Grieser v. Janis , 100 N.E.3d 1176 ( 2017 )

[Cite as Grieser v. Janis, 2017-Ohio-8896.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Timothy Grieser et al., :
Plaintiffs-Appellants, :
No. 17AP-3
v. : (C.P.C. No. 12CV-13862)
Leonard R. Janis, D.P.M. et al., : (REGULAR CALENDAR)
Defendants-Appellees. :
D E C I S I O N
Rendered on December 7, 2017
On brief: David F. Rudwall, for appellants.
Argued: David F. Rudwall.
On brief: Freund, Freeze & Arnold, Mark L. Schumacher,
and Bartholomew T. Freeze, for appellees.
Argued: Bartholomew T. Freeze.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Plaintiffs-appellants, Timothy ("Timothy") and Meredith ("Meredith")
Grieser (collectively "appellants"), husband and wife, appeal from a judgment of the
Franklin County Court of Common Pleas in favor of defendants-appellees, Leonard R.
Janis, D.P.M., and Total Foot and Ankle of Ohio, Inc. For the reasons that follow, we
affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Timothy worked as a golf professional for the Reid Park Golf Course in
Springfield, Ohio. He became a member of the Professional Golf Association in 2008. He
married Meredith in 2000. Timothy testified that he began experiencing pain and
No. 17AP-3 2
stiffness in his ankle in 2005 or 2006. Timothy went to see his family physician, Alper
Sarihan, M.D., regarding the ankle pain, and Dr. Sarihan ordered an MRI of Timothy's
ankle. According to Timothy, Jeffrey Gittins, D.O., reviewed the resulting images and
concluded that Timothy had a lesion on his ankle, and he recommended the removal of
the lesion arthroscopically. Dr. Gittins told Timothy that he could "drill some holes into
[his] bone where the bad bone used to be, and that that would bleed and form a material
that would act as [his] cartilage in that joint area." (Tr. Vol. 3 at 605-06.) Timothy
testified that the surgery "seemed like a good idea. It was an opportunity to try to stay out
in front of the issue that was starting." (Tr. Vol. 3 at 606.)
{¶ 3} According to Timothy, the surgery "[s]eemed to work for a while," but by
the end of the next golf season, the ankle became "more irritated again." (Tr. Vol. 3 at
607.) When Timothy went back to see Dr. Gittins, he recommended trying the surgery
again. Timothy elected to get a second opinion so he went to back to Dr. Sarihan. As a
result of his appointment with Dr. Sarihan, Timothy was referred to Dr. Janis at Total
Foot and Ankle of Ohio, Inc. Timothy remembers little about his first visit with Dr. Janis
other than Dr. Janis using the terms "bone graft" and "good bone." (Tr. Vol. 3 at 610.)
According to Timothy, when he went back to see Dr. Janis a second time, Dr. Janis
described the surgical procedure he recommended as follows: "He would go in and open
up the ankle joint in that area and take the cadaver bone and take a piece of it out of the
cadaver and cut out the bad bone that I still had inside my joint and replace it." (Tr. Vol. 3
at 611.) Timothy did not recall Dr. Janis ever mentioning that he intended to work on
Timothy's ligaments.
{¶ 4} Dr. Janis subsequently performed a surgical procedure on Timothy's ankle.
Timothy testified that several months after the surgery, he experienced no improvement
in either the range of motion or functionality of his ankle, even though he had faithfully
undertaken a course of physical therapy. Timothy testified that the pain and stiffness in
his ankle worsened.
{¶ 5} According to Timothy, Dr. Janis informed him that an MRI showed he now
had a lesion on both sides of his ankle bone. Timothy testified that Dr. Janis raised the
subject of total ankle replacement surgery. Timothy did not know that such a procedure
could be performed on the ankle joint. Timothy testified that Dr. Janis told him the total
No. 17AP-3 3
ankle replacement "would alleviate the pain and give me more mobility, give me more of
the lifestyle that I wanted to still lead at that age." (Tr. Vol. 3 at 618.) Dr. Janis also told
Timothy that ankle fusion surgery was an option, but Timothy rejected that course of
treatment because it would permanently limit his ankle flexibility and functionality.
{¶ 6} After reviewing the information regarding total ankle replacements on Dr.
Janis's website and other websites, Timothy elected to have total ankle replacement
surgery. In November 2009, Dr. Janis performed total ankle replacement surgery on
Timothy's left ankle, using a Salto Talaris prosthesis. Timothy testified that after the
surgery and following the completion of physical therapy, "it was almost like my ankle was
locked in place and it hurt 100 percent of the day. * * * I thought I knew what pain was
until I had this done. * * * I was taking eight Vicodin a day just to get through the day."
