Lowder v. Domingo

[Cite as Lowder v. Domingo, 2017-Ohio-1241.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JANET L. LOWDER, JUDGES:
GUARDIAN OF KRISTIA MAYERS, Hon. W. Scott Gwin, P.J.
A MINOR Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
Plaintiff-Appellant
Case No. 2016CA00043
-vs-
ALBERT T. DOMINGO, M.D., ET AL. OPINION
Defendant-Appellees
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2014CV01866
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 31, 2017
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellees
PAMELA PANTAGES DAVID M. BEST
DAVID W. SKALL David M. Best Co., L.P.A.
The Becker Law Firm, L.P.A. 4900 W. Bath Road
134 Middle Avenue Akron, Ohio 44333
Elyria, Ohio 44035
PAUL W. FLOWERS STEPHEN P. GRIFFIN
Paul W. Flowers Co., L.P.A. MICHAEL J. KAHLENBERG
Terminal Tower, Suite 1910 Winkhart Rambacher & Griffin
50 Public Square 825 S. Main Street
Cleveland, Ohio 44113 N. Canton, Ohio 44720
Stark County, Case No. 2016CA00043 2
Hoffman, J.
{¶1} Plaintiff-appellant Janet L. Lowder, Guardian of Kristia Mayers, a minor,
appeals the February 2, 2016 Judgment Entry entered by the Stark County Court of
Common Pleas, granting judgment in favor of defendant-appellee Dr. Albert T. Domingo,
M.D., following a jury trial.
STATEMENT OF THE CASE AND FACTS
{¶2} On August 8, 2014, Appellant filed a Complaint, alleging Kristia Mayers
sustained permanent brachial plexus injury due to Appellee’s mismanagement of
shoulder dystocia during Kristia’s delivery on June 9, 2009. Shoulder dystocia is a
complication during childbirth where a baby's shoulder becomes caught in the birth canal
after the head has delivered. Appellant further alleged Appellee applied excessive force
during delivery, employed unaccepted medical maneuvers when the baby's shoulder
became lodged against her mother's pelvic bone, and failed to offer Kristia’s mother the
option to deliver by cesarean section due to her diabetes.
{¶3} The matter proceeded to trial on January 19, 2016.
{¶4} Marti Mayers, the biological mother of Kristia, testified she was diagnosed
with diabetes in 2007. She became pregnant with Kristia the following year. Appellee
was Ms. Mayers’ obstetrician. Ms. Mayer recalled, following an ultrasound and
biophysical profile testing, Appellee advised her the baby was large and she would
probably need to deliver by cesarean section. Ms. Mayers testified Appellee told her the
diabetes caused the baby to develop broad shoulders and to have a larger bone structure,
and indicated shoulder dystocia was a potential concern during delivery.
Stark County, Case No. 2016CA00043 3
{¶5} Appellee testified Ms. Mayers had an ultrasound in May, 2009. The
ultrasound revealed her baby’s birth weight would likely be less than 4,500 grams;
therefore, Ms. Mayers would not need to deliver by cesarean section. Ms. Mayers had a
routine office visit on June 5, 2009. At that time, the baby’s gestational age was 36 weeks
and 5 days. Appellee planned to check the baby again at 38 weeks. However, on June
9, 2009, Ms. Mayers presented at Appellee’s office, and although she was not in active
labor, her cervix was dilated approximately one centimeter. Appellee made arrangements
to have Ms. Mayers transported to Mercy Medical Center for progression into active labor.
{¶6} During the delivery, Appellee identified shoulder dystocia involving Kristia’s
right shoulder. Appellee employed several recognized and accepted maneuvers to
alleviate the shoulder dystocia, including a right medial lateral episiotomy, McRobert’s
maneuver, extension of the episiotomy, the application of suprapubic pressure, and
delivery of the posterior arm. Appellee was able to free the baby's shoulder and complete
the delivery. Following delivery, Dr. Adyemi Sobowale, the attending pediatrician, noted
bruising on Kristia’s skin and a lack of movement and sensation in her left arm. Dr.
