Higgins v. Ranasinghe ( 2014 )

[Cite as Higgins v. Ranasinghe, 2014-Ohio-4674.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100722
TANYA HIGGINS
PLAINTIFF-APPELLANT
vs.
ELIZABETH RANASINGHE, M.D., ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-12-781936
BEFORE: Rocco, P.J., E.A. Gallagher, J., and Kilbane, J.
RELEASED AND JOURNALIZED: October 23, 2014
ATTORNEY FOR APPELLANT
Brian J. Darling
Darling/Duffy Legal Services
23823 Lorain Rd., Suite 270
North Olmsted, Ohio 44070
ATTORNEYS FOR APPELLEES
Clifford C. Masch
Thomas B. Kilbane
Christine S. Santoni
Brian D. Sullivan
Reminger Co., L.P.A.
101 West Prospect Ave., Suite 1400
Cleveland, Ohio 44115-1093
KENNETH A. ROCCO, P.J.:
{¶1} Plaintiff-appellant Tanya Higgins appeals from a jury verdict in favor of
defendants-appellees Elizabeth Ranasinghe, M.D. and Family Medicine & Occupational
Health Center, Inc. (collectively, “appellees”) on her medical malpractice claim. Higgins
alleged that Dr. Ranasinghe was negligent in failing to recommend that Higgins undergo
screening mammograms 1 for breast cancer before she turned 40 and that, as a result,
Higgins’s breast cancer was not timely diagnosed and treated. Higgins contends that the
jury’s finding that Higgins failed to prove by a preponderance of the evidence that Dr.
Ranasinghe deviated from the standard of care in her medical care and treatment of
Higgins was against the manifest weight of the evidence. Finding no merit to the appeal,
we affirm.
Factual Background
{¶2} Dr. Ranasinghe, a board-certified family medicine practitioner, is the sole
owner/shareholder of Family Medicine & Occupational Health Center, Inc. At the time
of trial, Dr. Ranasinghe had been practicing family medicine for nearly 22 years.
Higgins was a patient of Dr. Ranasinghe. Higgins first saw Dr. Ranasinghe in June
1995, when she was 23, to obtain a pap smear and to discuss birth control issues. This
1
A screening mammogram, as opposed to a diagnostic mammogram, occurs
when a woman has no signs or symptoms of breast cancer. Multiple views of the
breast are taken to determine if any abnormalities are present. A diagnostic
mammogram occurs where an abnormal finding is observed, such as a lump or
inflamed lymph node, and is directed to a particular area to investigate that
finding.
initial visit was an “acute visit,” designed to address a specific complaint or concern. Dr.
Ranasinghe, therefore, did not perform a complete physical examination of Higgins at
that time, but recommended that Higgins follow up and schedule a physical examination.
Higgins continued to be one of Dr. Ranasinghe’s patients for the next 16 years, seeing Dr.
Ranasinghe on and off for various issues, including eczema, back pain, sinus issues,
urinary tract infections, numbness and tingling in her arm, and abdominal pain.
{¶3} Higgins’s breast issues began in 2001, when she was 29. In April 2001,
Higgins visited Dr. Ranasinghe, complaining of swelling in her armpits. Dr. Ranasinghe
initially diagnosed Higgins with a rash and treated her for eczema. After several
followup visits with the same complaint, Dr. Ranasinghe noticed a lump under Higgins’s
left armpit. Dr. Ranasinghe recommended that Higgins undergo a diagnostic
mammogram and referred her to a surgeon, Dr. Aszodi. The mammogram revealed that
Higgins had a small tumor. Dr. Aszodi removed the tumor, a biopsy was performed, and
it was determined to be benign.
{¶4} In May 2002, Higgins returned to Dr. Ranasinghe with complaints regarding
an abnormality in her left armpit. Following an examination, Dr. Ranasinghe discovered
what appeared to be extra skin tissue under Higgins’s left arm. Dr. Ranasinghe referred
Higgins to a plastic surgeon, Dr. Goldman, for further evaluation. Dr. Goldman
recommended that Higgins have a screening mammogram “since the patient has not had
one in over a year” and that the excess tissue be removed. Higgins did not immediately
follow his recommendations. In May 2003, Higgins returned to Dr. Ranasinghe with
continued complaints regarding an abnormality in her left arm. Dr. Ranasinghe again
referred Higgins to Dr. Goldman. Higgins underwent the mammogram previously
ordered by Dr. Goldman, and Dr. Goldman performed plastic surgery on Higgins’s
underarm, removing both axillary and breast tissue. The mammogram was normal,
revealing no abnormalities, and a biopsy determined that the removed tissue was
noncancerous.
