2016 Ohio 4976
Ohio Ct. App.2016Background
- Eugenia (Gina) Snowden underwent multiple abdominal surgeries (Oct 2008–Mar 2010). During a Feb 26–27, 2009 operation Dr. Ekeh left a surgical sponge in her abdomen; he later admitted failing to timely discover it and WSP (his employer) stipulated breach of care before trial.
- The retained sponge was associated with chronic infection, multiple subsequent surgeries, short bowel, a transplant attempt, and Gina’s death in May 2010; causation remained disputed at trial.
- Plaintiffs (the Snowdens / estate) sued multiple defendants; most codefendants settled or were dismissed pretrial and Miami Valley Hospital (MVH) settlement proceeds were later identified in probate filings.
- At a July 2014 jury trial against WSP alone, the jury found WSP negligent and awarded $100,000 for Gina’s pre-death pain and suffering but awarded $0 for wrongful death, loss of consortium, and economic damages. Post-trial motions were denied by a successor judge and WSP appealed; Snowdens cross-appealed.
- The appellate court found several trial evidentiary and instructional errors (notably improper use of plaintiffs’ affidavit of merit, improper interrogatories/instructions referring to MVH employees without supporting evidence, and improper admission of a demonstrative medical illustration) and reversed and remanded for a new trial. WSP’s discovery/set-off arguments were held moot on remand but the court directed that any settlement agreement may be filed under seal for set-off determination if relevant after retrial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Use of plaintiff’s affidavit of merit to impeach/plaintiff’s expert | Affidavit was procedural only under Civ.R.10(D)(2) and inadmissible for impeachment or substantive use. | WSP used affidavit to attack expert credibility, citing deposition references and inconsistencies. | Court sustained plaintiff: affidavit of merit is not admissible for impeachment; its use was prejudicial. |
| Submission of interrogatories/instructions referencing MVH nurses/scrub techs | No evidence proved the nurses/scrub techs were MVH employees/agents; thus submitting interrogatories linking them to MVH was erroneous and prejudicial. | WSP contended apportionment/set-off could be sought regardless of MVH liability and offered alternate causation defenses. | Court sustained error as to interrogatories/instructions (confusing and prejudicial); verdict reversed and new trial ordered. |
| Directed verdict / JNOV request re: lack of proof MVH employees | Plaintiffs sought directed verdict/JNOV because defendants failed to prove nurses were MVH employees. | WSP argued it could present alternate causation and did not need MVH to be adjudicated liable for set-off under R.C.2307.28. | Court rejected plaintiff’s directed-verdict claim as to liability issues (First cross-assignment overruled) but sustained error in submitting interrogatories; overall confusion warranted retrial. |
| Admission and sending demonstrative medical illustration to jury | Plaintiffs argued the exhibit (a medical drawing used by defense expert) lacked foundation and, per Moretz, learned-treatise/illustration rule prohibits admitting illustrations as exhibits. | Defense relied on the exhibit to explain anatomy and operative findings. | Court held admission and sending the drawing to jury was error and prejudicial; exhibit inadmissible as independent evidence and contributed to reversal. |
| Production of MVH settlement agreement / set-off under R.C.2307.28 | Plaintiffs maintained probate filings showed settlement allocated to wrongful death and argued set-off was not applicable as applied by defendant. | WSP sought production of the settlement agreement and set-off of settlement proceeds against any plaintiff recovery. | Appellate court found the issue moot given reversal; ordered that on remand the trial court may review the settlement (filed under seal if necessary) and apply R.C.2307.28 to determine any set-off. |
Key Cases Cited
- Eastley v. Volkman, 132 Ohio St.3d 328 (2012) (standard for reviewing sufficiency/directed verdict/jnov questions)
- Bruni v. Tatsumi, 46 Ohio St.2d 127 (1976) (elements required to prove medical malpractice)
- Fidelholtz v. Peller, 81 Ohio St.3d 197 (1998) (interpretation of contribution/set-off statutes prior to recodification)
- Moretz v. Muakkassa, 137 Ohio St.3d 171 (2013) (medical illustrations subject to learned-treatise exception and cannot be admitted as independent exhibits)
- Gladon v. Greater Cleveland Reg. Transit Auth., 75 Ohio St.3d 312 (1996) (pleadings and admissions may be considered when ruling on directed verdict)
- Ruta v. Breckenridge-Remy Co., 69 Ohio St.2d 66 (1981) (legal sufficiency test for directed verdicts)
- In re Miamisburg Train Derailment Litigation, 132 Ohio App.3d 571 (1999) (discussion of practical problems from Fidelholtz interpretation of set-off)