Hayward v. Summa Health Sys.

[Cite as Hayward v. Summa Health Sys., 2012-Ohio-5396.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
THERESA HAYWARD C.A. No. 25938
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
SUMMA HEALTH SYSTEM AKRON COURT OF COMMON PLEAS
CITY HOSPITAL, et al. COUNTY OF SUMMIT, OHIO
CASE No. CV 2009 03 2529
Appellees
DECISION AND JOURNAL ENTRY
Dated: November 21, 2012
BELFANCE, Judge.
{¶1} Plaintiff-Appellant Theresa Hayward appeals from the judgments of the Summit
County Court of Common Pleas. For the reasons set forth below, we affirm in part, reverse in
part, and remand for a new trial.
I.
{¶2} Following bouts of diverticulitis, Ms. Hayward elected to have a portion of her
sigmoid colon removed in an attempt to remedy the problem. On October 10, 2007, Defendant-
Appellee Dr. Michael Cullado, M.D., and Defendant-Appellee Dr. Steven Wanek, M.D., a fifth-
year surgical resident employed by Defendant-Appellee Summa Health System (“Summa”),
performed the partial colectomy on Ms. Hayward. In the days following the surgery, Ms.
Hayward developed weakness and loss of sensation in her left leg. Following a neurology
consult by Dr. Robert Lada, M.D., Dr. Lada determined that Ms. Hayward suffered a nerve
injury to the left femoral nerve during the surgery. After conducting a differential diagnosis as to
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the cause of the nerve injury, Dr. Lada concluded that the injury occurred due to a prolonged
compression of the nerve during surgery. He further concluded that, because there was no other
evidence of the typical causes of femoral neuropathy,1 the nerve injury was likely secondary to a
retractor injury. The retractor in this case, a Bookwalter retractor, was used so that the
anatomical structures at issue could be accessible and other structures not involved in the surgery
could be held out of the way so as not to be damaged or compromised during the surgery. Ms.
Hayward was discharged from the hospital on October 26, 2007. Four months later, in the
discharge summary dictated by Dr. Wanek and signed by Dr. Cullado, the doctors also indicated
that the neuropathy was likely secondary to a retractor injury.
{¶3} Prior to the surgery, Ms. Hayward had no problems with weakness or sensation in
her leg and had no difficulty walking. Upon discharge, Ms. Hayward had to use a wheelchair to
leave the hospital. Over time and many months of physical therapy, Ms. Hayward progressed to
being able to walk with assistance of a walker, and finally with only the assistance of a cane.
Nevertheless, Ms. Hayward continues to have problems with her left leg; she cannot stay in one
position for prolonged periods of time and is most comfortable when lying down. Experts
believe it is statistically unlikely that Ms. Hayward’s condition will dramatically improve, that
her injury is likely permanent, and that she will not be able to find work given her physical
limitations and skill set.
{¶4} On March 31, 2009, Ms. Hayward filed a complaint against Summa, Dr. Cullado,
Dr. Spear, Advanced Urology Associates, LLC, Dr. Wanek, Dr. Reedus, and several John and
Jane Doe Defendants alleging that the Defendants were negligent in providing medical care to
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Common causes of femoral nerve injury, also known as femoral neuropathy include
preexisting weakness, diabetes or retroperitoneal hematoma. After conducting tests and
examining Ms. Hayward, Dr. Lada eliminated these possible causes.
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Ms. Hayward, that they deviated from the standard of care, that as a proximate result of the
negligence they caused injury and pain and suffering to Ms. Hayward, and that as a result Ms.
Hayward has incurred numerous expenses and lost wages and earnings. Subsequently, Ms.
Hayward filed motions pursuant to Civ.R. 41(A)(1) to dismiss Defendants Dr. Spear, Dr.
Reedus, and Advanced Urology Associates, LLC.
