Trevena v. Primehealth, Inc.

{¶ 76} I concur with the majority's disposition of appellees' cross-assignment of error.

{¶ 77} I dissent, however, as to the remainder of the majority's decision and the majority's reversal of the trial court's judgment and remand for new trial.

{¶ 78} The trial court assumed that all of the elements of a medical-malpractice action, including the issueof causation, had been proven, except for the element of damages. In ruling in favor of appellees, the trial court concluded that the jury would have to speculate on the damages. The trial court clearly explained its reasoning, and there is no need for reinterpretation of that reasoning by this court.

{¶ 79} The majority, sua sponte, recasts the trial court's stated analysis into a proximate-cause issue, based upon the loss-of-chance analysis in Roberts v. Ohio PermanenteMed. Group., Inc. (1996), 76 Ohio St.3d 483, 668 N.E.2d 480, and concludes that the judgment should be reversed and the cause remanded for a new trial to allow the jury to determine the issue of proximate cause.

{¶ 80} In its judgment entry granting a directed verdict, the trial court assumed causation. The question left unanswered by appellants' evidence at trial was the valuation, if any, of the damages resulting from Dr. Mulcahy's negligence.

{¶ 81} Even if we were to assume, arguendo, that the majority's "loss of chance" analysis applied, the case law on that subject makes it clear that although "[t]he plaintiff is not required to establish the lost chance of * * * survival in an exact percentage in order for the matter [of causation] to be submitted to the jury[,] * * * the jury is to consider evidence of percentages of the lost chance in the assessment and apportionment of damages." Id. at 488, 668 N.E.2d 480, citingMcKellips v. St. Francis Hosp., Inc. (Okla. 1987),741 P.2d 467, 475; Davison v. Rini (1996),115 Ohio App.3d 688, 698, 686 N.E.2d 278. Stated another way, "statistical data relating to the extent of the [plaintiff's] chance of survival is necessary in determining the amount of damages recoverableafter liability is shown" (Emphasis added.)McKellips, 741 P.2d at 476.

{¶ 82} While demonstrating how much of Mr. Trevena's brain damage is attributable to his preexisting condition versus Dr. Mulcahy's negligence may be very difficult, it is clear that appellants bore that burden at trial. By failing to adduce evidence of total damages and by failing to adduce statistical evidence by which a jury could meaningfully apportion them, appellants failed to meet that burden. Based upon the evidence in the record, the trial court rightly concluded that appellants did not meet their burden.

{¶ 83} Allowing the jury to decide the damages issue based on a lack of any statistical evidence to support the jury's finding would lead to rank speculation. That is not the purpose or function of a jury under a loss of chance analysis. Id. ("We do not believe a court should rely solely on a jury's common sense to discount the damage award to reflect the uncertainty of causation".)

{¶ 84} The judgment of the Lake County Court of Common Pleas was correct and should be affirmed.