McMichael v. Akron Gen. Med. Ctr.
2017 Ohio 7594
| Ohio Ct. App. | 2017Background
- On June 8, 2012, Nakeyia McMichael (history of lupus and chronic cerebral edema) presented to Akron General ER with a sudden, severe headache, vomiting, photophobia and drowsiness; she was treated for migraine and discharged after a short stay without review of prior records, neurology consult, imaging, or edema medications.
- Mrs. McMichael deteriorated at home overnight and returned to the hospital the next morning with tonsillar herniation from diffuse cerebral edema and died (family withdrew life support).
- Husband Anthony McMichael sued General Emergency Medical Specialists, Inc. and Dr. John Pakiela for wrongful death and survivorship (medical malpractice); trial was bifurcated to address punitive damages later.
- A jury found Dr. Pakiela negligent for failing to request imaging or a neurology consult re: head "swelling," found that negligence proximately caused death, awarded wrongful-death damages but awarded no survivorship pain-and-suffering damages (thus negating punitive damages).
- Defendants moved for JNOV or new trial and for setoff; trial court denied JNOV/new trial, granted setoff and reduced damages; defendants appealed. The Ninth District affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion for JNOV on proximate cause | McMichael: experts showed Mrs. McMichael died from untreated acute exacerbation of chronic cerebral edema and would have survived if neurology, imaging, and edema meds had been provided | Defendants: evidence did not establish proximate cause; symptoms after discharge (pain improvement, sleeping) inconsistent with progressive edema; only one qualified causation expert | Denied JNOV — viewing evidence in plaintiff's favor, reasonable minds could find defendants' failure to order consult/imaging proximately caused death based on expert testimony and records |
| New trial: admissibility/competency of expert testimony | McMichael relied on neurology, rheumatology, radiology and emergency-medicine experts to establish standard of care and causation | Defendants argued several experts were not qualified to testify as to ER standard or causation and that cumulative/incompetent expert testimony prejudiced them; sought to admit a recorded statement from treating neurologist that was excluded | No reversible error; trial court did not abuse discretion admitting the experts (overlap of specialties warranted testimony); any questionable testimony was harmless given other admissible expert proof and proper limiting instructions |
| New trial: jury instructions (hindsight, life expectancy, insurance) | McMichael: instructions given sufficiently and court instructed on standard of care, foreseeability, and damages | Defendants: requested hindsight instruction; challenged life-expectancy statement and that insurance instruction (given twice) suggested defendants had coverage | No reversible error — court instructed on "like or similar circumstances," foreseeability and standard of care; life-expectancy instruction was qualified and not prejudicial; insurance instruction appropriate to prevent speculation and jurors are presumed to follow instructions |
| New trial: closing-argument misconduct | McMichael: rebuttal and closing arguments were within wide latitude; court sustained objections where necessary and instructed jury | Defendants: counsel made inflammatory and improper remarks (suggested defendants had "$10 million" insurance, misstatements about autopsy and expert availability, urged jury to "decide the standard of care") | No reversible error — trial court sustained objections, gave curative instructions, and any improper remarks were not shown to have prejudiced defendants' substantial rights |
Key Cases Cited
- Bruni v. Tatsumi, 46 Ohio St.2d 127 (1976) (medical-malpractice standard: omission evaluated against what a physician would have done under like or similar conditions)
- Berdyck v. Shinde, 66 Ohio St.3d 573 (1993) (physician duty: degree of skill, care and diligence of same specialty in like circumstances)
- Osler v. Lorain, 28 Ohio St.3d 345 (1986) (JNOV standard: courts must not weigh evidence or assess credibility)
- Roberts v. Ohio Permanente Med. Group, Inc., 76 Ohio St.3d 483 (1996) (causation in medical malpractice: more likely than not standard via expert testimony)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (abuse of discretion defined for appellate review)
- Kokitka v. Ford Motor Co., 73 Ohio St.3d 89 (1995) (jury instructions reviewed as whole; reversible error only if jury probably misled in manner affecting substantial rights)
- Cromer v. Children’s Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 257 (2015) (presumption that jury follows instructions; prejudice from instruction must be shown on the record)