(Tr. Vol. 3 at 621-22.) When Dr. Janis was subsequently unable to provide any relief for
Timothy's increasing ankle pain and lack of flexibility, Timothy went back to Dr. Sarihan
seeking a referral to another physician. Dr. Sarihan referred Timothy to Ethan
Thompson, an orthopedic surgeon in Springfield, Ohio. Dr. Thompson took x-rays of
Timothy's ankle and then referred him to Gregory Berlet, M.D. Dr. Berlet specialized in
ankle surgery.
{¶ 7} After consulting with Dr. Berlet, Timothy agreed to undergo surgical
revision of his ankle prosthesis. Dr. Berlet replaced the Salto Talaris prosthesis installed
by Dr. Janis with a device known as an INBONE prosthesis. According to Timothy, after
healing from the surgery performed by Dr. Berlet, "[t]he pain was not nearly as bad as it
was. I stopped taking all of the big pain medications. The movement seemed to be a lot
better, and when I moved, I didn't fall down or anything like that. I seemed to be stable."
(Tr. Vol. 3 at 626.) Timothy testified that after the revision with Dr. Berlet, his ankle
improved "in all aspects, going to the mall, walking down the mall, walking at the zoo with
the kids or the family." (Tr. Vol. 3 at 627.)
{¶ 8} On July 15, 2011, appellants filed a complaint against Dr. Janis and Total
Foot and Ankle of Ohio, Inc., alleging medical negligence, lack of informed consent, and
loss of consortium. On November 3, 2011, the trial court dismissed the complaint,
without prejudice, due to appellants' failure to file an affidavit of merit as required by
Civ.R. 10(D)(2). (Compl. at 2.) On November 2, 2012, appellants refiled their complaint
No. 17AP-3 4
against Dr. Janis and Total Foot and Ankle of Ohio, Inc., alleging the same claims. The
affidavit of Jonathan J. Paley, M.D., is attached to the refiled complaint as an exhibit.
{¶ 9} On May 9, 2016, the parties tried the case to a jury. The jury found in favor
of appellants and awarded damages against appellees of $140,000 for Timothy and
$10,000 for Meredith. The parties submitted three interrogatories to the jury, including
an interrogatory which asked the jurors to "specifically list the act(s) of negligence which
you state Dr. Janis committed." (Jury Interrog. No. 2, filed May 19, 2016.) All seven
jurors answered the interrogatory as follows: "Deviation from standard of care with
malplacement of a total ankle replacement in a 33-year-old patient." (Jury Interrog. No.
2.)
{¶ 10} On May 24, 2016, the trial court issued a judgment entry in accordance with
the jury verdict. On June 21, 2016, appellees filed a motion for judgment notwithstanding
the verdict ("JNOV") pursuant to Civ.R. 54. Appellants filed a motion for prejudgment
interest, pursuant to R.C. 1343.03(C), on that same date. On August 26, 2016, the trial
court issued a decision granting appellees' motion for JNOV.
{¶ 11} On September 13, 2016, the trial court issued both a "Final Judgment
Entry" in favor of appellees, and a judgment entry denying, as moot, appellants' motion
for prejudgment interest. On October 11, 2016, appellants filed a motion for new trial
pursuant to Civ.R. 59. Appellants' arguments in support of their motion for new trial
focused on the trial testimony of Dr. Berlet. According to appellants, appellees' trial
counsel and Dr. Berlet's own private counsel improperly influenced Dr. Berlet's trial
testimony. More particularly, appellants alleged that these lawyers discouraged Dr. Berlet
from providing an expert opinion at trial regarding the applicable standard of care,
whether Dr. Janis breached that standard of care, and proximate cause. On December 2,
2016, the trial court issued a decision and entry denying appellants' motion for new trial.
{¶ 12} On January 1, 2017, appellants filed a notice of appeal to this court from the
following trial court judgments: "the September 13, 2016 Final Judgment Entry,
finalizing the Decision Granting Defendants' Motion For Judgment Notwithstanding the
Verdict that was rendered on August 26, 2016 [and] the Decision & Entry Denying
Plaintiffs' Motion for New Trial, filed * * * December 2, 2016." (Emphasis sic.) (Notice of
Appeal at 1.)
No. 17AP-3 5
II. ASSIGNMENT OF ERROR
{¶ 13} Appellants assign the following as trial court error:
The trial court reversed the jury verdict and granted
defendant's motion for judgment notwithstanding the verdict.
III. STANDARD OF REVIEW
{¶ 14} A motion for JNOV is governed by Civ.R. 50(B), which provides:
Whether or not a motion to direct a verdict has been made or
overruled and not later than twenty-eight days after entry of
judgment, a party may serve a motion to have the verdict and
any judgment entered thereon set aside and to have judgment
entered in accordance with the party's motion. * * *
***
If a verdict was returned, the court may allow the judgment to
stand or may reopen the judgment. If the judgment is
reopened, the court shall either order a new trial or direct the
entry of judgment, but no judgment shall be rendered by the
court on the ground that the verdict is against the weight of
the evidence. If no verdict was returned the court may direct
the entry of judgment or may order a new trial.