{¶5} The matter proceeded to a jury trial. The jury concluded that Dr. Cullado and
Summa were not liable, that Dr. Cullado and Summa by and through Dr. Wanek were not
negligent in the care and treatment of Ms. Hayward, and that they did not cause injury to Ms.
Hayward. Ms. Hayward filed a motion for judgment notwithstanding the verdict (“JNOV”) and
a motion for a new trial. Both were subsequently denied by the trial court. Ms. Hayward has
appealed, raising five assignments of error for our review. Her assignments of error will be
addressed out of sequence to facilitate our review.
II.
ASSIGNMENT OF ERROR III
THE COURT SHOULD HAVE GRANTED APPELLANT’S MOTION FOR
JUDGMENT NOTWITHSTANDING THE VERDICT.
{¶6} Ms. Hayward asserts in her third assignment of error that the trial court erred in
denying her motion for JNOV because the evidence was insufficient to support a defense verdict.
We do not agree.
{¶7} “[M]otions for directed verdict and for JNOV present questions based on the
sufficiency of the evidence * * * .” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶
28. A JNOV motion pursuant to Civ.R. 50(B) presents questions of law. Id. at ¶ 25.
[Thus,] [a]s with an appeal from a court’s ruling on a directed verdict, this Court
reviews a trial court’s grant or denial of a JNOV de novo. JNOV is proper if upon
viewing the evidence in a light most favorable to the non-moving party and
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presuming any doubt to favor the nonmoving party reasonable minds could come
to but one conclusion, that being in favor of the moving party. If reasonable
minds could reach different conclusions, the motion must be denied.
(Internal quotations and citations omitted.) Schottenstein Zox & Dunn Co., L.P.A. v. Reineke, 9th
Dist. No. 10CA0138-M, 2011-Ohio-6201, ¶ 8.
{¶8} “In order to prove medical malpractice, the plaintiff has the burden to prove, by a
preponderance of the evidence, that the defendant breached the standard of care owed to the
plaintiff and that the breach proximately caused an injury.” Segedy v. Cardiothoracic &
Vascular Surgery of Akron, Inc., 182 Ohio App.3d 768, 2009-Ohio-2460, ¶ 11 (9th Dist.). “A
medical-malpractice claim requires the plaintiff to 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.” (Internal quotations and citations omitted.) Id.{¶9} In the instant matter, Ms. Hayward’s expert, Dr. William Irvin, M.D., testified
that Drs. Cullado and Wanek fell “below the accepted standards of care * * * []” and that doing
so resulted in Ms. Hayward’s neuropathy. He testified that he believed that “the cause of [Ms.
Hayward’s] injury came from compression of the femoral nerve with a lateral retractor blade[]”
that was inappropriately placed. He also stated that it was impossible to suffer an injury to the
femoral nerve as Ms. Hayward had suffered without improper placement of the retractor.
However, the Defendants’ expert, Dr. Peter Muscarella II, M.D., testified that he did not believe
the surgeons “deviated from the standard of care.” In addition, although there were no medical
records pertaining to the use or placement of the retractor, he testified that he was “confident that
this surgeon * * * carefully placed the retractor when he did the operation because everything
else that he did during the operation was careful and thoughtful with the aim of minimizing
complications for the patient.” We acknowledge that Dr. Lada opined that the injury was due to
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prolonged nerve compression and Dr. Cullado and Wanek indicated that the injury was likely
caused by the use of the retractor in their discharge summary. Dr. Cullado also acknowledged at
trial that the injury most likely correlated to the use of the retractor. In addition, the bulk of Dr.
Muscarella’s opinions were made when he was unaware at trial that Dr. Cullado and Dr. Wanek
had indicated that the injury was likely caused due to the retractor. Nonetheless, Dr. Muscarella
continued to maintain that the doctors were not negligent even though he did not address or
explain how Ms. Hayward could suffer a retractor injury absent a breach in the standard of care.
