[Cite as Miller v. Andrews, 2013-Ohio-2490.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
CAROL S. MILLER : JUDGES: : Plaintiff-Appellant/ : Hon. Patricia A. Delaney, P.J. Cross-Appellee : Hon. W. Scott Gwin, J. : Hon. John W. Wise, J. -vs- : : Case No. 12CA44 DANA H. ANDREWS, M.D., ET AL. : : Defendants-Appellees/ : Cross-Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2010 CV 0116 H
JUDGMENT: AFFIRMED IN PART; REVERSED AND REMANDED IN PART
DATE OF JUDGMENT ENTRY: June 13, 2013
APPEARANCES:
For Appellant/Cross-Appellee: For Appellees/Cross-Appellants:
MICHAEL L. INSCORE GERALD J. TODARO 13 Park Ave. West, Suite 400 KAREN L. CLOUSE Mansfield, OH 44902-1741 2075 Marble Cliff Office Park Columbus, OH 43215 Richland County, Case No. 12CA44 2
Delaney, P.J.
{¶1} Plaintiff-Appellant/Cross-Appellee Carol S. Miller appeals the May 14,
2012 judgment entry of the Richland County Court of Common Pleas that journalized
a jury verdict in favor of Defendants-Appellees/Cross-Appellants Dana Andrews, M.D.
and American Health Network of Ohio.
{¶2} Defendant-Appellees/Cross-Appellants Dana Andrews, M.D. and
American Health Network of Ohio appeal the May 14, 2012 judgment entry of the
Richland County Court of Common Pleas that awarded sanctions to Miller based on a
discovery issue.
APPEAL OF PLAINTIFF-APPELLANT CAROL S. MILLER
FACTS AND PROCEDURAL HISTORY
{¶3} Plaintiff-Appellant/Cross-Appellee Carol S. Miller, born in 1942, was
admitted to MedCentral Health System on December 17, 2008 with a diagnosis of
acute bilateral pulmonary emboli and deep vein thromboses (DVT) in both legs. DVT
is a blood clot in the veins of the lower leg. A pulmonary embolus occurs when the
blood clot in the vein of the leg breaks away and enters the pulmonary system. A
pulmonary embolus can result in death. The physicians at MedCentral Health System
administered the medication Heparin to treat the blood clots causing the DVT and
pulmonary emboli. Heparin is a blood thinner. While on Heparin, Miller experienced a
drop in her platelet count. A side effect of the use of Heparin is an immune response
called Heparin Induced Thrombocytopenia (HIT). HIT reduces the amount of platelets
in the system and can cause clots to form, which is converse to the purpose of
Heparin. HIT is diagnosed by determining if there are antibodies in the system. Richland County, Case No. 12CA44 3
MedCentral ordered a test to determine whether Miller had HIT, but the results of the
test were not in her record; however, MedCentral diagnosed Miller with HIT.
MedCentral stopped the administration of Heparin and switched Miller to the blood
thinner medication called Lovenox, which is low molecular weight Heparin.
MedCentral continued to give Lovenox to Miller until her discharge from the hospital
on December 21, 2008. Upon her discharge, Miller was prescribed Coumadin, a
blood thinner medication taken orally.
{¶4} On December 26, 2008, Miller was readmitted to MedCentral due to
mental confusion. She suffered a seizure in the emergency room and experienced
respiratory failure. There was no explanation for her symptoms. On January 8, 2009,
Miller was discharged from MedCentral.
{¶5} Instead of returning home after her discharge from the hospital, Miller
was transferred to Winchester Terrace Nursing Home. The purpose of transferring
Miller to Winchester Terrace was for rehabilitation physical and occupational therapy
due to her lengthy hospital stay and to monitor her INR levels. INR diagnoses
whether Miller is receiving therapeutic levels of Coumadin. MedCentral provided
Winchester Terrace with Miller’s discharge papers. The discharge papers included
Miller’s diagnoses of pulmonary emboli, DVT, and HIT. Miller was taking Coumadin at
the time of her admission to Winchester Terrace.
{¶6} The medical director of Winchester Terrace is Defendant-
Appellee/Cross-Appellant Dana Andrews, M.D. Dr. Andrews is employed by
Defendant-Appellee/Cross-Appellant American Health Network of Ohio. Dr. Andrews
is an internal medicine practitioner. In addition to being the medical director of Richland County, Case No. 12CA44 4
Winchester Terrace, Dr. Andrews has a private medical practice. He divides his time
between overseeing the residents of Winchester Terrace and his private patients. The
staff of Winchester Terrance includes registered nurses and licensed practical nurses.
The nurses and support staff attend to the daily supervision and health needs of the
residents. When Dr. Andrews is not present at the nursing home, the staff contacts
Dr. Andrews by telephone or fax as to the care of the residents, such as medicine
adjustments or issues with pain. Dr. Andrews conducts weekly rounds at Winchester
Terrace and physically examines the residents under his care.
