision to misstate the facts
is not “medical in nature.” Id. at 56. See Hensley v. Durrani, 1st Dist. Hamilton No. C-
130005, 2013-Ohio-4711.
{¶37} We find these cases to be distinguishable. They interpret the definition
of a “medical claim” in R.C. 2305.113, which deals with the statute of limitations for
malpractice actions. It is part of R.C. Chapter 2305, which is entitled “Jurisdiction;
Limitation of Actions.” That a fraud claim is a medical claim for statute-of-limitations
purposes, which has its own policy considerations, does not mean it is a medical claim
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for all purposes. Fraud and lack of informed consent are still two separate causes of
action with separate elements that are not dependent on each other, and they can coexist
in a jury verdict in favor of a plaintiff.
{¶38} We hold that jury interrogatories two and five are not contradictory to
each other or inconsistent with the general verdict. Therefore, the trial court did not err
in overruling Durrani’s motion for JNOV on that basis.
VI. Lost Wages
{¶39} Finally, Durrani contends that the trial court should have granted his
motion for JNOV on the issue of Pierce’s lost wages. He argues that Pierce did not
present any evidence to support the jury’s finding that she had lost wages of $40,000.
{¶40} Generally, a party must show damages with reasonable certainty and
cannot leave them to conjecture or speculation. Blair, 177 Ohio App.3d 262, 2008-
Ohio-3698, 894 N.E.2d 377, at ¶ 34. Pierce testified that prior to her surgeries in 2009,
she had worked full time. She testified that she did not work from January 2009 to
January 2010, at which time she went back to work part time. She was only able to work
on and off due to her back pain. She took a leave of absence in October 2012, at which
time she earned $19.18 per hour, and she had not returned to work as of the time of trial
in January 2014.
{¶41} The jury awarded damages for lost wages for a period of one year. An
award of $19.18 an hour for one year equals approximately $40,000. Thus, Pierce
presented evidence to show damages with reasonable certainty. Competent, credible
evidence supported the jury’s award on lost wages, and therefore, the trial court did not
err in overruling Durrani’s motion for JNOV on that issue. See Shemo v. Mayfield Hts.,
88 Ohio St.3d 7, 10, 722 N.E.2d 1018 (2000); Bleh, 142 Ohio App.3d at 439-440, 756
N.E.2d 121. Consequently, we overrule Durrani’s second assignment of error.
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VII. Summary
{¶42} In sum, we hold that the trial court did not err in overruling Durrani’s
post-trial motions for JNOV and for a new trial. We overrule both of his assignments of
error and affirm the trial court’s judgment.
Judgment affirmed.
F ISCHER , P.J., concurs.
D E W INE , J., concurs separately.
D E W INE , J., concurring separately.
{¶43} I agree with the judgment, and with the lead opinion’s analysis in
parts II, III, IV and VI of the opinion. I write separately to make clear my rationale
for concluding that the trial court did not abuse its discretion in concluding that Dr.
Durrani was not entitled to a new trial or judgment notwithstanding the verdict
because of inconsistencies between the general verdict and the juror interrogatories.
{¶44} My concern with the majority decision is its suggestion that a finding
of informed consent is legally consistent with a finding of fraudulent inducement in
the context presented by this case. In order to have informed consent, one must
understand the risks of the procedure. Nickell v. Gonzalez, 17 Ohio St.3d 136, 477
N.E.2d 1145 (1985), syllabus. Informed consent also requires a determination that a
reasonable person would have chosen to go ahead with the procedure. Id. at 139.
Thus, encompassed within an understanding of the risks is necessarily an
understanding of the potential benefits of the procedure. A finding that someone
has been fraudulently induced to have surgery necessarily means that the person has
not been accurately informed of the risks and benefits of the procedure. Logically,
the jury’s finding that Pierce had given informed consent to the second surgery is
hard to square with its finding that she was fraudulently induced to undergo the
surgery.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶45} Note though, the apparent conflict in this case is not actually between
the general verdict and the interrogatories. The jury returned a general verdict for
the plaintiff. None of the interrogatory answers was inconsistent with this general
verdict. The jury only needed to find one basis for liability to support the general
verdict. Here, the jury indicated in its interrogatory answers that Dr. Durrani was
negligent in the performance of the surgery, and that he fraudulently induced Pierce
to consent to the surgery. The jury further found that Dr. Durrani’s negligence and
fraudulent inducement proximately caused Pierce’s injury. The findings as to
negligence and fraudulent inducement were independently sufficient to support the
general verdict. Thus, there was no real conflict between the general verdict and the
interrogatory answers.
