Whitmer v. Zochowski
2016 Ohio 4764
Ohio Ct. App. 9th2016Background
- On May 8, 2010 Carl A. Whitmer suffered traumatic brain injury including a left subdural hematoma (initial CT midline shift 8 mm); he remained comatose and then improved before developing severe headaches and increased analgesic use on May 19–21. A facial surgery was scheduled for May 22.
- Neurosurgeon Dr. Fleming initially evaluated Whitmer and cleared him for surgery on May 19; Fleming did not see Whitmer again before May 22 and was not informed the surgery was rescheduled.
- Plastic surgeon Dr. Donaldson performed the May 22 facial surgery; Whitmer failed to regain consciousness postoperatively. A CT after surgery showed a large subdural with a 15 mm midline shift; emergency burr hole evacuation was performed but Whitmer later died.
- Plaintiff (Whitmer’s father and estate) sued the treating physicians, COSA, and Mount Carmel Health Systems for wrongful death; claims included negligence against Dr. Zochowski (trauma surgeon) and vicarious liability of Mount Carmel under agency by estoppel. Cases were consolidated and tried to a jury.
- Jury found the Zochowski defendants negligent and awarded $1.8 million; Donaldson and Mount Carmel’s nurses were found not negligent. Trial court later applied the verdict to Mount Carmel via agency-by-estoppel and awarded prejudgment interest against the Zochowski defendants. Defendants appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court could amend pleadings under Civ.R.15(B) to conform to evidence and impose agency-by-estoppel liability on Mount Carmel | Whitmer argued the agency-by-estoppel theory was tried by implied consent (testimony showed patient looked to hospital and doctors presented as Mount Carmel), so amendment to conform was proper | Mount Carmel argued the amendment was untimely/statute-barred, and that it did not consent and suffered prejudice from the late claim | Court: Granting Civ.R.15(B) amendment was within discretion; Mount Carmel waived unraised statutory arguments and failed to show substantial prejudice, so agency-by-estoppel properly submitted and applied |
| Admissibility of Dr. Fleming’s deposition against Zochowski (Civ.R.32(A) vs Evid.R.804(B)(1)) | Whitmer sought to read Fleming’s deposition, arguing Fleming unavailable and prior deponents (Donaldson, Mount Carmel) had opportunity and similar motive to examine him so Evid.R.804(B)(1) applies | Defendants argued Civ.R.32(A) did not apply as Zochowski was not present at deposition; under Evid.R.804(B)(1) no privity/predecessor-in-interest existed between Zochowski and those present, so deposition was inadmissible against Zochowski | Court: Admission against Zochowski under Evid.R.804(B)(1) was erroneous (no predecessor-in-interest/privity), but error was harmless because plaintiff’s neurosurgical expert provided the necessary proof and Fleming’s testimony was cumulative |
| Form and scope of jury interrogatories under Civ.R.49 (narrative vs yes/no; determinative issues) | Whitmer proposed specific yes/no interrogatories tied to discrete acts (clearance, communication, evaluations) to test determinative issues | Defendants argued narrative interrogatory required to identify which alleged acts were negligent and yes/no form risked shifting burden or biasing jury | Court: Trial court acted within discretion; it submitted both parties’ interrogatories (so no exclusion), yes/no form is permissible, interrogatories were not unduly duplicative or biased |
| Qualification of plaintiff’s expert (Evid.R.702) and sufficiency of evidence for directed verdict on Zochowski claim | Whitmer relied on Drs. Gelman (trauma standard of care) and Bloomfield (neurosurgery causation) to show breach and causation | Zochowski argued Gelman (a plastic surgeon by practice) was unqualified to opine on trauma surgery standard and without him plaintiff lacked evidence so directed verdict was required | Court: Gelman’s prior general surgery/trauma residency and experience qualified him under Evid.R.702; his testimony plus Bloomfield’s provided sufficient evidence so denial of directed verdict proper |
| Award of prejudgment interest under R.C. 1343.03(C) | Whitmer argued defendants failed to engage in good-faith settlement negotiations and therefore prejudgment interest was warranted | Zochowski argued they reasonably believed they had no liability and thus engaged in good-faith evaluation | Court: Trial court did not abuse discretion—insurer/defense assessed meaningful exposure, no settlement offers or responses were made, and discovery revealed credible medical evidence of breach; prejudgment interest awarded was proper |
Key Cases Cited
- Comer v. Risko, 106 Ohio St.3d 185 (Ohio 2005) (agency by estoppel vicarious-liability framework for hospitals)
- Clark v. Southview Hosp. & Family Health Ctr., 68 Ohio St.3d 435 (Ohio 1994) (elements for hospital liability under agency by estoppel)
- Burkhart v. H.J. Heinz Co., 140 Ohio St.3d 429 (Ohio 2014) (Evid.R.804(B)(1) requires predecessor-in-interest/privity in civil cases)
- Moretz v. Muakkassa, 137 Ohio St.3d 171 (Ohio 2013) (when multiple alleged negligent acts, jury should specify which were negligent)
- Ramage v. Cent. Ohio Emergency Servs., Inc., 64 Ohio St.3d 97 (Ohio 1992) (trial court discretion to control form/content of jury interrogatories)
- Freeman v. Norfolk & W. Ry. Co., 69 Ohio St.3d 611 (Ohio 1994) (purpose of interrogatories is to test correctness of general verdict on determinative issues)
- Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638 (Ohio 1994) (standards for awarding prejudgment interest under R.C.1343.03(C))
- Kalain v. Smith, 25 Ohio St.3d 157 (Ohio 1986) (good-faith settlement criteria relevant to prejudgment interest)
- Galayda v. Lake Hosp. Sys., Inc., 71 Ohio St.3d 421 (Ohio 1994) (defendant’s refusal to negotiate despite credible evidence of liability supports prejudgment interest)