Geletka v. MetroHealth Sys. ( 2023 )

[Cite as Geletka v. MetroHealth Sys., 2023-Ohio-934.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
DEBORAH GELETKA, :
Plaintiff-Appellant, :
No. 111942
v. :
METROHEALTH SYSTEMS, ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 23, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-19-919242
Appearances:
Thomas J. Misny, M.D., Inc., and Thomas J. Misny, for
appellant.
Buckingham, Doolittle & Burroughs, LLC, Timothy A.
Spirko, and Dirk E. Riemenschneider, for appellees.
FRANK DANIEL CELEBREZZE, III, P.J.:
Plaintiff-appellant Deborah Geletka (“Geletka”) appeals the decision of
the Cuyahoga County Court of Common Pleas granting a directed verdict in favor of
defendant-appellee Kevin L. Grimes, M.D. (“ Dr. Grimes”). Geletka also appeals the
trial court’s denial of her motion for a new trial. After a thorough review of the
record and law, this court affirms.
I. Factual and Procedural History
In August 2019, Geletka filed a medical-malpractice complaint seeking
damages from MetroHealth System (“MetroHealth”) and Dr. Grimes. In the
complaint, Geletka alleged that Dr. Grimes, who was employed by MetroHealth, was
negligent in the treatment of a mass located on her upper left leg. Particularly, she
alleged that Dr. Grimes erroneously diagnosed the mass as a hernia and performed
a surgical procedure on October 18, 2018, where he inserted a four-inch by one-inch
polypropylene mesh plug in the area. After the surgery was completed, Geletka
noticed that the mass that she thought was the hernia was still present. An
ultrasound was ordered, and the results demonstrated that the mass that Geletka
was concerned about was a saphena varix, related to her varicose veins. Geletka
alleged that the mesh insertion was unnecessary because she did not actually have a
hernia and that the mesh may need to be removed in the future because the mesh
will fibrose and scar. Finally, she alleged that Dr. Grimes purposely covered up his
own medical malpractice in his office medical records.
The parties engaged in discovery and in August 2020, MetroHealth and
Dr. Grimes filed a motion for partial summary judgment as to Geletka’s request for
punitive damages. Extensive briefing ensued and in November 2020, the trial court
granted summary judgment as to the punitive damages against MetroHealth but
denied summary judgment as to the punitive damages against Dr. Grimes, noting
that genuine issues of material fact remained.
Trial commenced on August 2, 2022. We will briefly summarize the
relevant procedural discussions and evidence received at trial.
During opening statements, Geletka’s counsel explained that the
evidence would show that Dr. Grimes misdiagnosed a saphena varix, related to the
body’s vascular system, as a femoral hernia. Counsel explained that after the mesh
insertion, Geletka experienced significant bruising and pain. After the bruising and
pain subsided, Geletka noted that the lump that the surgery was purposed to remove
was still present on her leg. Geletka’s counsel suggested that it was below the
standard of care for Dr. Grimes to continue to operate on Geletka after making the
incision and finding that there was no hernia in Geletka’s body. Counsel claimed
that because of the allegedly unnecessary mesh insertion, Geletka endured pain and
suffering, clarifying that these were the only damages that Geletka sought in this
case.
During his opening statement, counsel for Dr. Grimes explained that
Geletka is a patient with chronic pain and that Dr. Grimes met the standard of care
every step of the way. Dr. Grimes’s counsel particularly noted that the initial exam
of the lump in Geletka’s thigh met the standard of care in making a typical hernia
diagnosis. After Geletka was diagnosed with a hernia by Dr. Grimes, she presented
to the emergency room complaining of pain in that area. The emergency room
doctor also diagnosed the lump as a hernia, though the CT scan taken in the
emergency department reflected that there was no hernia. From these facts, Dr.
Grimes’s counsel describes Dr. Grimes’s defense: Geletka indeed had a hernia and
it was properly operated on and this hernia was separate and distinct from the
saphena varix.
After opening statements, Dr. Grimes’s counsel requested a sidebar and
brought an issue to the trial court’s attention. Dr. Grimes’s counsel stated that
Geletka had not provided them with an exhibit list, so counsel did not know what
records Geletka would be introducing and, therefore, was concerned that counsel
would not be able to stipulate to the authenticity of any medical records that Geletka
introduced at trial. The trial court informed Geletka’s counsel that he would have to
properly authenticate the records prior to utilizing them at trial, whether that was
by working with Dr. Grimes’s counsel to achieve a stipulation or bringing in the
records custodian to testify. At the conclusion of the sidebar, Geletka’s counsel
assured the trial court that he would not be using any medical records that day and
promised the trial court that he would straighten it out by the next day of trial.
Geletka’s first witness and her sole expert in this case, Dr. Mark
Liberman (“Dr. Liberman”), was sworn in and testified via videoconference. Dr.
Liberman went through his qualifications, and the court qualified him as an expert
witness in general surgery. Dr. Liberman then discussed saphena varices and
hernias generally. Relevant to this case, Dr. Liberman testified that hernias have
three components: a neck, a sac, and any tissue or organ that protrudes through the
neck into the hernia sac. (Tr. 114.) He further testified that once a hernia sac is
pushed through the femoral ring, it is “scarred” there. (Tr. 116.) In other words, it
does not resolve without operation, but could move further through the ring and
become larger. He testified that if a doctor operates on a hernia, a doctor expects to
find “[a] hernia sac through a defect.” (Tr. 117.) Dr. Liberman noted that upon
review of Dr. Grimes’s surgical notes, Dr. Grimes did not note that he found a hernia
sac. He then testified that because Dr. Grimes did not find a sac, Geletka must not
have had a hernia and, therefore, the insertion of the mesh was below the standard
of care because “the best you can hope for is no harm; but the problem is people can
have problems with having mesh, mesh plugs, and so you put the patient at potential
risk for having a foreign body that they don’t need and there’s no indication for.”