{¶7} When Miller was transferred to Winchester Terrace on January 8, 2009,
Dr. Andrews was not present and he did not physically examine Miller. Dr. Andrews
was provided with her discharge papers from MedCentral by the staff of Winchester
Terrace. Upon Miller’s admission, Winchester Terrace contacted Dr. Andrews to alert
him that Miller’s INR was low and not at therapeutic levels. An INR at subtheraputic
levels could result in the reoccurrence of a DVT. Coumadin is a blood thinner
medication; it is administered orally and takes a few days to take effect. Heparin and
Lovenox are blood thinner medications and are administered subcutaneously.
Heparin and Lovenox take immediate effect. In order to remedy her low INR, on
January 9, 2009, Dr. Andrews ordered the administration of Lovenox as a bridge
therapy until the Coumadin was at therapeutic levels. At that time he initially ordered
the use of Lovenox, Dr. Andrews was not aware Miller was diagnosed with HIT by
MedCentral.
{¶8} Miller began physical therapy at Winchester Terrace on January 9, 2009.
Her physical therapy included walking therapy. According to the nursing records, Richland County, Case No. 12CA44 5
Miller began to complain of pain in her left leg. During the three nursing shifts, the
nurses documented Miller’s pain complaints and showed Miller’s pain waxed and
waned from severe pain to low pain. Leg pain is consistent with a DVT. Dr. Andrews
initially prescribed the use of Tylenol to control Miller’s pain. Dr. Andrews physically
examined Miller on January 14, 2009. On January 17, 2009, Dr. Andrews prescribed
Darvocet for Miller’s leg pain. On January 19, 2009, Dr. Andrews prescribed a low
dose Duragesic patch for Miller’s leg pain. Dr. Andrews conducted a physical
examination of Miller and saw that her left leg was swollen and tender. Dr. Andrews
consulted with a local vascular surgeon for treatment recommendations for a patient
experiencing pain with a DVT. Based on the recommendation, Dr. Andrews ordered
the staff to wrap Miller’s left leg with an ACE bandage, elevate the leg, and increase
the pain medication.
{¶9} On January 22, 2009, during the shift of 11:00 p.m. to 7:00 a.m., a nurse
failed to document her periodic checks of Miller’s condition, including her left leg.
During the same shift, the nurse made a progress note that Miller’s left leg appeared
edematous (swollen), discolored, and the foot was pale. At 8:00 a.m. on January 22,
2009, a nurse from Winchester Terrace contacted Dr. Andrews to advise him Miller’s
left foot was cold, purplish, and pulseless with no movement or sensation.
{¶10} Miller was transferred to MedCentral at 9:00 a.m. on January 22, 2009.
Miller was taken by life flight to The Ohio State University Medical Center. On January
23, 2009, Miller’s left leg was amputated above the knee. Pathologic examination of
the leg tissue did not show any evidence of an arterial clot. Richland County, Case No. 12CA44 6
{¶11} On January 22, 2010, Miller filed a professional negligence action
against Dr. Andrews and American Health Network of Ohio in the Richland County
Court of Common Pleas. The matter went to trial by jury beginning April 5, 2012.
{¶12} At trial, Miller presented the expert testimony of Dr. Vogel, a
hematologist; Dr. Shoag, an internist; and Dr. Collier, a vascular surgeon. The experts
opined Miller suffered an ischemic event in her left leg caused by arterial thrombosis
or massive venous occlusion. Miller’s experts testified Dr. Andrews fell below the
standard of care when he prescribed Lovenox to Miller based on MedCentral’s
diagnosis of HIT. Further, Dr. Andrews fell below the standard of care because
Miller’s worsening condition of her left leg should have caused Dr. Andrews to do a
more intensive examination of the leg and have Miller evaluated by a hematologist or
vascular surgeon. The experts testified that with the proper intervention, Miller’s leg
could have been saved.
{¶13} Dr. Andrews and American Health Network presented the expert
testimony of Dr. Cefalu, a nursing home care expert; Dr. Balko, a pathologist; and Dr.
Naslund, a vascular surgeon. The experts stated within a reasonable degree of
medical certainty Dr. Andrews did not fall below the standard of care by prescribing
Lovenox to Miller. Miller was not definitively diagnosed with HIT nor were Miller’s
symptoms consistent with HIT. Miller’s symptoms were consistent with a DVT and Dr.
Andrews treated her symptoms accordingly. Miller suffered a complication from a
DVT, which resulted in the ischemic damage to her left leg. Finally, the experts
testified that the nursing home staff failed to recognize the symptoms of an ischemic
event and transmit the information to Dr. Andrews in a timely fashion. Richland County, Case No. 12CA44 7
{¶14} Based on the evidence presented, the jury found Dr. Andrews did not fall
below the standard of care and was therefore not negligent in providing medical care
to Miller.
{¶15} The trial court journalized the verdict on May 14, 2012. It is from this
decision Miller now appeals.
ASSIGNMENTS OF ERROR
{¶16} Miller raises six Assignments of Error:
{¶17} “I. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY
REGARDING THE USE OF HINDSIGHT AND AFTER ACQUIRED INFORMATION IN
DETERMINING WHETHER OR NOT THE DEFENDANT PHYSICIAN WAS
NEGLIGENT.
