[Cite as Rau v. Miami Valley Hosp., 2025-Ohio-13.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
GREGORY J. RAU ET AL. : : Appellants : C.A. No. 30032 : v. : Trial Court Case No. 2021 CV 01336 : MIAMI VALLEY HOSPITAL ET AL. : (Civil Appeal from Common Pleas : Court) Appellees : :
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OPINION
Rendered on January 3, 2025
RONALD M. WILT, NANCY SCHOOK HENRY, & NICHOLAS R. BONSIGNORE, Attorneys for Appellants
BRIANNA M. PRISLIPSKY, SUSAN BLASIK-MILLER, MEREDITH C. TURNER- WOOLLEY, Attorneys for Appellees
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HUFFMAN, J.
{¶ 1} Plaintiffs-Appellants Gregory J. Rau (“Rau”) and Bette Rau appeal from the
trial court’s entry of judgment in favor of Defendants-Appellees Dr. Thomas Cook and
Orthopedic Associates of Dayton, Inc. (“Defendants”), following a jury trial in this medical -2-
malpractice action. The Raus advance two assignments of error on appeal, including that
the trial court erred (1) by allowing the admission of evidence concerning informed
consent and discussions with Rau regarding the risks and complications of knee
replacement surgery and (2) by allowing Defendants to present cumulative expert
testimony. For the reasons outlined below, we reverse the judgment of the trial court.
I. Background Facts and Procedural History
{¶ 2} The personal injury action stems from an October 22, 2019, bilateral knee
replacement surgery performed on Rau by Dr. Cook at a surgical center. Immediately
following the surgery, Rau was transported to a post-anesthesia care unit (PACU) in
stable condition. At approximately 12:30 p.m., Rau was transferred from PACU to the
ward, and his initial limb assessment performed by the receiving nurse was normal. At
around 2:30 p.m., however, Rau complained of pain radiating from his foot to his calf in
his right leg, and his right foot was cold. His nurse could not find his pedal pulse, so she
tried to contact Dr. Cook. At that time, however, Dr. Cook was unavailable in another
surgery, so the nurse contacted her director of nursing who was able to get a message
to Dr. Cook.
{¶ 3} At around 3:40 p.m., before leaving the surgical center, Dr. Cook assessed
Rau and ordered heat therapy for his right leg, resumption of home medications, and
ambulation. After briefly walking through the hall at around 4:40 p.m., Rau reported an
increase in pain and numbness in his right foot radiating up his calf. His nurse called Dr.
Cook to report the changes in Rau’s condition, and Dr. Cook stated that he would call
Miami Valley Hospital to arrange for Rau’s transfer because he would not be able to -3-
receive the necessary care at the surgical center.
{¶ 4} Rau arrived at Miami Valley Hospital approximately two hours later. Upon his
arrival, the surgical resident on duty recognized that he needed surgery to salvage his
leg. At that time, Miami Valley Hospital was unable to offer the required surgery because
its vascular surgeons were unavailable, so Rau was transferred emergently via life flight
to the University of Cincinnati Medical Center (“UC”) for surgery. At UC, Dr. Joseph Giglia
operated on Rau and determined that his right popliteal artery had been injured earlier
that day during his knee replacement surgery.
{¶ 5} On April 2, 2021, the Raus filed their initial complaint against Defendants;
they amended their complaint on October 5, 2021, and again on May 30, 2023. They
asserted claims for medical negligence and loss of consortium and sought a jury trial. No
claim for lack of informed consent was ever asserted.
{¶ 6} Prior to trial, the Raus filed motions in limine to exclude evidence of informed
consent and risk of injury to neurovascular structures from knee replacement surgery and
to exclude cumulative expert testimony. Their theory at trial was that Dr. Cook had
negligently cut Rau’s popliteal artery during surgery and then delayed diagnosis of the
injury and treatment. They presented evidence that Dr. Giglia found that Rau’s popliteal
artery had a hole in it, resulting in a hematoma; that Rau had required emergency surgery
with arterial bypass and fasciotomies to prevent the loss of his right leg; and that Rau had
experienced an approximate seven-hour delay in treatment from the presentation of his
symptoms related to his popliteal artery injury to the reparative surgery. They alleged
that Rau has permanent nerve injury in his right leg affecting his daily life. -4-
{¶ 7} The matter proceeded to jury trial on December 11, 2023. At the close of voir
dire, the Raus requested that the trial court rule on the two motions in limine because Dr.
Cook’s counsel had questioned potential jurors about their knowledge that surgery has
risks and that medical complications can occur in the absence of negligence. During
arguments, Dr. Cook’s counsel stated that their “entire defense” was based on the
contention that Rau had accepted the risks of knee replacement surgery and that cutting
an artery during surgery was a known risk that could occur without negligence. Defense
counsel specifically stated: “And our position was it was a known and accepted risk, and
it was disclosed to the patient . . . that’s our whole defense.”
{¶ 8} The trial court granted the Raus’ motion in limine to exclude cumulative
expert testimony to the extent that each expert was only permitted to testify as to his or
her expertise and opinion. The trial court also granted the Raus’ motion in limine to
exclude evidence of informed consent and risks and complications from knee surgery,
explaining that the prejudicial effect of such evidence was significant and questioning its
relevance. The trial court stated that such evidence was “going to confuse the jury” and
that “plaintiffs can’t sign away their breach of standard of care.”