(Tr. 118.) Dr. Liberman generally testified about potential risks of mesh insertion,
including nerve entrapment and pain.
When questioned directly about Geletka’s injuries as a result of the
unnecessary surgery, Dr. Liberman suggested that any pain directly caused by the
mesh would be due to the surgeon’s negligence in performing an unnecessary
surgery, but that pain from the operation itself, including at the incision site, would
not be part of her injuries as a result of the surgeon’s negligence. He stated, “I do
not feel he was negligent taking her to the operating room. The negligent part was
putting in the mesh.” (Tr. 125.) Notably, he did not specify whether Geletka herself
suffered any specific injuries as a result of this mesh insertion.
On cross-examination, Dr. Liberman testified that it was his
understanding that the mesh plug was causing Geletka pain on palpation, based on
Geletka’s own testimony, but not based on his review of any medical records. He
also testified that had there actually been a hernia, Dr. Grimes would have met the
proper standard of care at all points, but because he believed there was no hernia,
he could not opine that Dr. Grimes met the standard of care in inserting the mesh.
He conceded that a saphena varix and a hernia could exist at the same time. Dr.
Liberman did not agree that a hernia could exist without a sac, as suggested by Dr.
Grimes’s defense counsel. Defense counsel also showed Dr. Liberman a medical
record from January 8, 2020, where Geletka presented to Dr. John J. Como. The
medical record indicated that Geletka had a “painful left groin lymph node” that she
has noted since June 2019, about nine months after the hernia surgery, and that the
lymph node is “abutting” the hernia mesh. Dr. Liberman confirmed that these
lymph node complaints would not have been related to the hernia, stating that “[t]he
lymph nodes are different than a hernia.” (Tr. 150.)
On redirect examination, Geletka’s counsel asked Dr. Liberman about
the lymph node complaints that Geletka had beginning in June 2019. Dr. Liberman
testified that typically, lymph nodes develop when there is inflammation, and that
inflammation typically happens in areas that are infected or irritated and can cause
pain. He testified that the lymph node abutting the mesh indicates that the body is
“reacting” to the mesh. (Tr. 182.)
Geletka herself testified next. She relayed that she used to work as a
medical lab technician at MetroHealth and has some familiarity with human
anatomy because of her career and schooling. She testified that she presented to Dr.
Grimes due to a lump in her thigh, which she described as a “marble blueish, marble-
sized-bouncy lump.” (Tr. 198.) She testified that prior to the surgery, she was only
aware of one, marble-sized lump, and after the surgery, a second lump developed in
the groin area that was sore and “hard” to the touch. Geletka also testified that after
the surgery performed by Dr. Grimes, she felt severe pain in her hip and continued
numbness. “[T]wo weeks post-op,” she finally “got brave enough to * * * touch and
look real good [at the area where the surgery was performed]” and she found that
the “bouncy marble” still persisted. (Tr. 222.) She testified that this “marble” still
persisted at the time of trial. When Geletka noted her concerns about the still-
present “marble” to Dr. Grimes, he sent her to another facility for an ultrasound,
which revealed that the “marble” was a saphena varix.
Geletka testified that at this point, she began investigating this matter
on her own. She did not believe that she had a hernia at all. She felt that she was
able to understand her medical records due to her history working at MetroHealth
and requested them. After doing her own research and reviewing her medical
records, Geletka noticed that the operative note did not indicate that there was a
“sac,” which is characteristic of hernias. Armed with this knowledge, she confronted
Dr. Grimes at her final appointment, who, by Geletka’s testimony, admitted that she
did not have a hernia at all and that the mesh insertion was unnecessary. Geletka
then asked Dr. Grimes why he placed the mesh if there was no hernia, and he
allegedly informed Geletka that “[w]e already cut you. And you know, there was this
little opening in the femoral canal” and that insertion would prevent a future hernia.
(Tr. 238.)
Regarding her injuries, Geletka testified that this surgery has affected
her because she has suffered from chronic pain ever since the surgery. She states
that she experiences pain from the hip to the thigh and that the hard lump that
appeared in her groin after the surgery bothers her “quite often.” She also complains
of pain in her legs, which she attributes to the existence of her varicose veins and the
saphena varix, both of which predated the hernia operation, but were painful items
that she thought would resolve as a result of the surgery. Finally, she noted that she
feels that she missed out on spending time with her husband before he succumbed
to an illness and passed away, and that she can no longer take her pets for daily walks
in the park.
On cross-examination, Dr. Grimes’s counsel confronted Geletka about
her deposition testimony, including the fact that she admitted that Dr. Grimes did
not say that there was no hernia, but said that it was tough for them to find, which
is why he cut her further. Geletka was also questioned about her medical history,
including a significant medical history of varicose veins that cause her pain and
require her to constantly wear compression socks. She also has a history of
endometriosis, pelvic pain, and fibromyalgia. Prior to presenting to Dr. Grimes,
Geletka admitted that she had longstanding, debilitating pain and sought the
services of a pain management physician. She also saw a vascular surgeon for pain
in her lower left extremities, described as aching, burning, itching, and throbbing.