{¶18} “II. THE TRIAL COURT ERRED IN SUBMITTING JURY
INTERROGATORIES THAT WERE CONFUSING, MISLEADING AND
INCONSISTENT WITH THE GENERAL JURY INSTRUCTIONS REGARDING THE
STANDARD OF CARE.
{¶19} “III. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT
USE BY ANOTHER PHYSICIAN OF A DIFFERENT METHOD OF TREATMENT
DOES NOT IN AND OF ITSELF PROVE NEGLIGENCE WHERE NO EVIDENCE OF
SUCH DIFFERENT METHOD WAS PRESENTED.
{¶20} “IV. THE TRIAL COURT ERRED IN GIVING REPETITIVE JURY
INSTRUCTIONS UPON THE ISSUE OF THE STANDARD OF CARE AND UPON
THE SIGNIFICANCE THAT COULD BE ATTACHED TO A BAD RESULT. Richland County, Case No. 12CA44 8
{¶21} “V. THE TRIAL COURT ERRED IN DENYING PLAINTIFF’S MOTION
FOR PARTIAL DIRECTED VERDICT AT THE CLOSE OF THE EVIDENCE AS TO
THE AFFIRMATIVE DEFENSE ASSERTING NEGLIGENCE OF NURSING HOME
EMPLOYEES AND BY SUBMITTING INSTRUCTIONS AND INTERROGATORIES TO
THE JURY WITH REGARD THERETO.
{¶22} “VI. THE TRIAL COURT ERRED IN GIVING AN INSTRUCTION TO THE
JURY WITH REGARD TO REMOTE CAUSE.”
ANALYSIS
I.
{¶23} Miller argues in her first Assignment of Error the trial court erred in
overruling counsel’s objection as to the inclusion of a jury instruction on hindsight in its
standard of care instructions. The trial court gave a jury instruction entitled, “Standard
of Care Not Determined by Hindsight or After Acquired Knowledge.” The instruction
read:
In determining whether Dr. Andrews was negligent, you are to consider
his conduct in light of all the facts before him under the same or similar
circumstances. You must consider his care based on the then known
facts and the existing state of medical knowledge at the time the events
were occurring. You are not to evaluate his care based on after-acquired
information.
(T. 1122).
{¶24} The jury instruction is not found in the Ohio Jury Instructions, but was
developed by the Ohio State Bar Association. The OSBA Jury Instruction states: Richland County, Case No. 12CA44 9
In determining whether (defendant’s name) was negligent, you are to
consider (his, her, its, their) conduct in light of all of the facts before (him,
her, it, them) under the same or similar circumstances. You are not to
evaluate (his, her, its, their) care based on after acquired information, but
you may consider (defendant’s name) care based on the then known
facts and the existing state of (medical, nursing, technical) knowledge at
the time the events were occurring.
{¶25} The trial court has the duty to instruct the jury on the applicable law on all
issues raised by the pleadings and evidence, and it must give jury instructions that
correctly and completely state the law. Pallini v. Dankowski, 17 Ohio St.2d 51, 53,
245 N.E.2d 353 (1969); Marshall v. Gibson, 19 Ohio St.3d 10, 12, 482 N.E.2d 583
(1985); Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 591, 575 N.E.2d 828
(1991); Groob v. Keybank, 108 Ohio St.3d 348, 2006-Ohio-1189, 843 N.E.2d 1170, ¶
32. A jury charge should be “a plain, distinct and unambiguous statement of the law
as applicable to the case made before the jury by the proof adduced.” Marshall, 19
Ohio St.3d at 12, 482 N.E.2d 583, citing Parmlee v. Adolph, 28 Ohio St. 10 (1875),
paragraph two of the syllabus. Furthermore, “[a] charge ought not only be correct, but
it should also be adapted to the case and so explicit as not to be misunderstood or
misconstrued by the jury.” Id., citing Aetna Ins. Co. v. Reed, 33 Ohio St. 283, 295
(1877).
{¶26} The giving of jury instructions is within the sound discretion of the trial
court and will not be disturbed on appeal absent an abuse of discretion. State v.
Martens, 90 Ohio App.3d 338, 629 N.E.2d 462 (1993). In order to find an abuse of Richland County, Case No. 12CA44 10
discretion, we must determine that the trial court's decision was unreasonable, arbitrary,
or unconscionable and not merely an error of law or judgment. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). Jury instructions must be
reviewed as a whole. State v. Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792 (1988).
Whether the jury instructions correctly state the law is a question of law, which we
review de novo. Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 575 N.E.2d 828
(1991).
{¶27} In arguing the use of the hindsight instruction was in error, Miller cites to
this Court’s decision in Moore v. Alliance Obstetrics, Inc., 5th Dist. No. 2001CA00006,
2002-Ohio-1138. Moore was a medical negligence action alleging the physician failed
to diagnose a pulmonary embolism suffered by the decedent after her hysterectomy.