{¶ 9} Defense counsel then argued that Defendants did not plan to show the
informed consent form to the jury but intended to talk about how the risk of neurovascular
injury from the procedure had been discussed with Rau. The Raus’ counsel then argued
that Defendants were not permitted to present evidence that Rau had agreed to a specific
risk, such as neurovascular or arterial injury, and were also precluded from presenting
any evidence relating to informed consent discussions or specific risks. The trial court -5-
ultimately concluded “as it pertains to motion to exclude events of informed consent, risk
of injury from the knee surgery, again the Court is going to grant that motion as to the
general discussions of the general risks, no specifics. The prejudicial effect does outweigh
the probative value. It’s still going to confuse the jury.” The court then generally agreed
that defense counsel could talk about the fact that Rau’s injury was a known risk that
could occur in the absence of negligence.
{¶ 10} During the trial, Rau testified that, before his knee replacement surgery, he
had been told that he would be able to resume his activities without pain after surgery.
He also testified that he had signed a consent form at UC for possible amputation of his
leg after he was transferred there. Defense counsel objected to Rau’s testimony and
argued that this testimony had opened the door to all evidence of informed consent and
of the specific risks of knee replacement surgery, which the trial court had previously ruled
could not be admitted. The trial court overruled defense counsel’s objection, restating that
evidence of “generalizations of risk” but “nothing specific” were admissible. The court also
reiterated that defense counsel was allowed to describe the general discussion
concerning risks but not specifically “which risks.”
{¶ 11} The trial court allowed Defendants to present testimony from four medical
experts. Dr. William Abraham first testified as an expert orthopedic surgeon on behalf of
Defendants, opining that Dr. Cook had acted reasonably and carefully within the standard
of care in his treatment of Rau. He testified that there is a risk of neurovascular injury,
including injuries to an artery, associated with total knee replacement surgery. In
explaining the risks of total knee replacement, Dr. Abraham stated: -6-
Q. Tell the ladies and gentlemen, is there a risk of neurovascular injury
associated with total knee replacement?
A. Yes.
Q. . . . And when I said neurovascular, tell the jury what you mean when
you say neurovascular.
A. Everything from nerve, vein, artery, and it’s sort of all lumped
together, I guess.
Q. With respect to total knee replacement, is injury to an artery a known
and accepted risk and complication in your understanding of the procedure?
A. Yes. I mean, I think that without question there are injuries, situations
where it is considered to be a known and very much accepted risk of the
operation.
Q. What are some of the other risks of a total knee replacement?
A. I mean, when we talk to patients about this, we try and remind them
that this is a serious procedure. And I think that it goes without saying that
pretty much, as I explain to patients, anything that you could imagine could
go wrong.
There are – between hip and knee replacement surgeries in this
country, close to a million operations done every year. And if you’re into
statistics, just imagine one in a million. I mean, pretty much anything can
happen.
So I think it’s really important for us as physicians to spend time and -7-
to explain to them that bad things can and do happen in spite of everybody’s
best efforts. I mean, it’s virtually impossible to suggest to somebody that
risks – you know, they could be managed, but they are there. And I think it’s
important for us as physicians, certainly part of Dr. Cook’s records, that was
discussed, but it’s important for the patients to appreciate that.
And I think that we all have our own ways of getting that across to
patients. But it goes without saying it’s everything up to and including life-
threatening, end-of-the-world problems are considered possible.
In fact, when I tell my patients, I’ll often say that, you know, we all
understand that you might not survive the surgery, but I’ll then look at the
spouse and maybe saying (inaudible) that’s actually more of their problem
because that’s the one who’s going to be left, what do I do now?
And I said the real complications are those that you live through, you
know, whether it be infections or injuries to nerves, blood vessels, things of
that nature.
Q. You’ve had an opportunity to review Dr. Cook’s records – and I’m not
going to put them all up there – but based on your review of the records, did
you see documentation that he had a discussion with the patient about risk,
benefits, et cetera?
[PLAINTIFFS’ COUNSEL]: Objection.
[THE COURT]: I’ll allow it for right now. Overruled.
... -8-
A. Yes. That was part of the office record, something that I did look at,
that acknowledged that in his office notes that he had spoken to Rau about
the inherent risks of the operation including injuries to nerves and blood
vessels.
Q. Thank you. Would that be reasonable within the standard of care for
him to have such a discussion with a patient like Rau prior to surgery?
[THE COURT]: Overruled.
A. I would absolutely expect that to occur in advance of surgery.
(Emphasis added.) Tr. Vol. IV, p. 14-16.
{¶ 12} Dr. Abraham also testified as to whether Dr. Cook acted reasonably and
within the standard of care:
Q. Now, you’ve reviewed the operative report prepared by Dr. Cook for
Rau’s surgery. Anything unusual or concerning in his technique as reflected
by the operative report?
A. No.
Q. Did it appear to be reasonable and within the standard of care?
Q. Anything that was untoward or unusual that appeared to occur during
that surgery?
Q. All right. Are you aware that Rau has suffered an injury to the -9-
popliteal artery as a result of that surgery?
Q. All right. With that knowledge and based on your review of the
records, did you form an opinion to a reasonable medical probability, based
on your education, experience and training, as to whether Dr. Cook met the
standard of care in his treatment, his surgery of Rau?