The “marble” was examined by two doctors, and one, Dr. Rocco Ciocca,
recommended that Geletka go to a general surgeon because he suspected it could
have been a hernia. It was at this point that she was referred to Dr. Grimes, who
performed a thorough initial examination. On cross-examination, Geletka was
shown a medical record from one of her follow-up visits with Dr. Grimes where she
indicated that her post-operative pain was minimal. She countered the contents of
the record by stating that the operation continues to cause her terrible hip pain,
which only began after the surgery. She did, however, admit that her hip pain was
later diagnosed as trochanteric bursitis and piriformis tendon syndrome. Geletka
was also questioned about her left ovary removal in September 2019, which resolved
some of her left-sided pain.
On redirect examination, Geletka suggested that she was able to
distinguish all of her existing problems and pain from the pain specifically caused
by the hernia surgery.
Geletka’s next witness, Jill Page (“Page”), attended several medical
appointments with Geletka. Page testified that Geletka’s final appointment with Dr.
Grimes had many different purposes: Geletka’s concerns about the length of the
surgery; Geletka’s concerns that her pre-surgery concerns were not addressed by the
surgery; that Geletka was still symptomatic post-surgery; Geletka’s concerns about
the mesh, a foreign body, being placed inside of her; that Dr. Grimes did not find a
sac when he operated on Geletka and; whether there was a hernia in the first place.
Page testified that Dr. Grimes admitted that there was no hernia, and when
questioned as to why he inserted the mesh, he told Geletka that it was to prevent a
future hernia.
Dr. Grimes was Geletka’s final witness. Dr. Grimes testified in
significant detail about his history and qualifications. Dr. Grimes reiterated his
testimony from his deposition: his definition of a femoral hernia is “a defect that is
abnormal that allows normal tissue to pass from one cavity to the other.” (Tr. 331.)
In other words, Dr. Grimes does not believe that a hernia always has a sac. He
maintains that he originally diagnosed Geletka with a femoral hernia and that
remains the diagnosis to this day. Dr. Grimes maintained that the “blue marble”
was a separate and distinct medical problem and he recommended that Geletka
present to vascular surgeons for treatment. He also testified that days prior to the
hernia operation, Geletka presented to the emergency room complaining of pain in
the area of the hernia, and the emergency room took a CT scan. Dr. Grimes
discussed the results of the CT scan and noted that the CT scan did not reveal a
hernia. Dr. Grimes explained, however, that this does not mean that the hernia did
not exist. He explained that Geletka was likely laying down for the CT scan, and
Geletka’s presentation at his own examination indicated that the hernia “comes out
when she stands up [and] goes back in when she lays down.” (Tr. 399.) When
pressed about Geletka’s post-surgery concerns, Dr. Grimes testified that he ordered
the ultrasound because Geletka was concerned about a lump that was farther down
from the site where he operated. Dr. Grimes testified that he ordered the ultrasound
after the procedure to confirm that the “marble” was vascular in nature so that he
could send her to a vascular surgeon. Regarding the existence of the hernia, he
testified that during the surgery, he found “an abnormally large femoral defect” and
that he placed mesh in the area. (Tr. 437.) He also confirmed that the hernia mesh
was inserted abutting a lymph node and that inflammation is involved in the healing
process, usually in the first four to six weeks after an operation. He confirmed that
the ultrasound revealed that her lymph nodes were enlarged and that the enlarged
node was abutting the mesh, but that this was still within the normal healing
window.
After Geletka rested, the parties again addressed the medical records
that would be admitted as exhibits. Geletka’s counsel indicated that he would
provide medical records as two separate exhibits and that he would work out the
stipulation with Dr. Grimes’s counsel. The court clarified:
THE COURT: Okay. Now, so I understand that we don’t have
Plaintiff’s Exhibit 1 and 2 before us exactly right now, but it is
reasonably believed we’re going to be able to reach a stipulation to
Plaintiff’s Exhibit 1 and 2 as being authentic, right [Dr. Grimes’s
counsel]?
[DR. GRIMES’S COUNSEL]: Yes. * * *
(Tr. 508-509.)
At this point, Dr. Grimes’s counsel moved for a directed verdict,
noting that Geletka failed to meet her evidentiary burden. Geletka’s counsel
responded, and the court adjourned for the day, noting that the court was going to
review the evidence offered so far and make a ruling the following day. The next
day, the trial court again allowed counsel for Geletka and Dr. Grimes to bring
anything pertinent to its attention before ruling on the directed verdict. The court
discussed its review of the testimony and informed the parties that it was going to
grant the directed verdict in favor of Dr. Grimes. The trial court later journalized
this denial, which stated:
After argument and careful consideration, the court grants the motion
and directs a verdict against plaintiff and in favor of defendants upon
her claims against defendants. Plaintiff’s prima facie case did not
include any evidence — specifically, any expert testimony — that
causally connected defendant doctor’s deviation from the appropriate
standard of care (use of mesh plug) to any pain and suffering or other
injury to plaintiff. Judgment in favor of defendants and against
plaintiff is entered upon plaintiff’s complaint. Costs to plaintiff. This
is a final judgment under R.C. 2505.02.