The trial court gave the jury following instruction:
When examining the conduct of the defendant, with respect to the
standard of care, the conduct or care should be judged prospectively,
looking forward in time. The care and conduct of the defendant must be
judged in light of the circumstances apparent to him at the time, and not
by looking backward retrospectively.
Id. at *3.
{¶28} We found the jury instruction on hindsight to be ambiguous and
confusing. We held:
We find the jury instruction as given by the trial court in this case was
ambiguous and confusing. The jury is told to judge appellee's conduct or
care prospectively looking forwards in time [and] are then told to judge Richland County, Case No. 12CA44 11
appellee's care and conduct in light of the circumstances at that time, not
retrospectively. Notions of further, present, and past injury are all
mentioned in the instruction. The jurors are instructed to judge
appellee's conduct and/or care “at the time” while “looking forward.”
They are told not to look back retrospectively when the standard
contemplates retrospective, factual inquiry. Though we believe we
understand the intent of the instruction, we find a jury could easily be
confused by it. After reviewing the jury charge as a whole, we find the
jury charge probably mislead the jury in a matter materially effecting
appellant's substantial rights.
Id.
{¶29} Since our decision in Moore, this Court has affirmed the use of a
hindsight jury instruction similar to that in the present case in Thompson v. Capaldo,
5th Dist. No. 08 CA 1, 2008-Ohio-6329. In that case, the trial court instructed the jury:
In determining whether or not Dr. Capaldo is negligent, you are to
consider his conduct in light of all the facts before him under the same or
similar circumstances and not to evaluate his care based on after-
acquired information. You may consider Dr. Capaldo's care based on
the then-known facts and the existing state of medical knowledge at the
time the events were occurring.
Id. at ¶ 58.
{¶30} The Eighth and the Third appellate districts have reviewed the hindsight
instruction or a conceptually similar hindsight instruction. In Holda v. Blankfield, M.D., Richland County, Case No. 12CA44 12
8th Dist. No. 84350, 2005-Ohio-766, the plaintiff’s medical negligence action was
based on the physicians’ failure to diagnose the decedent’s heart disease before she
suffered a fatal cardiac arrest. The court analyzed the use of a hindsight jury
instruction worded as follows:
Next, in determining whether the physician was negligent, you
should consider his care in light of all the attendant circumstances on the
date and at the time of the alleged negligent event. You should not
judge the physician by after-acquired knowledge or research.
***
The test of the existence of medical negligence is not hindsight,
but one of foresight, considering all of the then-known facts and with the
state of medical knowledge at the time the caregivers acted.
Id. at ¶ 38.
{¶31} The majority in Holda found Moore to be distinguishable and inapplicable
to its case. Id. at ¶ 19. In a concurring opinion, Judge Gallagher expanded upon the
majority analysis:
Appellant asserts this instruction was defective because the “after
acquired knowledge” clause was not supported by the evidence and the
“hindsight” portion of the instruction inadequately expressed the law and
was ambiguous, misleading, and confusing. I disagree.
* * * where the record does not indicate that an “after acquired
knowledge or research” clause was necessary, it cannot be said that the
instruction was inherently prejudicial. The facts of the case presented to Richland County, Case No. 12CA44 13
the jury clearly defined the alleged errors of the treating physicians.
These alleged errors were framed in the context of a treatment “time-line”
and made it clear when the purported negligence occurred. The jury, for
whatever reason, declined to find the physicians negligent.
It is also important to address appellant's reliance on the instruction
given in Moore v. Alliance Obstetrics, Inc., Stark App. No.2001 CA 00006,
2002-Ohio-1138, in comparison to the “hindsight” instruction given here.
In Moore, the trial court gave the following instruction:
“When examining the conduct of the defendant, with respect to the
standard of care, the conduct of care should be judged prospectively,
looking forward in time. The care and conduct of the defendant must be
judged in light of the circumstances apparent to him at the time, and not
by looking backward retrospectively ‘with the wisdom born of the event’.
[sic] The standard is one of conduct, and not of consequence.”
This instruction is distinguishable from the instruction given in the
present case where the trial court clearly remarked “you should consider
his care in light of all the attendant circumstances on the date and at the
time of the alleged negligent event * * *.” As the majority noted, this is an
accurate statement of the law.
Lastly, appellant fails to support the assertion that the “hindsight”
instruction was erroneous. “Actionable negligence does not consist of
failing to take extraordinary measures which hindsight demonstrates Richland County, Case No. 12CA44 14
would have been helpful.” Bender v. First Church of the Nazarene (1989),
59 Ohio App.3d 68, 69, 571 N.E.2d 475, quoting 70 O.Jur.3d (1986),
Negligence, Section 9, at 46-47 (footnotes omitted).