Sobowale charted left Erb’s palsy/nerve traction.
{¶7} Appellant’s expert witness, Dr. Frank Bottiglieri, a Board certified
obstetrician/gynecologist who has practiced obstetrics and gynecology for thirty seven
years, opined Appellee used “an untested, unproven maneuver” to address the shoulder
dystocia and, as a result, caused the left brachial plexus damage. Dr. Bottiglieri also
testified Appellee’s failure to offer Ms. Mayers a cesarean section delivery fell below the
accepted standard of care.
Stark County, Case No. 2016CA00043 4
{¶8} Attorney Pam Pantages, counsel for Appellant, asked Dr. Bottiglieri if he
had ever, during the 6,000 deliveries he performed, caused a brachial plexus injury. Dr.
Bottiglieri replied, “No.” Trial Transcript, Vol. II at 235. Thereafter, Attorney Pantages
asked whether the doctor had ever performed a delivery during which a brachial plexus
injury occurred before shoulder dystocia was identified and addressed, Dr. Bottiglieri
replied:
No, that’s never happened to me, and there’s no literature anywhere
that would support that. Forces of labor cannot cause this injury * * * It’s
physically, anatomically impossible to have five levels of nerves either
ripped from the spinal cord or torn apart from forces of labor. And
happening before, that’s based on a theory based on a model that’s flawed
that it happened miraculously. The single greatest correlate, over 90
percent of all the studies show, antecedent shoulder dystocia and its
management is how you get permanent injury. Id. at 238-239.
{¶9} Throughout his direct examination, Dr. Bottiglieri emphasized “the only way
you’re going to tear” the brachial plexus nerves is through the application of excessive
lateral traction. Id. at 310-311, 313-314, 381.
{¶10} During his cross-examination, Dr. Bottiglieri again indicated he had never
delivered a baby with a permanent brachial plexus injury. Thereafter, Attorney David
Stark County, Case No. 2016CA00043 5
Best, counsel for Appellee, showed Dr. Bottiglieri a complaint and lawsuit1 in which the
doctor was named a defendant and was alleged to have used excessive force during
delivery which resulted in a permanent brachial plexus injury. Attorney Best asked Dr.
Bottiglieri 17 questions regarding this lawsuit before Attorney Pantages asked to
approach the bench. The trial court discussed the issue with the parties, stated the
objection was overruled, and permitted Attorney Best to continue the line of questioning.
Dr. Bottiglieri acknowledged Dr. Mark Landon, one of Appellee’s experts in the instant
action, served as an expert witness in support of his defense. The lawsuit, which occurred
23 years earlier, resulted in a verdict in favor of Dr. Bottiglieri.
{¶11} Dr. Robert Gherman, a Board certified obstetrician/gynecologist and
maternal fetal medicine physician, testified on Appellee’s behalf. Dr. Gherman serves as
the chairman of the brachial plexus palsy committee of the American College of Obstetrics
and Gynecology, and assisted in the drafting, peer review, and publication of ACOG’s
2014 publication, Neonatal Brachial Plexus Palsy. Dr. Gherman opined the standard of
care did not warrant offering Ms. Mayers the option of a cesarean section delivery, and it
was reasonable for Appellee to proceed with a vaginal delivery. Dr. Gherman noted
Appellee appropriately handled the shoulder dystocia.
{¶12} Dr. Mark Landon, a Board certified obstetrician/gynecologist who
specializes in maternal fetal medicine at The Ohio State University, also testified on
Appellee’s behalf. Dr. Landon agreed because the baby’s fetal weight was estimated to
1
In Appellee’s Brief to this Court, Appellee states, “Upon further inquiry and without Dr.
Domingo’s Counsel offering any exhibit as evidence, Dr. Bottiglieri then admitted a lawsuit
had been filed against him where the plaintiff alleged he caused a permanent brachial
plexus injury.” Brief of Appellee at 10.