After this order was journalized, Geletka timely filed a motion for new
trial, which included a request for sanctions against Dr. Grimes’s counsel based on
counsel’s refusal to stipulate to the medical records. In this motion, Geletka’s
counsel noted that he had planned to use medical records from providers at the
Cleveland Clinic that indicated that Geletka’s pain was caused by the insertion of the
mesh, but Dr. Grimes’s counsel “obstructed” his ability to show these by refusing to
stipulate to the authenticity of the records. Dr. Grimes’s counsel filed a brief in
opposition and the trial court denied the motion for a new trial and declined to
impose sanctions. The trial court’s denial noted that Geletka herself did not refer to
or introduce these Cleveland Clinic records at trial, and the evidence received at trial
forms the basis for directing a verdict. Regarding the request for sanctions, the court
noted that
[p]laintiff’s motion seeks to sanction defense counsel for a failure to
honor an imagined pretrial stipulation about the authenticity of
Plaintiff’s medical records. At no point in trial — on the record or off —
did Plaintiff’s counsel claim there was a pretrial stipulation as to the
records. The Court hears of this contention from Plaintiff for the first
time in the motion for new trial.
At the outset of trial when Plaintiff’s counsel attempted to display a
medical record to the jury, Defendants objected and a long sidebar
conference was held. Defense counsel complained that they had no
idea what document Plaintiff’s counsel was showing to the jury since he
had failed to provide them a copy of Plaintiff’s exhibits during pretrial
discovery despite their discovery requests. Plaintiff’s counsel
immediately countered that he was not going to introduce the medical
records in evidence. The Court reminded him that the medical records
would have to be in evidence in order to support the expert’s opinion
as to Plaintiff’s medical care. Then Plaintiff’s counsel suggested the
parties use Defendants’ Bate[s]-stamped copy of the medical records
but defense counsel refused to provide Plaintiff with exhibits which
Plaintiff had the burden to produce.
The court noted during the sidebar that Plaintiff could bring in a
medical records custodian or pursue a stipulation on authenticity but
that in any event Plaintiff had to show defense counsel the medical
records exhibits before displaying them to the jury so that they could
assure themselves the exhibits were correct and authentic. Plaintiff’s
counsel then offered to put the exhibits on the overhead screen and flip
through them so defense counsel could visually assure they were
authentic. The Court rejected that maneuver as taking up valuable trial
time but suggested the parties do this on their own time after
completion of trial for the day.
The inaction on medical records continued with the result that no
Plaintiff’s medical record exhibit was marked, identified or used with
any of Plaintiff’s witnesses. Defense counsel used their copies of
Plaintiff’s medical records as exhibits during testimony and
understandably Plaintiff did not object.
Plaintiff’s motion for new trial does not establish any ground under
Civ.R. 59 for such relief. As to the motion for sanctions, this Court has
no jurisdiction to sanction defense counsel for alleged professional
misconduct but this is a moot point; Plaintiff bases this claim upon an
alleged stipulation about the authenticity and admissibility of
Plaintiff’s medical records that was never voiced during trial.
It is from this denial that Geletka now appeals, assigning two errors
for our review.
I. The Trial Court abused its discretion and committed prejudicial
error in not granting Plaintiff’s Motion for New Trial under Civ.R.
59(A)(1) and (2).
II. The Trial Court abused its discretion and committed prejudicial
error in granting Defendants’ Motion for Directed Verdict.
II. Law and Analysis
We first address Geletka’s second assignment of error because the
motion for a directed verdict occurred prior to the motion for a new trial.
After Geletka presented her case, Dr. Grimes’s counsel moved for a
directed verdict:
[DR. GRIMES’S COUNSEL]: * * * First, defendants would move for a
directed verdict on the entire case based upon plaintiff’s expert
testimony saying that the only pain that would be caused by the alleged
negligence, i.e., putting in of the mesh when it was not necessary, was
any pain at the site of the mesh.
Plaintiff’s testimony, when she testified, she did not testify as to having
any pain at the site of where the mesh was inserted or above that site.
Also, plaintiff’s expert testified that based upon the medical records he
could not say to a reasonable degree of medical probability that she
suffered any pain related to the mesh.
(Tr. 512.)
After hearing from both parties, the trial court adjourned for the
evening. The next day, the trial court granted Dr. Grimes’s motion for a directed
verdict. In granting the motion, the trial court explained:
THE COURT: Now, if that is going to be evidence that the mesh caused
the plaintiff harm, Dr. Liberman would have had to say so, and he did
not. He said the opposite. That he saw nothing in the medical record
to indicate harm to the plaintiff from the mesh.
Now, this is not a pleasant thing for the Court to grant a motion for
directed verdict at the end of the plaintiff’s case, but I have a legal
obligation to both sides of this case to examine it.
I spent 45 minutes yesterday. I took extensive notes of all the
testimony. I read Dr. Liberman’s testimony last night. I went back to
it this morning.
I read the cases cited to me by the defendants. They were helpful, not
super helpful but — I’ve also examined the plaintiff’s testimony. And
as you know, under Ohio law, plaintiff is incompetent to provide the
causal link between the mesh and her pain.
So I am granting the motion for the directed verdict. * * *
(Tr. 580-581.)
Motions for a directed verdict are governed by Civ.R. 50. “A motion
for a directed verdict tests the legal sufficiency of the evidence to take the case to the
jury[.]” Harris v. Ali, 8th Dist. Cuyahoga No. 73432, 1999 Ohio App. LEXIS 2433,
11 (May 27, 1999), citing Wagner v. Midwestern Indemn. Co., 83 Ohio St.3d 287,
294, 699 N.E.2d 507 (1998). A motion for a directed verdict “is to be granted when,
construing the evidence most strongly in favor of the party opposing the motion, the
trial court finds that reasonable minds could come to only one conclusion and that
conclusion is adverse to such party.” Wawrzyniak v. Zayat, 8th Dist. Cuyahoga No.
76487, 2000 Ohio App. LEXIS 3759, 5 (Aug. 17, 2000), citing Civ.R. 50(A)(4);
Crawford v. Halkovics, 1 Ohio St.3d 184, 186, 438 N.E.2d 890 (1982); Ltd. Stores
v. Pan Am., 65 Ohio St.3d 66, 73, 600 N.E.2d 1027 (1992). A trial court may not
weigh the evidence nor test the credibility of the witnesses but must give the party
opposing the motion the benefit of all reasonable inferences from the evidence.
Baeppler v. McMahan, 8th Dist. Cuyahoga Nos. 74938, 75131 and 76042, 2000
Ohio App. LEXIS 1653, 11 (Apr. 13, 2000), citing Zavasnik v. Lyons Transp. Lines,
115 Ohio App.3d 374, 378, 685 N.E.2d 567 (8th Dist.1996). Since a directed verdict
is a question of law, our review is de novo. Goodyear Tire & Rubber Co. v. Aetna
Cas. & Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-2842, 769 N.E.2d 835, ¶ 4.
To prevail on a medical-malpractice claim, a plaintiff must establish,
by a preponderance of the evidence, (1) the applicable standard of care; (2) a
negligent failure by the defendant to render treatment in conformity with the
standard of care; and (3) that the resulting injury was proximately caused by the
defendant’s negligence. Brush v. Eisengart, 8th Dist. Cuyahoga No. 72999, 1999
Ohio App. LEXIS 3728, 4 (Aug. 12, 1999), citing Bruni v. Tatsumi, 46 Ohio St.2d
127, 131-132, 346 N.E.2d 673 (1976); Ulmer v. Ackerman, 87 Ohio App.3d 137, 140,
621 N.E.2d 1315 (3d Dist.1993); Avondet v. Blankstein, 118 Ohio App.3d 357, 692
N.E.2d 1063 (8th Dist.1997). The directed verdict in the instant matter implicates
prong (3), that Dr. Grimes’s alleged negligence caused injury to Geletka. The causal
connection required by prong (3) must be established by expert testimony. Martin
v. Kelly, 8th Dist. Cuyahoga No. 44749, 1982 Ohio App. LEXIS 11319, 4 (Dec. 9,
1982), citing Darnell v. Eastman, 23 Ohio St.2d 13, 17, 261 N.E.2d 114 (1970). The
expert testimony establishing causation must be expressed in terms of probability,
which is defined as “a greater than fifty percent likelihood that it produced the
occurrence at issue.” Stinson v. England, 69 Ohio St.3d 451, 451, 633 N.E.2d 532(1994), syllabus, citing Shepherd v. Midland Mut. Life Ins. Co., 152 Ohio St. 6, 87
N.E.2d 156 (1949), syllabus; Cooper v. Sisters of Charity, Inc., 27 Ohio St.2d 242,
252, 272 N.E.2d 97 (1971). Moreover, an expert’s testimony “need not include the
magic words ‘probability’ or ‘certainty’ but, when reviewed in its entirety, the
testimony ‘must be equivalent to an expression of probability.’” Smith v. Dillard’s
Dept. Stores, 8th Dist. Cuyahoga No. 75787, 2000 Ohio App. LEXIS 5820, 33
(Dec. 14, 2000), quoting Schroeder v. Parker, 8th Dist. Cuyahoga No. 73907, 1998
Ohio App. LEXIS 5919, 5 (Dec. 10, 1998). The expression of probability relates to
the competence of the evidence and not the weight of the evidence. Smith at id.,citing Stinson at 455.
Since Geletka was not qualified as an expert and her claim requires
expert testimony to establish a prima facie claim, we are unable to consider Geletka’s
testimony in reviewing the evidence that informs a directed verdict. Since Dr.
Liberman was Geletka’s sole expert during the trial, we look to his testimony to
determine whether Geletka established sufficient evidence to overcome a directed
verdict. On appeal, Geletka directs us to the following testimony from Dr. Liberman
that occurred during his direct examination:
[GELETKA’S COUNSEL]: Okay. What injuries from this surgery —
and if you don’t have a complete list, I’ll give you time to think about it.
What injuries from Dr. Grimes’ negligence is it your opinion with a
reasonable degree of medical certainty Mrs. Geletka sustained?
***
[DR. LIBERMAN]: So his negligence — the injury that was caused to
Mrs. Geletka from his negligence would be anything related to the mesh
placement. So pain at the site of the mesh in that area would be due to
the negligence.
[GELETKA’S COUNSEL]: Okay. Would pain from the operation itself,
the incision itself, be part of her injuries?
***
[DR. LIBERMAN]: No, I don’t believe so.
[GELETKA’S COUNSEL]: Why not?
[DR. LIBERMAN]: Because I do not feel he was negligent taking her
to the operating room. The negligent part was putting in the mesh.
(Tr. 123-125.) Geletka argues that this line of testimony proves that Dr. Liberman
planned to testify “that Dr. Grimes was negligent in putting mesh into Mrs. Geletka’s
normal femoral ring and that the negligence of putting in the mesh that caused post-
operative pain at the site of the mesh was the direct and proximate cause of Mrs.
Geletka’s post-operative pain and suffering[.]” Geletka notes, however, that because
she was “obstructed” from utilizing any medical records on direct examination, Dr.
Liberman avoided discussing them. The issues surrounding the medical records will
be discussed at length in the next assignment of error.
Despite Geletka’s contention that this line of questioning proves what
Dr. Liberman was prepared to testify or wanted to testify, Geletka cannot avoid that
what is in the record before us is the evidence that must be received and considered
in determining whether a directed verdict was warranted. We note that in the above
testimony and for the remainder of his direct examination, Dr. Liberman only spoke
in generalities and did not offer an opinion about Geletka’s specific injuries based
on a reasonable degree of medical probability; he noted that any pain stemming
from the mesh in the area of insertion would be directly related to Dr. Grimes’s
negligence but failed to identify any specific injuries.
Turning to Dr. Liberman’s cross-examination, Dr. Grimes’s defense
focused on demonstrating that Geletka actually had a hernia that required mesh, a
medical complaint that was separate and distinct from the saphena varix. In order
to do this, Dr. Grimes’s counsel provided some of Geletka’s medical records to Dr.
Liberman; specifically, the medical record from Dr. Como from January 2020.
Under Evid.R. 703, experts may testify in terms of an opinion based on facts
perceived by the expert or admitted into evidence at trial. See also State v. Jones, 9
Ohio St.3d 123, 124, 459 N.E.2d 526 (1984). Since the defense’s medical records
were properly admitted into evidence, Dr. Liberman was able to offer his testimony
based on the records that the defense provided. This line of questioning also fleshed
out Dr. Liberman’s opinion regarding any pain caused by the mesh:
[DR. GRIMES’S COUNSEL]: Doctor, based upon your review of the
clinical records that you have seen up until today, you can’t say that the
mesh plug has caused her any pain; correct? You can’t say that to a
medical probability; correct?
[DR. LIBERMAN]: I believe that she said that in her deposition, but I
have not seen that in any of the medical records.
[DR. GRIMES’S COUNSEL]: Okay. So let me ask you the question
again: Based upon the clinical records you have seen until today, you
can’t say that the mesh plug to a reasonable degree of medical
probability has caused her any pain; correct?
[DR. LIBERMAN]: Not from the medical records.
[DR. GRIMES’S COUNSEL]: So my statement is correct; true?
[DR. LIBERMAN]: True.
[DR. GRIMES’S COUNSEL]: And when I say the mesh has not caused
her any pain, you have not seen anything in the medical record you’ve
reviewed that you’re basing your testimony on that you relate to the
mesh plug; correct?
[DR. LIBERMAN]: Not from the medical record, correct.
(Tr. 145-147.)
During cross-examination, Dr. Liberman also admitted that the lymph
node complaints that Geletka had in January 2020, which indicate that pain and
discomfort in the groin area dates back to June 2019, could not have been related to
the hernia.
On redirect examination, Geletka’s counsel referenced the January
2020 medical record that the defense showed Dr. Liberman. After being shown this
record, Dr. Liberman opined that “[l]ymph nodes develop often where there’s
inflammation”; that inflammation “can” cause pain; that the lymph nodes abutting
the mesh were enlarged; and that the clinical significance of a lymph node next to
the mesh “is that the body’s reacting to the mesh” because it is a foreign body and
causing inflammation due to the fact that the mesh is “not normally there.” (Tr. 180-
182.)
Remarkably absent from this testimony is Dr. Liberman’s opinion,
based on a reasonable degree of medical probability, that Geletka’s complaints of
pain, including those complaints in the groin, the hip, in the site of the mesh, and
other places, were caused by her body’s reaction to the mesh. Dr. Liberman’s
testimony, especially when examined with his opinion on cross-examination that
the medical records do not indicate that Geletka is experiencing any pain associated
with the mesh insertion, did not connect Geletka’s pain and complaints to the
insertion of the mesh. Dr. Liberman’s testimony that Geletka’s body was “reacting”
to the mesh does not necessarily indicate that Geletka is experiencing pain, injury,
and suffering as a direct result of the mesh insertion, and Dr. Liberman did not
testify as much. The generalities that Dr. Liberman spoke in were insufficient to
demonstrate that the “reaction” that Geletka’s body was having to the mesh was
causing inflammation, which was in turn causing her pain complaints. This causal
connection is especially critical in a case such as this one where the pain complaints
occur months after the allegedly negligent surgery and because Geletka is a patient
with chronic pain and many other conditions in the area where the hernia mesh was
inserted, including hip, ovarian, and vascular issues. “Complaints of persistent pain
subsequent to medical care are insufficient to establish an inference of medical
malpractice to circumvent the necessity of evidence from an expert.” Lyons v.
Brandly, N.D.Ohio No. 4:03 CV 1620, 2009 U.S. Dist. LEXIS 131559, 10 (Mar. 10,
2009), citing Buerger v. Ohio Dept. of Rehab. & Corr., 64 Ohio App.3d 394, 399,
581 N.E.2d 1114 (10th Dist.1989). Dr. Liberman was required to opine, based on a
reasonable degree of medical probability, that Geletka’s complaints of pain and
suffering were caused by the mesh insertion.
