2019 Ohio 2013
Ohio Ct. App.2019Background
- Plaintiff Mary Jenkins underwent a pedicle TRAM flap breast-reconstruction in October 2012 performed by Dr. Katharine Grawe; Jenkins had earlier declined an elective DIEA procedure meant to reduce risk of flap necrosis.
- Postoperative venous congestion developed within about 24 hours; Dr. Grawe initially ordered leech therapy, later returned Jenkins to the OR to excise nonviable tissue and reset the pedicle, but the flap ultimately failed and required removal; Jenkins had prolonged wound care.
- Jenkins sued for medical malpractice alleging Grawe was negligent in failing to promptly perform microsurgery to address venous congestion (i.e., delay in definitive surgical treatment caused the loss of the flap).
- At trial, Jenkins presented her own testimony and expert Dr. Wong S. Moon; defendants presented Drs. Serletti and Halpern who supported the use of leech therapy and reasonableness of Grawe’s conduct.
- Jury returned a verdict for Jenkins ($300,000 non‑economic, later reduced to $250,000; plus economic damages) and the trial court entered judgment for $308,620.74; defendants appealed on eight grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of evidence that Jenkins declined DIEA (relevance to proximate cause) | Jenkins argued causation rests on defendant’s failure to timely microsurgical treatment, not plaintiff’s earlier choice | Declining DIEA was relevant to proximate or comparative causation; defendants had right to present expert opinion that DIEA would have prevented failure | Exclusion affirmed: Jenkins’ earlier refusal was remote "but‑for" causation and irrelevant to proximate cause for the negligence claim |
| Admissibility of signed consent form (risks/complications evidence) | Jenkins had already testified and admitted she knew risks; consent form unnecessary | Consent form showed risks were disclosed and could undermine causation or damages | Exclusion affirmed: consent form would be cumulative of testimony already before jury |
| Late expert opinion (Dr. Moon’s testimony about transfer for microsurgery) | Dr. Moon’s transfer opinion was surprise; should have been pre‑disclosed under Civ.R. 26 | Opinion was consistent with his standard‑of‑care position (need for microsurgery); transfer remark not a new negligence theory | Admission affirmed: not a new theory, trial court offered remedy and defendants declined opportunity to examine outside jury presence |
| Excusal of two prospective jurors sua sponte during voir dire | Jenkins did not argue error (issue asserted by defendants) | Excusals were improper because not pursuant to R.C. 2313.17 formal challenge | Affirmed: court may excuse jurors sua sponte; no prejudice shown and statements supported excusals |
Key Cases Cited
- Peters v. Ohio State Lottery Comm., 63 Ohio St.3d 296 (discretionary evidentiary rulings reviewed for abuse of discretion)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (abuse of discretion defined)
- Strother v. Hutchinson, 67 Ohio St.2d 282 (proximate cause requirement in negligence actions)
- Jeffers v. Olexo, 43 Ohio St.3d 140 (definition/analysis of proximate cause)
- Anderson v. St. Francis-St. George Hosp., Inc., 77 Ohio St.3d 82 (distinguishing proximate cause vs. but‑for causation)
- State v. Sanders, 92 Ohio St.3d 245 (trial court’s excusal of juror sua sponte generally not reversible error)
- Moretz v. Muakkassa, 137 Ohio St.3d 171 (medical bills admissible under statute without expert testimony)