[Cite as Lally v. Mukkada, 2011-Ohio-3681.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
EDWARD LALLY, : APPEAL NO. C-100602 TRIAL NO. A-0800142 Plaintiff-Appellant, : D E C I S I O N. vs. :
THRESIAMMA MUKKADA, M.D., :
and :
INDEPENDENT : ANESTHESIOLOGISTS, P.S.C., : Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 29, 2011
Sutton Rankin Law, PLC, Harry D. Rankin, and Roger N. Braden, for Plaintiff- Appellant,
Lindhorst & Dreidame, Michael F. Lyon, and Bradley D. McPeek, 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} Edward Lally appeals the trial court’s judgment that denied his
motion for a directed verdict and motion for a judgment notwithstanding the verdict
or a new trial, and that entered judgment in favor of Thresiamma A. Mukkada, M.D.,
and Independent Anesthesiologists, P.S.C. We conclude that Lally’s sole assignment
of error is without merit, so we affirm the judgment of the trial court.
{¶2} Lally filed a complaint against Mukkada in which he alleged that
Mukkada had failed to meet the standard of care for an anesthesiologist. The case
was tried to a jury. During trial, Lally presented evidence that, in July 2006, he had
gone to Tri-State Centers for Sight for outpatient cataract surgery on his right eye.
Mukkada, who is an anesthesiologist for Independent Anesthesiologists,
administered anesthetic in the area around Lally’s right eye. After Mukkada had
performed the procedure, Dr. Jean Noll, who was to perform the cataract surgery,
realized that Lally’s right eye had been injured. The cataract surgery was cancelled,
and Lally was referred to Dr. Christopher Devine, a retinal specialist. According to
Devine, Lally had lost pressure in his eye as a result of the anesthesia procedure.
Devine monitored the condition of Lally’s eye over several weeks and on August 24,
2006, performed vitrectomy surgery to remove the lens and the original cataract
from the eye and to clear the blood from the back cavity of the eye. Devine testified
that when the vitrectomy was performed, Lally’s retina was completely detached.
According to Devine, Lally could be categorized as blind in his right eye.
{¶3} At the conclusion of the defense’s case, Lally moved for a directed
verdict, which was denied by the trial court. The jury found in favor of Mukkada and
2 OHIO FIRST DISTRICT COURT OF APPEALS
Independent Anesthesiologists. Lally filed a motion for a judgment notwithstanding
the verdict and/or a new trial. That motion was also denied by the trial court.
{¶4} In his sole assignment of error, Lally asserts that the trial court erred
when it denied his motion for a directed verdict and his motion for a judgment
notwithstanding the verdict (“JNOV”) and/or a new trial.
{¶5} “The standards applied to motions for directed verdict and motions
for judgment notwithstanding the verdict are identical.”1 Under Civ.R. 50(A)(4), the
trial court should direct a verdict or enter a judgment notwithstanding the verdict
when, “after construing the evidence most strongly in favor of the party against
whom the motion is directed, [the trial court] finds that upon any determinative
issue reasonable minds could come to but one conclusion upon the evidence
submitted and that conclusion is adverse to such party[.]” This court reviews the
trial court’s decision de novo.2
{¶6} The trial court’s standard for ruling upon a motion for a new trial
under Civ.R. 59(A)(6) requires that the court “weigh the evidence and pass upon the
credibility of the witnesses, not in the substantially unlimited sense that such weight
and credibility are passed on originally by the jury but in the more restricted sense of
whether it appears to the trial court that manifest injustice has been done and that
the verdict is against the manifest weight of the evidence.”3 We review the trial
court’s denial of a motion for a new trial under an abuse-of-discretion standard.4
{¶7} Lally contends that Mukkada failed to meet the standard of care for
an anesthesiologist because the evidence showed that Mukkada had performed a
1 Mantua Mfg. Co. v. Commerce Exchange Bank, 75 Ohio St.3d 1, 3, 1996-Ohio-187, 661 N.E.2d 161. 2 Merkl v. Seibert, 1st Dist. Nos. C-080973 and C-081033, 2009-Ohio-5473, ¶52. 3 Rohde v. Farmer (1970), 23 Ohio St.2d 82, 262 N.E.2d 685, paragraph three of the syllabus. 4 Id., paragraph one of the syllabus. See, also, Merkl, supra, at ¶56-57.
3 OHIO FIRST DISTRICT COURT OF APPEALS
“peribulbar procedure” for which she was not trained. During Mukkada’s deposition,
there was confusion between the terms “periobulbar” and “peribulbar.” According to
Dr. Allan Flach, an expert witness for Mukkada, a “peribulbar injection involves
taking a long needle, an inch and a quarter, an inch and a half, and passing it way
back beyond the equator of the eye.” Mukkada admitted that she had no training in
peribulbar injections. But on the anesthesia record that she had filled out for Lally’s
procedure, Mukkada had checked the box indicating that she had done a peribulbar
injection. There was no box on the form for “periobulbar injection.”