Stark County, Case No. 2016CA00043 6
be less than 4,500 grams, the standard of care did not warrant Appellee offering Ms.
Mayers a cesarean section delivery. Dr. Landon opined the brachial plexus injury was
not caused by any action or failure to act by Appellee.
{¶13} Dr. Landon testified Appellee’s attempts to resolve the shoulder dystocia
did not cause the brachial plexus injuries. Dr. Landon stated his belief the injury occurred
during the birthing process before the shoulder dystocia actually was apparent or
recognized. Dr. Landon indicated if Appellee had used excessive lateral force, the baby’s
right arm, not her left arm as had occurred, would have sustained injury. Dr. Landon also
noted Appellee did not violate the standard of care by failing to deliver the baby by
cesarean section simply because Ms. Mayers was diabetic.
{¶14} Upon conclusion of the evidence and after counsel for the parties gave
closing arguments, the trial court instructed the jury on the applicable law. The trial court,
over objection from Appellant, included the “different methods” charge. The jury returned
a verdict in favor of Appellee on February 2, 2016. The trial court memorialized the verdict
in a judgment entry filed the same day.
{¶15} It is from that judgment entry Appellant appeals, raising the following
assignments of error:
I. THE TRIAL JUDGE ABUSED HER DISCRETION WHEN
DEFENDANT-APPELLEES [SIC] WERE ALLOWED TO IMPROPERLY
IMPEACH PLAINTIFF-APPELLANT’S STANDARD OF CARE EXPERT
WITH AN EXTRINSIC PRIOR LAWSUIT.
Stark County, Case No. 2016CA00043 7
II. THE TRIAL COURT ERRED, AS A MATTER OF LAW, BY
FURNISHING INCORRECT AND UNWARRANTED JURY
INSTRUCTIONS.
I
{¶16} In her first assignment of error, Appellant contends the trial court erred in
allowing Appellee to impeach her standard of care expert with extrinsic evidence of a prior
lawsuit. Specifically, during cross-examination, Attorney Best questioned Dr. Bottiglieri
regarding a prior lawsuit in which he was named a defendant and was alleged to have
caused a permanent brachial plexus injury.
{¶17} On cross-examination, Attorney Best and Dr. Bottiglieri engaged in the
following exchange:
Q. Now, you’ve talked a lot about this knowledge that you have about
brachial plexus injuries, but you’ve never personally had a permanent
brachial plexus injury yourself, correct?
A. That is correct. That is correct.
Q. So you don’t have any personal experience where you delivered
a baby with a permanent brachial plexus injury that you can tell this jury
about?
A. Thank God, no. I used the appropriate maneuvers and I’ve
avoided it. I don’t need to cause an injury to talk about it.
Stark County, Case No. 2016CA00043 8
Q. Doctor, let me have just one moment here and I’ll grab something
and we’re getting near the end. I’m showing you a complaint and lawsuit
that says that the defendants had a patient that had a history of obesity,
weight gain, rupture of membranes, gestational diabetes –
A. Correct.
Q. – there was a delivery, and the delivery was done vaginally?
A. That’s correct.
Q. And that the result of the negligence of that, she suffered a
shoulder dystocia?
A. Correct.
Q. And then it goes on to state that the defendants caused
permanent brachial plexus injuries and other permanent and disfiguring
injuries.
A. Correct.
Q. Do you see that?
A. I sure do. Very familiar with it.
Q. Who’s the defendant in that case?
A. My corporation.
Q. Is Frank Bottiglieri the named defendant?
A. It is. He is.
Q. Okay. And so you were sued for using excessive force causing a
brachial plexus injury that was permanent, correct?
Stark County, Case No. 2016CA00043 9
A. That was the allegation, yes. And it also turned out to be a
fraudulent case which you’re well aware of. We can discuss that.