“A hindsight charge instructs the jury on the distinction between
foresight and hindsight, the former of which is the basis for a negligence
claim. It instructs the jury that an after-the-fact assessment of facts or
evidence cannot be the basis of a negligence claim so long as the initial
assessment was made in accordance with the reasonable standards of
medical care. In a medical malpractice case, a hindsight charge is
authorized where the evidence raises an issue as to whether the
negligence claim is based on later acquired knowledge or information not
known or reasonably available to the defendant physician at the time the
medical care was rendered.” Mercker v. Abend, 260 Ga.App. 836, 839,
581 S.E.2d 351 (internal quotes and citations omitted).
The court in Mercker noted that the claims there were, like here, not
based on “after acquired knowledge”; nevertheless, the court noted:
“In her appellate brief, Mercker argues that [her] claims against
[Abend] were not based upon later acquired knowledge or information not
known or reasonably available. But jury charges are not limited to a
plaintiff's characterization of the lawsuit. A trial court has a duty to charge
the jury on the law applicable to issues which are supported by the
evidence. If there is even slight evidence on a specific issue, it is not error Richland County, Case No. 12CA44 15
for the court to charge the jury on the law related to that issue.” Id.
(Internal quote and citation omitted.)
Holda, supra at ¶ 39 – 47.
{¶32} The Third District in Clements v. Lima Memorial Hosp., 3rd Dist. No. 1-
09-24, 2010-Ohio-602, appeal not allowed, 126 Ohio St.3d 1513, 2010-Ohio-3331,
930 N.E.2d 331, analyzed this jury instruction as to foreseeability:
Reasonable foreseeability of harm is an essential ingredient of negligence
in the action brought against the defendants. The test for foreseeability is
not whether a defendant should have foreseen the injury exactly as it
happened to the specific person. The test is whether under all the
circumstances a reasonably prudent person would have anticipated that
injury was likely to result to someone from the act or failure to act. The
test, therefore, is one of foreseeability or foresight, not hindsight.
Id. at ¶ 74.
{¶33} The plaintiffs argued “foresight, not hindsight” was an inaccurate
statement of law. The court disagreed:
With respect to the Clements' issue with the phrase “foresight, not
hindsight,” we find that this was not an inaccurate statement regarding
the law. Even though this language is absent from the Ohio Jury
Instructions (hereinafter “OJI”), the OJI instructions are only models or
guidelines and are not mandatory. State v. Burchfield (1993), 66 Ohio
St.3d 261, 263, 611 N.E.2d 819. With respect to foreseeability, the Richland County, Case No. 12CA44 16
question is one looking forward from the time of the purported negligent
action (foresight), not looking back after the injury has occurred
(hindsight). Grabill v. Worthington Industries, Inc. (1994), 98 Ohio
App.3d 739, 744, 649 N.E.2d 874 (“[i]t is nearly always easy, after an
[incident] has happened to see how it could have been avoided. But
negligence is not a matter to be judged after the occurrence.”) * * *
Id. at ¶ 75.
{¶34} As in Holda, we find the jury instruction in Moore to be distinguishable
from that of the present case. We stated in Moore that while we understood the intent
of the jury instruction, we found instructing the jurors to consider the past, present,
and future in determining whether the physician was negligent was confusing and
ambiguous. In the present case, the jurors were instructed to consider Dr. Andrews’
conduct in light of the facts before a physician under same or similar circumstances.
This is in accord with our decision in Thompson.
{¶35} The concept of same or similar circumstances underpins the hindsight
theory. Information acquired after the negligent event is outside the framing of same
or similar circumstances. In Bruni v. Tatsumi, 46 Ohio St.2d 127, 346 N.E.2d 673
(1976), at paragraph one of the syllabus, the Supreme Court of Ohio held:
In order to establish medical malpractice, it must be shown by a
preponderance of evidence that the injury complained of was caused by
the doing of some particular thing or things that a physician or surgeon of
ordinary skill, care and diligence would not have done under like or
similar conditions or circumstances, or by the failure or omission to do Richland County, Case No. 12CA44 17
some particular thing or things that such a physician or surgeon would
have done under like or similar conditions and circumstances, and that
the injury complained of was the direct and proximate result of such
doing or failing to do some one or more of such particular things.
Bruni supports the hindsight instruction.
{¶36} On review of the present case, we have examined the instructions as a
whole, and we find that they are fairly balanced and include accurate statements of
the law. Accordingly, we cannot find that the trial court abused its discretion in giving
this instruction.
{¶37} Miller’s first Assignment of Error is overruled.
II.
{¶38} Miller contends in her second Assignment of Error the trial court erred in
submitting confusing interrogatories to the jury. We disagree.
{¶39} Counsel for Miller objected to Interrogatory No. 1 and No. 2 stating, “On
the jury interrogatories, I’m going to object to No. 1 because it refers to the violation of
being below the appropriate standard of care rather than just saying he was negligent,
which is contrary to OJI.” (T. 1146-1147). The trial court stated, “Well, just a second.
They’re the same thing.” Counsel replied, “I understand they’re the same thing.” (T.
1147).