A. Yes, I did formulate an opinion.
Q. What was your opinion?
A. That he did.
Q. How did he meet the standard of care when his patient suffered a
popliteal artery injury during surgery he performed?
A. I think it’s always one of the challenges in terms of – we, as
physicians, take care of patients and – and complications are unfortunately
part of surgery . . .
So the mere fact that a complication occurs doesn’t in and of itself
equate with, you know, a substandard care . . .
Tr. Vol. IV, p. 17-19.
{¶ 13} Dr. Cook testified on his own behalf regarding the potential risks or
complications that he customarily discussed with his patients, like Rau:
Q. What do you tell them, if anything, about potential risks or
complications and recovery?
A. . . . Then we talk about what we do to prevent complications, and we -10-
discuss start out [sic] with the most common complications, which are about
1 percent, infection, clot, incisions.
Then we talk about the rarer ones, damage to nerves, muscles,
And I use that as a lead-in to explain to patients that every patient
will have a nerve injury after joint replacement because there’s a nerve that
travels right across the front of our knee and we cut it 100 percent of the
time and they end up with some, you know, residual numbness. That rarely
also translates into residual pain.
(Emphasis added.) Tr. Vol. IV, p. 102-104. Dr. Cook then explained that, if a patient is
“at higher risk, like Rau is a high-risk patient,” additional conversations and precautions
would be had and taken. Id. at 103-105.
{¶ 14} Dr. Robert Molnar then testified as a vascular surgeon for the defense. Dr.
Molnar opined that Rau’s popliteal injury resulted from an arterial plaque dissection, a
known but fairly rare complication of total knee replacement surgery. He also stated that
there was no evidence that Rau’s popliteal artery was lacerated by a surgical instrument.
{¶ 15} Lastly, over the Raus’ objection, Dr. Kevin Sonn, another orthopedic
surgeon, testified for Defendants. In objecting to Dr. Sonn’s testimony, the Raus’ counsel
argued that two other expert orthopedic surgeons—Dr. Cook and Dr. Abraham—had
already testified and discussed all aspects of the case in detail and, thus, another
orthopedic expert’s testimony was cumulative and prejudicial. In turn, defense counsel
argued that Dr. Sonn’s testimony was from the viewpoint of a younger academic physician -11-
at a Level I trauma center. The trial court allowed Dr. Sonn to testify as follows:
Q. As a result of your review of all of those records and depositions, did
you form opinions as to whether Dr. Cook met the standard of care in his
treatment of Rau?
A. Yes, I did.
A. My opinion is that he met the standard of care in his treatment.
...
Q. Are you aware Rau suffered a neurovascular injury as a result of the
total knee replacement that was performed on Rau?
Q. Now, you are – of all the physicians who testified in this courtroom,
you are the one who completed your training the most recently.
And when you were trained, were you trained that arterial injuries,
neurovascular injuries, are a potential risk of total knee replacement, even
when a surgeon does everything appropriately?
A. Yes. Definitely a risk, albeit rare, but definitely a risk.
Q. Let’s talk about your opinion in this case briefly.
When you reviewed the records, what opinion did you form as to how
the injury occurred?
A. Yeah. So upon review of the records, it’s most likely an indirect injury -12-
to the artery slowly developed to an occlusion over time.
Q. Dr. Molnar, a vascular surgeon, just testified shortly ago that based
on his review of the CT arteriogram and the records, the cause of Rau’s
arterial injury was an arterial dissection.
Is that consistent with your opinions that you formed in this case?
[PLAINTIFFS’ COUNSEL]: Objection. He’s now going into the CTA. We’ve
already had a vascular surgeon.
[THE COURT]: I’m going to overrule. It’s just what his review of the records
are. That’s all.
A. Yeah, I think it’s most consistent with that based on the presentation
and – and the records.
Q. Based on your review of the records, do you have an opinion to a
reasonable medical probability based on your education, experience, and
training, as well as the depositions, as to whether Dr. Cook met the standard
of care in the actual performance of the surgery?
A. Yes, I feel he met the standard of care in performing the surgery.
(Emphasis added.) Tr. Vol. V, p. 94-98.
{¶ 16} In closing argument, defense counsel emphasized the expert testimony,
stating “all these defense experts” acknowledge that “popliteal artery injury” is a known
risk and complication of the surgery. The jury returned a defense verdict, finding no
malpractice by Dr. Cook. This appeal followed. -13-
II. Assignments of Error
{¶ 17} Appellants assert the following two assignments of error:
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
PREJUDICIAL ERROR IN ALLOWING EVIDENCE OF INFORMED
CONSENT AND DISCUSSIONS OF SPECIFIC RISKS OF THE
PROCEDURE.
THE PRESENTATION OF CUMULATIVE EXPERT TESTIMONY
WAS PREJUDICIAL ERROR.
{¶ 18} Evid.R. 402 permits the inclusion of any evidence relevant to the underlying
claim, stating:
All relevant evidence is admissible, except as otherwise provided by the
Constitution of the United States, by the Constitution of the State of Ohio,
by statute enacted by the General Assembly not in conflict with a rule of the
Supreme Court of Ohio, by these rules, or by other rules prescribed by the
Supreme Court of Ohio. Evidence which is not relevant is not admissible.
{¶ 19} Evid.R. 403, however, governs the exclusion of relevant evidence on
grounds of prejudice, confusion or undue delay, providing:
(A) Exclusion mandatory. Although relevant, evidence is not admissible if
its probative value is substantially outweighed by the danger of unfair
prejudice, of confusion of the issues, or of misleading the jury.