{¶5} In October 2003, Higgins saw Dr. Ranasinghe with a complaint that her left
breast was larger than her right breast. Dr. Ranasinghe determined that this was likely
due to the scar tissue from her prior surgery, but referred Higgins to a surgeon to confirm
her diagnosis. Higgins did not follow up with the surgeon. Higgins continued to see
Dr. Ranasinghe intermittently for various other health issues over the next several years
but did not mention any problems with her breasts.
{¶6} Although the May 2001 report from Higgins’s first mammogram indicated
that Higgins had a family history of breast cancer, Dr. Ranasinghe did not herself note in
Higgins’s chart that Higgins had a family history of breast cancer until 2007. Dr.
Ranasinghe admitted that, on several occasions during 2003 through 2005 in connection
Higgins’s “acute visits” to her office for various unrelated complaints, she inaccurately
recorded that Higgins’s family history was “negative” or otherwise failed to note that
Higgins had a family history of breast cancer. Dr. Ranasinghe testified that she typically
has a patient fill out a detailed family history form the first time she sees a patient, i.e.,
when Higgins first visited her in 1995, and then updates the patient’s family history
during the patient’s annual physical or “well woman” visit. She testified that it is not her
practice to go over a patient’s family history or to ask patients about changes in their
family history when they come in for acute visits, only during annual physicals or “well
woman” visits.
{¶7} In December 2007, at age 35, Higgins saw Dr. Ranasinghe for her first of
several annual physicals or “well woman” visits. During that visit, Dr. Ranasinghe asked
Higgins about her medical and family history. Dr. Ranasinghe testified that Higgins told
her only that her mother had had breast cancer but did not indicate that any other family
members had had breast cancer. Dr. Ranasinghe testified that she recorded that
information in Higgins’s chart. She further testified that although she asked Higgins the
age at which her mother had been diagnosed with breast cancer, she did not record that
information. Dr. Ranasinghe explained that because Higgins’s mother was
postmenopausal rather than premenopausal when she was diagnosed with breast cancer,
Higgins’s mother’s age at the time of her diagnosis “was not an issue for me.” As part of
Higgins’s physical, Dr. Ranasinghe performed a clinical breast exam and determined that
both breasts were normal. Dr. Ranasinghe testified that after she completed the exam,
she discussed the results with Higgins, as well as the fact that at age 40, she would order
an additional mammogram for her. Dr. Ranasinghe testified that preventative medicine
was an important part of her practice and that she also discussed with Higgins measures
Higgins could undertake in an attempt to prevent cancer, including proper nutrition,
weight control, and exercise, and showed her how to perform self breast exams. Dr.
Ranasinghe did not document her discussion with Higgins regarding screening for the
early detection of breast cancer in Higgins’s medical records.
{¶8} After her 2007 visit, Higgins once again continued to see Dr. Ranasinghe
intermittently for various health issues — none of which involved any issues with her
breasts. In May 2009 and May 2010, Higgins saw Dr. Ranasinghe again for annual
physicals. Dr. Ranasinghe testified that at each visit, she updated Higgins’s family
history but that Higgins made no mention of any other relatives with breast cancer. Dr.
Ranasinghe testified that during each visit, she also performed a clinical breast exam.
No abnormalities in Higgins’s breasts were discovered during these exams. Dr.
Ranasinghe further testified that although she did not make a specific notation in
Higgins’s records to that effect, she discussed both breast cancer prevention and
screening mammograms with Higgins at these well women visits, including the plan to
order a further screening mammogram for Higgins at age 40.
{¶9} Higgins testified that in addition to her mother, who developed breast cancer
in 1997 at age 53, she had a paternal grandmother who developed breast cancer when she
was in her 80s, paternal and maternal aunts who developed breast cancer, and two cousins
on her mother’s side who developed breast cancer in their 30s. Higgins testified that she
told Dr. Ranasinghe in 1995 that her paternal grandmother had had breast cancer but that
Dr. Ranasinghe dismissed it, stating that she “doesn’t consider that.” With respect to
other family members who later developed breast cancer, Higgins testified that she told
Dr. Ranasinghe about them when she learned of them, such that Dr. Ranasinghe would
have known of her complete family history of breast cancer by 2008.