{¶40} Interrogatory No. 1 states, “Do you find by a preponderance of the
evidence that Dana H. Andrews, M.D., provided care and treatment to Carol S. Miller
that was below the appropriate standard of care? You will deliberate, and you will
answer that first question. If you find that the conduct of the Defendant fell below the Richland County, Case No. 12CA44 18
medical standard required of him, you answer that question by checking yes. If you
find that the conduct of the doctor met the standard of care required of him, you will
answer that question no.” (T. 1132). Interrogatory No. 2 read, “State in what respects
you find that the Defendant Dana H. Andrews, M.D., provided care or treatment that
was below the appropriate standard of care.” (T. 1133).
{¶41} Civ. R. 49(B) governs the use of interrogatories and reads in relevant
part: “ * * * [t]he court shall inform counsel of its proposed action upon the requests
prior to their arguments to the jury, but the interrogatories shall be submitted to the
jury in the form that the court approves. The interrogatories may be directed to one or
more determinative issues whether issues of fact or mixed issues of fact and law.”
{¶42} The Supreme Court of Ohio, interpreting Civ. R. 49(B), has held that
Civ.R. 49(B) “does not require the trial judge to act as a * * * mere conduit who must
submit all interrogatories counsel may propose.” Ziegler v. Wendel Poultry Serv., Inc.,
67 Ohio St.3d 10, 15, 615 N.E.2d 1022 (1993), citations omitted. “The court retains
limited discretion to reject proposed interrogatories where they are ambiguous,
confusing, redundant, or otherwise legally objectionable. Proper jury interrogatories
must address determinative issues and must be based upon the evidence presented.”
Id. at 15.
{¶43} Reviewing the jury instructions and interrogatories as a whole, we find no
error. The jury instructions sufficiently explain the appropriate standard of care in
relation to negligence. The jury instructions stated in part:
This is a medical negligence claim brought by the Plaintiff, Mrs. Carol
Miller, to recover compensation for injuries claimed to have been caused Richland County, Case No. 12CA44 19
by the negligence of the Defendants, Dr. Andrews and American Health
Network. The Plaintiff must prove by the greater weight of the evidence
that the Defendant physician was negligent and that his negligence was
the proximate cause of injury to the Plaintiff. A physician is negligent if
the physician fails to meet the required standard of care.
If you find by the greater weight of the evidence that Dr. Andrews failed
to meet the standard of care, then you shall find that he was negligent.
You shall decide whether the treatment used by the Defendant was in
accordance with the required standard of care.
(T. 1119-1121).
{¶44} Miller’s second Assignment of Error is overruled.
III.
{¶45} Miller argues in her third Assignment of Error the trial court erred in
including the different methods jury instruction. The jury instruction stated:
Although some other physician might have used a method of treatment
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 used by the Defendant was in accordance with the
required standard of care.
(T. 1121). Richland County, Case No. 12CA44 20
{¶46} The giving of jury instructions is within the sound discretion of the trial
court and will not be disturbed on appeal absent an abuse of discretion. State v.
Martens, 90 Ohio App.3d 338, 629 N.E.2d 462 (3rd Dist.1993). “The trial court retains
discretion on how to conform the jury instructions to the evidence presented at trial.”
State v. Condon, 152 Ohio App.3d 629, 2003–Ohio–2335, 789 N.E.2d 696, ¶ 90 (1st
Dist.), citing State v. Guster, 66 Ohio St.2d 266, 421 N.E.2d 157 (1981). In order to
find an abuse of that discretion, we must determine the trial court's decision was
unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). Jury instructions
must be reviewed as a whole. State v. Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792
(1988).
{¶47} The evidence in this case supports the inclusion of the different methods
instruction. Plaintiff’s expert, Dr. Vogel testified the use of Heparinoid drugs should
not be used in a patient with HIT. Defendants’ expert, Dr. Naslund testified that
Lovenox was Dr. Andrews’ best choice for Miller’s anti-coagulation therapy in the
nursing home setting.
{¶48} Miller’s third Assignment of Error is overruled.
IV.
{¶49} Miller contends in her fourth Assignment of Error the jury instructions
were duplicative as to the standard of care, causing prejudice to Miller.
{¶50} We stated in Cole v. Beallor, 5th Dist. No. 1999CA00080, 2000 WL 1687
(Dec. 30, 1999): Richland County, Case No. 12CA44 21
“ * * * The mere fact that a legal proposition is repeated in an instruction
is not ground for reversal, provided it is correct in itself, unless it appears
that the party complaining was prejudiced thereby, or that such repetition
was unnecessary and was made by way of emphasis or for the purpose
of influencing the decision of the jury.” Billie v. Mutchler (September 30,
1994), Columbiana App. No. 93-C-04, unreported, at 3, citing 89 Ohio
Jurisprudence 3d 388-390, Trial, Sec. 308. The decision to repeat jury
instructions is within the trial court's discretion. State v. Carver (1972),
350 Ohio St.2d 280, 289.
{¶51} Miller argues the trial court’s use of the “bad results” and “guarantee”
instructions together weighted the instructions, causing prejudice to Miller. The bad
results instruction, found in OJI, read, “The fact that the doctor’s treatment did not
fulfill the patient’s expectations does not by itself prove the doctor was negligent.” (T.