{¶8} Despite the confusion in the terms, there was sufficient evidence
presented by Mukkada that she had not performed a peribulbar injection but a
periobulbar injection. Mukkada described the procedure that she performed as one
involving a needle less than .5 inch in length. According to Mukkada, during the
procedure, she injected anesthesia in two locations around Lally’s eye. Flach
reviewed Mukkada’s description of the procedure, and his testimony was consistent
with a determination that Mukkada had administered a periobulbar injection.
{¶9} There was sufficient evidence presented that Mukkada had met the
standard of care when she performed the procedure. And Lally did not call an
anesthesiologist to testify about whether the procedure was properly performed.
Although Lally presented evidence that his eye had been injured during the
procedure, there was evidence presented by Mukkada that an injury could have
occurred due to the physiology of Lally’s eye. And Flach testified that Devine’s scans
of Lally’s eye in the weeks after the anesthesia procedure must have indicated that
Lally’s retina was not detached. According to Flach, Devine would not have
performed a vitrectomy if the retina was not in a safe position. Flach stated, “So as
best I can tell from the records then, Doctor Devine saw Mr. Lally, he expected to go
4 OHIO FIRST DISTRICT COURT OF APPEALS
in with a nicely attached retina there. In other words, the film was in the camera,
and then he was simply going to take out the cloudy lens, put in a clear lens, take the
blood and any abnormal vitreous out, and he was expecting, I believe, a good result
for Mr. Lally.” Such testimony called into question whether Mukkada’s procedure
had caused Lally’s vision loss.
{¶10} Lally next contends that even if Mukkada presented sufficient
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[Cite as Lally v. Mukkada, 2011-Ohio-3681.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
EDWARD LALLY, : APPEAL NO. C-100602 TRIAL NO. A-0800142 Plaintiff-Appellant, : D E C I S I O N. vs. :
THRESIAMMA MUKKADA, M.D., :
and :
INDEPENDENT : ANESTHESIOLOGISTS, P.S.C., : Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 29, 2011
Sutton Rankin Law, PLC, Harry D. Rankin, and Roger N. Braden, for Plaintiff- Appellant,
Lindhorst & Dreidame, Michael F. Lyon, and Bradley D. McPeek, 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} Edward Lally appeals the trial court’s judgment that denied his
motion for a directed verdict and motion for a judgment notwithstanding the verdict
or a new trial, and that entered judgment in favor of Thresiamma A. Mukkada, M.D.,
and Independent Anesthesiologists, P.S.C. We conclude that Lally’s sole assignment
of error is without merit, so we affirm the judgment of the trial court.
{¶2} Lally filed a complaint against Mukkada in which he alleged that
Mukkada had failed to meet the standard of care for an anesthesiologist. The case
was tried to a jury. During trial, Lally presented evidence that, in July 2006, he had
gone to Tri-State Centers for Sight for outpatient cataract surgery on his right eye.
Mukkada, who is an anesthesiologist for Independent Anesthesiologists,
administered anesthetic in the area around Lally’s right eye. After Mukkada had
performed the procedure, Dr. Jean Noll, who was to perform the cataract surgery,
realized that Lally’s right eye had been injured. The cataract surgery was cancelled,
and Lally was referred to Dr. Christopher Devine, a retinal specialist. According to
Devine, Lally had lost pressure in his eye as a result of the anesthesia procedure.
Devine monitored the condition of Lally’s eye over several weeks and on August 24,
2006, performed vitrectomy surgery to remove the lens and the original cataract
from the eye and to clear the blood from the back cavity of the eye. Devine testified
that when the vitrectomy was performed, Lally’s retina was completely detached.
According to Devine, Lally could be categorized as blind in his right eye.
{¶3} At the conclusion of the defense’s case, Lally moved for a directed
verdict, which was denied by the trial court. The jury found in favor of Mukkada and
2 OHIO FIRST DISTRICT COURT OF APPEALS
Independent Anesthesiologists. Lally filed a motion for a judgment notwithstanding
the verdict and/or a new trial. That motion was also denied by the trial court.
{¶4} In his sole assignment of error, Lally asserts that the trial court erred
when it denied his motion for a directed verdict and his motion for a judgment
notwithstanding the verdict (“JNOV”) and/or a new trial.