{¶ 15} The test applied by a trial court in ruling on a motion for JNOV is the same
test to be applied on a motion for a directed verdict. Kenner v. Grant/Riverside Med.
Care Found., 10th Dist. No. 15AP-982, 2017-Ohio-1349, ¶ 22, citing Eastley v. Volkman,
132 Ohio St. 3d 328, 2012-Ohio-2179, ¶ 25; Posin v. A.B.C. Motor Court Hotel, Inc., 45
Ohio St. 2d 271, 275 (1976). "In reviewing a motion for JNOV, the evidence 'must be
construed most strongly in favor of the party against whom the motion is made, and,
where there is substantial evidence to support his side of the case, upon which reasonable
minds may reach different conclusions, the motion must be denied.' " Kenner at ¶ 22,
quoting Osler v. Lorain, 28 Ohio St. 3d 345, 347 (1986), citing Posin at 275. " 'Neither the
weight of the evidence nor the credibility of the witnesses is proper consideration for the
trial court.' " Kenner at ¶ 22, quoting Smith v. Superior Prod., LLC, 10th Dist. No. 13AP-
690, 2014-Ohio-1961, ¶ 11, citing Posin at 275. "Thus, '[a] motion for judgment
notwithstanding the verdict is used to determine only one issue: whether the evidence is
totally insufficient to support the verdict.' " Kenner at ¶ 22, quoting Harper v. Lefkowitz,
No. 17AP-3 6
10th Dist. No. 09AP-1090, 2010-Ohio-6527, ¶ 8. "A ruling on a motion for JNOV is a
question of law, reviewed de novo on appeal." Kenner at ¶ 22, quoting Eastley at ¶ 25
(stating that in reviewing such motions, "the court must determine whether any evidence
exists on every element of each claim or defense for which the party has the burden to go
forward").
IV. LEGAL ANALYSIS
A. Appeal From the December 2, 2016 Judgment
{¶ 16} Though appellants' notice of appeal identifies the December 2, 2016
decision and judgment entry denying appellants' motion for new trial as one of the orders
appealed from, appellants' merit brief does not include an assignment of error relating to
the December 2, 2016 judgment. Pursuant to App.R. 12(A)(1)(b), an appellate court must
"[d]etermine the appeal on its merits on the assignments of error set forth in the briefs
under App.R. 16, the record on appeal under App.R. 9, and, unless waived, the oral
argument under App.R. 21." Here, appellants' sole assignment of error makes no
reference to trial court error regarding the denial of appellees' motion for new trial.
Neither appellants' merit brief nor their reply brief make any argument regarding the trial
court's ruling on their motion for new trial. Furthermore, appellees' counsel did not
address the issue at oral argument. Accordingly, we find that appellants have abandoned
the appeal from the December 2, 2016 judgment, and we shall not address the propriety
of the trial court's ruling on appellees' motion for new trial in this appeal. Jenkins v. State
Farm Mut. Auto. Ins. Co., 10th Dist. No. 11AP-1074, 2013-Ohio-1142, ¶ 50, citing
Thompson v. Thompson, 196 Ohio App. 3d 764, 2011-Ohio-6286, ¶ 65 (10th Dist.)
(because the appellant's assignments of error do not reference the trial court's denial of
prejudgment interest and because the appellant did not raise the issue at oral argument,
we will not address the issue in the appeal). See also OCWEN Loan Servicing v. Prater,
3d Dist. No. 9-12-23, 2012-Ohio-4879, ¶ 11 (appeal dismissed where sole assignment of
error did not pertain to the judgment appealed from).
B. Appellants' Sole Assignment of Error
{¶ 17} In appellants' sole assignment of error, appellants contend that the trial
court erred when it granted appellees' motion for JNOV as to appellants' claim of medical
negligence. In order to establish medical negligence, a plaintiff must show: (1) the
No. 17AP-3 7
standard of care recognized by the medical specialty community, (2) the failure of the
defendant to meet the requisite standard of care, and (3) a direct causal connection
between the medically negligent act and the injury sustained. Stanley v. Ohio State Univ.
Med. Ctr., 10th Dist. No. 12AP-999, 2013-Ohio-5140, ¶ 19, citing Bruni v. Tatsumi, 46
Ohio St. 2d 127, 130 (1976).
{¶ 18} "It is well settled in Ohio that in order to prevail in a medical malpractice
claim, a plaintiff must demonstrate through expert testimony that, among other things,
the treatment provided did not meet the prevailing standard of care." Ramage v. Cent.
Ohio Emergency Serv., Inc., 64 Ohio St. 3d 97, 102 (1992). "Proof of the recognized
standards must necessarily be provided through expert testimony." Bruni at 131-32.