{¶10} Higgins testified that because she was afraid of contracting breast cancer,
she “started really asking” Dr. Ranasinghe for mammograms in 2004. Higgins testified
that on each of her annual visits, i.e., five or six times before 2011, she requested that Dr.
Ranasinghe order a screening mammogram for her. Higgins testified that each time she
requested a mammogram, she explained to Dr. Ranasinghe that she wanted a
mammogram because of her prior surgeries and family history of breast cancer. Higgins
testified, however, that Dr. Ranasinghe refused her requests, stating that she did not need
a mammogram until she was 40. Although Higgins acknowledged that she could have
seen another doctor if she wanted a mammogram and was dissatisfied with the treatment
she was receiving from Dr. Ranasinghe, Higgins testified that she trusted Dr. Ranasinghe
and went to her for “everything” unless referred elsewhere by Dr. Ranasinghe. With the
exception of the mammograms, Higgins testified that she could not recall another
instance in which she had requested a referral from Dr. Ranasinghe but that her request
had been refused.
{¶11} Higgins’s daughters, 20-year-old India Higgins (“India”) and 23-year-old
Shantelle Carr (“Carr”), also testified regarding Higgins’s request for a mammogram.
Higgins’s daughters described their relationship with their mother as “close” and “like
best friends.” Carr testified that her mother was concerned about getting breast cancer
and “always talked about mammograms.” She testified that her mother had told her that
she had requested a mammogram from Dr. Ranasinghe but that Dr. Ranasinghe had
refused her request because a mammogram was not recommended until Higgins was 40.2
India testified that she accompanied her mother on her mother’s visits to Dr. Ranasinghe
and that, beginning when India was 10 or 11, was present in the exam room when Higgins
requested mammograms from Dr. Ranasinghe. India testified that she heard her mother
ask Dr. Ranasinghe “constantly, over five times * * * can I get a mammogram” but that
each time Dr. Ranasinghe refused her request, stating that she could wait until she was 40
to get a mammogram. With respect to what Higgins should do to prevent breast cancer,
India testified that Dr. Ranasinghe simply told Higgins to exercise and eat healthier.
Although they both knew their grandmother had had breast cancer, India and Carr
testified that they did not learn of their full family history of breast cancer until after their
mother was diagnosed with cancer.
{¶12} Dr. Ranasinghe testified that, notwithstanding Higgins’s mother’s history of
breast cancer, she did not start ordering screening mammograms for Higgins at age 35
because she followed the guidelines of the American Academy of Family Physicians
(“AAFP”). She testified that the AAFP did not recommend that a patient such as
2
At trial, counsel for Dr. Ranasinghe attempted to impeach Carr with her prior deposition
testimony regarding this issue. At her deposition, when Carr was asked “Did [Higgins] ever say she
wanted to go get a mammogram and someone wouldn’t let her go get one,” she testified, “No. They
weren’t recommended till she was 40.”
Higgins, with the family history of breast cancer that was known to Dr. Ranasinghe at the
time, receive screening mammograms before the age of 40.3
{¶13} Dr. Ranasinghe denied that Higgins had ever asked her for mammogram.
She testified that had Higgins done so, she would have had a discussion with her about
the difficulties, given her age and dense breast tissue, of finding a lesion — even if one
existed — and concerns regarding false positives. She further testified that, if following
such a discussion, Higgins had still wanted a mammogram, she “would have granted her
request without any objection.”
{¶14} Higgins last saw Dr. Ranasinghe on September 3, 2011, for an annual
physical. During her examination of Higgins, Dr. Ranasinghe noticed that Higgins’s left
breast appeared asymmetric and that there was an indentation or dimple on the lower
portion of the breast. Concerned these abnormalities might be indicative of cancer, Dr.
Ranasinghe referred Higgins to a surgeon, Dr. Carl Johnson, to investigate them. Dr.
Johnson ordered a diagnostic mammogram. The mammogram showed signs of possible
3
On cross-examination, Dr. Ranasinghe admitted that the AAFP breast
screening recommendations, by their terms, did not apply to women who had an
“increased risk” of developing breast cancer and that, based on her family history,
Higgins had a “slightly increased risk” or “higher risk” than the average person of
developing breast cancer. It is unclear from the record precisely what the AAFP
recommended with respect to breast screening and what constituted an “increased
risk” for developing breast cancer within the meaning of those recommendations.