Q. And you denied that –
A. Correct.
Q. – and stated you had another explanation for how that injury
occurred that was not you pulling too hard, correct?
A. That is correct. And I’d love to give you the – you have the details
and I –
Q. And you hired an expert to defend you in that case; didn’t you?
A. I did not hire anyone. PIE hired them, the insurance company. I
didn’t hire anyone.
Q. Did your lawyer have an expert come to trial?
A. I’m sure they did.
Q. You went to trial; didn’t you?
A. Yes, there was an 11 minute verdict. And the case was – excuse
me, and the case was referred to the state’s attorney for fraud * * *
THE COURT: I’m going to stop you again, Dr. Bottiglieri. Answer the
question, please.
THE WITNESS: I’ve answered the question. It was a fraudulent case
and it was turned over to the state’s attorney.
THE COURT: All right. Sufficient enough. Please –
BY MR. BEST:
Q. Did it go to trial?
Stark County, Case No. 2016CA00043 10
A. It went to trial.
Q. Did you defend yourself claiming that, yes, there was a permanent
brachial plexus injury, but it was not due to my pulling too hard?
A. No, you’re not getting it.
Q. Did you hire –
A. The videotape showed no permanent injury. There was no injury.
It was a fraudulent case.
Q. Did you or your lawyer hire an expert to defend you in that case
who testified at trial?
A. I’m sure he or she did.
Q. Do you know who that expert was that was identified as a –
providing a certificate of met – meritorious defense –
MS. PANTAGES: Can we approach?
BY MR. BEST:
Q. – you had a valid defense, it was Dr. Mark Landon who is testifying
in this case –
THE COURT: Hold on a second. Please approach.
Tr., Vol. II at 406-410.
{¶18} The following discussion was conducted outside the presence of the jury:
MS. PANTAGES: It was my understanding when this case started that you
had cautioned me against talking about any prior lawsuits.
Stark County, Case No. 2016CA00043 11
THE COURT: Regarding Dr. Domingo.
MR. BEST: That wasn’t your ruling as to experts. You said we can do it for
experts.
THE COURT: For experts. It was to Dr. Domingo himself because that’s
what the case law said. So you can do it as to experts, but not – I specifically
outlined it as that it did not apply to Dr. Domingo.
***
MR. SKALL (Co-Counsel for Appellant): Is our objection noted?
THE COURT: Your objection is noted.
Id. at 410.
{¶19} Thereafter, Attorney Best questioned Dr. Bottiglieri about Dr. Landon
testifying as the expert in his defense and why Dr. Bottiglieri claimed to not know Dr.
Landon when asked during his deposition in the instant action. The questioning
concluded with Dr. Bottiglieri reiterating the case against him was fraudulent as the baby
had not suffered a permanent injury.
{¶20} The record reveals Attorney Best asked 17 questions to Dr. Bottiglieri
regarding the lawsuit before Attorney Pantages asked to approach the bench.
{¶21} A party waives and may not raise on appeal any error which arises during
the trial court proceedings if that party fails to bring the error to the court's attention, by
objection or otherwise, at a time when the trial court could avoid or correct the error.
Goldfuss v. Davidson, 79 Ohio St.3d 116, 121–123, 679 N.E.2d 1099 (1997). A failure to
object at trial waives all but plain error. Id. The plain error doctrine is applicable in civil
Stark County, Case No. 2016CA00043 12
cases only where the error “seriously affects the basic fairness, integrity, or public
reputation of the judicial process.” Id. at syllabus.
{¶22} We find Attorney Pantages’ request to approach the bench was not an
appropriate objection as to Attorney Best’s first 17 questions about the prior lawsuit. We
find Appellant’s failure to timely object constitutes a waiver of any alleged error in the
consideration of such evidence admitted prior to counsel approaching the bench. We
further find no plain error in the trial court allowing Attorney Best to cross examine Dr.
Bottiglieri regarding the prior lawsuit against him.