"That expert testimony must explain what a physician of ordinary skill, care, and diligence
in the same medical specialty would do in similar circumstances." Stanley at ¶ 19.
{¶ 19} In Bruni, the Supreme Court of Ohio established the legal standard for
medical negligence as follows:
In evaluating the conduct of a physician and surgeon charged
with malpractice, the test is whether the physician, in the
performance of his service, either did some particular thing or
things that physicians and surgeons, in that medical
community, of ordinary skill, care and diligence would not
have done under the same or similar circumstances, or failed
or omitted to do some particular thing or things which
physicians and surgeons of ordinary skill, care and diligence
would have done under the same or similar circumstances.
He is required to exercise the average degree of skill, care and
diligence exercised by members of the same medical specialty
community in similar situations.
Id. at 129-30.
{¶ 20} The foregoing standard is generally considered to be objective, rather than
subjective, applying equally to all physicians under like or similar conditions or
circumstances. Bruni at 134-35; Berdyck v. Shinde, 66 Ohio St. 3d 573, 579 (1993); Toth
v. Oberlin Clinic, Inc., 9th Dist. No. 01CA007891, 2002-Ohio-2211, ¶ 46; Riley v.
Northeast Family Health Care, 9th Dist. No. 17814 (Apr. 9, 1997). Failure to provide
expert testimony establishing the recognized standards of care in the medical specialty
No. 17AP-3 8
community is fatal to the presentation of a prima facie case of medical negligence. Reeves
v. Healy, 192 Ohio App. 3d 769, 2011-Ohio-1487, ¶ 38 (10th Dist.), citing Bruni at 130.
{¶ 21} In Estate of Hall v. Akron Gen. Med. Ctr., 125 Ohio St. 3d 300, 2010-Ohio-
1041, the Supreme Court set forth the rationale for the rule requiring expert testimony in
medical negligence cases as follows:
[C]ourts recognize that there may be a variety of causes for an
injury in a medical malpractice case, and some procedures are
so inherently risky that injuries may occur even when
physicians are careful. "A physician is not a warrantor of
cures. If the maxim, 'Res ipsa loquitur,' were applicable to a
case like this, and a failure to cure were held to be evidence,
however slight, of negligence on the part of the physician or
surgeon causing the bad result, few would be courageous
enough to practice the healing art, for they would have to
assume financial liability for nearly all the 'ills that flesh is heir
to.' " Ewing v. Goode (Cir.Ct., S.D.Ohio 1897), 78 F. 442, 443.
Thus, a jury in a medical malpractice action would rarely be
able to conclude, based on common experience alone, that the
injury was one that did not ordinarily occur in the absence of
negligence.
Id. at ¶ 22.
{¶ 22} As noted above, the jury found that Dr. Janis departed from the accepted
standards of care in his treatment of Timothy by the "malplacement of a total ankle
replacement in a 33-year-old patient." (Jury Interrog. No. 2.) In granting appellees'
motion for JNOV, the trial court concluded that because appellants failed to present the
testimony of a medical expert in order to establish the applicable standard of care, the
evidence presented by appellants was insufficient to support the jury verdict in appellants'
favor. The trial court further concluded that because appellants failed to present the
testimony of a medical expert in order to establish an alleged deviation from the
applicable standard of care by Dr. Janis proximately caused harm to appellants, the
evidence presented by appellants was insufficient to support the jury verdict in their favor.
We agree with the trial court's analysis and conclusions.
{¶ 23} Appellees called Stephen Conti, M.D., as their expert witness in this case.
Dr. Conti testified that he is an orthopedic surgeon licensed to practice medicine in
Pennsylvania and Ohio and that he has been board certified in orthopedic surgery since
No. 17AP-3 9
1994. He estimated that he has performed more than 1,000 total ankle replacement
surgeries in his career and that he continues to perform such procedures on a weekly
basis. According to Dr. Conti, orthopedic surgeons and podiatrists have been performing
total ankle replacement surgery for approximately 20 years, and the technology has
continued to develop over that time. Dr. Conti first began performing total ankle
replacement surgery in the mid-90's, with a prosthetic device that he helped develop.
When that device went off the market in 2010, Dr. Conti began using other devices
including the Salto Talaris prosthesis used by Dr. Janis in this case and the INBONE
prosthesis used by Dr. Berlet.
{¶ 24} Prior to giving testimony in this matter, Dr. Conti reviewed the medical
records relating to Timothy's treatment with Dr. Sarihan, Dr. Gittins, Dr. Janis, and Dr.
Berlet, as well as the hospital records from the various surgical procedures performed on
Timothy's ankle. He also reviewed the deposition testimony of Timothy, Dr. Janis, Dr.
