Lowder v. Domingo
2017 Ohio 1241
Ohio Ct. App.2017Background
- Plaintiff Janet Lowder, guardian of minor Kristia Mayers, sued Dr. Albert Domingo for alleged permanent brachial plexus injury sustained at Kristia’s 2009 vaginal delivery, asserting improper management of shoulder dystocia and failure to offer cesarean given maternal diabetes.
- Trial evidence: Mother had gestational diabetes; prenatal ultrasound estimated fetal weight under 4,500 g; shoulder dystocia occurred during delivery and Dr. Domingo used recognized maneuvers (McRoberts, suprapubic pressure, posterior arm delivery, episiotomy) and successfully delivered the baby.
- Pediatric notes documented left-sided Erb’s palsy/nerve traction and diminished movement/sensation in the left arm after birth.
- Plaintiff’s expert (Dr. Bottiglieri) testified that permanent brachial plexus injuries require excessive lateral traction and that such injury cannot occur prior to recognized shoulder dystocia; he also stated he had never caused such an injury. On cross, defense impeached him with a prior malpractice suit against him alleging a similar injury.
- Defense experts (Drs. Gherman and Landon) testified the maneuvers used were within the standard of care, a cesarean was not indicated given the fetal weight estimate, and the injury could have occurred before or without excessive lateral traction.
- Jury returned verdict for Dr. Domingo. On appeal, Lowder raised: (1) improper impeachment of plaintiff’s expert with extrinsic evidence of a prior lawsuit; (2) error in giving the "different methods" jury instruction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Impeachment with prior lawsuit | Trial court erred in permitting defense to impeach Dr. Bottiglieri with extrinsic evidence of a prior malpractice suit (violated motion in limine; Evid.R. 608(B)/616(C)) | Cross-examination was permissible: court’s motion in limine allowed inquiry into experts' prior similar cases; plaintiff opened the door by asking if he had ever caused such an injury; matter was material (not collateral) to causation debate | Affirmed: No reversible error — plaintiff waived by failing to timely object; evidence was admissible under the in-limine ruling and as relevant to a disputed, non-collateral issue; court did not abuse discretion |
| "Different methods" jury instruction | Instruction was improper because plaintiff’s theory was that Dr. Domingo used an unacceptable maneuver, not one of multiple acceptable methods | Evidence showed several accepted maneuvers for shoulder dystocia; instruction prevents juror confusion where more than one accepted method exists | Affirmed: Instruction was legally correct and factually warranted because evidence established multiple acceptable methods; instruction appropriate |
Key Cases Cited
- Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997) (failure to timely object waives all but plain error in trial proceedings)
- Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 16, 741 N.E.2d 1 (2001) (experts may be asked about pending or past malpractice cases to show bias; limits on mention of outcomes)
- Pesek v. Univ. Neurologists Assn., Inc., 87 Ohio St.3d 495, 721 N.E.2d 1011 (2000) ("different methods" instruction appropriate only where evidence shows more than one acceptable diagnostic or treatment method)
- Cromer v. Children's Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 257, 29 N.E.3d 921 (2015) (trial court must give jury instructions that correctly and completely state the law)
- Estate of Hall v. Akron Gen. Med. Ctr., 125 Ohio St.3d 300, 927 N.E.2d 1112 (2010) (jury instructions must be warranted by the evidence)
- Marshall v. Gibson, 19 Ohio St.3d 10, 482 N.E.2d 583 (1985) (an inadequate instruction that misleads the jury is reversible error)