(B) Exclusion discretionary. Although relevant, evidence may be excluded
if its probative value is substantially outweighed by considerations of undue -14-
delay, or needless presentation of cumulative evidence.
{¶ 20} “In reaching a decision involving admissibility under Evid.R. 403(A), a trial
court must engage in a balancing test to ascertain whether the probative value of the
offered evidence outweighs its prejudicial effect.” Neugebauer v. Farinacci, 2024-Ohio-
960, ¶ 36 (8th Dist.), quoting State v. Wright, 2019-Ohio-4460, ¶ 50, citing State v.
Maurer, 15 Ohio St.3d 239 (1984), paragraph seven of the syllabus. “Trial courts are
afforded broad discretion in balancing the probative value of evidence against the danger
of unfair prejudice.” Id., citing State v. Bethel, 2006-Ohio-4853, ¶ 171. “Unfair prejudice”
is that quality of evidence which might result in an improper basis for a jury
decision. Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St. 3d 169, 172 (2001). “Consequently,
if the evidence arouses the jury’s emotional sympathies, evokes a sense of horror, or
appeals to an instinct to punish, the evidence may be unfairly prejudicial.” Id.
{¶ 21} “The admission or exclusion of evidence is generally within the sound
discretion of the trial court, and a reviewing court may reverse only on the showing of an
abuse of that discretion.” R.T. v. Knobeloch, 2018-Ohio-1596, ¶ 68 (10th Dist.),
citing Peters v. Ohio State Lottery Comm., 63 Ohio St.3d 296, 299 (1992). “ ‘Abuse of
discretion’ has been defined as an attitude that is unreasonable, arbitrary or
unconscionable.” AAAA Ents., Inc. v. River Place Community Urban Redevelopment
Corp., 50 Ohio St.3d 157, 161 (1990).
{¶ 22} In their first assignment of error, the Raus contend that the trial court erred
by allowing evidence of informed consent and discussions with Rau regarding risks and
complications of knee replacement surgery. Specifically, they argue that, because neither -15-
party raised informed consent as a claim or defense, evidence of informed consent, the
consent forms, and discussions with Rau about the risks and complications of the
procedure related to informed consent were irrelevant and unduly prejudicial and, thus,
should have been excluded. We agree.
{¶ 23} The Raus assert that evidence of informed consent and discussions of the
risks of a procedure related to informed consent are inadmissible in a direct medical
negligence case. In support of their argument, they cite Waller v. Aggarwal, 116 Ohio
App.3d 355, 357-58 (11th Dist. 1996). In Waller, the court concluded that the plaintiff was
substantially prejudiced by the references to informed consent, reasoning that the
plaintiff’s action was not sounded in nonconsensual battery nor had the plaintiff alleged
that she was not fully apprised of the risks of the procedure. Id. at 357. The court reasoned
that, even if the plaintiff had been informed that a certain injury was a risk of the
procedure, the fact that the plaintiff was informed of that risk could not be a defense to a
claim of medical negligence. Id. The court explained that the admission of evidence
pertaining to the risk issue and references to that issue carried great potential for the
confusion of the jury. Id. at 358. The court therefore held that references to informed
consent made during the trial constituted plain error because those references were
“apparent on their face and prejudicial.”
{¶ 24} Here, like in Waller, the issue of informed consent was not relevant to the
claim of negligence. Although such evidence may have been relevant to demonstrate that
arterial injuries may occur during knee replacement surgery in the absence of negligence,
this theory could have been and, in this case, was demonstrated through the testimony -16-
of experts. Thus, there was no need to introduce evidence of any risk discussions
between Dr. Cook and Rau with respect to Rau’s knee replacement surgery. Even if Rau
was informed that an arterial or neurovascular injury was a risk of the procedure, the fact
that Rau was informed of that risk could not be a defense to a claim of medical negligence.
Moreover, the fact that Rau consented to the surgery and was informed of its risks did not
grant consent for the procedure to be performed negligently and did not waive his right to
recourse in the event the procedure was performed negligently.
{¶ 25} Dr. Abraham spoke extensively regarding the risks associated with knee
replacement surgery. He emphasized that it is important for physicians to explain the risks
to patients. He specifically stated that injuries to nerves and blood vessels are the types
of complications that may occur. He then noted that he had reviewed Dr. Cook’s records
regarding Rau and confirmed that Dr. Cook had documented discussions with Rau about
the risks of the surgery, including injuries to nerves and blood vessels. He further stated
that Dr. Cook had acted within the standard of care by having those risk discussions with
Rau prior to surgery.
{¶ 26} Dr. Cook also testified that he tells his patients, like Rau, about potential
risks or complications of surgery, including damage to nerves and vessels, and that every
patient will have a nerve injury after knee replacement. Dr. Sonn then testified that arterial
and neurovascular injuries are potential risks of total knee replacement even when a
surgeon does everything appropriately, and he agreed with Dr. Molnar’s opinion regarding
the nature of Rau’s injury, namely an arterial plaque dissection.