Berlet, and physical therapist Mark Main. Dr. Conti testified that in 2005 and 2006,
Timothy suffered from ostechondritis diseccans ("OCD lesion") affecting the talus bone,
which is located in the lower leg below the tibia. Dr. Conti stated that the ankle is located
between the tibia and the talus. Dr. Conti described Timothy's OCD lesion as a small area
of dead bone at the top of the talus, about the size of a pencil eraser.
{¶ 25} Dr. Conti testified that curing the lesion was the goal of the surgical
procedures performed by Dr. Gittins, as well as the first surgery performed by Dr. Janis.
According to Dr. Conti, after the curative surgical procedures had failed, Timothy had the
following options: (1) do nothing and live with the pain and stiffness in his ankle, (2) total
ankle replacement surgery, and (3) ankle fusion surgery. Dr. Conti testified that it was
reasonable for Dr. Janis to discuss the possibility of total ankle replacement with Timothy
after the curative surgical procedures had failed.
{¶ 26} Dr. Conti described total ankle replacement surgery using the Salto Talaris
prosthesis. He stated that device includes a metal component which is attached to the
tibia, a component that is attached to the talus, with a prosthetic ankle joint between the
two, consisting of both metal and plastic parts. Dr. Conti testified that the surgeon
visually determines where to drill into the tibia to attach the Salto Talaris prosthesis. The
surgeon then makes the incision and drills into the tibia with the aid of a block and jig.
No. 17AP-3 10
According to Dr. Conti, the instruments used by surgeons when installing a total ankle
replacement are still "crude" when compared to the instruments used in hip or knee
replacement procedures, "but this is standard of what we are currently using." (Tr. Vol. 3
at 475.) He also stated that the medical community is "still learning, * * * still kind of in
our infancy, and some things go well and some things go poorly." (Tr. Vol. 3 at 476.) Dr.
Conti testified "patients that have [a] seemingly well done total ankle, but still hurt * * *
on the inside and the outside parts of the ankle." (Tr. Vol. 3 at 476-77.) According to Dr.
Conti, the range of acceptable error in regard to the positioning of the Salto Talaris
prosthesis as it is attached to the tibia is one to three millimeters. Dr. Conti testified that
x-rays taken of Timothy's ankle following the total ankle replacement surgery performed
by Dr. Janis do not show a prosthetic ankle joint that is "mechanically blocked because it
has been put in too high as compared to the native joint line." (Tr. Vol. 3 at 488.)
{¶ 27} On direct examination, Dr. Conti further opined as follows:
Q. Just to finish up, do you have an opinion whether Dr. Janis
in any fashion departed from accepted standards of care in his
care and treatment of his patient, Timothy Grieser?
A. So my opinion is he did not deviate from any accepted
standards of care. In fact, he provided [Timothy] with
exceptional care.
Q. And do you have an opinion, again based on reasonable
medical certainty, whether any action or inaction of Dr.
Leonard Janis directly and proximately caused harm to his
patient, Timothy Grieser?
A. My opinion is he did not cause harm to Mr. Grieser.
(Tr. Vol. 3 at 501.)1
1 Dr. Janis testified as follows:
Q. All right. Do you believe that you departed from accepted standards of
care in your treatment of [Timothy]?
A. Not at all.
(Tr. Vol. 4 at 806.)
No. 17AP-3 11
{¶ 28} Appellants concede that Ohio law required them to produce expert medical
testimony in order to support a jury verdict in their favor. Appellants do not claim that
the standard of care in the orthopedic surgical community applicable to the implantation
procedure for the Salto Talaris prosthesis is a matter within the common knowledge of
laypersons. Appellants argue, however, that the testimony of Dr. Berlet, when construed
in their favor, provides sufficient support for the jury's determination that Dr. Janis
breached the standard of care. We disagree.
{¶ 29} Dr. Berlet testified that he is licensed to practice medicine in Ohio and that
he achieved board certification in orthopedic surgery in 1994. Dr. Berlet indicated that he
was testifying in the trial of this matter as Timothy's treating physician, not as a paid
expert witness for appellants. Dr. Berlet also acknowledged at trial that he did not review
the medical records produced by Dr. Janis or those produced by physical therapist Mark
Main prior to his giving testimony in this matter.
{¶ 30} Dr. Berlet's primary criticism of Dr. Janis's treatment of Timothy was that
Dr. Janis attached the tibial section of the Salto Talaris prosthesis too high on the tibia,
causing an impingement of the prosthetic ankle joint and resulting in stiffness and pain in
the ankle. In Dr. Berlet's notes concerning his initial treatment of Timothy's ankle, Dr.
Berlet indicated that x-rays taken at his direction showed that the Salto Talaris prosthesis
was "malpositioned." (Tr. Vol. 2 at 375.) Dr. Berlet acknowledged, however, that whether
the surgeon is using the Salto Talaris prosthesis or the INBONE prosthesis, "the most
complicated part of this operation is lining it up and deciding where to do the bone cut."