{¶23} Assuming, arguendo, Appellant did not waive the alleged error, we,
nonetheless, find the trial court did not err in allowing the testimony.
{¶24} Appellant submits Appellee violated the trial court’s ruling on Defendant’s
Motion in Limine No. 9. Appellant explains the ruling prohibited the parties from
questioning expert witnesses about present and prior medical malpractice cases. We
disagree.
{¶25} In his Motion in Limine No. 9, Appellee moved the trial court for an order
precluding “Plaintiffs, Plaintiffs’ attorneys, and Plaintiffs[’] witnesses, at any stage of trial,
including voir dire, opening, and closing statements, examinations of witnesses, or
argument to the Court in front of the jury, from questioning, arguing, discussing, or
mentioning outcomes (verdicts or settlements) of other medical malpractice cases in
which any of the attorneys or experts (Plaintiffs’ and/or Defendants’) in this case have
been involved in as attorneys or expert.” Via Judgment Entry filed January 16, 2016, the
trial court sustained the motion “as to any evidence regarding other pending, or resolved
medical malpractice cases involving the parties, including the Defendant, and attorneys.”
Stark County, Case No. 2016CA00043 13
The trial court noted, “In accordance with Oberlin v. Akron General Medical Center, 91
Ohio St.3d 16, 2001-Ohio-248, counsel may inquire of expert witnesses (other than the
Defendant) as to any pending medical malpractice cases alleging a medical error similar
to that alleged in this case to prove, bias, prejudice, or motive to misrepresent.” Id.(Emphasis added.)
{¶26} Given the trial court’s ruling on Appellee’s Motion in Limine No. 9, we find
the trial court’s overruling of Appellant’s objection was consistent therewith. We note at
no time did Appellant raise an objection based upon Evid.R. 608(B) and/or 616(C) which
she now raises for the first time in her brief.
{¶27} We also find Appellant opened the door to this line of questioning.
{¶28} During Dr. Bottiglieri’s direct examination, Attorney Pantages posed the
following question to him:
[The jury] heard Kristia has a left global brachial plexus injury with all
five nerve roots torn and her left brachial plexus injury being completely
destroyed in the delivery, three of the nerve roots ripped out of her spinal
cord. That that was apparent in the immediate newborn period when she
had no movement and no feeling in her left upper extremity. In 6,000
deliveries, has that ever happened to you? Tr., Vol. II at 235.
{¶29} Dr. Bottiglieri replied, “No.” Subsequently, Attorney Pantages asked Dr.
Bottiglieri whether he had ever performed a delivery during which a brachial plexus injury
occurred before shoulder dystocia was recognized and addressed. Dr. Bottiglieri replied:
Stark County, Case No. 2016CA00043 14
No, that’s never happened to me, and there’s no literature anywhere
that would support that. Forces of labor cannot cause this injury * * * It’s
physically, anatomically impossible to have five levels of nerves either
ripped from the spinal cord or torn apart from forces of labor. And
happening before, that’s based on a theory based on a model that’s flawed
that it happened miraculously. The single greatest correlate, over 90
percent of all the studies show, antecedent shoulder dystocia and its
management is how you get permanent injury. Id. at 238-239.
{¶30} Because Attorney Pantages asked Dr. Bottiglieri if he had ever caused a
brachial plexus injury during his career, we find Appellant opened the door to inquiry into
past lawsuits against Dr. Bottiglieri involving allegations of such injury.
{¶31} Appellant further argues Appellee could not use extrinsic evidence to
impeach Dr. Bottiglieri on a collateral matter. At no time did Appellant raise an objection
based upon Evid.R. 608(B) and or Evid.R. 616(C) in the trial court. She raises them for
the first time in her brief to this Court. Appellant has not preserved for review any error in
admission based thereon. Nonetheless, we elect to analyze Appellant’s argument.