However, these issues pertain to the weight of the evidence and not its sufficiency. The record is
clear that at no point does Dr. Muscarella acknowledge or state that he believed that the surgeons
were negligent or failed to meet the standard of care.
{¶10} Viewing the evidence in a light most favorable to the Defendants, and without
evaluating credibility, there was evidence by which a jury could have concluded that the
Defendants were not liable, given that there was expert testimony that there was no deviation
from the standard of care and that the injury was not caused by the surgeons’ negligence. See
Segedy, 2009-Ohio-2460, at ¶ 11. Accordingly, Ms. Hayward’s JNOV motion was properly
overruled. In light of the foregoing, we overrule her third assignment of error.
ASSIGNMENT OF ERROR V
THE COURT ERRED IN INSTRUCTING THE JURY ON REMOTE CAUSE.
{¶11} Ms. Hayward asserts in her fifth assignment of error that the trial court erred in
instructing the jury on remote cause. We agree.
{¶12} “A trial court must give jury instructions that correctly and completely state the
law.” Groob v. KeyBank, 108 Ohio St.3d 348, 2006-Ohio-1189, ¶ 32. However, “[i]t is well
established that the trial court may not instruct the jury if there is no evidence to support an
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issue.” Pesek v. Univ. Neurologists Assn., Inc., 87 Ohio St.3d 495, 498 (2000). “A jury charge
must be considered as a whole and a reviewing court must determine whether the jury charge
probably misled the jury in a matter materially affecting the complaining party’s substantial
rights.” Becker v. Lake Cty. Mem. Hosp. West, 53 Ohio St.3d 202, 208 (1990).
{¶13} The trial court gave the following causation instruction:
Now, to recover, the plaintiff must not only prove negligence, which has been
defined for you, but the plaintiff must also prove that the negligent act was the
proximate cause of plaintiff’s injuries.
Proximate cause is an act or failure to act which in the natural and continuous
sequence directly produces the injury and without which it would not have
occurred.
Proximate cause occurs when the injury is the natural and foreseeable result of the
act or failure to act.
A person is not responsible for damages to another if his negligence is a remote
cause and not a proximate cause. A cause is remote when the result could not
have been reasonably foreseen or anticipated as being a natural or probable cause
of any damage.
{¶14} Ms. Hayward does not complain that the above is an inaccurate statement of the
law; instead, she claims that the facts of the instant case did not warrant a remote cause
instruction. We note that Ms. Hayward brought her concern about the instruction to the trial
court’s attention before the instructions were presented to the jury.
{¶15} In light of the testimony at trial, we agree with Ms. Hayward that an instruction
on remote causation was not appropriate in the instant matter. Assuming that the Defendants
breached the standard of care, there was substantial evidence to support the conclusion that the
injury was a foreseeable result of the Defendants’ negligence. There was overwhelming
evidence that Ms. Hayward’s injury was connected to the use of the retractor. Further, the
testimony as a whole indicated that the type of injury Ms. Hayward sustained tends to occur
when a surgeon improperly places the retractor. While the Appellees provided ample testimony
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that the standard of care was not breached, they did not provide much, if any, testimony on an
alternate theory of causation, let alone evidence that Appellees’ negligence would have been a
remote cause of Ms. Hayward’s injury. See Pesek v. Univ. Neurologists Assn., 87 Ohio St.3d at
499 (“The trial court’s instruction would have been appropriate had there been testimony that
acceptable alternative methods existed for treatment of Caitlin’s condition. There were, however,
no acceptable alternative methods of treatment.”)
{¶16} The discharge summary, which was dictated by Dr. Wanek and signed by Dr.