(Tr. Vol. 2 at 359.) He also acknowledged on cross-examination that an operative report
indicates that adequate range of motion in the prosthetic ankle joint was confirmed by
anatomic fluoroscopy immediately following the installation of the Salto Talaris
prosthesis by Dr. Janis. Though Dr. Berlet stated that he "would tend to disagree" with
the operative note, he acknowledged that the development of scar tissue post-operatively
could affect range of motion and that he "saw this patient some six to eight months later,
so that there is a lot of things that can happen in the meantime." (Tr. Vol. 2 at 382-83.)
On direct examination, Dr. Berlet never offered testimony in the form of an opinion
regarding the applicable standard of care in the medical specialty community, nor did Dr.
No. 17AP-3 12
Berlet testify that, in his opinion, Dr. Janis deviated from that standard of care in his
treatment of Timothy.
{¶ 31} Appellants maintain that Dr. Berlet's testimony on redirect examination
regarding a treatment note he authored following his first office visit with Timothy
provides the expert opinion necessary to sustain the jury verdict. On redirect
examination, Dr. Berlet testified as follows:
Q. And finally, in No. 4 of your impression part of the note,
you described the persistent pain, and that was a problem that
you had to deal with, correct?
A. Yes.
Q. Thank you. And in the plan portion of that note, you
wrote: "Mr. Grieser and I had a very good conversation about
what it means to put a joint replacement in a 33-year-old." Do
you remember writing that?
A. Yes.
Q. "It is certainly not the standard of care, although it can be
done. It has to be with a very clear recognition from the client
that this will not last their life and ultimately will require some
revisions. It seems that this conversation really had not
happened with Dr. Janis." Do you remember writing that?
A. So the context is important. The standard I am referring to
is the one we discussed earlier. If we are in a room of
orthopedic surgeons discussing this case, it would be highly
unlikely that that would be the option recommended.
Q. And that is your opinion, and not merely to a probability,
but based upon all of your skill and training and knowledge
and experience to a reasonable certainty, correct?
A. Yes.
(Tr. Vol. 2 at 376-77.)
{¶ 32} Dr. Berlet also referred to Dr. Janis's decision to perform a total ankle
replacement on an active 33-year-old patient as, "in an orthopedic context, * * *
unconventional." (Tr. Vol. 2 at 347.)
No. 17AP-3 13
{¶ 33} As previously noted, the parties submitted three interrogatories to the jury,
including an interrogatory which asked the jurors to "specifically list the act(s) of
negligence which you state Dr. Janis committed." (Jury Interrog. No. 2.) All seven jurors
answered the interrogatory as follows: "Deviation from standard of care with
malplacement of a total ankle replacement in a 33-year-old patient." (Jury Interrog. No.
2.) "The purpose of jury interrogatories is twofold." Reeves at ¶ 30, citing Hamm v.
Smith, 6th Dist. No. E-98-026 (Dec. 18, 1998). " 'The essential purpose to be served by
[jury] interrogatories is to test the correctness of a general verdict by eliciting from the
jury its assessment of the determinative issues presented by a given controversy in the
context of evidence presented at trial.' " Reeves at ¶ 30, quoting Cincinnati Riverfront
Coliseum, Inc. v. McNulty Co., 28 Ohio St. 3d 333, 336-37 (1986), citing Davison v.
Flowers, 123 Ohio St. 89 (1930). "Jury interrogatories also test the jury's factual
determinations and express the jury's true intentions." Reeves at ¶ 30, citing Hamm,
citing Phillips v. Dayton Power & Light Co., 111 Ohio App. 3d 433, 446 (2d Dist.1996).
"The Supreme Court of Ohio stated that 'the answering of [jury] interrogatories is even
more important than the general verdict.' " Reeves at ¶ 30, quoting Aetna Cas. & Surety
Co. v. Niemiec, 172 Ohio St. 53, 55 (1961).
{¶ 34} In our view, the opinion testimony relied on by appellants does not support
the jury finding of a "[d]eviation from standard of care with malplacement of a total ankle
replacement in a 33-year-old patient." (Jury Interrog. No. 2.) Even when viewed in a
light most favorable to appellants, Dr. Berlet's testimony cannot reasonably be construed
as an opinion regarding the standard of care in the field of orthopedic surgery with regard
to the placement of the Salto Talaris prosthesis during total ankle replacement surgery.