{¶32} Evid.R. 608(B) provides, in relevant part:
Specific instances of the conduct of a witness, for the purpose of
attacking or supporting the witness's character for truthfulness, other than
conviction of crime as provided in Evid.R. 609, may not be proved by
Stark County, Case No. 2016CA00043 15
extrinsic evidence. They may, however, in the discretion of the court, if
clearly probative of truthfulness or untruthfulness, be inquired into on cross-
examination of the witness (1) concerning the witness's character for
truthfulness or untruthfulness, or (2) concerning the character for
truthfulness or untruthfulness of another witness as to which character the
witness being cross-examined has testified. Evid. R. 608(B). (Emphasis
added.)
{¶33} Evid. R. 616(C), which sets forth the methods of impeachment on cross
examination, provides:
(C) Specific Contradiction. Facts contradicting a witness's
testimony may be shown for the purpose of impeaching the witness's
testimony. If offered for the sole purpose of impeaching a witness's
testimony, extrinsic evidence of contradiction is inadmissible unless the
evidence is one of the following:
(1) Permitted by Evid. R. 608(A), 609, 613, 616(A), 616(B), or 706;
(2) Permitted by the common law of impeachment and not in conflict
with the Rules of Evidence. Evid. R. 616(C).
{¶34} As stated, supra, Appellant asserts the testimony regarding Dr. Bottiglieri’s
prior lawsuit was a collateral issue; therefore, the trial court should have prohibited
Appellee from cross examining Dr. Bottiglieri about the case. A “matter is non-collateral
Stark County, Case No. 2016CA00043 16
and extrinsic evidence consequently (is) admissible if the matter itself is relevant to a fact
of consequence on the historical merits of the case.” Bedard v. Gardner, 2d Dist. No.
20430, 2005-Ohio-4196, ¶ 64, citing 1 McCormick, supra, Section 49, at 203.
{¶35} Appellant presented expert testimony to establish a permanent brachial
plexus injury can only occur if the delivering physician employees excess lateral force.
Appellee defended himself by introducing expert evidence a brachial plexus injury can
occur in the absence of excessive lateral traction. Appellant placed the issue of whether
a permanent brachial plexus injury can result in the absence of excessive lateral force
before the jury. We find such was not a collateral issue, but rather germane to the case.
Accordingly, we find no error in the trial court’s admission of the evidence.
{¶36} We find even if the alleged error in the admission of the prior lawsuit against
Dr. Bottiglieri had been preserved for review as being admitted in violation of Evid.R. 608(B)
and/or 616(C), the trial court did not abuse its discretion in allowing Appellee to cross
examine Dr. Bottiglieri with extrinsic evidence of the prior lawsuit against him.
{¶37} Appellant's first assignment of error is overruled.
II
{¶38} In her second assignment of error, Appellant submits the trial court erred by
providing the “different methods” charge to the jury as said instruction was incorrect and
unwarranted. We disagree.
{¶39} The determination whether to give a jury instruction is a matter left to the
sound discretion of the trial court. Telle v. Pasley, 5th Dist. Delaware No. 12CAE080048,
2013–Ohio–2407, at ¶ 42 (Citation omitted). A trial court is obligated to provide jury
instructions which correctly and completely state the law. Cromer v. Children's Hosp.
Stark County, Case No. 2016CA00043 17
Med. Ctr. of Akron, 142 Ohio St.3d 257, 2015-Ohio-229, 29 N.E.3d 921, ¶ 22 (Citation
omitted.) The jury instructions must also be warranted by the evidence presented in a
case. Estate of Hall v. Akron Gen. Med. Ctr., 125 Ohio St.3d 300, 2010-Ohio-1041, 927
N.E.2d 1112, ¶ 26. The question of whether a jury instruction is legally correct and
factually warranted is subject to de novo review. Id. An inadequate instruction which
misleads the jury constitutes reversible error. Marshall v. Gibson, 19 Ohio St.3d 10, 12,
482 N.E.2d 583 (1985).
{¶40} Our standard of review when it is claimed improper jury instructions were
given is to consider the jury charge as a whole and determine whether the charge misled
the jury in a manner affecting the complaining party's substantial rights. Dublin v. Pewamo
Ltd., 194 Ohio App.3d 57, 2011-Ohio-1758, 954 N.E.2d 1225, ¶ 28 (Citation omitted.)