Cullado, concludes that Ms. Hayward “most probably suffered a femoral neuropathy likely
secondary to a retractor injury.” Dr. Cullado testified that “[w]hen we went through the whole
process and the entire workup and the data that we had to bear at that point in time, our collective
conclusion was that [the injury] was most likely correlated with the use of the retractor.” In
addition, Dr. Cullado testified that “if you improperly place the retractors you’re increasing the
risks of an injury and the manner in which you improperly place them would relatively increase
or decrease the risk of the injury.” Ms. Hayward’s expert, Dr. Irwin, testified that he believed
that “the cause of [Ms. Hayward’s] injury came from compression of the femoral nerve with a
lateral retractor blade[]” that was inappropriately placed. From the testimony it can also be
inferred that reasonably prudent surgeons are aware that improperly placing the retractor can
cause femoral neuropathy. Further, there was undisputed testimony that the injury was not
caused by diabetes, a hematoma, or cutting or suturing the nerve, all of which could have caused
Ms. Hayward’s neuropathy. From the evidence in the record, we can only conclude that an
ordinarily prudent surgeon should have reasonably anticipated that Ms. Hayward could have
sustained a femoral neuropathy from the improper placement of the retractor. See Jeanne v.
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Hawkes Hosp. of Mt. Carmel, 74 Ohio App.3d 246, 252 (10th Dist.1991). Accordingly, a remote
cause instruction was not appropriate. See id. at 252-253; see also Pesek at 499.
{¶17} Further, in light of the fact that an instruction on remote causation was so clearly
not warranted, Pesek at 499, and because there is evidence that the instructions did confuse the
jury, we conclude that “the jury charge probably misled the jury in a matter materially affecting
the complaining party’s substantial rights.” Becker, 53 Ohio St.3d at 208. Despite the fact that
the jury interrogatories indicated that the jury should only complete interrogatory number three,
which dealt with causation, if the jury concluded that one of the defendants was negligent, the
jury completed interrogatory number three anyway. Thus, the jury considered causation and
could have confused the issue of the breach of the standard of care with remote causation. While
there could be another explanation for this confusion, it nonetheless evidences that the jury was
confused. In light of all of the above, we conclude that the jury instruction was unwarranted and
that a new trial is required. See Pesek at 499 (concluding that, when there was no evidence to
support the instruction, a new trial was required). We sustain Ms. Hayward’s fifth assignment of
error.
ASSIGNMENT OF ERROR I
THE JURY’S VERDICT IN THIS MATTER WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
ASSIGNMENT OF ERROR II
THE COURT ERRED IN ALLOWING THE ADMISSION OF, AND
ARGUMENT CONCERNING, CONSENT FORMS.
ASSIGNMENT OF ERROR IV
THE COURT SHOULD HAVE GRANTED APPELLANT’S MOTION FOR A
NEW TRIAL.
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{¶18} Ms. Hayward argues in her first assignment of error that the verdicts were against
the manifest weight of the evidence. She asserts in her second assignment of error that the trial
court erred in allowing argument and testimony concerning the surgery consent form and in the
admission of the form. Ms. Hayward argues in her fourth assignment of error that the trial court
erred in denying her motion for a new trial. Because we conclude that these assignments of error
are rendered moot by our resolution of Ms. Hayward’s fifth assignment of error, we decline to
address these assignments of error. See App.R. 12(A)(1)(c).
III.
{¶19} In light of the foregoing, we overrule Ms. Hayward’s third assignment of error,
sustain her fifth assignment of error, and decline to address the remaining assignments of error
because they are moot. Thus, we affirm the Summit County Court of Common Pleas’ ruling on
Ms. Hayward’s motion for a JNOV, reverse the jury verdicts, and remand the matter for a new
trial.
Judgment reversed in part,
affirmed in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
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period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
EVE V. BELFANCE
FOR THE COURT
WHITMORE, P. J.
MOORE, J.
CONCUR.
APPEARANCES:
JACK MORRISON, JR., THOMAS R. HOULIHAN and VICKI L. DESANTIS, Attorneys at
Law, for Appellant.
DOUGLAS G. LEAK, Attorney at Law, for Appellee.
MICHAEL J. HUDAK, Attorney at Law, for Appellee.