{¶ 27} Although the trial court properly granted the Raus’ motion in limine -17-
regarding informed consent, it only excluded admission of the informed consent form itself
and allowed extensive evidence of discussions regarding Rau’s presumed understanding
of the risk of the surgery following his conversations with Dr. Cook. In other words, despite
the trial court’s orders not to present testimony regarding the specific risks of knee
replacement surgery and not to present evidence as to what Rau was told concerning
those risks before surgery, Defendants’ experts still testified as to those issues. We
conclude that these erroneous admissions were unduly prejudicial to the Raus’ case. The
first assignment of error is sustained.
{¶ 28} In their second assignment of error, the Raus argue that Dr. Abraham’s and
Dr. Sonn’s testimonies were essentially the same, as they simply agreed that Dr. Cook
satisfied the standard of care in his treatment of Rau. The Raus point out that defense
counsel asked Dr. Sonn if his opinion was also consistent with Dr. Molnar’s opinion—that
Rau’s arterial injury was an arterial plaque dissection—and Dr. Sonn agreed. The Raus
contend that the trial court erred in allowing the presentation of cumulative expert
testimony after the court had granted their motion in limine, which prejudiced them and
constituted reversible error.
{¶ 29} “Evid.R. 403(B) provides that relevant evidence is not admissible if its
probative value is substantially outweighed by consideration of undue delay or needless
presentation of cumulative evidence, and a trial court has the discretion to exclude expert
testimony where the testimony would not assist the trier of fact.” Knobeloch, 2018-Ohio-
1596, at ¶ 69 (10th Dist.), quoting Holman v. Shiloh Grove L.P., 2016-Ohio-2809, ¶ 16
(10th Dist.), citing Bostic v. Connor, 37 Ohio St.3d 144 (1988), paragraph three of the -18-
syllabus. “Cumulative evidence is additional evidence of the same kind to the same point.”
Id., quoting Kroger v. Ryan, 83 Ohio St. 299 (1911), paragraph one of syllabus.
{¶ 30} In this case, the trial court granted the Raus’ motion in limine to exclude
cumulative testimony. The Raus argue that Defendants’ two orthopedic experts then
testified and relied on the exact same evidence to deliver identical opinions. The Raus
point out that defense counsel argued that the testimonial evidence of Dr. Abraham and
Dr. Sonn was not cumulative because the witnesses came from different backgrounds
(private practice versus academic institution), and one was young and the other was
older. They contend that defense counsel’s argument had no basis under the law and
that Defendants’ two orthopedic experts’ presentation of the exact same testimony based
on the exact same evidence constituted cumulative evidence. We agree.
{¶ 31} Here, the trial court had already granted the Raus’ motion in limine to
exclude cumulative testimony. Dr. Cook testified on his own behalf, and the court then
permitted Dr. Molnar, a vascular surgery expert, and two orthopedic surgery experts to
also testify that Dr. Cook met the standard of care based on the same evidence. Dr. Sonn
not only opined that Dr. Cook met the standard of care but also simply agreed with Dr.
Molnar’s opinion as to the presumed nature of Rau’s injury.
{¶ 32} As the Raus point out, all experts come from different backgrounds, different
schools, different employers, and different ages. These factors are not what preclude
evidence from being deemed cumulative. What determines whether evidence is
cumulative is whether the additional evidence goes to prove the same point already
proven by other evidence. Because Dr. Cook, Dr. Molnar, and Dr. Abraham had already -19-
testified as to the nature of Rau’s injury, that Rau’s injury had been a known risk of knee
replacement surgery, and that Dr. Cook had met the standard of care in performing Rau’s
surgery, we do not believe that Dr. Sonn’s testimony added anything to the evidence
already presented, even if he was testifying from the viewpoint of a younger surgeon
employed at an academic medical center.
{¶ 33} Each expert was only permitted to testify as to his expertise and opinion.
Dr. Sonn, however, while testifying from the viewpoint of a younger academic surgeon,
offered the same testimony as the other experts that arterial and neurovascular injuries
are potential risks of knee replacement surgery, and that he agreed with Dr. Molnar’s
expert opinion that the cause of Rau’s injury was an arterial dissection. Given that the jury
had already heard the substance of Dr. Sonn’s testimony from other experts, and the trial
court had already granted the Raus’ motion in limine to exclude cumulative evidence, we
conclude that that the trial court acted arbitrarily in permitting Dr. Sonn to also testify as
to the same evidence over the Raus’ objection, and thus abused its discretion. The
second assignment of error is sustained.
III. Conclusion
{¶ 34} Having sustained the Raus’ assignments of error, we reverse the trial
court's judgment and remand the cause for further proceedings consistent with this
opinion.
EPLEY, P.J., concurs.
TUCKER, J., dissents: -20-
{¶ 35} In my opinion, the trial court did not abuse its discretion by allowing
testimony that injury to the popliteal artery is a known complication of knee replacement
surgery that can occur in the absence of negligence or in permitting limited informed
consent testimony from Dr. Abraham and Dr. Cook concerning the discussion had with
Rau about the risks and complications of knee replacement surgery. But, even
assuming error with the informed consent testimony, it was harmless. I additionally
conclude the trial court did not abuse its discretion by allowing Defendants to call two
retained orthopedic surgeons to provide standard of care testimony and opinions. But
once again, even assuming error, it was harmless. I therefore respectfully dissent.