1121). The guarantee instruction read, “A physician treating a patient in practicing his
medical specialty is not a guarantee of favorable results. The mere fact that a bad
result or an unexpected result or a disappointing result followed the treatment which
the Defendant physician administered does not in itself form a basis for you to find that
the Defendants failed in the duty they owed to this patient to exercise ordinary care in
the practice of his medical specialty.” (T. 1121-1122).
{¶52} In Miller v. Defiance Regional Med. Ctr., 6th Dist. No. L-06-1111, 2007-
Ohio-7101, the trial court used the same jury instructions in its medical negligence
action. The Sixth District relied on Callahan v. Akron Gen. Med. Ctr, 9th Dist. No.
Civ.A. 22387, 2005-Ohio-5103, to find that the trial court's instructions as a whole Richland County, Case No. 12CA44 22
were “fairly balanced” and included “accurate statements of the law.” Miller at ¶ 51.
The Miller court stated the appellant's heavily weighted argument implied bias on the
part of the trial court. The court reviewed the jury instructions as a whole and found
they were fair and accurate.
{¶53} Pursuant to Miller and Callahan, we have reviewed the jury instructions
as a whole and we find them to be fair and accurate. There was no abuse of
discretion by the trial court to include the instructions.
{¶54} Miller’s fourth Assignment of Error is overruled.
V.
{¶55} In Miller’s fifth Assignment of Error, she argues the trial court erred in
denying her motion for directed verdict on the affirmative defense of negligence by
non-parties raised by Dr. Andrews and American Health Network of Ohio. At the
conclusion of the defendants’ case, Miller moved for a partial directed verdict upon the
“empty chair” affirmative defenses asserting negligence of non-parties. Miller argued
defendants failed to present expert testimony that the non-parties fell below the
standard of care. The trial court denied the motion for directed verdict as to the
employees and agents of Winchester Terrace. The trial court instructed the jury in
part:
The Defendant Dana Andrews, M.D., claims negligence by other medical
providers who rendered care to Carol Miller but who are not defendants
in this case. If you find that Dr. Andrews was negligent and that such
negligence proximately caused injury to Carol Miller, then your verdict
must be for the Plaintiff and against Dr. Andrews. However, in that Richland County, Case No. 12CA44 23
event, you will also be asked to answer interrogatories, which I will
further explain to you later, in determining whether any other medical
provider about whom you have heard evidence was negligent and
whether that negligence proximately caused or contributed to cause
injury to Carol Miller.
(T. 1123).
{¶56} Interrogatory No. 5 asked the jury to determine whether the agents or
employees of Winchester Terrace provided care or treatment below the standard of
care. (T. 1134).
{¶57} Interrogatory No. 1 asked the jury if they found by the preponderance of
the evidence that Dr. Andrews provided care or treatment to Miller that was below the
appropriate standard of care. If the answer of six or more jurors was no, the jurors
were instructed to sign the general verdict form in favor of Dr. Andrews and proceed
no further. (T. 1132-1133). The jury answered “no” to Interrogatory No. 1. The jury
signed the general verdict form in favor of Dr. Andrews and American Health Network
of Ohio. (T. 1149).
{¶58} An error in a charge or an error in charging, however, “ * * * may not
always work to the prejudice of a party in the case * * *.” Dunn v. Higgins, 14 Ohio St.
2d 239, 246, 237 N.E.2d 386 (1968); and, when special interrogatories are submitted
to a jury, the answers “ * * * are to be relied upon to determine whether substantial
justice has been afforded in a particular case * * *.” Id., at 246. An error in charging
on contributory negligence, comparative negligence or assumption of risk is not
prejudicial when the jury answers “no” to the first interrogatory asking whether the Richland County, Case No. 12CA44 24
defendant is negligent. Sech v. Rogers, 6 Ohio St. 3d 462, 466, 453 N.E.2d 705
(1983). In such case, the inquiry into whether it was error for the trial court to have so
charged is immaterial and moot since a finding that defendant is not negligent
obviates “ * * * the need for the jury to address the affirmative defenses * * *.”
Johnson v. Toledo Cardiology Assoc., Inc., 6th Dist. No. L-89-292, 1991 WL 43064
(Mar. 29, 1991), *2 citing Sech v. Rogers, supra, at 466; Wagner v. Ohio Bldg.
Restoration, 6th Dist. No. L-84-394, 1985 WL 7586, (Aug. 30, 1985).
{¶59} We therefore find any error asserted by Miller is harmless based on the
jury’s verdict finding Dr. Andrews and American Health Network of Ohio not negligent.
{¶60} Miller’s fifth Assignment of Error is overruled.
VI.
{¶61} Miller argues in her sixth Assignment of Error the trial court erred in
instructing the jury on remote cause. We disagree.
{¶62} The jury instructions stated, “A person is not responsible for injury to
another if his or her 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 the natural or probable cause of injury.” (T. 1119).
{¶63} Miller argues the language of the last sentence is nonsensical. Miller
does not in her appellate brief point to the record where counsel objected to the
instruction. Further, based on the reasoning in the fifth Assignment of Error, we find
any error to be harmless because the jury did not reach the issue of proximate cause
based on its finding that Dr. Andrews did not fall below the standard of care.
{¶64} Miller’s sixth Assignment of Error is overruled. Richland County, Case No. 12CA44 25
CROSS-APPEAL OF DEFENDANTS-APPELLEES DANA ANDREWS, M.D. AND
AMERICAN HEALTH NETWORK OF OHIO
{¶65} The deposition of defense expert Mathew Lee, M.D. was scheduled for
February 23, 2012 in Richmond, Virginia. Plaintiff’s counsel traveled to Richmond on
February 22, 2012. The deposition began on February 23, 2012 at 10:20 a.m. and
went until 11:45 a.m. The deposition adjourned at 11:45 a.m. under plaintiff counsel’s
objection due to defense counsel’s flight arrangements.
{¶66} On March 5, 2012, Miller filed a motion in limine for sanctions or for an
order compelling discovery with regard to a deposition of Dr. Lee. In her motion, Miller
requested attorneys fees and costs associated with the February 23, 2012 deposition.
{¶67} A video conference deposition was held with Dr. Lee on March 13, 2012.
{¶68} Dr. Lee did not testify at trial.
{¶69} The trial court did not hold an oral hearing on the motion for sanctions.
On May 14, 2012, in its judgment entry journalizing the jury verdict, the trial court
ordered sanctions against defendants in the amount of $5,235.37 for expenses related
to the termination of Dr. Lee’s deposition.
{¶70} It is from this decision Dr. Andrews and American Health Network of
Ohio appeal.
ASSIGNMENT OF ERROR
{¶71} Dr. Andrews and American Health Network of Ohio raise one
Assignment of Error in their Cross-Appeal: Richland County, Case No. 12CA44 26
{¶72} “THE TRIAL COURT FAILED TO COMPLY WITH THE
REQUIREMENTS OF R.C. 2323.51 AND ABUSED ITS DISCRETION IN ORDERING
THE DEFENDANTS TO PAY SANCTIONS IN THE FORM OF COSTS RELATED TO
THE DEPOSITION OF DEFENSE EXPERT MATTHEW LEE, M.D.”
{¶73} The trial court awarded sanctions to Miller under R.C. 2323.51(A)(2)(i).
The statute defines frivolous conduct under this subsection as conduct that, “* * *
obviously serves merely to harass or maliciously injure another party to the civil action
or appeal or is for another improper purpose, including, but not limited to, causing
unnecessary delay or a needless increase in the cost of litigation.”
{¶74} R.C. 2323.51 provides that a trial court may award court costs,
reasonable attorney fees, and other reasonable expenses incurred in connection with
the civil action or appeal to any party to the civil action or appeal who was adversely
affected by frivolous conduct. Huntsman. v. Lowery, 5th Dist. No.2003CA00210,
2004–Ohio–753, ¶ 11.
{¶75} In order to award sanctions, R.C. 2323.51(B)(2)(a) requires a trial court
to set a date for a hearing to determine whether the conduct was frivolous and
whether the frivolous conduct adversely affected a party to the action. The trial court
must provide notice of the hearing to each party or counsel of record who allegedly
engaged in the frivolous conduct and to any party who was allegedly adversely
affected by the frivolous conduct. R.C. 2323.51(B)(2)(b). The trial court must then
conduct a hearing at which the court “allows the parties and counsel of record involved
to present any relevant evidence, including evidence of reasonable attorney's fees. Richland County, Case No. 12CA44 27
R.C. 2323.51(B)(2)(c) and 2323.51(B)(5)(a). See Hunt v. Allen, 5th Dist. No. 11-CA-
70, 2012-Ohio-1212, ¶ 31.
{¶76} In this case, the trial court did not comply with R.C. 2323.51(B)(2).
Accordingly, the portion of the May 14, 2012 judgment entry awarding sanctions in
favor of Miller is reversed and the cause remanded for further proceedings consistent
with R.C. 2323.51.
{¶77} The sole Assignment of Error of Dr. Andrews and American Health
Network of Ohio is sustained. Richland County, Case No. 12CA44 28
CONCLUSION
{¶78} The six Assignments of Error of Plaintiff-Appellant/Cross-Appellee Carol
S. Miller are overruled.
{¶79} The May 14, 2012 judgment entry of the Richland County Court of
Common Pleas journalizing the general verdict in favor of Defendants-
Appellees/Cross-Appellants Dana H. Andrews, M.D. and American Health Network of
Ohio is affirmed.
{¶80} The sole Assignment of Error of Defendants-Appellees/Cross-Appellants
Dana H. Andrews, M.D. and American Health Network of Ohio is sustained. The May
14, 2012 judgment entry as to sanctions against Defendants-Appellees/Cross-
Appellants only is reversed and the matter remanded for further proceedings
consistent with R.C. 2323.51.
By: Delaney, P.J.
Gwin, J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JOHN W. WISE
PAD:kgb/PM