{¶5} “The standards applied to motions for directed verdict and motions
for judgment notwithstanding the verdict are identical.”1 Under Civ.R. 50(A)(4), the
trial court should direct a verdict or enter a judgment notwithstanding the verdict
when, “after construing the evidence most strongly in favor of the party against
whom the motion is directed, [the trial court] finds that upon any determinative
issue reasonable minds could come to but one conclusion upon the evidence
submitted and that conclusion is adverse to such party[.]” This court reviews the
trial court’s decision de novo.2
{¶6} The trial court’s standard for ruling upon a motion for a new trial
under Civ.R. 59(A)(6) requires that the court “weigh the evidence and pass upon the
credibility of the witnesses, not in the substantially unlimited sense that such weight
and credibility are passed on originally by the jury but in the more restricted sense of
whether it appears to the trial court that manifest injustice has been done and that
the verdict is against the manifest weight of the evidence.”3 We review the trial
court’s denial of a motion for a new trial under an abuse-of-discretion standard.4
{¶7} Lally contends that Mukkada failed to meet the standard of care for
an anesthesiologist because the evidence showed that Mukkada had performed a
1 Mantua Mfg. Co. v. Commerce Exchange Bank, 75 Ohio St.3d 1, 3, 1996-Ohio-187, 661 N.E.2d 161. 2 Merkl v. Seibert, 1st Dist. Nos. C-080973 and C-081033, 2009-Ohio-5473, ¶52. 3 Rohde v. Farmer (1970), 23 Ohio St.2d 82, 262 N.E.2d 685, paragraph three of the syllabus. 4 Id., paragraph one of the syllabus. See, also, Merkl, supra, at ¶56-57.
3 OHIO FIRST DISTRICT COURT OF APPEALS
“peribulbar procedure” for which she was not trained. During Mukkada’s deposition,
there was confusion between the terms “periobulbar” and “peribulbar.” According to
Dr. Allan Flach, an expert witness for Mukkada, a “peribulbar injection involves
taking a long needle, an inch and a quarter, an inch and a half, and passing it way
back beyond the equator of the eye.” Mukkada admitted that she had no training in
peribulbar injections. But on the anesthesia record that she had filled out for Lally’s
procedure, Mukkada had checked the box indicating that she had done a peribulbar
injection. There was no box on the form for “periobulbar injection.”
{¶8} Despite the confusion in the terms, there was sufficient evidence
presented by Mukkada that she had not performed a peribulbar injection but a
periobulbar injection. Mukkada described the procedure that she performed as one
involving a needle less than .5 inch in length. According to Mukkada, during the
procedure, she injected anesthesia in two locations around Lally’s eye. Flach
reviewed Mukkada’s description of the procedure, and his testimony was consistent
with a determination that Mukkada had administered a periobulbar injection.
{¶9} There was sufficient evidence presented that Mukkada had met the
standard of care when she performed the procedure. And Lally did not call an
anesthesiologist to testify about whether the procedure was properly performed.
Although Lally presented evidence that his eye had been injured during the
procedure, there was evidence presented by Mukkada that an injury could have
occurred due to the physiology of Lally’s eye. And Flach testified that Devine’s scans
of Lally’s eye in the weeks after the anesthesia procedure must have indicated that
Lally’s retina was not detached. According to Flach, Devine would not have
performed a vitrectomy if the retina was not in a safe position. Flach stated, “So as
best I can tell from the records then, Doctor Devine saw Mr. Lally, he expected to go
4 OHIO FIRST DISTRICT COURT OF APPEALS
in with a nicely attached retina there. In other words, the film was in the camera,
and then he was simply going to take out the cloudy lens, put in a clear lens, take the
blood and any abnormal vitreous out, and he was expecting, I believe, a good result
for Mr. Lally.” Such testimony called into question whether Mukkada’s procedure
had caused Lally’s vision loss.
{¶10} Lally next contends that even if Mukkada presented sufficient
evidence that she had performed a periobulbar injection, she still fell below the
standard of care because the procedure was not recognized as appropriate for
cataract surgery. Lally points to the testimony of Drs. Andrew Dahl and Flach, who
testified that they had never seen the procedure used for cataract surgery. But
whether the procedure was indicated for cataract surgery did not bear on whether
Mukkada performed the injection consistent with the standard of care for an
anesthesiologist. Mukkada’s testimony was that she performed the procedure at the
request of Dr. Michael Halpin, who was originally scheduled to perform Lally’s
cataract surgery, and Dr. Noll, who cancelled the surgery after seeing the injury to
Lally’s eye. It did not fall within the purview of her specialty to determine whether
the anesthesia procedure chosen by the ophthalmologists was appropriate for
cataract surgery.
{¶11} Construing the evidence most strongly in favor of Mukkada, we
conclude that reasonable minds could have differed on whether Mukkada had met
the standard of care attributable to anesthesiologists. The trial court properly denied
Lally’s motions for a directed verdict and for a JNOV. Also, we conclude that the
record supports the judgment of the trial court that the jury’s verdict was not against
the manifest weight of the evidence. Accordingly, we find no abuse of discretion by
5 OHIO FIRST DISTRICT COURT OF APPEALS
the trial court in overruling Lally’s motion for a new trial. The sole assignment of
error is without merit, and we therefore affirm the judgment of the trial court.
Judgment affirmed.
HENDON and CUNNINGHAM, JJ., concur.
Please Note: The court has recorded its own entry this date.