{¶41} The trial court instructed the jury as follows:
Although some other physician might have used a method of
treatment and procedure different from that used by the Defendant, this
circumstance will not by itself prove that the Defendant was negligent. You
shall decide whether the treatment and procedure used by the Defendant
was in accordance with the required standard of care. The customary or
routine method of treatment and procedure may be considered by you along
with all the other facts and circumstances in evidence.
Although a particular method may be customary, usual or routine,
this circumstance will not by itself prove that method to be within the
standard of care. You shall decide whether the method of treatment and
Stark County, Case No. 2016CA00043 18
procedure used by the Defendant was in accordance with the required
standard of care. Tr., Vol. X at 25.
{¶42} “In medical malpractice cases, the ‘different methods' charge to the jury is
appropriate only if there is evidence that more than one method of diagnosis or treatment
is acceptable for a particular medical condition.” Pesek v. Univ. Neurologists Assn., Inc.,
87 Ohio St.3d 495, 721 N.E.2d 1011 (2000), syllabus. The purpose of such an instruction
is to inform the jury that, because alternative methods can be used, the selection of one
method over another is not, per se, negligence. Id. at 498. “The instruction is grounded
‘on the principle that juries, with their limited medical knowledge, should not be forced to
decide which of two acceptable treatments should have been performed by a defendant
physician’.” Id., quoting Dailey, The Two Schools of Thought and Informed Consent
Doctrines in Pennsylvania: A Model for Integration, 98 Dickinson L.Rev. 713 (1994).
{¶43} Counsel for Appellant objected to the trial court’s decision to give the
“different methods” charge to the jury, arguing:
We object to the different methods instruction. The Plaintiff’s case,
at least part of the Plaintiff’s case is that Dr. Domingo managed the shoulder
dystocia below the standard of care. He used delivery maneuvers that no
one in this case so far has used. So it’s not – the issue isn’t did he pick
from among different methods, the issue is he used a method that is not
within the standard of care.
Stark County, Case No. 2016CA00043 19
So we would argue that this is not a different – this is not a case
where a different methods instruction would be appropriate. Tr., Vol. IX at
86-87.
{¶44} Appellant submits the experts agreed there were “only certain time-tested
responses to a shoulder dystocia”, to wit: McRobert’s positioning; suprapubic pressure,
Rubin’s maneuver; Wood’s maneuver; and delivery of the posterior arm. Reply Brief of
Appellant at 10. Appellant explains, “the staunch position of the defense experts was that
Dr. Domingo had properly performed the maneuvers, not that he had followed an
alternative ‘different’ approach that was also recognized as appropriate under the
standard of care.” Id. We disagree with Appellant’s interpretation of the “different
methods” instruction.
{¶45} During the course of the trial, the jury heard evidence of the different
obstetrical maneuvers a physician may employ to manage shoulder dystocia, all of which
fell within the standard of care. Appellee, himself, testified he employed these accepted
maneuvers, including a right medical lateral episiotomy, McRobert’s maneuver, extension
of the episiotomy, the application of suprapubic pressure and delivery of the posterior
arm. We find this is the exact situation which warrants the inclusion of the “different
methods” instruction in the jury charge. The purpose of the instruction is to avoid
confusing the jury in situations in which the evidence establishes the physician's selection
of one acceptable method instead of another does not, in and of itself, constitute a breach
of the standard of care. Pesek, supra at 498.
Stark County, Case No. 2016CA00043 20
{¶46} Because evidence was presented which indicated Appellee could have
utilized different methods and still have acted within the standard of care, we find the trial
court's instruction was appropriate.
{¶47} Appellant’s second assignment of error is overruled.
{¶48} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Wise, John, J. concur