It is likewise unclear from the record whether the AAFP recommended an
alternative time line for performing screening mammograms on women with an
“increased risk” of breast cancer or was silent on the issue, providing no
recommendations regarding the timing or frequency of screening mammograms for
women with an “increased risk” of developing breast cancer. The AAFP
recommendations were not admitted into evidence at trial and, therefore, are not
part of the record on appeal.
breast cancer, so he ordered a number of follow up tests, including an ultrasound, CT
scans, MRIs, and a biopsy. In November 2011, at age 39, Higgins was diagnosed with
stage 4 breast cancer with metastatic disease to her bones. During the months that
followed, Higgins underwent chemotherapy, had a mastectomy followed by a course of
radiation, and her ovaries and fallopian tubes were removed.
Expert Testimony
{¶15} At trial, both parties offered expert medical testimony on the issue of the
standard of care. Dr. Jeffrey Soffer, a board-certified obstetrician-gynecologist, was one
of the medical experts who testified on Higgins’s behalf. He testified that a family
doctor providing gynecological services must provide the same standard of care as a
gynecologist. He testified that, in his practice, if a woman has no family history of breast
cancer, he would recommend yearly mammograms beginning at age 40. He testified,
however, that if a woman has a significant family history of breast cancer, then he would
discuss performing mammograms before the age of 40 and would “probably * * * start
doing them routinely” at age 30 or 35.
{¶16} Dr. Soffer further testified that the American Cancer Society recommends
that if a woman has the gene for breast cancer or a strong family history of breast cancer,
that annual mammograms begin at age 30. He testified that whereas the average woman,
without any family history of breast cancer or other risks, has a 12.5% chance of
developing breast cancer during her lifetime, that risk increases to 25% where a
first-degree relative, i.e., a mother, daughter, or sister, has had breast cancer, and that if
second-degree relatives, i.e., cousins or aunts, have also developed breast cancer, it could
increase the risk “maybe up to 30 percent” that the woman would develop breast cancer
during her lifetime.4 He testified that other risks of breast cancer include prior biopsies
and that African-American women have a higher incidence of breast cancer under age 40.
{¶17} Based on his review of the medical records, Dr. Soffer testified that Dr.
Ranasinghe should have known that Higgins’s family history and prior biopsies put her at
an increased risk for breast cancer and that based on this risk (1) screening mammography
should have been started much earlier and (2) she should have had several discussions
with Higgins regarding why screening mammography was recommended.5 He opined
that the standard of care for a woman with two biopsies and a mother who developed
breast cancer would be to start screening mammograms “in the 30s, probably at age 30,”
“continue [them] every year or every two years until 40[,] and then at 40[,] do them every
year,” and that, in failing to do so, Dr. Ranasinghe breached the standard of care. Dr.
4
Dr. Ranasinghe’s counsel challenged these percentages. On
cross-examination, Dr. Soffer admitted that using the Gail model, a widely-accepted
means of assessing a woman’s individual risk of developing breast cancer during her lifetime, he
calculated Higgins’s lifetime breast cancer risk at less than 16%. Dr. Soffer testified, however, that
the Gail model calculation did not accurately reflect Higgins’s risk because the model is known to
underestimate the breast cancer risk in African-American women who have had one or more biopsies
and does not allow for the consideration of second- or third-degree relatives who have developed
breast cancer in calculating risk.
5
It is undisputed that Higgins does not have the BRCA gene, a gene approximately 10% of
women carry that puts them at a 80% risk of developing breast cancer. Genetic testing was
performed on Higgins after she was diagnosed with breast cancer that revealed that she did not have
the BRCA gene. At trial, Dr. Soffer opined that Dr. Ranasinghe should have ordered genetic
testing sooner to see if Higgins had the gene, but acknowledged that because Higgins does not carry
the gene, “it really didn’t impact this situation.”
