Kuehnle v. Mercy Hosp. W. Hills

[Cite as Kuehnle v. Mercy Hosp. W. Hills, 2011-Ohio-2357.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
THERESA KUEHNLE, : APPEAL NO. C-100400
TRIAL NO. A-0807371
Plaintiff-Appellant, :
D E C I S I O N.
vs. :
MERCY HOSPITAL WESTERN HILLS, :
and :
JOHN DOES 1 through 25, :
Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 18, 2011
O’Connor, Acciani & Levy and Alissa J. Magenheim, for Plaintiff-Appellant,
Mannion & Gray, L.P.A., and Judd R. Uhl, for Defendants-Appellees.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
S UNDERMANN , Presiding Judge.
{¶1} Theresa Kuehnle appeals the trial court’s entry of judgment in favor of
Mercy Hospital Western Hills and John Does 1 through 25 (“Mercy Hospital”). Because
we conclude that her assignments of error do not have merit, we affirm the judgment of
the trial court.
{¶2} In 2007, when she was a patient at Mercy Hospital, Kuehnle fell while
being helped to the bathroom. In her complaint against Mercy Hospital and various
John Does, Kuehnle alleged that hospital employees had been negligent in their care and
transport of Kuehnle, that the employees had breached their duty to provide adequate
medical, nursing, and therapy care to Kuehnle, and that the hospital was liable under a
theory of respondeat superior.
{¶3} Kuehnle alleged that she had been admitted to the hospital for treatment
of pain caused by broken ribs that she had sustained in a fall. According to Kuehnle,
after she had been in the hospital for a few days, a physical therapist named Ginger
Jones had come to her room to assess her for physical therapy. While Jones was in her
room, Kuehnle had to use the toilet. Kuehnle alleged that Jones alone had helped her to
the bathroom, despite notes in Kuehnle’s chart that she was a “two-person assist.”
Kuehnle alleged that Jones had used a gait belt improperly during the move, that Jones
had stepped away from her during the move, and that Kuehnle had fallen during the
move to the bathroom. Kuehnle was injured in the fall.
{¶4} The case was tried before a jury. During the trial, Kuehnle called Dr.
Stephen Payne. Payne testified that he was board-certified in internal medicine and
that, in the course of his practice, he had performed strength assessments on patients
and had made decisions about how to ambulate patients safely. Payne testified as an
2
OHIO FIRST DISTRICT COURT OF APPEALS
expert about the treatment that Kuehnle had received while at the hospital, about
various notes in Kuehnle’s chart concerning her strength and mobility, and about the
injuries that Kuehnle had sustained in the fall at the hospital. He also testified about his
understanding of how Jones had tried to assist Kuehnle to the bathroom. On cross-
examination, Payne stated that he could not testify about the standard of care for
physical therapists. Nor could he testify about whether Jones’s actions had fallen below
a physical therapist’s standard of care.
{¶5} Clarissa Millner, Kuehnle’s daughter, testified about her understanding
about what had happened and about her mother’s subsequent pain and suffering. But
because she did not witness the fall, Millner was not able to state how the fall had
occurred.
{¶6} Kuehnle’s next witness was Donna Hunter, a registered nurse. Hunter
testified that she had assessed patients’ risks for falling. According to Hunter, the
purpose of a fall-risk assessment done by a nurse was the same as the purpose of one
done by a physical therapist. Hunter testified that her understanding was that Kuehnle
had said that Jones had stepped away from her during transport. Hunter testified about
what a nurse’s standard of care would be for the assessment and movement of a patient
in Kuehnle’s condition.
{¶7} When Hunter was asked about whether Jones’s actions had fallen below
a standard of care, the hospital challenged Hunter’s competency to testify about the
standard of care applicable to physical therapists. The court permitted a voir dire of
Hunter out of the hearing of the jury to establish whether Hunter was competent to
testify about the standard of care for physical therapists. Following the voir dire, the
trial court decided that Hunter was not competent to testify about the standard of care
3
OHIO FIRST DISTRICT COURT OF APPEALS
for physical therapists. Based on its decision, the trial court told the parties that it would
instruct the jury to disregard Hunter’s testimony.
{¶8} After the court indicated that it would strike Hunter’s testimony,
Kuehnle’s counsel told the court that he did not intend to call further experts on the
issues of causation and standard of care. When Kuehnle’s attorney suggested that the
hospital would likely move for a directed verdict on the issue of standard of care, the
court said, “No, I don’t want to hear that now. Not unless you want me to hear it now.”
The court then asked Kuehnle’s counsel if, in light of the court’s ruling on Hunter’s
testimony, he wanted a recess for the day before presenting another witness. The
attorneys and the court then had an off-the-record discussion.