{¶ 36} The case was presented to the jury as a medical negligence case, with the
Raus asserting that Dr. Cook had breached the standard of care by first cutting Rau’s
right popliteal artery with a surgical instrument and then failing to timely recognize and
react to the arterial injury. Under the Raus’ theory, this negligence caused the blood flow
to Rau’s right leg to be severely compromised and resulted in emergency surgery which
saved the leg but nonetheless left a quite severe and permanent injury. Dr. Cook, in
contrast, asserted that he performed the surgery within the standard of care and that his
recognition of and reaction to the injury were appropriate. As to the mechanism of injury,
Dr. Cook presented expert testimony from Dr. Molnar, a vascular surgeon, that the
popliteal artery had not been cut during surgery. Instead, Dr. Molnar opined that, out of
necessity, Rau’s right knee had been hyperflexed during surgery, which allowed plaque
in the surrounding area to break off and push the “inner layer [of the artery] into the
lumen,” the hollow space within an artery that allows blood flow. Tr. Vol. V, p. 26. -21-
According to Dr. Molnar, this caused the artery to narrow, which resulted in an occulated
artery and, ultimately, Rau’s injury. Dr. Molnar further testified that a popliteal artery
occlusion caused by plaque breaking off and blocking blood flow is a known but “fairly
rare” complication of knee replacement surgery. Tr. Vol. IV, p. 32.
{¶ 37} After the jury was selected but before the opening statements were
presented, a fairly lengthy discussion occurred between counsel and the trial judge
concerning the Raus’ motions in limine to exclude testimony from Dr. Cook’s witnesses
regarding both informed consent and the risks and complications of knee replacement
surgery. The trial court denied the liminal motion concerning known complications,
stating that Dr. Cook’s experts could “tell the jurors about known and recognized
complications.” Tr. Vol. I, p.10. The trial court sustained, at least in part, the liminal
motion regarding informed consent.1 In response to the trial court's ruling, Dr. Cook’s
counsel had the following discussion with the court:
[DEFENSE COUNSEL]: . . . So but we can still talk about the fact that from
our perspective it is a known risk that can occur?
1 The trial court’s ruling was a bit unclear but, based on subsequent evidentiary rulings, the trial court’s decision allowed a general discussion concerning the surgical risks of which Rau had been informed, but prohibited Dr. Cook from introducing testimony that Rau had been informed that an injury to the popliteal artery was a known complication. Though not necessary to this dissent, I do take issue with the trial court’s general versus specific distinction, because the Raus’ expert, Dr. Sauer, testified that injury to the popliteal artery during knee replacement surgery is a so called “never event,” meaning that without surgical negligence such an injury cannot occur. Tr. Vol. III, p. 20-21. In light of this “never event” characterization, testimony that Rau had been informed that injury to the popliteal artery was a known surgical complication was relevant, because such testimony would have made it more likely that a popliteal injury was a known complication that could occur without negligence as opposed to a “never event.” Any concern that such specific testimony could confuse or mislead the jury could have been addressed by a jury instruction informing the jury of the purpose of the testimony. -22-
THE JUDGE: That is correct.
[DEFENSE COUNSEL]: Even in the absence of negligence?
[DEFENSE COUNSEL]: Okay.
THE JUDGE: But there is no claim for - - they’re not arguing informed consent, so
I’m not going to go there.
[DEFENSE COUNSEL]: Okay. That’s fine.
Tr. Vol. I, p. 12.
Following this discussion, the trial proceeded, during which the testimony the
majority opinion finds irrelevant and prejudicial occurred, as set forth in the majority
Surgical Risks/Informed Consent
{¶ 38} The Raus’ “informed consent” assignment of error asserts that the trial court
abused its discretion by allowing testimony regarding informed consent and the risks and
complications of knee replacement surgery. To determine whether a trial court has
abused its discretion, an appellate court determines whether the contested decision was
arbitrary, unconscionable, or unreasonable. Hoke v. Miami Valley Hosp., 2020-Ohio-
3387, ¶ 30 (2d Dist.). Addressing first the testimony about the known risks and
complications, a physician may defend a surgical negligence claim by asserting that the
injury at issue was a known complication of the surgery which could occur within the
standard of care. Witzmann v. Adam, 2011-Ohio-379 (2d Dist.); Hoke at ¶ 30.
{¶ 39} In Witzmann, the defendant doctor (Adam), who prevailed at trial, had -23-
performed thyroid surgery on Witzmann, which resulted in an injury to Witzmann’s
laryngeal nerve; the nerve injury resulted in damage to Witzmann’s left vocal cord. As
in the present case, there was no dispute that the nerve had been injured as a result of
the surgery. The question was whether the nerve injury had been caused by surgical
negligence. The parties presented competing expert testimony. Witzmann’s experts
opined that the nerve injury could not have occurred without negligence. The defense
expert testified that Adam had appropriately identified the laryngeal nerve and mapped
its course as far as possible, that there was an area where the nerve cannot be visualized
and the injury occurred in this area, and that, because of this situation, injury to the
laryngeal nerve during thyroid surgery is a known complication that can occur without
negligence.
{¶ 40} On appeal, Witzmann argued that the trial court erred by allowing the
defense expert’s testimony about complications of surgery. We disagreed, stating:
The dispute concerns whether Adam adequately protected the
recurrent laryngeal nerve. It was Witzmann’s experts' opinion that he did
not. They believed that when there are no complications a surgeon of
ordinary skill, care, and diligence can always avoid cutting the nerve.
Conversely, [defense expert] Dr. Cummings cited medical studies showing
that even in the absence of complications severe injury to the nerve occurs
in a small number of cases. He described how a surgeon might injure the
nerve in the area where it is most vulnerable near the suspensory ligament,
even though the surgeon had identified it and traced its path. Dr. Cummings -24-
therefore opined that a surgeon of ordinary skill, care, and diligence could
severely injure the nerve even though his conduct conformed to the
standard of care. It was Dr. Cummings’s opinion that this is what happened
during Witzmann’s thyroidectomy.
Dr. Cummings's testimony alone is substantial, probative evidence
that supports Adam's defense that he did not breach the standard of care
and was not negligent.
Witzmann at ¶ 36-37.
{¶ 41} In Hoke v. Miami Valley Hosp., Hoke suffered from several gynecological
issues. After conservative treatment failed, surgical intervention occurred. During the
surgery, Hoke’s iliac vein was injured, requiring a surgical repair. The plaintiff’s experts
opined that surgical negligence caused the iliac vein injury. In contrast, a defense expert
testified that, based upon the nature of the surgery, “injury to the iliac vein is a risk and
complication that can occur within the standard of care.” Hoke at ¶ 25. The jury decided
in favor of the defendant doctor.
{¶ 42} On appeal, Hoke argued that “the trial court erred in allowing testimony
about the injury to Mrs. Hoke’s vein being a ‘recognized complication’ or a ‘complication
of surgery.’ ” Id. at ¶ 35. Hoke asserted that such testimony “misled the jury into
believing tort liability does not attach to such ‘complications’ even when a doctor fails to
meet the applicable standard of care.” The plaintiff further argued that the complication
of surgery testimony “suggested the damage to Mrs. Hoke’s iliac vein was a ‘natural
consequence of the procedure’ and, therefore, not the result of negligence.” Id. -25-
{¶ 43} We rejected these arguments, concluding that we found “no error in the trial
court allowing testimony about the [iliac vein] injury . . . being a ‘recognized complication’
or a ‘complication of surgery.’ ” Id. at ¶ 39. We explained this rejection as follows:
The crucial question then, which was made clear to the jury, was whether
Mrs. Hoke’s injury was caused by something Dr. Miller [defendant doctor]
did that was outside the standard of care, or whether the injury occurred
despite the fact that Dr. Miller did everything correctly and met the standard
of care. The defense argued and presented evidence that [Dr. Miller] met
the standard of care despite the fact that the iliac vein was injured. The
Hokes argued and presented evidence to the contrary. After hearing the
conflicting evidence, the jury rendered a verdict finding [Dr. Miller was] not
negligent, indicating that [he] did not violate the applicable standard of care
notwithstanding the injury that occurred.
Id. at ¶ 41.
{¶ 44} Given this case law, the trial court correctly overruled the Raus’ motion in
limine seeking to limit testimony that the injury to Rau’s popliteal artery is a known
complication of knee replacement surgery that can occur without negligence. Thus, I
disagree with the majority opinion’s conclusion that the risk of surgery testimony was
irrelevant and prejudicial. Moreover, the complication of surgery testimony set forth in
the majority opinion was not subject to an objection, triggering a plain error analysis. In
a civil case, plain error is “not favored and may be applied only in the extremely rare case
involving exceptional circumstances where error, to which no objection was made at the -26-
trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial
process, thereby challenging the legitimacy of the underlying judicial process itself.”
Curry v. Bettison, 2023-Ohio-1211, ¶ 59 (2d Dist.), quoting Goldfuss v. Davidson, 179
Ohio St.3d 116 (1997), at syllabus. This certainly is not such a case.2
{¶ 45} Turning to the issue of informed consent, a physician cannot be shielded
from liability for his negligence by asserting that the patient, having been advised of the
possibility of a surgical injury but nonetheless having gone forward with the surgery, has
consented to a negligently inflicted injury. Allowing such a defense would, quite
obviously, constitute prejudicial error. But that is not what occurred here.
{¶ 46} In Waller v. Agarwal, 116 Ohio App. 3d 355 (11th Dist.), the case relied
upon by the majority opinion, in a typical malpractice case involving a perforated bladder
which occurred during some sort of laparoscopic surgery, the trial court mentioned
informed consent to prospective jurors before jury selection began, allowed defense
counsel to discuss informed consent during his opening statement and closing argument,
allowed defense counsel to cross-examine the plaintiff regarding informed consent and
also to question the defendant doctor regarding the issue, and most egregiously,
submitted a jury interrogatory asking the jury whether the plaintiff, by being informed of
the risks of surgery but proceeding with the procedure, “waived her rights.” Id. at 358.
{¶ 47} Under those facts, the Eleventh District correctly ruled that the trial court
had erred and the plaintiff had been prejudiced by the trial court’s allowing informed
2 A trial court’s ruling on a motion in limine is interlocutory. As such, the Raus’ “known complication” motion in limine did not preserve the issue for appellate review; to do so, a trial objection was needed. Gable v. Gates Mills, 2004-Ohio-5719, ¶ 35. -27-
consent to be a central – if not dominant – issue in the trial. But the present case is in
sharp contrast to what occurred in Waller. There was no suggestion by Dr. Cook or by
the trial court, through the jury instructions or otherwise, that Rau, by being informed of
surgical risks, had consented to negligent surgical performance or to negligent post-
operative care.