Though Dr. Berlet is clearly qualified to express an opinion in this regard, absent his
expression of such an opinion, the jury was left to speculate whether a podiatrist of
ordinary skill, care, and diligence in the field of orthopedic ankle replacement surgery
would not have positioned the Salto Talaris prosthesis as Dr. Janis did. Dr. Berlet's
subjective opinion that the Salto Talaris prosthesis was malpositioned on the tibia does
not equate to an opinion regarding the applicable standard of care in the medical specialty
community. Similarly, we disagree with appellants' claim that Dr. Berlet's testimony
supports a finding that Dr. Janis breached the standard of care by performing total ankle
No. 17AP-3 14
replacement surgery on a 33-year-old patient, Dr. Berlet's testimony was not the basis on
which the jury found Dr. Janis had breached this standard of care. Moreover, there is no
dispute that following the total ankle replacement surgery performed by Dr. Janis,
Timothy elected to undergo a second total ankle replacement with Dr. Berlet, rather than
opting for ankle fusion surgery. Accordingly, we find that the above-cited testimony from
Dr. Berlet, when construed in appellants' favor, does not satisfy appellants' burden of
producing an expert opinion regarding the standard of care and does not successfully
rebut the arguments in favor of granting judgment notwithstanding the verdict. This
being the case, the record does not contain substantial, competent evidence in support of
the jury verdict.
{¶ 35} Even if we were to conclude that Dr. Berlet's trial testimony qualifies as an
expert opinion regarding an applicable standard of care, when appellees' trial counsel
asked Dr. Berlet whether he was offering an expert medical opinion regarding standard of
care, the following exchange took place:
Q. All right. So you are not here to testify before this jury as
to accepted standards of care in the treatment of this patient;
is that right?
A. I am not.
Q. All right. You make no opinion that Dr. Janis violated
any standard of care in his care and treatment of this
patient?
A. I do not.
Q. And that is your opinion to a reasonable medical
certainty?
A. It is.
Q. Anything to the contrary notwithstanding?
A. I am not sure what you mean by that last statement.
Q. There is nothing else you have said should be interpreted
as standard of care testimony?
A. I am not providing standard of care testimony.
No. 17AP-3 15
(Tr. Vol. 2 at 378.)
{¶ 36} "Once an expert properly states his professional opinion to a properly
formed question as to 'probability,' he * * * has established a prima facie case as a matter
of law." Heath v. Teich, 10th Dist. No. 03AP-1100, 2004-Ohio-3389, ¶ 14, quoting
Galletti v. Burns Internatl., 74 Ohio App. 3d 680, 684 (11th Dist.1991). Consequently, in
reviewing a trial court's decision to grant a motion for a directed verdict, appellate courts,
including this court, have concluded that the erosion of an expert witness's testimony by
effective cross-examination does not warrant the granting of such a motion unless the
expert either contradicts or recants his prior testimony. Heath at ¶ 14. See also Lanzone
v. Zart, 11th Dist. No. 2007-L-073, 2008-Ohio-1496, ¶ 58. " 'Erosion of [an expert]
opinion due to effective cross-examination does not negate that opinion; rather it only
goes to weight and credibility.' " Heath at ¶ 14, quoting Galletti at 684. " 'The exception
would be when the expert actually recants the opinion on cross.' " Lanzone at ¶ 58,
quoting Celmer v. Rodgers, 11th Dist. No. 2004-T-0074, 2005-Ohio-7054, ¶ 35. "[T]he
party moving for a directed verdict must show that the testimony was resolved in its favor
by direct contradiction, negation, or recantation of the testimony given by the witness on
direct examination." Heath at ¶ 14, citing Nichols v. Hanzel, 110 Ohio App. 3d 591, 602
(4th Dist.1996). To "recant" is to "[t]o withdraw or renounce (prior statements or
testimony) formally or publicly." Black's Law Dictionary 1459 (10th Ed.2014). To
"negate" is "1. To deny. 2. To nullify; to render ineffective." Black's at 1195.
{¶ 37} In this instance, rather than simply contradicting or retreating from a prior
opinion he had given regarding the standard of care, Dr. Berlet insisted that he had not
offered any such opinion during his direct examination and that it was not his intention to
do so. The conclusion to be drawn from Dr. Berlet's testimony on cross-examination is
that Dr. Berlet negated and/or recanted any prior opinion he may have rendered
regarding the recognized standard of care applicable to the care and treatment of
Timothy. Thus, to the extent that Dr. Berlet's testimony on direct examination could be
construed as an expression of his expert opinion regarding the applicable standard of care
and Dr. Janis's breach thereof, Dr. Berlet expressly recanted any such opinion on cross-
examination. In our view, Dr. Berlet's unequivocal testimony on cross-examination
No. 17AP-3 16
effectively negated any standard of care opinion he may have provided during his direct
examination.
{¶ 38} Appellants counter that Dr. Berlet "affirmed on re-direct" opinions he had
given during his direct examination. (Appellants' Reply Brief at 10.) Appellants cite the
following testimony as evidence that Dr. Berlet did render expert opinion testimony
regarding the standard of care:
Q. [Y]our testimony here today is clearly as an expert because
you are not a lay person, it is an expert that possesses higher
knowledge, skill, training and expertise, and you know that
the jury will accept your testimony as an expert?
