Harris-Miles v. Lakewood Hosp. , 106 N.E.3d 890 ( 2018 )

[Cite as Harris-Miles v. Lakewood Hosp., 2018-Ohio-664.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
Gaye Lynn Harris-Miles, et al.. Court of Appeals No. E-17-023
Appellants Trial Court No. 2015 CV 0622
v.
Lakewood Hospital, et al. DECISION AND JUDGMENT
Appellees Decided: February 23, 2018
*****
Danielle C. Kulik and Geoffrey L. Oglesby, for appellants.
Michael P. Murphy and Taylor C. Knight, for appellees.
*****
MAYLE, P.J.
{¶ 1} Plaintiffs-appellants, Gaye Lynn Harris-Miles, Timothy Miles, Amanda
Kaye Miles, and Alexis Renee Miles, appeal the June 20, 2017 judgment of the Erie
County Court of Common Pleas granting summary judgment in favor of defendants-
appellees, Alfred Serna, M.D. and the Cleveland Clinic. For the following reasons, we
affirm.
I. Background
{¶ 2} Defendant-appellant, Alfred Serna, M.D., is an orthopedic surgeon who
practices with the Cleveland Clinic. On August 29, 2014, Gaye Harris-Miles presented to
Dr. Serna for a surgical consult relative to her left shoulder. After evaluating Harris-
Miles, and because more conservative treatment had failed, a plan was made to go
forward with an arthroscopic rotator cuff procedure, a routine surgical procedure
performed on an outpatient basis.
{¶ 3} Harris-Miles had a history of interstitial lung disease (“ILD”) and
bronchiectasis, so the anesthesiology department—which worked alongside Dr. Serna as
part of Harris-Miles’ medical team—sought clearance from Cleveland Clinic’s
pulmonology department before proceeding to surgery. On September 8, 2014, the
pulmonologist—Dr. Highland1—cleared Harris-Miles for surgery, but noted that the
procedure needed to be performed at a hospital rather than a surgical center because of
the potential need for supplemental oxygen. The anesthesiology department classified
Harris-Miles as ASA2, meaning that she was low-risk and had been cleared to undergo
surgery.
1
Dr. Highland’s first name does not appear in the record.
2.
{¶ 4} On September 26, 2014, a physician’s assistant from Dr. Serna’s department
performed a detailed examination of Harris-Miles, and her surgery was scheduled to
proceed on October 6, 2014, at Cleveland Clinic’s Lakewood Hospital (“Lakewood”).
Dr. Serna successfully performed the procedure without complication. After the surgery,
however, Harris-Miles began coughing up blood and experienced desaturations in her
oxygen levels. Dr. Serna ordered anesthesiology and pulmonology consults. It was
determined that Harris-Miles had suffered an alveolar hemorrhage. She was admitted to
Lakewood, and on October 9, 2014, she was transferred to the Cleveland Clinic’s main
campus where she remained until her discharge on October 14, 2014.
{¶ 5} Harris-Miles, her husband, and her two minor children, filed a complaint
against Fairview Hospital (later amended to Cleveland Clinic-Lakewood Hospital2), Dr.
Serna, and Drs. John Doe anesthesiologists. They alleged that Dr. Serna and the John
Doe anesthesiologists rendered negligent care to Harris-Miles, and that as employees or
agents of the hospital, Cleveland Clinic was responsible for their actions under the
doctrine of respondeat superior. Harris-Miles’ husband and children asserted claims for
loss of consortium. After a number of requests for extensions, Harris-Miles provided an
affidavit of merit, as required by Civ.R. 10(D)(2), from Casey Darrah, M.D., a physician
who practices family medicine. The John Doe defendants were never substituted.
2
Plaintiffs incorrectly named “Lakeview” instead of “Lakewood,” but Lakewood
answered the amended complaint.
3.
{¶ 6} On December 20, 2016, Cleveland Clinic and Dr. Serna filed a motion for
summary judgment. They claimed that (1) Dr. Darrah was not critical of the care and
treatment rendered by Dr. Serna; (2) Dr. Darrah is not qualified to render standard-of-
care opinions applicable to either Dr. Serna, the anesthesiologist, or the pulmonologist,
Dr. Highland; (3) Harris-Miles cannot establish a causal nexus between her injuries and
the actions of Dr. Serna, the anesthesiologist, or Dr. Highland; (4) the statute of
limitations has expired relative to Dr. Highland’s treatment of Harris-Miles, so no claim
can be brought against her; and (5) because Harris-Miles cannot maintain a claim against
Dr. Highland, Cleveland Clinic is entitled to dismissal. Harris-Miles opposed the motion
for summary judgment.