{¶ 48} During his direct examination, Dr. Cook was asked one question about the
risks of surgery he discussed with Rau. There was no objection to this question. Plain
error is certainly not demonstrated by this one question. Dr. Abraham was asked two
questions about Dr. Cook’s discussion with Rau about the risks of knee replacement
surgery as follows:
Q. You've had an opportunity to review Dr. Cook's records -- and I'm not
going to put them all up there -- but based on your review of the records,
did you see documentation that he had a discussion with the patient about
risk, benefits, et cetera?
[PLAINTIFF’S COUNSEL]: Objection.
[THE COURT]: I'll allow it for right now. Overruled.
A. Yes. That was part of the office record, something that I did look at,
that acknowledged that in his office notes that he had spoken to Rau about
the inherent risks of the operation including injuries to nerves and blood
Q. Thank you. Would that be reasonable within the standard of care for -28-
him to have such a discussion with a patient like Rau prior to surgery?
A. I would absolutely expect that to occur in advance of surgery.
Tr. Vol. IV, p. 16.
{¶ 49} The first question, which is consistent with the trial court’s ruling allowing
general testimony concerning what Rau was told regarding the risks of knee replacement
surgery, was relevant in my view because, if Rau was informed that a blood vessel injury
was a known complication of surgery, it made it more likely that a popliteal artery injury,
in contrast to Dr. Sauer’s “never event” testimony, was a known complication of knee
replacement surgery that can occur within the standard of care. Admittedly, the
relevance of the follow-up standard of care question was minimal at best, but I cannot
conclude the trial court acted unreasonably by allowing the follow-up question.
{¶ 50} On the informed consent issue, I finally conclude that even assuming the
trial court’s evidentiary rulings on this issue were erroneous, any error was harmless.
Civ.R. 61 provides as follows:
No error in either the admission or the exclusion of evidence and no error
or defect in any ruling or order or in anything done or omitted by the court
or by any of the parties is ground for granting a new trial or for setting aside
a verdict or for vacating, modifying or otherwise disturbing a judgment or
order, unless refusal to take such action appears to the court inconsistent
with substantial justice. The court at every stage of the proceeding must -29-
disregard any error or defect in the proceeding which does not affect the
substantial rights of the parties.
From this, the Ohio Supreme Court has stated that “an improper evidentiary ruling
constitutes reversible error only when the error affects the substantial rights of the
adverse party or the ruling is inconsistent with substantial justice.” Beard v. Meridian
Huron Hosp., 2005-Ohio-4787, ¶ 35. To determine whether a party’s substantial rights
have been affected by an erroneous evidentiary ruling, an appellate court “must weigh
the prejudicial effect of the trial court’s errors and determine whether, but for those errors,
‘the jury . . . would probably have made the same decision.’ ” Id., quoting O’Brian v.
Angley, 63 Ohio St.2d 159, 164-165 (1980), quoting Hallworth v. Republic Steel Corp.,
153 Ohio St. 349 (1950), paragraph three of the syllabus. Under this standard, I
conclude that if the jury had not heard the very general informed consent testimony, the
jury’s verdict would very probably have been the same. I reach this conclusion because
the informed consent testimony was minimal, the topic was not discussed in Dr. Cook’s
opening statement or closing argument, and the jury instructions were standard medical
malpractice instructions. There was simply nothing presented to the jury which
suggested that Rau, by being informed of possible surgical risks but proceeding with the
surgery, consented to either the surgery’s being negligently performed or to negligent
post-operative care.
{¶ 51} Based upon the above, I dissent from the majority opinion’s resolution of
the first assignment of error.
Cumulative Expert Testimony -30-
{¶ 52} Under the second assignment of error, the majority opinion also concludes
that the trial court acted arbitrarily and thus abused its discretion by allowing the testimony
of Dr. Sonn, a second retained standard of care expert, over the Raus’ objection. An
arbitrary decision is one which is made without an adequate defining principle or without
consideration of the facts and circumstances of the case. State v. Hill, 2022-Ohio-4544,
¶ 9. It is a somewhat unusual conclusion; most abuse of discretion determinations turn
on whether the decision is unreasonable. Hoke, 2020-Ohio-3387, at ¶ 30 (2d Dist.).
The basis for the conclusion that the court acted arbitrarily seems to be that the trial court
sustained the Raus’ motion in limine to exclude cumulative expert testimony but then
allowed such testimony. I agree that the trial court’s liminal decision was at odds with
the allowance of Dr. Sonn’s standard of care testimony. That being said and as already
discussed, however, a motion in limine ruling is tentative; it permits the trial court “to
change its mind.” Such a change does not necessarily make the ultimate decision
arbitrary. Moreover, allowing a second standard of care opinion from an expert with a
different background and with different experiences was neither arbitrary nor
unreasonable. It may not be the decision another trial judge would have made, but that,
of course, does not make the decision an abuse of discretion. This, quite simply, was
the type of trial decision where the trial court’s discretion, though not unlimited, was quite
broad. As such, I cannot conclude the trial court abused its discretion by allowing Dr.
Sonn’s testimony.
{¶ 53} Moreover, assuming the trial court abused its discretion and, thus, erred,
the error was harmless. I reach this conclusion because, under the standard already -31-
discussed, allowing Dr. Sonn’s testimony in all probability did not affect the jury’s verdict.
{¶ 54} Based upon the above discussion, I also dissent from the majority opinion’s
resolution of the second assignment of error.