Soffer further opined that even if early mammography had not been warranted based on
Higgins’s risk factors alone, the standard of care required that, if Higgins had asked for a
mammogram, a mammogram be ordered for her. He also testified that Dr. Ranasinghe’s
failure to accurately record information in Higgins’s records, including the age at which
her mother developed breast cancer and Higgins’s complete family history of breast
cancer, was a breach of the standard of care. Dr. Soffer opined that if Higgins had
underwent additional screening mammograms sooner, there is a “very high degree of
medical certainty” that her cancer would have been diagnosed earlier and treatment begun
sooner such that “she would have had a much lesser stage of the disease.”6
{¶18} Dr. Ranasinghe’s experts, Dr. Howard Muntz, a board-certified
gynecological oncologist, and Dr. Benjamin Hasan, a board-certified physician in family
medicine and sports medicine, offered a contrary view. Dr. Muntz opined that Dr.
6
Dr. David Harris, a board-certified medical oncologist, also testified on
behalf of Higgins. His testimony related primarily to causation. He explained the
various stages of ductile carcinoma, the type of cancer with which Higgins was
diagnosed, and testified that certain changes indicative of cancer can often be
viewed on a mammogram several years before a lump develops in the breast. He
testified that before the cancer became invasive, calcifications would form in the
breast and opined that if Higgins had had a mammogram in 2005 or 2006, these
calcifications would have likely been visible on the mammogram. He further
opined that based on the average growth rates of tumors similar to Higgins’s —
applying a doubling time theory to look backwards and determine what the size of
the tumor would have been at various times — the tumor itself would have likely
been detectable in a mammogram in 2009 or 2010. Thus, Dr. Harris concluded, if a
screening mammogram had been performed on Higgins before 2011, Higgins’s
cancer would have been detected earlier, and she could have begun treatment at an
earlier stage of the disease, significantly increasing her chances of survival. He
offered no opinion regarding when mammogram screening should have been
ordered for Higgins, given her risk factors, or whether Dr. Ranasinghe’s failure to
order early mammograms for Higgins breached the standard of care.
Ranasinghe met the standard of care for screening mammography, testifying that early
mammography, i.e., mammography before age 40, was not recommended by any of the
“academies or societies” for patients like Higgins. He testified that the American
College of Obstetricians and Gynecologists (“ACOG”) recommends starting
mammography at age 40 and that, even for women with a family history of breast cancer,
the U.S. Preventative Task Force and AAFP recommend starting mammograms at age 50.
He explained that early mammography is not generally recommended because (1) the
incidence of breast cancer in young women is “really low” and (2) mammography is
“really not very accurate” in women under age 40 due to their dense breast tissue. He
testified that early mammography “misses most of the cancers” and results in a number of
“false positives,” which can lead to additional diagnostic tests and, in some instances,
surgery to diagnose mammographic abnormalities. Dr. Muntz opined that even if an
earlier mammogram had been performed on Higgins in her 30s, it would not likely have
been helpful in the diagnosis of her cancer due to the inherent inaccuracy of
mammography in young patients and his view that Higgins had a very rapidly growing
cancer that would not have been detectable in earlier diagnostic tests.
{¶19} Dr. Muntz disputed Dr. Soffer’s contention that if a woman has a family
history of breast cancer, has had biopsies, and is African-American, she should get a
mammogram before the age of 40. He likewise disputed that the American Cancer
Society recommended mammography before age 40 for patients like Higgins. 7 On
7
The American Cancer Society recommendation referenced at trial apparently states as
cross-examination, Dr. Muntz acknowledged that the AAFP guidelines, upon which Dr.
Ranasinghe indicated she relied, state that they are not intended to apply to women with
an increased risk of breast cancer. He testified, however, that where such guidelines do
not apply, i.e., for patients who have an “increased risk” of developing breast cancer,
mammography would be recommended to begin at age 40, rather than age 50 — not when
a woman is in her 30s. He did agree, however, that Dr. Ranasinghe would have breached
the standard of care if she had failed to ask Higgins about her family history of breast
cancer or if she had failed to ask Higgins the age at which her mother was diagnosed with
breast cancer.
{¶20} Dr. Hasan offered similar testimony. He testified that, taking into account
Higgins’s risk factors, including her mother’s breast cancer, mammogram screening was
not recommended until age 40 based on guidelines from the U.S. Preventative Health
Task Force and ACOG, and that the prior breast issues and mammograms Higgins had
had in 2001-2003 did not alter the timing for ordering a mammogram. Dr. Hasan echoed
Dr. Muntz’s concerns regarding ordering mammograms too early and opined that Dr.
