2013 Ohio 4146
Ohio Ct. App.2013Background
- In 1997 James Schultz underwent anterior cervical discectomy performed by Dr. Stewart Dunsker; Schultz alleged recurrent laryngeal nerve injury causing permanent voice impairment.
- The Schultzes filed malpractice and lack-of-informed-consent claims, refiling multiple times; proceedings were stayed after Dunsker claimed state-employee immunity and the Court of Claims later found he had immunity.
- The Schultzes sought to have Dunsker deemed to have waived immunity and pursued the remaining claims against Mayfield Neurological/Spine Institute; the trial was a bench trial in 2012 and resulted in judgment for Mayfield.
- At trial plaintiffs raised numerous evidentiary objections: alleged off-the-record judicial remarks (mistrial), exclusion of cross-examining a defense expert about his malpractice insurer (commonality of insurance), use of subpoenaed AANS materials without notice, and alleged consideration of AANS findings as hearsay.
- The court found no liability (malpractice) and rejected the lack-of-informed-consent claim, applying Nickell/White standards; plaintiffs raised additional procedural complaints (untimely jury demand, judge recusal/affidavit under R.C. 2701.03), all rejected on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion for mistrial based on off-the-record remarks | Court made off-record comments and predicated rulings before evidence complete, warranting mistrial | No recorded off-the-record remarks; no basis for mistrial | Denied; no abuse of discretion (no record support) |
| Cross-examination about common malpractice insurer | Plaintiffs should probe defense expert's insurer to show bias from common carrier | Mayfield's carrier had been liquidated/bankrupt years earlier; no realistic common pecuniary interest | Exclusion even if error did not prejudice plaintiffs in bench trial; no reversal |
| Use of subpoenaed AANS materials without serving notice | Failure to serve subpoena notice deprived plaintiffs opportunity to rehabilitate/prepare | Plaintiffs had longstanding knowledge of expert and AANS matters; court limited use of AANS proceedings | Allowed cross-examination; no unfair surprise or prejudice shown |
| Consideration of AANS determinations as hearsay | Trial court improperly considered AANS factual determinations against plaintiffs' expert | Court stated it would not consider AANS verdicts; bench trial presumption of considering only competent evidence | No error; record does not show court relied on AANS proceedings |
| Admissibility of professional literature relied on by defense experts | Defense experts cited literature without precise citations, defeating effective cross-examination | Experts may rely generally on literature and can be tested on basis/opinion | Permitted; consistent with Beard, and no impermissible conduit testimony |
| Informed-consent standard applied (Nickell/White) | Plaintiffs argued application was improper and allowed experts to decide ultimate issue | Court applied Nickell elements and White's allocation (experts for material risks and causation; trier of fact decides reasonable patient) | Proper application; court credited defense experts and found reasonable-person prong against plaintiffs |
| Jury demand struck as untimely | Plaintiffs demanded jury late and should retain right | Mayfield moved to strike; Civ.R. 38 requires timely demand | Demand untimely; striking was not an abuse of discretion |
| Waiver of Dunsker's immunity / constitutionality of R.C. 2701.03 | Plaintiffs sought waiver determination and challenged disqualification statute | Immunity ruling irrelevant after finding no liability; failure to raise constitutional challenge below waived issue | No reversible error; issues either moot or waived |
Key Cases Cited
- Ede v. Atrium South OB-GYN, Inc., 71 Ohio St.3d 124 (1994) (common insurer inquiry relevant to expert bias)
- Davis v. Immediate Med. Servs., 80 Ohio St.3d 10 (1997) (insurance/commonality inquiry in malpractice contexts)
- Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237 (2005) (experts may rely on professional literature; limits on conduit testimony)
- Nickell v. Gonzalez, 17 Ohio St.3d 136 (1985) (elements for lack-of-informed-consent claim)
- White v. Leimbach, 131 Ohio St.3d 21 (2011) (expert testimony required for material risks and causation; reasonable-person question for trier of fact)
- Bruni v. Tatsumi, 46 Ohio St.2d 127 (1976) (standard for proving medical malpractice)
- Savage v. Correlated Health Servs., Ltd., 64 Ohio St.3d 42 (1992) (abuse-of-discretion review for mistrial/new-trial decisions)