A. Yes.
Q. Okay. And it is in that spirit that you are here today to talk
about what you know and about your observations and
opinions that have been recorded in the records?
A. Yes.
[Appellant's Counsel]: Thank you.
(Tr. Vol. 2 at 402.)
{¶ 39} In our view, the testimony on which appellants rely is merely Dr. Berlet's
acknowledgment that he possesses the knowledge, skill, training, and experience in
orthopedic surgery necessary to qualify him as an expert. Appellees' argument, however,
is not that Dr. Berlet lacks the necessary qualifications to offer an expert opinion
regarding the applicable standard of care but, rather, that Dr. Berlet did not offer any such
opinion in this case. Nothing in his redirect examination rehabilitates him after he stated
on cross-examination, "I am not providing standard of care testimony." (Tr. Vol. 2 at
378.) We agree with appellees. Contrary to appellants' assertion, it is not reasonable to
construe Dr. Berlet's testimony on redirect as an affirmation of a previously expressed
opinion regarding the applicable standard of care, even if he had offered such an opinion.
{¶ 40} The trial court found, alternatively, that appellants did not produce expert
testimony to support the jury determination that a failure by Dr. Janis to meet the
applicable standard of care in his treatment of Timothy proximately caused appellants'
harm. When appellees' trial counsel asked Dr. Berlet whether he had an opinion
No. 17AP-3 17
regarding the cause of Timothy's loss of flexibility in his ankle joint and the ankle pain
experienced by Timothy following his treatment with Dr. Janis, Dr. Berlet gave the
following testimony:
Q. * * * Just a couple of questions. At deposition you testified
that you make no opinion as to the cause of this patient's
ankle pain, either medial or lateral, either side of the foot?
A. Maybe you can put a time context to that statement.
Q. I can show you the testimony, in fact.
A. Sure.
Q. I asked you if you would make an opinion about the reason
for his lateral pain, meaning pain on the outside of his foot,
and the answer was, "No."
"Do you make any opinion about the reason for any of this
pain, whether lateral or medial?" And the answer was, "No."
"He went into the situation with pain?" And the answer:
"Yes."
"His pain complaints go back to 2005 or so, don't they?"
"Yes. The relevant part is he is able to continue to function."
Do you agree with that testimony today, Doctor?
A. I do. I also bring up my earlier testimony is that I
concluded that his pain was mechanical pain.
Q. Have you ever seen the records of Dr. Janis or the physical
therapist up to whatever bits you have been shown today,
correct?
A. No.
(Tr. Vol. 2 at 379-80.)
{¶ 41} "In medical malpractice cases, the general rule is that the plaintiff must
prove causation through medical expert testimony in terms of probability to establish that
the injury was, more likely than not, caused by the defendant's negligence." Stamper v.
No. 17AP-3 18
Univ. of Cincinnati Hosp., 10th Dist. No. 99AP-1157 (Aug. 31, 2000), quoting Hitch v.
Dept. of Mental Health, 114 Ohio App. 3d 229, 240 (10th Dist.1996). " 'Probably' is
defined as 'more likely than not' or greater than fifty percent chance." Id., quoting Miller
v. Paulson, 97 Ohio App. 3d 217, 222 (10th Dist.1994).
{¶ 42} The only expert medical testimony in the record as to proximate cause of
the pain and stiffness experienced by Timothy following the total ankle replacement
surgery performed by Dr. Janis was that of Dr. Conti. Given Dr. Berlet's acknowledgment
that Timothy had experienced stiffness and pain in his ankle joint both prior to and
following his treatment with Dr. Janis, and Dr. Berlet's admission that patients may still
experience ankle pain even though an ankle prosthesis is properly positioned, it was
imperative for appellants to present the testimony of a medical expert to support
appellants' claim that Timothy's complaints of ankle pain and stiffness following the
surgical procedure performed by Dr. Janis were caused, in whole or in part, by Dr. Janis's
failure to meet the applicable standard of care. See Stamper; Hitch. Though Dr. Berlet
testified that the pain experienced by Timothy following the total ankle replacement
surgery with Dr. Janis was "mechanical pain," he did not testify to a reasonable degree of
medical probability that the pain and stiffness of Timothy's ankle were caused by the
negligence of Dr. Janis. (Tr. Vol. 2 at 379.)
{¶ 43} For the foregoing reasons, we find that the jury verdict in appellants' favor
was not supported by the evidence. Accordingly, we hold that the trial court did not err
when it granted appellees' motion for JNOV and entered judgment in favor of appellees.
Appellants' sole assignment of error is overruled.
V. CONCLUSION
{¶ 44} For the foregoing reasons, appellants' sole assignment of error is overruled,
and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BROWN and BRUNNER, JJ., concur.
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