Ranasinghe met the standard of care in her treatment of Higgins by not ordering a
screening mammogram for Higgins before age 40. He testified that he disagreed with
recommendations by the American Cancer Society and that he also disagreed that the
follows: “In younger women who are at high risk for developing breast cancer due to gene mutation
or strong family history, yearly mammograms and breast MRIs are recommended. For most, these
screenings should begin at 30 and continue as long as the woman is in good health.” None of the
experts testified as to whether there is an accepted definition of what constitutes a “strong family
history” within the meaning of the recommendation.
incidence of breast cancer in second- and third-degree relatives presents an increased risk
of breast cancer to a patient. He testified that Dr. Ranasinghe’s practice of taking a
detailed family history only during annual physical examinations and that her errors in
noting in Higgins’s medical records that Higgins had no adverse family history, during
several acute visits in which no family history of breast cancer was discussed, did not
constitute a breach of the standard of care under the circumstances.
{¶21} After considering all the evidence, the jury found that Higgins did not
establish by a preponderance of the evidence that Dr. Ranasinghe had deviated from the
standard of care in her medical care and treatment of Higgins and entered a verdict in
favor of appellees. On November 6, 2013, the trial court entered judgment on the jury’s
verdict.
{¶22} Higgins appeals the trial court’s judgment, raising a single assignment of
error for review:
The jury verdict in favor of defendants was against the manifest weight of
the evidence.
Elements of a Medical Malpractice Claim
{¶23} To recover on a claim of medical malpractice, a plaintiff must prove by a
preponderance of the evidence: (1) the existence of standard of care within the medical
community, (2) a breach of that standard of care by the defendant, and (3) proximate
cause between the medical negligence and the injury sustained. O’Connor v. Fairview
Hosp., 8th Dist. Cuyahoga No. 98721, 2013-Ohio-1794, ¶ 24, citing Bruni v. Tatsumi, 46
Ohio St.2d 127, 130-131, 346 N.E.2d 673 (1976).
{¶24} As the Ohio Supreme Court explained the plaintiff’s burden in Bruni:
Under Ohio law, as it has developed, in order to establish medical
malpractice, it must be shown by a preponderance of the evidence that the
injury complained of was caused by the doing of some particular thing or
things that a physician or surgeon of ordinary skill, care and diligence
would not have done under like or similar conditions or circumstances, or
by the failure or commission to do some particular thing or things that such
a physician or surgeon would have done under like or similar conditions
and circumstances, and that the injury complained of was the direct result of
such doing or failing to do some one or more of such particular things.
Bruni at 131. Expert testimony is generally required both to establish that a physician
was negligent, i.e., that the physician breached a standard of care in the medical
community, and to establish a causal link between the alleged negligent act or omission
and the injury sustained. O’Connor at ¶ 26, citing Bruni at 130.
Manifest Weight of the Evidence
{¶25} Higgins asserts that the trial court’s judgment should be reversed and a new
trial ordered because the jury’s verdict in favor of appellees was against the manifest
weight of the evidence. Higgins argues that the “greater amount of credible evidence,”
including the testimony of both parties’ experts, supported a finding that appellees
breached their standard of care.
{¶26} The manifest weight of the evidence involves a party’s burden of
persuasion and is “quantitatively and qualitatively different from” the sufficiency of the
evidence. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶
19, 23. In Eastley, the Ohio Supreme Court made it clear that the Thompkins standard of
review for manifest weight of the evidence applies in civil as well as criminal cases. Id.
at ¶ 17. In State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541, the Ohio Supreme
Court described manifest weight of the evidence as follows:
Weight of the evidence concerns “the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather
than the other. It indicates clearly to the jury that the party having the
burden of proof will be entitled to their verdict, if, on weighing the evidence
in their minds, they shall find the greater amount of credible evidence
sustains the issue which is to be established before them. Weight is not a
question of mathematics, but depends on its effect in inducing belief.”
(Emphasis omitted.) Id. at 387, quoting Black’s Law Dictionary 1594 (6th Ed.1990).
{¶27} In assessing whether a jury’s verdict is against the manifest weight of the
evidence, we examine the entire record, weigh the evidence and all reasonable inferences,
consider the witnesses’ credibility, and determine whether, in resolving conflicts in the
evidence, the jury clearly lost its way and created such a manifest miscarriage of justice
that the verdict must be overturned and a new trial ordered. State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶28} In weighing the evidence, we are, however, guided by a presumption that
the findings of the trier of fact are correct. Seasons Coal Co., Inc. v. Cleveland, 10 Ohio
St.3d 77, 80, 461 N.E.2d 1273 (1984). This presumption arises because the trier of fact
had an opportunity “to view the witnesses and observe their demeanor, gestures and voice
inflections, and use these observations in weighing the credibility of the proffered
testimony.” Id. Thus, “to the extent that the evidence is susceptible to more than one
interpretation,” we will “construe it consistently with the jury’s verdict.” Berry v.
