Branch v. Cleveland Clinic Foundation

2012 Ohio 5345, 980 N.E.2d 970, 134 Ohio St. 3d 114
CourtOhio Supreme Court
DecidedNovember 21, 2012
Docket2011-1634
StatusPublished
Cited by7 cases

This text of 2012 Ohio 5345 (Branch v. Cleveland Clinic Foundation) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Branch v. Cleveland Clinic Foundation, 2012 Ohio 5345, 980 N.E.2d 970, 134 Ohio St. 3d 114 (Ohio 2012).

Opinions

McGee Brown, J.

[115]*115{¶ 1} This appeal involves three rulings in a medical-malpractice trial. Appellee, Margaret Branch, suffered a stroke during brain surgery performed at appellant, the Cleveland Clinic. As a result, Branch sued the clinic, claiming that its surgeon had struck a ventricle, causing the stroke.

{¶ 2} Following a jury trial, a verdict was entered for the clinic. Branch appealed, and the Eighth District Court of Appeals found abuses of discretion in three rulings of the trial court. Branch v. Cleveland Clinic Found., 8th Dist. No. 95475, 2011-Ohio-3975, 2011 WL 3505286. The court of appeals found that the trial court abused its discretion in (1) allowing the clinic to use demonstrative evidence recreating the surgery that was provided to counsel for Branch ten minutes before the expert using it testified, (2) ordering counsel for Branch not to argue an inference that because the best piece of evidence — a computerized image prepared prior to the surgery — was not saved, it must have been adverse to the clinic, and (3) instructing the jury that evidence of alternative medical approaches was not evidence of negligence, because no evidence of recognized alternate methods of treatment was presented.

{¶ 3} The clinic now argues that the Eighth District’s decision was, in each of these respects, “legally and factually flawed” and inconsistent with our precedent. We agree. Based on the record before us, the trial court did not abuse its discretion in any of the rulings at issue. Therefore, we reverse the judgment of the Eighth District Court of Appeals and reinstate the jury verdict for the clinic.

Background

{¶ 4} Evidence at trial demonstrated that Branch is a highly accomplished attorney with a long history of advocating for injured plaintiffs. Prior to the surgery, Branch and her husband, Turner Branch, managed a law firm with approximately 30 staff members and 8 attorneys in Albuquerque, New Mexico.

{¶ 5} Branch testified, however, that in 2003 she noticed symptoms of a neurological disorder known as cervical dystonia. The condition irresistibly drew her head downwards and to the right, causing severe spasms and pain. It led to serious struggles in Branch’s career, personal life, and mental health.

{¶ 6} As the condition took its toll, Branch learned that the clinic offered a new procedure for dystonia, known as deep-brain stimulation (“DBS”). In DBS, surgeons implant electrodes within the brain to defeat destructive brain impulses such as those causing dystonia. After consulting with clinic physicians, Branch elected to undergo the surgery.

{¶ 7} During surgery, Branch suffered a stroke that caused significant damage to her physical and cognitive abilities. Branch then sued the clinic, contending that the clinic committed medical negligence that caused permanent brain [116]*116damage, partial paralysis, impaired vision and speech, lost ability to pursue her chosen occupation, and severe pain and suffering.

{¶ 8} At one time, the complaint also included counts of lack of informed consent and negligent credentialing, as well as a loss-of-consortium claim for Branch’s husband, Turner. Before trial, however, Branch dropped all these claims except for a portion of the lack-of-informed-consent claim relating to the experience, knowledge, and identity of the doctors performing Branch’s surgery.

{¶ 9} After a two-week trial, a unanimous jury found for the clinic. Branch appealed, and the Eighth District identified three abuses of discretion that warranted reversal and a new trial. Branch, 2011-Ohio-3975, 2011 WL 3505286.

{¶ 10} The first error related to the clinic’s use of demonstrative evidence. Branch argued at trial that the clinic improperly failed to retain a three-dimensional mapping of her brain that was created before the surgery to assist the surgeon in directing the probe that would be inserted into her brain. The clinic admitted that the surgeon had not saved the electronic image, but countered that it had kept all the surgeon’s notes detailing the surgical procedure.

{¶ 11} To illustrate the point, the clinic produced a three-dimensional computer simulation of the brain mapping, using data it had retained from the surgeon’s notes regarding Branch’s procedure. Branch objected, claiming that the simulation was prejudicial and that the clinic had not provided adequate notice of its intent to offer the exhibit. After discussion with counsel, the trial court permitted the clinic to use the exhibit. The Eighth District, however, concluded that the late admission of the evidence prejudiced Branch because she had no opportunity to prepare effective cross-examination. Branch, 2011-Ohio-3975, 2011 WL 3505286, at ¶ 18, 27.

{¶ 12} The second error identified by the Eighth District also involved the surgery plan. At trial, the clinic explained that its computer systems automatically deleted surgery plans unless clinic employees affirmatively saved them, which they typically did for clinical studies only. Branch, however, suggested that the clinic’s failure to save the plan after a significant complication was suspicious.

{¶ 13} The trial court allowed Branch to refer to this failure repeatedly. But when Branch’s counsel began to argue in closing that the failure to maintain the plan was suspicious and compared the clinic’s action to BP’s destruction of safety plans after the disastrous 2010 oil spill in the Gulf of Mexico, the trial court ordered Branch to “avoid that topic” because “there’s no suggestion that there’s anything willful about the destruction of any documents.” Branch claims that this directive effectively prevented her from seeking an adverse inference that the plan would have been unfavorable to the clinic, because the clinic had failed to [117]*117save it. The Eighth District agreed and found that the trial court abused its discretion in the ruling. Branch, 2011-Ohio-3975, 2011 WL 3505286, at ¶ 63-64.

{¶ 14} The third and final error identified by the Eighth District related to an instruction given by the trial court at the clinic’s request that informed the jury that alternative methods could be used and that the use of one medical approach rather than another did not necessarily constitute negligence. The Eighth District determined that this instruction was not appropriate because the dispute turned on whether a clinic surgeon had violated a standard of care and thus had caused the bleed by improperly striking Branch’s ventricle, a vascular structure in the brain. Id. at ¶ 49, 51, 54. Therefore, according to the Eighth District, the issue before the jury was not whether the clinic had employed the best of several appropriate medical methods, but rather, whether the method chosen was properly performed. Id. at ¶ 51-52.

{¶ 15} The clinic appealed, and this court accepted review. 131 Ohio St.3d 1410, 2012-Ohio-136, 959 N.E.2d 1055.

Admission of Demonstrative Evidence

{¶ 16} The clinic’s first proposition of law alleges that the Eighth District’s decision disallowing the use of demonstrative evidence at the trial was both legally and factually flawed.

{¶ 17} In considering this proposition, we are mindful that a trial court is in the best position to make evidentiary rulings and that an appellate court should not substitute its judgment for that of the trial judge absent an abuse of discretion. Vogel v. Wells,

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Cite This Page — Counsel Stack

Bluebook (online)
2012 Ohio 5345, 980 N.E.2d 970, 134 Ohio St. 3d 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/branch-v-cleveland-clinic-foundation-ohio-2012.