Beard v. St. Vincent Charity Hosp.
2017 Ohio 7608
| Ohio Ct. App. | 2017Background
- Michael Beard could not be intubated for bariatric surgery; otolaryngologist Dr. Harvey Tucker attempted intubation later and, after failed attempts, performed a tracheostomy that became permanent after complications.
- Beard and his wife sued Tucker and MetroHealth alleging lack of informed consent for the tracheostomy, negligent performance of the tracheostomy, and breach of post-operative care.
- Key contested evidence: preexisting CT scans of Beard’s airway and their interpretation regarding airway stenosis and intubation risk.
- Discovery dispute: Tucker’s expert report did not list CT scans expressly, but the expert later testified he reviewed them; Beard moved to exclude testimony about the CT scans as a surprise.
- Trial rulings: the court allowed Tucker’s expert to testify about CT scans (denying exclusion), sustained an objection to part of Beard’s expert testimony about tube modification but later allowed equivalent opinions, denied a directed verdict for Beard (plaintiff) and permitted MetroHealth to amend its answer to assert political subdivision offsets.
- Jury returned verdict for Tucker and MetroHealth; appellate court affirmed, finding no reversible trial error and any errors harmless or forfeited.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Expert testimony about CT scans should be excluded because expert did not disclose opinion pretrial | Beard: expert report omitted CT-based opinion; admission would be unfair surprise, requiring exclusion | Tucker/MetroHealth: expert reviewed CTs; omission was inadvertent; no surprise or prejudice and Beard opened the door | Court: No abuse of discretion; testimony admissible (no intent to mislead, CTs were central and known, exclusion is extreme) |
| Whether Beard’s expert should have been allowed to opine that cutting holes in tracheostomy tubes violated the standard of care | Beard: expert disclosed this opinion in his report and should be allowed to testify | Tucker: objection that testimony was a new, undisclosed opinion | Court: Sustained objection was error but harmless because expert otherwise testified the modification violated the standard of care and jury heard that point |
| Whether trial court should have directed a verdict for Beard on informed consent | Beard: Tucker admitted no written consent and failed to warn Beard permanent tracheostomy risk | Tucker: factual issues existed; plaintiff failed to renew directed verdict motion after all evidence | Court: Beard forfeited by not renewing motion; even if not forfeited, jury verdict for defendants rendered any error harmless |
| Whether court erred by allowing MetroHealth to amend answer to assert political-subdivision offsets | Beard: amendment after 18 months and after summary judgment motion was prejudicial | MetroHealth: prior defenses gave notice of possible offsets; amendment not prejudicial | Court: Jury verdict for defendants mooted the issue; even on merits amendment was permissible and not an abuse of discretion |
Key Cases Cited
- Krehnbrink v. Testa, 69 N.E.3d 656 (Ohio 2016) (purpose of discovery is to prevent unfair surprise)
- Di v. Cleveland Clinic Found., 60 N.E.3d 582 (Ohio 2016) (trial-court exercise of discretion over expert discovery reviewed for abuse)
- Nickey v. Brown, 454 N.E.2d 177 (Ohio Ct. App. 1982) (exclusion is an extreme sanction for discovery noncompliance)
- Chem. Bank of New York v. Neman, 556 N.E.2d 490 (Ohio 1990) (requirement to renew directed-verdict motion to preserve error)
- Helmick v. Republic-Franklin Ins. Co., 529 N.E.2d 464 (Ohio 1988) (renewal rules for directed verdicts apply differently to defendants)
- Continental Ins. Co. v. Whittington, 642 N.E.2d 615 (Ohio 1994) (a later trial jury verdict can render earlier denial of summary judgment harmless)