Lupica, 196 Ohio App.3d 687, 2011-Ohio-5381, 965 N.E.2d 318, ¶ 22 (8th Dist.), citing
Ross v. Ross, 64 Ohio St.2d 203, 414 N.E.2d 426 (1980); see also Seasons Coal at 80, fn.
3 (“‘[I]n determining whether the judgment below is manifestly against the weight of the
evidence, every reasonable intendment and every reasonable presumption must be made
in favor of the judgment and the finding of facts.
* * * If the evidence is susceptible of more than one construction, the reviewing court is
bound to give it that interpretation which is consistent with the verdict and judgment,
most favorable to sustaining the verdict and judgment.’”), quoting 5 Ohio Jurisprudence
3d, Appellate Review, Section 60, at 191-192 (1978).
{¶29} Higgins argues that the jury’s determination that Higgins did not establish,
by a preponderance of the evidence, that Dr. Ranasinghe deviated from the standard of
care in her medical care and treatment of Higgins was against the manifest weight of the
evidence based on: (1) Dr. Ranasinghe’s admissions that, on several occasions prior to
2007, she failed to accurately record Higgins’s family history of cancer in Higgins’s
medical records, (2) the testimony of Higgins and her daughters that Higgins had asked
Dr. Ranasinghe to order screening mammograms for her but that Dr. Ranasinghe refused
to do so, and (3) expert testimony establishing that given Higgins’s family history of
breast cancer, her prior biopsies, and the increased incidence of breast cancer in
African-American women under age 40, Higgins had an increased or high risk of breast
cancer that warranted her receipt of screening mammograms in her 30s. We disagree.
{¶30} In this case, the jury was presented with competing opinions from qualified
experts regarding what constituted the applicable standard of care and whether that
standard of care was breached by Dr. Ranasinghe under the circumstances. The parties’
experts based their opinions on different (and, at times, potentially conflicting)
recommendations from different organizations regarding whether screening
mammography should be ordered for women under age 40 and offered different
interpretations as to the extent to which those recommendations applied to Higgins given
the information that was allegedly known by (or should have been known by) by Dr.
Ranasinghe at the time. In addition, the witnesses offered conflicting testimony on a
number of factual issues relevant to the determination of whether Dr. Ranasinghe
breached the standard of care, including whether Dr. Ranasinghe ever discussed screening
mammograms with Higgins, whether Higgins ever asked Dr. Ranasinghe for a screening
mammogram (and, if so, whether Dr. Ranasinghe refused that request), whether Dr.
Ranasinghe asked Higgins at what age her mother was diagnosed with breast cancer, and
when or whether Higgins disclosed her full family history of breast cancer to Dr.
Ranasinghe. Although we consider credibility in a manifest weight challenge, we are
mindful that it is primarily within the jury’s province to make determinations as to the
weight of the evidence and the credibility of witness testimony. State v. DeHass, 10
Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.
{¶31} Following a complete and careful review of the record, we cannot say that,
in resolving conflicts in the evidence, the jury clearly lost its way and created such a
manifest miscarriage of justice that the verdict must be overturned and a new trial
ordered. As such, we find that the jury’s verdict was not against the manifest weight of
the evidence, and we decline to disturb it. See, e.g., Welsh v. Ford Motor Co., 8th Dist.
Cuyahoga No. 94068, 2011-Ohio-448, ¶ 42 (where testimony of competing experts with
opposite opinions was presented to the jury such that the evidence was susceptible to
more than one interpretation, the jury’s verdict was not against the manifest weight of the
evidence); O’Connor, 2013-Ohio-1794 at ¶ 58 (where jury was presented with competing
opinions as to the cause of plaintiff’s injuries, jury’s verdict in favor of plaintiff and
against hospital on medical malpractice claim was not against the manifest weight of the
evidence). Higgins’s assignment of error is overruled.
{¶32} Judgment affirmed.
It is ordered that appellees recover from appellant the 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.
__________________________________________
KENNETH A. ROCCO, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR