[Cite as Ratliff v. Mikol, 2011-Ohio-2147.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 94930
STACY RATLIFF, ET AL. PLAINTIFFS-APPELLANTS
vs.
SHARON MIKOL, M.D., ET AL. DEFENDANTS-APPELLEES
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-666457
BEFORE: S. Gallagher, J., Stewart, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: May 5, 2011 ATTORNEYS FOR APPELLANTS
For Amanda Buzo
Michael F. Becker David A. Kulwicki The Becker Law Firm Co., LPA 134 Middle Avenue Elyria, Ohio 44035
For Stacy Ratliff, et al.
Paul W. Flowers Paul W. Flowers Co., LPA Terminal Tower, 35th Floor 50 Public Square Cleveland, OH 44113
ATTORNEYS FOR APPELLEES
Joseph A. Farchione Christina J. Marshall Sutter, O’Connell & Farchione Co., LPA 3600 Erieview Tower 1301 East Ninth Street Cleveland, OH 44114
SEAN C. GALLAGHER, J.:
{¶ 1} Plaintiffs-appellants Stacy Ratliff and Robert Ratliff Baker, Jr.
(“Baker”) appeal the judgment of the Cuyahoga County Court of Common
Pleas following a jury verdict after a two-week-long trial.1 The jury rendered
1 Stacy Ratliff dismissed her claims against Dr. Mikol prior to trial. a verdict in favor of defendant-appellee Sharon Mikol, M.D. (“Dr. Mikol”) and
against Baker. Baker argues that the trial court erred by furnishing the jury
with a legally inaccurate “foreseeability” instruction over his objection. Dr.
Mikol claims the instruction correctly stated Ohio law. For the following
reasons, we affirm the judgment of the trial court.
{¶ 2} On May 29, 1987, Dr. Mikol handled Baker’s delivery and birth.
Unfortunately, Baker was born with severe brain damage. Baker alleges
that Dr. Mikol failed to order an emergency Caesarean section delivery
despite the presence of a number of indications that the fetus was under
distress. The distress allegedly caused Baker to suffer oxygen deprivation,
which led to the brain damage.
{¶ 3} At trial, both parties presented contradicting expert testimony
regarding Dr. Mikol’s standard of care in handling the delivery. Dr. Mikol
proposed the “foreseeability” jury instruction to which Baker objected.
Specifically at trial, Baker opposed the use of the word “likely” in the last line
of the instruction. The trial court overruled the objection and included the
instruction with those read to the jury. It is from that decision that Baker
appeals, raising a single assignment of error: “The trial judge erred to
plaintiff-appellant’s substantial detriment by furnishing the jurors with a
legally erroneous foreseeability instruction.” {¶ 4} In reviewing jury instructions, if the instruction incorrectly states
the law, the standard of review we apply is to “consider the jury charge as a
whole in determining ‘whether the jury charge probably misled the jury in a
matter materially affecting the complaining party’s substantial rights.’”
Kokitka v. Ford Motor Co., 73 Ohio St.3d 89, 93, 1995-Ohio-84, 652 N.E.2d
671, quoting Becker v. Lake Cty. Mem. Hosp. W. (1990), 53 Ohio St.3d 202,
208, 560 N.E.2d 165. “An inadequate jury instruction that misleads the jury
constitutes reversible error.” (Citations omitted.) Groob v. KeyBank, 108
Ohio St.3d 348, 355, 2006-Ohio-1189, 843 N.E.2d 1170.
{¶ 5} We review whether the trial court’s decision to give or omit
instructions constituted an abuse of discretion under the facts and
circumstances of the case. Berardi’s Fresh Roast, Inc. v. PMD Ents., Inc.,
Cuyahoga App. No. 93920, 2010-Ohio-5124, ¶ 12. “[A] trial court has
discretion whether to give a requested jury instruction based on the
dispositive issues presented during trial. It is the duty of a trial court to
submit an essential issue to the jury when there is sufficient evidence
relating to that issue to permit reasonable minds to reach different
conclusions on that issue.” (Citations and quotations omitted.) Renfro v.
Black (1990), 52 Ohio St.3d 27, 30, 556 N.E.2d 150.
{¶ 6} In the current case, the instruction challenged involves the
foreseeability of the injury as it relates to the standard of care Dr. Mikol owed to Baker. Under Ohio law, in order to present a prima facie claim of medical
malpractice, a plaintiff must establish: (1) the standard of care, as generally
shown through expert testimony; (2) the failure of defendant to meet the
requisite standard of care; and (3) a direct causal connection between the
medically negligent act and the injury sustained. Bruni v. Tatsumi (1976),
46 Ohio St.2d 127, 346 N.E.2d 673. The existence of a duty, or standard of
care, depends on the foreseeability of the injury. Menifee v. Ohio Welding
Products, Inc. (1984), 15 Ohio St.3d 75, 77, 472 N.E.2d 707. In order to
determine what is foreseeable, a court must determine “whether a reasonably
prudent person would have anticipated that an injury was likely to result
from the performance or nonperformance of an act.” (Emphasis added.) Id.
at 77.
{¶ 7} The trial court instructed the jury on the general rule of law using similar
language and entirely based on the pattern instructions from the Ohio Jury Instructions
(“OJI”). The instruction read at trial is as follows:
“In determining whether reasonable care was used you must consider whether the defendant should have foreseen under the attendant circumstances that the natural and probable result of an act or omission on [Dr. Mikol’s] part would cause some injury to [Baker].
“The test for foreseeability is not whether [Dr. Mikol] should have foreseen the injury in its precise form, but whether in light of all the circumstances the reasonable prudent person would have anticipated that an injury was likely to result to someone from the act or omission.” (Emphasis added.)
{¶ 8} In comparison, the foreseeability instruction from OJI Section 401.07 is as follows:
“In deciding whether (reasonable) (ordinary) care was used, you will consider whether the (defendant) (either party) in question should have foreseen under the circumstances that the likely result of an act or failure to act would cause some (injury) (damage).
“The test for foreseeability is not whether a person should have foreseen the (injury) (damage) exactly as it happened to the specific (person) (property). The test is whether under all the circumstances a reasonably careful person would have anticipated that an act or failure to act would likely (result in) (cause) some (injury) (damage).”
{¶ 9} Baker proposed changing the emphasized word “likely to” to “may” as an alternative
to omitting the entire instruction.
{¶ 10} Baker did not cite to any authority for the proposition that “may”
should have replaced “likely,” arguing that using “likely” instead of “may”
creates a heightened burden for plaintiff to establish duty. We agree there
may be merit to this argument. However, the trial court mimicked the
language given by the Supreme Court and used by the pattern jury
instructions. See Menifee, 15 Ohio St.3d at 77; Miller v. Defiance Regional
Med.
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[Cite as Ratliff v. Mikol, 2011-Ohio-2147.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 94930
STACY RATLIFF, ET AL. PLAINTIFFS-APPELLANTS
vs.
SHARON MIKOL, M.D., ET AL. DEFENDANTS-APPELLEES
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-666457
BEFORE: S. Gallagher, J., Stewart, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: May 5, 2011 ATTORNEYS FOR APPELLANTS
For Amanda Buzo
Michael F. Becker David A. Kulwicki The Becker Law Firm Co., LPA 134 Middle Avenue Elyria, Ohio 44035
For Stacy Ratliff, et al.
Paul W. Flowers Paul W. Flowers Co., LPA Terminal Tower, 35th Floor 50 Public Square Cleveland, OH 44113
ATTORNEYS FOR APPELLEES
Joseph A. Farchione Christina J. Marshall Sutter, O’Connell & Farchione Co., LPA 3600 Erieview Tower 1301 East Ninth Street Cleveland, OH 44114
SEAN C. GALLAGHER, J.:
{¶ 1} Plaintiffs-appellants Stacy Ratliff and Robert Ratliff Baker, Jr.
(“Baker”) appeal the judgment of the Cuyahoga County Court of Common
Pleas following a jury verdict after a two-week-long trial.1 The jury rendered
1 Stacy Ratliff dismissed her claims against Dr. Mikol prior to trial. a verdict in favor of defendant-appellee Sharon Mikol, M.D. (“Dr. Mikol”) and
against Baker. Baker argues that the trial court erred by furnishing the jury
with a legally inaccurate “foreseeability” instruction over his objection. Dr.
Mikol claims the instruction correctly stated Ohio law. For the following
reasons, we affirm the judgment of the trial court.
{¶ 2} On May 29, 1987, Dr. Mikol handled Baker’s delivery and birth.
Unfortunately, Baker was born with severe brain damage. Baker alleges
that Dr. Mikol failed to order an emergency Caesarean section delivery
despite the presence of a number of indications that the fetus was under
distress. The distress allegedly caused Baker to suffer oxygen deprivation,
which led to the brain damage.
{¶ 3} At trial, both parties presented contradicting expert testimony
regarding Dr. Mikol’s standard of care in handling the delivery. Dr. Mikol
proposed the “foreseeability” jury instruction to which Baker objected.
Specifically at trial, Baker opposed the use of the word “likely” in the last line
of the instruction. The trial court overruled the objection and included the
instruction with those read to the jury. It is from that decision that Baker
appeals, raising a single assignment of error: “The trial judge erred to
plaintiff-appellant’s substantial detriment by furnishing the jurors with a
legally erroneous foreseeability instruction.” {¶ 4} In reviewing jury instructions, if the instruction incorrectly states
the law, the standard of review we apply is to “consider the jury charge as a
whole in determining ‘whether the jury charge probably misled the jury in a
matter materially affecting the complaining party’s substantial rights.’”
Kokitka v. Ford Motor Co., 73 Ohio St.3d 89, 93, 1995-Ohio-84, 652 N.E.2d
671, quoting Becker v. Lake Cty. Mem. Hosp. W. (1990), 53 Ohio St.3d 202,
208, 560 N.E.2d 165. “An inadequate jury instruction that misleads the jury
constitutes reversible error.” (Citations omitted.) Groob v. KeyBank, 108
Ohio St.3d 348, 355, 2006-Ohio-1189, 843 N.E.2d 1170.
{¶ 5} We review whether the trial court’s decision to give or omit
instructions constituted an abuse of discretion under the facts and
circumstances of the case. Berardi’s Fresh Roast, Inc. v. PMD Ents., Inc.,
Cuyahoga App. No. 93920, 2010-Ohio-5124, ¶ 12. “[A] trial court has
discretion whether to give a requested jury instruction based on the
dispositive issues presented during trial. It is the duty of a trial court to
submit an essential issue to the jury when there is sufficient evidence
relating to that issue to permit reasonable minds to reach different
conclusions on that issue.” (Citations and quotations omitted.) Renfro v.
Black (1990), 52 Ohio St.3d 27, 30, 556 N.E.2d 150.
{¶ 6} In the current case, the instruction challenged involves the
foreseeability of the injury as it relates to the standard of care Dr. Mikol owed to Baker. Under Ohio law, in order to present a prima facie claim of medical
malpractice, a plaintiff must establish: (1) the standard of care, as generally
shown through expert testimony; (2) the failure of defendant to meet the
requisite standard of care; and (3) a direct causal connection between the
medically negligent act and the injury sustained. Bruni v. Tatsumi (1976),
46 Ohio St.2d 127, 346 N.E.2d 673. The existence of a duty, or standard of
care, depends on the foreseeability of the injury. Menifee v. Ohio Welding
Products, Inc. (1984), 15 Ohio St.3d 75, 77, 472 N.E.2d 707. In order to
determine what is foreseeable, a court must determine “whether a reasonably
prudent person would have anticipated that an injury was likely to result
from the performance or nonperformance of an act.” (Emphasis added.) Id.
at 77.
{¶ 7} The trial court instructed the jury on the general rule of law using similar
language and entirely based on the pattern instructions from the Ohio Jury Instructions
(“OJI”). The instruction read at trial is as follows:
“In determining whether reasonable care was used you must consider whether the defendant should have foreseen under the attendant circumstances that the natural and probable result of an act or omission on [Dr. Mikol’s] part would cause some injury to [Baker].
“The test for foreseeability is not whether [Dr. Mikol] should have foreseen the injury in its precise form, but whether in light of all the circumstances the reasonable prudent person would have anticipated that an injury was likely to result to someone from the act or omission.” (Emphasis added.)
{¶ 8} In comparison, the foreseeability instruction from OJI Section 401.07 is as follows:
“In deciding whether (reasonable) (ordinary) care was used, you will consider whether the (defendant) (either party) in question should have foreseen under the circumstances that the likely result of an act or failure to act would cause some (injury) (damage).
“The test for foreseeability is not whether a person should have foreseen the (injury) (damage) exactly as it happened to the specific (person) (property). The test is whether under all the circumstances a reasonably careful person would have anticipated that an act or failure to act would likely (result in) (cause) some (injury) (damage).”
{¶ 9} Baker proposed changing the emphasized word “likely to” to “may” as an alternative
to omitting the entire instruction.
{¶ 10} Baker did not cite to any authority for the proposition that “may”
should have replaced “likely,” arguing that using “likely” instead of “may”
creates a heightened burden for plaintiff to establish duty. We agree there
may be merit to this argument. However, the trial court mimicked the
language given by the Supreme Court and used by the pattern jury
instructions. See Menifee, 15 Ohio St.3d at 77; Miller v. Defiance Regional
Med. Ctr., Lucas App. No. L-06-1111, 2007-Ohio-7101, ¶ 52 (finding that the
common pleas court did not abuse its discretion in giving the foreseeability instruction based on the Ohio Jury Instruction2). The instruction therefore
is a correct statement of Ohio law.
{¶ 11} Moreover, Baker’s only argument as to whether the trial court
should have omitted the foreseeability instruction altogether is that since
foreseeability is a factor for duty, an issue of law for the court, the jury should
not be charged with foreseeability. The parties presented dueling evidence
on the standard of care. It was in the province of the trier of fact to
determine whether, based on the evidence presented, the standard of care
owed to Baker included performing an emergency Caesarean section, as
Baker argued. We therefore cannot say that the trial court erred in
including or with regard to the language of the foreseeability instruction.
We agree with Dr. Mikol that the foreseeability instruction given is a correct
statement of law, is required by the issues of the case, and is clear in setting
out the general rule. We therefore do not need to address whether the jury
was misled by the instruction.
{¶ 12} For the first time on appeal, Baker challenges the proximate
cause instruction given by the trial court, claiming it erred in reading
foreseeability into the proximate cause instruction. Baker’s argument is
without merit for the following reasons.
2 Miller refers to O.J.I. 7.13. In Carr v. Preferred, Inc. (Aug. 10, 2000), Cuyahoga App. No. 76476, the court quoted O.J.I. 7.13, and that reference is identical to the pattern instruction at issue in the current case. {¶ 13} In order to preserve the right to appeal the giving or failure to
give an instruction, a party must object to the instruction before the jury
begins deliberating. Civ.R. 51(A). We therefore cannot sustain any
assigned error relating to jury instructions unless the party raises the
objection to the trial court. Baker argues that the proximate cause
instruction was part of the foreseeability instruction, and therefore his
objections to the trial court as to the foreseeability instruction encompassed
the proximate cause one as well.
{¶ 14} In reviewing the record, both sides proposed a proximate cause
instruction separate from foreseeability. Dr. Mikol separately submitted
the foreseeability and proximate cause instructions from the Ohio Jury
Instructions. 1 Ohio Jury Instructions (2004), Sections 401.07 and 405.01.
Dr. Mikol’s proposed jury instruction on proximate cause did not contain any
reference to foreseeability. Baker also submitted a version of the proximate
cause instruction: defendant’s proposed jury instruction number nine. Baker
did not propose any foreseeability instruction, and his proposed proximate
cause instruction omitted any reference to the foreseeability instruction
language. It also contained, as the definition of “cause,” the specific
language to which he objects. Neither party proposed one foreseeability
instruction that combined the proximate cause instruction language. They
both were separately presented for review. {¶ 15} In reviewing this argument, we agree that by defining “cause” with
reference to foreseeable, the court improperly conflated proximate cause with duty.
However, Baker proposed the language to which he objects. Even if there
was error in defining “cause” with a reference to “foreseeable,” such error was
invited by Baker and cannot be the grounds for sustaining his assignment of
error. Patton v. Cleveland (1994), 95 Ohio App.3d 21, 26, 641 N.E.2d 1126
(finding the trial court did not err in giving the instruction at issue because
defendant invited this error by providing the court with the erroneous jury
instruction and failing to timely object). More importantly for our review,
since Baker did not object to the proximate cause instruction at trial before
the jury retired to deliberate, he waived any objection as to that instruction
on appeal. Baker’s sole assignment of error is overruled.
{¶ 16} The judgment of the trial court is affirmed.
It is ordered that appellees recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure. SEAN C. GALLAGHER, JUDGE
MELODY J. STEWART, P.J., and KENNETH A. ROCCO, J., CONCUR