{¶46} The defendants rely upon Civ.R. 49(B)'s instruction that “[w]hen one
or more of the answers is inconsistent with the general verdict, judgment may be
entered pursuant to Rule 58 in accordance with the answers, notwithstanding the
general verdict, or the court may return the jury for further consideration of its
answers and verdict or may order a new trial.” But it is not clear that this portion of
Civ.R. 49(B) is implicated. As explained above, while the interrogatory answers on
their face could be said to conflict with each other, no one answer is in direct conflict
with the general verdict. Even if Civ.R. 49(B)’s procedures for answers that are
inconsistent with the general verdict do not apply, there is little question in my mind
that a trial court retains the discretionary power to order a new trial when
interrogatory answers are internally inconsistent in such a manner that it is
impossible to ascertain the jury’s intent. But that is not the situation here. A careful
reading of the interrogatory answers in conjunction with the general verdict and the
jury instructions makes evident what the jury meant to do.
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{¶47} In order to overturn a verdict, “the court must find the general verdict
and interrogatory answers both in conflict and irreconcilable.” Sowards v. Norbar,
Inc., 78 Ohio App.3d 545, 553, 605 N.E.2d 468 (10th Dist.1992). See Hogan v.
Finch, 8 Ohio St.2d 31, 221 N.E.2d 633 (1966), paragraph two of the syllabus; Otte v.
Dayton Power & Light Co., 37 Ohio St.3d 33, 523 N.E.2d 835 (1988). In the context
of the federal rule, it has been held that even though the interrogatory answers may
appear inconsistent on their face, “it is not inconsistent if it can be explained by
assuming the jury reasonably misunderstood the instructions.” Willard v. The John
Hayward, 577 F.2d 1009 (5th Cir.1978).
{¶48} We have been instructed to harmonize inconsistent interrogatory
answers as much as reasonably possible. See Phillips v. Dayton Power & Light Co.,
111 Ohio App.3d 433, 443, 675 N.E.2d 565 (2d Dist.1996). The United States
Supreme Court tells us that trial courts “must attempt to reconcile the jury's findings,
by exegesis if necessary” before disregarding a jury’s verdict and ordering a new trial.
Gallick v. B & O RR., 372 U.S. 108, 118, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963).
{¶49} In this case, exegesis is not necessary. A review of the interrogatories
makes perfectly clear the jury's intent. The jury concluded that Dr. Durrani induced
Pierce to undergo an unnecessary surgery and that he should held liable as a result.
The first jury interrogatory stated that Dr. Durrani was negligent in performing the
surgery, and the second detailed the manner in which the jury believed he was
negligent:
 No other less-agressive [sic] options considered
 Insufficient time between surgeries to evaluate results of 1st
surgery
 Scare tactic used to advance idea of quick surgery
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OHIO FIRST DISTRICT COURT OF APPEALS
The jury further found that Dr. Durrani had fraudulently misrepresented the
necessity of the second surgery, and that the fraudulent misrepresentation and the
negligence were the proximate cause of injury to Pierce. As a result, the jury found in
favor of Pierce and awarded damages of $540,000.
{¶50} The jury’s failure to find a lack of informed consent must have been a
result of its failure to completely understand the instructions on the issue. It is
understandable how the jurors got confused. The judge’s instructions informed the
jury that the written consent form was invalid if the jury determined that it was
obtained through the fraudulent misrepresentation of material facts. The judge
further explained that if the jurors found the written consent form invalid, in order to
have informed consent, they must determine (1) that Dr. Durrani failed to disclose
“the material risks and dangers” of the second surgery, (2) that these risks and
dangers were a proximate cause of the injury and (3) that a reasonable person would
have decided against the surgery if a complete disclosure had been made. The
difficulty is that the instructions made no explicit mention of the need to inform the
patient of the expected benefits of the surgery. Obviously, one cannot give informed
consent to a surgery that has no reasonably expected medical benefit unless she is
made aware of that fact. Presumably, a doctor's explanation of “the risks and
dangers” would have to include a detailing of the expected benefits of the surgery in
order to allow for an informed choice. Nonetheless, on this record, it is easy to see
how the jury could have focused only on the narrow question of whether Dr. Durrani
explained the risks of the surgery to the patient without looking to the broader
question of whether the patient was given sufficient information to decide if the risks
of the surgery were worth the potential benefits. But even though the jury may have
17
OHIO FIRST DISTRICT COURT OF APPEALS
been confused on this point, there is no basis to throw out the verdict. It is
abundantly clear that the general verdict comports with the jury’s intent.
{¶51} This is not a situation where the jury’s interrogatory answers are “in
conflict and irreconcilable.” As a consequence, the trial court did not abuse its
discretion in denying the motion for a judgment notwithstanding the verdict or a
new trial.
Please note:
The court has recorded its own entry this date.
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