{¶ 7} On February 13, 2017, in a one-sentence judgment entry, the trial court
granted summary judgment to Dr. Serna and Cleveland Clinic. Without explanation, it
also denied Harris-Miles’ request for findings of facts and conclusions of law in an order
journalized on March 21, 2017. Harris-Miles appealed. In a decision dated June 13,
2017, we found that the February 13, 2017 judgment was not a final, appealable order,
and we remanded the matter to the trial court for entry of a final, appealable order. The
trial court amended its judgment entry, and it was journalized on June 20, 2017.
{¶ 8} Harris-Miles assigns the following errors for our review:
Assignment of Error No. I:
DEFENDANT, DR. SERNA FAILED TO SHOW HOW SUMMARY
JUDGMENT WAS PROPER AND THE COURT ERRED IN GRANTING THE SAME.
4.
Assignment of Error No. II:
DEFENDANT, THE CLEVELAND CLINIC FAILED TO SHOW HOW
SUMMARY JUDGMENT WAS PROPER AND THE COURT ERRED IN GRANTING
THE SAME.
II. Standard of Review
{¶ 9} Appellate review of a summary judgment is de novo, Grafton v. Ohio
Edison Co., 77 Ohio St. 3d 102, 105, 671 N.E.2d 241 (1996), employing the same
standard as trial courts. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App. 3d 127, 129,
572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is
demonstrated:
(1) that there is no genuine issue as to any material fact; (2) that the
moving party is entitled to judgment as a matter of law; and (3) that
reasonable minds can come to but one conclusion, and that conclusion is
adverse to the party against whom the motion for summary judgment is
made, who is entitled to have the evidence construed most strongly in his
favor. Harless v. Willis Day Warehousing Co., 54 Ohio St. 2d 64, 67, 375
N.E.2d 46 (1978), Civ.R. 56(C).
{¶ 10} When seeking summary judgment, a party must specifically delineate the
basis upon which the motion is brought, Mitseff v. Wheeler, 38 Ohio St. 3d 112, 526
N.E.2d 798 (1988), syllabus, and identify those portions of the record that demonstrate
the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St. 3d 280, 293,
5.
662 N.E.2d 264 (1996). When a properly supported motion for summary judgment is
made, an adverse party may not rest on mere allegations or denials in the pleadings, but
must respond with specific facts showing that there is a genuine issue of material fact.
Civ.R. 56(E); Riley v. Montgomery, 11 Ohio St. 3d 75, 79, 463 N.E.2d 1246 (1984). A
“material” fact is one which would affect the outcome of the suit under the applicable
substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App. 3d 301, 304, 733
N.E.2d 1186 (6th Dist.1999); Needham v. Provident Bank, 110 Ohio App. 3d 817, 826,
675 N.E.2d 514 (8th Dist.1996), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S. Ct. 2505, 91 L. Ed. 2d 201 (1986).
III. Law and Analysis
{¶ 11} Harris-Miles assigns error in the trial court’s decision granting summary
judgment to both Dr. Serna and to Cleveland Clinic. She disputes the assertion that Dr.
Darrah rendered no opinions critical of Dr. Serna, and she insists that he was qualified to
render standard-of-care opinions in this case. As such, she argues, summary judgment in
favor of Dr. Serna and Cleveland Clinic was not appropriate. She also claims that
Cleveland Clinic may be held liable regardless of whether Dr. Highland was named a
party to the lawsuit, and she insists that Dr. Darrah’s testimony was sufficient to establish
causation.
A. Dr. Darrah’s Testimony
{¶ 12} Dr. Darrah was examined about his qualifications and his opinions relative
to Harris-Miles’ treatment. He testified that he has been licensed to practice medicine in
Ohio since December of 2015. At the time of his deposition, he was working at a
6.
suboxone treatment clinic treating patients with drug addictions. He explained that many
of his patients do not have primary care physicians, so he often serves as a family
practice physician for them. In that role, he testified, he will sometimes provide pre-
operative medical clearance. Although medical clearance for his patients is sought in the
context of their addiction issues, he explained that he tends to include “the entire review
of systems” so that the surgeon has a complete view of the patient. Dr. Darrah conceded
that he has never worked as an orthopedic surgeon, a pulmonologist, or an
anesthesiologist. He explained, however, that pre-operative and post-operative care
frequently “falls on family medicine,” and he has treated about a dozen patients with
alveolar hemorrhages, thus he believes himself qualified to render standard-of-care
opinions.
{¶ 13} Dr. Darrah agreed that it was appropriate for Harris-Miles’ medical team to
seek pulmonary clearance prior to her surgery because she had a history of ILD and
systemic sclerosis. He acknowledged that Dr. Highland provided this medical clearance
on September 8, 2014. While Dr. Highland advised that the surgery should take place in
a hospital setting in case supplemental oxygen was required, Dr. Darrah believes that her
clearance should have mentioned that Harris-Miles had ILD and that she had a history of
slow emergence from anesthesia. He believes this would have prompted additional
questions from her medical team. Dr. Darrah agreed that surgery was not contraindicated
as a result of Harris-Miles’ medical history, and he testified that it was reasonable for Dr.
Serna to rely on the pulmonologist’s opinion that Harris-Miles was an acceptable risk for
7.
surgery. When asked whether there was anything that Dr. Serna “did or didn’t do that
was going to change the outcome for this patient,” Dr. Darrah responded,“[p]ulmonology
was the issue.”
{¶ 14} Dr. Darrah testified that because of Harris-Miles’ medical history, she
should have been prescribed a steroid which, he contended, would have reduced the risk
of alveolar hemorrhage. He testified that placing the patient on a steroid would have
been the pulmonologist’s responsibility. When asked whether it was more likely than not
that the alveolar hemorrhage would not have occurred had Harris-Miles been placed on a
steroid, Dr. Darrah responded only that it would have mitigated the risk. He conceded,
“[t]hat’s the furthest I can go.”
B. Harris-Miles’ Claims
{¶ 15} While Dr. Serna and Cleveland Clinic raise a number of reasons why
summary judgment in their favor was appropriate, we choose to address one issue
common to both of them: proximate cause.
{¶ 16} “To establish a claim of medical malpractice, a plaintiff must prove by
expert testimony the applicable standard of care, a breach of that standard of care, and
that the breach was a proximate cause of the injuries alleged.” Hitch v. Thomas, 6th Dist.
Lucas No. L-09-1292, 2010-Ohio-3630, ¶ 17. Summary judgment in favor of the
defendant-physician is appropriate where “‘the plaintiff fails to present expert testimony
that [the] physician breached the applicable standard of care and that the breach
constituted the direct and proximate cause of the plaintiff’s injury * * *.’” (Citations
omitted.) Culp v. Olukoga, 2013-Ohio-5211, 3 N.E.3d 724, ¶ 70 (4th Dist.).
8.
{¶ 17} In Ohio, an expert’s testimony concerning proximate cause is admissible
only where his or her opinions as to the causative event are expressed in terms of
probability. Stinson v. England, 69 Ohio St. 3d 451, 455, 633 N.E.2d 532 (1994). “[A]n
event is probable if there is a greater than fifty percent likelihood that it produced the
occurrence at issue.” Id. “If an expert testifying as to causation fails to testify in terms
of probability, the expert’s testimony is incompetent.” Steinmetz v. Latva, 6th Dist. Erie
No. E-02-025, 2003-Ohio-3455, ¶ 21.
{¶ 18} Dr. Darrah testified that if Harris-Miles’ medical providers would have
properly identified the risks posed by her underlying medical conditions, the management
of her care—and her outcome—would have changed. He testified:
The outcome would have changed as the management would have
changed. While the surgery itself wouldn’t have changed, doing a rotator
cuff repair with a biceps tenotomy is a rotator cuff repair with a biceps
tenotomy, unless they’re extremely severe. But she would have been, in all
likelihood, started on a steroid prior to surgery.