{¶9} After the off-the-record discussion, the court went back on the record
and said, “Counsels, we had a conversation in the back. And I’ve had some thoughts of
what counsel has—what we discussed, and I think your suggestion would perhaps be the
best one at this particular time. Instead of going forward with all the testimony that you
have, you might proceed directly to a motion at this particular point in time. And that
way to save the rest of the witnesses from coming in.” The hospital then moved for a
directed verdict, arguing that because Kuehnle had not presented expert testimony
about the issue of a physical therapist’s standard of care, she could not make a prima
facie case of malpractice. The trial court granted the motion. The court entered a
judgment for Mercy Hospital dismissing Kuehnle’s case in its entirety.
{¶10} In her first assignment of error, Kuehnle now asserts that the trial court
erred when it excluded the testimony of Hunter. “[T]he competency of an expert
witness is a matter within the sound discretion of the trial court, and a court’s ruling
4
OHIO FIRST DISTRICT COURT OF APPEALS
thereon will not be reversed unless there is a clear showing of an abuse of discretion.”1
Kuehnle contends that the trial court abused its discretion when it excluded Hunter’s
testimony because Hunter satisfied the requirements for the admissibility of expert
testimony found in Evid.R. 702.
{¶11} Evid.R. 702 provides that “[a] witness may testify as an expert if * * * (A)
[t]he witness’s testimony either relates to matters beyond the knowledge or experience
possessed by lay persons or dispels a misconception common among lay persons[,] * * *
[and] [t]he witness is qualified as an expert by specialized knowledge, skill, experience,
training, or education regarding the subject matter of the testimony.” While Hunter
may have been qualified to testify as an expert about the specialized skill involved in a
nurse’s assessment of a patient’s strength and mobility, Kuehnle did not present
evidence that Hunter was qualified to testify with respect to the standard of care
attributable to physical therapists.
{¶12} “Ohio case law reveals the adoption of the generally accepted rule that
the witness must demonstrate a knowledge of the standard of the school and specialty, if
any, of the defendant * * * which is sufficient to enable [her] to give an expert opinion as
to the conformity of the defendant’s conduct to those particular standards and not to the
standards of the witness’[s] school and, or, specialty if it differs from that of the
defendant.”2 During voir dire, Hunter was able to testify only that she had been in
training with other physical therapists and had acted as a supervisor of groups of people
that included physical therapists, and that nurses and physical therapists performed
strength assessments for similar purposes. She could not state that the standards of care
for a nurse and for a physical therapist in performing strength assessments and
1 Alexander v. Mt. Carmel Med. Ctr. (1978), 56 Ohio St.2d 155, 383 N.E.2d 564, citing Ohio
Turnpike Comm. v. Ellis (1955), 164 Ohio St. 377, 131 N.E.2d 397.
2 Id. at 160.
5
OHIO FIRST DISTRICT COURT OF APPEALS
ambulating patients were the same. We conclude that the trial court did not abuse its
discretion when it excluded Hunter’s expert testimony with respect to whether Jones’s
actions in assessing and ambulating Kuehnle fell below the standard of care for physical
therapists. The first assignment of error is overruled.
{¶13} In her second assignment of error, Kuehnle asserts that the trial court
erred when it granted a directed verdict for Mercy Hospital. With Hunter’s testimony
stricken, there was no expert testimony about a physical therapist’s standard of care in
doing assessments. A directed verdict with respect to the malpractice claim was
therefore proper.
{¶14} But Kuehnle contends that expert testimony was not required to
establish ordinary negligence on the part of the hospital and its employees. During
opening statement and Payne’s testimony, Kuehnle suggested that Jones had stepped
away from Kuehnle while helping her to the bathroom. Whether stepping away from a
patient in Kuehnle’s condition was negligent was within the ken of the jury.3 But other
than Payne and Millner testifying about their understanding about how Kuehnle’s fall
had happened, Kuehnle did not put on any direct evidence about the fall. After the trial
court concluded that Hunter could not testify as an expert, it appears that Kuehnle’s
counsel decided not to have the remaining witnesses testify. There is no indication that
the court in any way prevented the testimony of the remaining witnesses. Instead, the
court offered counsel an opportunity to take a break to reevaluate his strategy. After an
off-the-record discussion, counsel stated that he would not put on more witnesses.
Absent the presentation of evidence of what had happened during the fall, Kuehnle’s
ordinary negligence and respondeat-superior claims were abandoned. The trial court
3See Dimora v. Cleveland Clinic Found. (1996), 114 Ohio App.3d 711, 683 N.E.1175; Krafty v.
Firelands Community Hosp., 6th Dist. No. E-07-019, 2007-Ohio-5302.
6
OHIO FIRST DISTRICT COURT OF APPEALS
did not err in directing the verdict in favor of Mercy Hospital on those claims. The
second assignment of error is overruled.
{¶15} We therefore affirm the judgment of the trial court.
Judgment affirmed.
H ENDON and C UNNINGHAM , JJ., concur.
Please Note:
The court has recorded its own entry this date.
7