In White v. Leimbach, 131 Ohio St.3d 21, 2011-Ohio-6238, 959 N.E.2d
1033, the Ohio Supreme Court addressed a medical claim dealing with informed
consent where the trial court granted a directed verdict. White, however, also dealt
with a causation issue, and the court ultimately suggested that an expert’s opinion
that a surgery was the “most likely cause” of the plaintiff’s chronic pain did not rise
to the level of “a reasonable degree of medical certainty that the surgery more likely
than not caused the nerve damage[.]” Id. at ¶ 44. We find that a comparable
situation exists in the instant matter. Dr. Liberman’s testimony suggests that the
hernia mesh abutting the lymph node could cause the lymph nodes to enlarge that
is consistent with inflammation and the body reacting to the mesh, but fails to opine
with certainty that this situation is what is causing Geletka’s pain, especially after
indicating during cross-examination that the medical records are totally void of any
indication that the hernia mesh is causing Geletka any pain.
We have thoroughly reviewed the record before us, paying special
attention to Dr. Liberman’s testimony on redirect examination that Geletka
specifically directed us to in her brief. We are unable to conclude that Dr.
Liberman’s testimony, when examined as a whole, established that insertion of the
mesh was causally related to Geletka’s complaints of pain. The trial court properly
granted a directed verdict for the defense. We therefore overrule Geletka’s second
assignment of error.
In Geletka’s first assignment of error, Geletka argues that the trial
court erred in denying her motion for a new trial made pursuant to Civ.R. 59(A)(1)
and (2).
Civ.R. 59(A)(1) and (2) pertinently provide that
[a] new trial may be granted to all or any of the parties * * * upon any
of the following grounds:
(1) Irregularity in the proceedings of the court, jury, magistrate, or
prevailing party, or any order of the court or magistrate, or abuse of
discretion, by which an aggrieved party was prevent from having a fair
trial;
(2) Misconduct of the * * * prevailing party[.]
The standard of review applied to a trial court’s ruling on a motion for
a new trial depends on the grounds for the motion. Robinson v. Turoczy Bonding
Co., 8th Dist. Cuyahoga No. 103787, 2016-Ohio-7397, ¶ 23. Motions for new trial
premised on Civ.R. 59(A)(1) and (2) are both reviewed for an abuse of discretion.
Robinson at id.; Gateway Consultants Group, Inc. v. Premier Physicians Ctrs., Inc.,
8th Dist. Cuyahoga No. 104014, 2017-Ohio-1443, ¶ 13. An abuse of discretion occurs
when a court exercises its judgment in an unwarranted way regarding a matter over
which it has discretionary authority. Johnson v. Abdullah, 166 Ohio St.3d 427,
2021-Ohio-3304, 187 N.E.3d 463, ¶ 35. Such an abuse “‘“implies that the court’s
attitude is unreasonable, arbitrary or unconscionable.”’” State v. Montgomery, 169
Ohio St.3d 84, 2022-Ohio-2211, ___ N.E.3d ___, ¶ 135, quoting Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams,
62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
Geletka’s motion for a new trial alleged that Dr. Grimes’s counsel
created an irregularity in the proceeding and engaged in misconduct in refusing to
stipulate to the authenticity of the medical records, thus preventing Geletka from
using them during the trial. Geletka claims that the trial court abused its discretion
in (1) ignoring the evidence in both Geletka’s and Dr. Grimes’s trial briefs; and (2)
failing to recognize that both parties were utilizing a complete set of Bates stamped
medical records that both parties shared. We find, however, that the record does
not support Geletka’s arguments.
To be admissible, hospital records must be authenticated. Evid.R.
901(A). A party may prove the authenticity of records in two ways: (1) authenticity
may be stipulated to by the parties or (2) Evid.R. 901(B)(10) allows for
authentication of medical records by ‘“[a]ny method of authentication or
identification provided by statute enacted by the General Assembly not in conflict
with a rule of the Supreme Court of Ohio or by other rules prescribed by the Supreme
Court.’” State v. Youssef, 8th Dist. Cuyahoga No. 101362, 2015-Ohio-766, ¶ 30,
quoting Evid.R. 901(B)(10). Relevant to the instant matter is R.C. 2317.422, Ohio’s
statute governing the authentication of medical records.
R.C. 2317.422 instructs that medical records may be authenticated by
“call[ing] the custodian, person who made such records, or person under whose
supervision they were made, as a witness” or by any such person’s endorsing on the
records “the person’s verified certification identifying such records, giving the mode
and time of their preparation, and stating that they were prepared in the usual
course of business of the institution.” R.C. 2317.422(A). This method of
authentication is only available, however, if “the party intending to offer them
delivers a copy of them, or of their relevant portions, to the attorney of record for
each adverse party not less than five days before trial.” Id. Without either a
stipulation or proper authentication, medical records may not be admitted into
evidence. See Bzdafka v. Bretz, 8th Dist. Cuyahoga No. 95840, 2011-Ohio-3982,
¶ 17.
First, contrary to Geletka’s contention that the authenticity was
stipulated to in the trial briefs, we note that both parties’ trial briefs indicate that
they “anticipate” that the parties will stipulate to the authenticity of the medical
records.1 However, at trial, Dr. Grimes’s counsel made clear in a sidebar, before any
witness was sworn in, that they could not reasonably stipulate to the authenticity of
any medical records that Geletka planned to use because an exhibit list and copies
of the records had not been provided to them. At this point, the court informed
Geletka’s counsel that if he intended to introduce medical records as exhibits, he
would need to obtain a stipulation from defense counsel as to the records that he
intended to use, or bring in a records custodian who could testify regarding the
authenticity of the records. These options were made clear to Geletka’s counsel, and
1
Dr. Grimes’s trial brief states, “It is anticipated that the parties will stipulate to
the authenticity of the hospital and medical records of Deborah Geletka.”