He explained that a steroid would have reduced inflammation and made her lungs less
susceptible to thickening, “heal the alveoli a bit,” make them more resilient, and make
them “more available to accept” anesthesia, intubation, and ventilation, significantly
reducing the likelihood of an alveolar hemorrhage. Dr. Serna and Cleveland Clinic
contend, however, that Dr. Darrah was unable to state to a reasonable degree of medical
probability that Harris-Miles would not have suffered an alveolar hemorrhage if a steroid
had been prescribed. We agree.
9.
{¶ 19} Initially, Dr. Darrah claimed that he could state to a reasonable degree of
medical probability that Harris-Miles’ alveolar hemorrhage would not have occurred if a
steroid, such as Prednisone, had been prescribed:
Q: All right. So let me ask a different question. In the event
Prednisone was started for Ms. Miles on September 8th and continued up
until the time of surgery, October 6th, you can’t say to a reasonable degree
of medical probability, meaning more likely than not, that the alveolar
hemorrhage would not have occurred:
A: I can.
But as Dr. Darrah was further probed about his opinions, it became clear that he could
not, in fact, meet this threshold. He testified:
Q: And it’s your belief that in the event Prednisone was started, let’s
say, on September 8th and continued through October 6th, so for nearly a
month, that that would have prevented the alveolar hemorrhage?
A: Reduced the risk, let’s say.
***
Q: All right. So, and that’s what I was trying to explore before. I
totally understand your opinion that placing the patient on Prednisone
would reduce the risk of alveolar hemorrhage, I totally get that, but that’s
different than saying that it would be more likely than not, greater than 51
percent chance, that she would not have an alveolar hemorrhage, do you see
the difference?
10.
A: I do. Alveolar hemorrhage for patients that are, that have
systemic sclerosis is rare. Alveolar hemorrhage in patients that have
Prednisone on board prior to surgery- -
Q: Still rare.
A: --unheard of. I couldn’t find a single case.
***
Q: * * * So if this patient, Ms. Miles, received the Prednisone
before surgery, it would have reduced the risk of alveolar hemorrhage,
we’ve covered that?
A: Certainly.
Q: But isn’t it fair for me to say that you can’t say that if she got
Prednisone before surgery the alveolar hemorrhage would not have
happened?
A: You could mitigate the risk, but you could not say it’s absolute,
no.
***
Q: * * * All I’m saying, you know, if she gets the Prednisone before
surgery you can’t say that it’s more likely than not the hemorrhage isn’t
going to happen?
A: True, you just mitigate the risk of it happening.
Q: That’s—that’s—okay, I got it.
A: That’s the furthest I can go.
11.
{¶ 20} Harris-Miles disputes that Dr. Darrah was required to establish that it was
more likely than not that her injury would not have occurred if a steroid had been
prescribed. She claims that he was required to testify only that her injury could have
been prevented had a steroid been prescribed. She cites Wells v. Miami Valley Hosp., 90
Ohio App. 3d 840, 631 N.E.2d 642 (2d Dist.1993), for the proposition that where the
alleged malpractice raised involves an omission, the court must apply a “could have”
standard, and not a “more likely than not” standard.
{¶ 21} Wells does not stand for this proposition. In fact, Wells held that “[w]hile
there are no magic words for establishing a more than fifty-percent probability, there are
some words, left unmodified, that are obviously insufficient to establish probability, such
as ‘could’ or ‘chance,’” or even “very strong chance.” Id. at 854. Thus, despite her
contention to the contrary, Harris–Miles was required to present testimony that it was
more likely than not that her injury would have been prevented if a steroid had been
prescribed.
{¶ 22} Given Dr. Darrah’s inability to state to a reasonable degree of medical
probability that the failure to prescribe a steroid proximately caused her alveolar
hemorrhage, his testimony as to causation is incompetent, and, therefore, inadmissible.
Harris-Miles’ claims against both Dr. Serna and the Cleveland Clinic necessarily fail.
{¶ 23} Accordingly, we find Harris-Miles’ assignments of error not well-taken.
IV. Conclusion
{¶ 24} Harris-Miles failed to provide expert testimony establishing that the alleged
negligence of Dr. Serna or the Cleveland Clinic proximately caused her injuries. We,
12.
therefore, find her two assignments of error not well-taken, and we affirm the June 20,
2017 judgment of the Erie County Court of Common Pleas. Harris-Miles is ordered to
pay the costs of this appeal under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
James D. Jensen, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
13.