Geletka’s trial brief states, “It is anticipated that parties can stipulate on the
authenticity of the medical records.”
a thorough review of the trial transcript indicates that neither of these options were
undertaken.
Second, Geletka’s contention that there was an agreement that both
parties would use the singular shared file of documents is not supported by any
evidence in the record. Geletka attached an email that her counsel received from
Dr. Grimes’s counsel, prior to trial, indicating that the medical records attached to
the email were the medical records that Dr. Grimes’s counsel planned to use at trial.
Above that email is correspondence from Dr. Grimes’s counsel asking Geletka’s
counsel to send his trial exhibits; a response to this email is not contained in the
record before us. The record does not indicate that Dr. Grimes’s counsel and
Geletka’s counsel agreed to use the same set of records nor does it appear that
Geletka’s counsel asked Dr. Grimes’s counsel if he could utilize the records that they
provided him with in advance of trial. Geletka’s counsel also did not file an exhibit
list at any point prior to or during trial.
When reviewing claims that counsel acted improperly, we consider
the claim in the context of the whole trial. Masterson v. Brody, 8th Dist. Cuyahoga
No. 111043, 2022-Ohio-3429, ¶ 46, citing Secrest v. Gibbs, 11th Dist. Lake No. 2003-
L-083, 2005-Ohio-2074, ¶ 77, citing Darden v. Wainwright, 477 U.S. 168, 106 S.Ct.
2464, 91 L.Ed.2d 144 (1986). Throughout trial, Dr. Grimes’s counsel signified their
willingness to stipulate to the authenticity of medical records provided that they
were given an opportunity to compare the offered records with their own set of
records:
THE COURT: Okay. And so, hopefully, you folks will have a moment
to compare Defense Exhibits — the defense copies with plaintiff’s
copies, and then down the road you might be able to stipulate that they
are, in fact, authentic and you can withdraw the objection, correct?
[DR. GRIMES’S COUNSEL]: Absolutely. That’s all I’ve been asking
for.
(Tr. 71.)
THE COURT: Okay. Do we both understand what records the other
one wants to offer?
[GELETKA’S COUNSEL]: Right.
[DR. GRIMES’S COUNSEL]: Yes, I understand. They’re not
acceptable because of the form. I think we can work and make them
acceptable.
***
[DR. GRIMES’S COUNSEL]: I think if we can work together, take out
certain pages and to [sic] make them proper exhibits that we can
stipulate to authenticity and admissibility in the case; but as they are
right now, we can’t do that.
(Tr. 505.)
From the record before us, it is evident that Dr. Grimes’s counsel was
not purposefully or maliciously withholding a stipulation; Dr. Grimes’s counsel was
clearly willing to stipulate to the authenticity of the medical records, and indeed
stipulated to the authenticity of some of them by the close of trial. Dr. Grimes’s
counsel was simply concerned with ensuring that the records they were stipulating
to were the same as the records in their possession, which is well within their right
to do. We cannot conclude that Dr. Grimes’s counsel engaged in misconduct or
created an irregularity in the proceeding in refusing to stipulate to records that they
had not seen. We further note that Dr. Grimes’s counsel was not obligated to
stipulate to the authenticity of records and that other avenues of authentication were
available to Geletka’s counsel that he could have undertaken to ensure that the
medical records that he intended to use at trial were admissible. Furthermore, these
options were made abundantly clear to him before the first witness was even sworn
in.
Geletka directs us to Edge v. Fairview Hosp., 8th Dist. Cuyahoga No.
95215, 2011-Ohio-2148. In Edge, the injured plaintiff repeatedly attempted to get a
sentence from a medical record into evidence that had already been excluded by a
pretrial motion in limine. In reviewing the case, this court noted that “defendants-
appellees stipulated to the authenticity of any of the medical records/therapy
records obtained in the course of discovery” within its trial brief and ultimately
concluded that without any reservation to the contrary, the defendants waived their
right to object to the medical records on hearsay grounds in stipulating to the
authenticity of the documents in full. Id. at ¶ 16. Edge is entirely distinguishable
from the instant matter because we are unable to conclude from the record before
us that Dr. Grimes’s counsel stipulated to the authenticity of any of the medical
records before trial commenced. We also note that Dr. Grimes’s trial brief
specifically reserved the right to object to any medical records “on any other basis
allowed under Ohio law.”
Based on the record before us, we are unable to conclude that the trial
court erred in denying Geletka’s motion for a new trial. The trial court did not abuse
its discretion in determining that the grounds for a new trial that Geletka specified
were largely within Geletka’s control to prevent. We therefore overrule Geletka’s
first assignment of error.
III. Conclusion
Based on our review of the applicable law and facts, we are unable to
find merit to any of Geletka’s assignments of error. The trial court did not err in
granting a directed verdict in favor of Dr. Grimes and further did not err in denying
Geletka’s motion for a new trial.
Judgment affirmed.
It is ordered that appellee 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.
FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
MICHAEL JOHN RYAN, J., CONCUR