MICHAEL SCOTT BEARD, ET AL. v. ST. VINCENT CHARITY HOSPITAL, ET AL.
No. 105245
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 14, 2017
2017-Ohio-7608
MELODY J. STEWART, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-14-838125
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
BEFORE: Stewart, J., E.A. Gallagher, P.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: September 14, 2017
ATTORNEYS FOR APPELLANTS
Timothy J. Weyls
Jeffrey T. Peters
Michael Chuparkoff
Weyls Peters, L.L.C.
6505 Rockside Road, Suite 105
Independence, OH 44131
ATTORNEYS FOR APPELLEES
Christine Santoni
Holly M. Wilson
Reminger Co., L.P.A.
101 West Prospect Avenue, Suite 1400
Cleveland, OH 44115
{¶1} When plaintiff-appellant Michael Scott Beard could not be intubated for general anesthesia preparatory to undergoing bariatric surgery at St. Vincent Charity Hospital, he consulted with defendant-appellee Harvey Tucker, M.D., an otolaryngologist (ear, nose and throat doctor) at MetroHealth Medical Center. Tucker thought that he could successfully intubate Beard for surgery, but in a subsequent bariatric surgery, his attempts to do so failed, causing Tucker to perform a tracheostomy. There were post-surgery complications with the tracheostomy, causing it to become permanent.
{¶2} Beard and his wife, Michelle Beard (we will refer to the plaintiffs collectively as “Beard“), brought this action against Tucker and his employer, defendant-appellee MetroHealth Medical Center,1 alleging that Tucker failed to obtain Beard‘s informed consent to the tracheostomy, that Tucker negligently performed it, and that Tucker breached the standard for post-operative care. A jury found in favor of Tucker and MetroHealth. In this appeal from that verdict, Beard complains that the court made various errors with respect to testimony and opinions about a CT scan; that the court erred by refusing to allow opinion testimony from his expert; that the court erred by refusing to direct a
I. Expert Testimony
{¶3} The first, second, third, and fourth assignments of error relate to expert testimony on a CT scan of Beard‘s throat, taken prior to his consultation with Tucker. Beard brought the CT scan to his consultation with Tucker, but alleged that Tucker either did not review the CT scan or that he read it incorrectly and failed to see that a narrowing of Beard‘s throat (stenosis) meant that Beard could not be properly intubated. Beard maintains that had Tucker properly reviewed the CT scan before surgery, the standard of care required an explicit, pre-surgery advisement that a tracheostomy would be required — a procedure that he claims he would have refused had he been properly advised.
{¶4} During discovery, Tucker‘s expert submitted a two-page report that detailed the materials he reviewed when forming his opinion regarding Tucker‘s alleged breach of the medical standard of care. Not only did the expert‘s report fail to mention that the expert reviewed the CT scan, the expert agreed in deposition that if called to testify at trial, the substance of what he would testify to was contained within his report. This prompted Beard to file a motion in limine to prevent the expert from testifying to any fact or issue not raised in the report. The court denied the motion subject to reconsideration. At trial, the expert was asked whether, in preparation for forming an opinion, he had reviewed “various radiology studies.” Beard objected because the only radiology studies were the CT scans and the expert gave no indication during discovery that his opinions were based on the CT scans. Tucker maintained that the expert testified in deposition that he had reviewed the CT scans before writing his expert report. The court ruled that there was no surprise in allowing the expert to testify and that Beard opened the door to testimony about the CT scan by mentioning it during his case-in-chief.
{¶5} Beard first argues that the court should have disallowed Tucker‘s expert from testifying about the CT scans because the expert had not divulged an opinion on the matter prior to trial.
{¶6} As a general principle, the purpose of pretrial discovery is to prevent unfair surprise. Krehnbrink v. Testa, 148 Ohio St.3d 129, 2016-Ohio-3391, 69 N.E.3d 656, ¶ 39. With respect to opinions held by experts, two rules apply: Loc.R. 21.1 of the Court of Common Pleas of Cuyahoga County, General Division and
{¶7} The court did not abuse its discretion by allowing Tucker‘s expert to testify about the CT scans because (1) there was no indication that the expert intended to mislead, (2) Beard was not surprised by the admission of CT scan testimony, and (3) no prejudice resulted from the admission of the testimony.
{¶8} It is true that the expert did not reference the CT scans as being among
{¶9} The importance of the CT scans proves the absence of surprise. The CT scans were a crucial piece of evidence for both sides: Beard maintained that the scans showed that he had an airway obstruction that would certainly require a tracheostomy (and informed consent); Tucker maintained that the scans showed no obstruction, indicting that intubation could be achieved. Tucker had been extensively deposed on the CT scans. And Beard‘s own expert submitted a report that gave similar consideration to the CT scans. The extent to which both sides relied on the CT scans was such that it would have been no surprise that Tucker‘s expert likewise formulated his opinion, in part, by considering them. That the expert‘s report did not expressly say so was not fatal —
{¶10} Finally, the court‘s decision to allow the expert to testify about the CT scans did not unfairly prejudice Beard. This was not a case where the expert‘s testimony was cumulative — the expert‘s interpretation of the CT scans was pivotal to Tucker‘s defense. Although the court has discretion to exclude testimony as a sanction under
{¶11} In his fourth assignment of error, Beard complains that the court erred by sustaining an objection to testimony by his expert regarding an opinion that Tucker deviated from the applicable standard of care by using a scalpel to modify tracheostomy tubes.
{¶12} Post-operation, Beard had continued problems breathing through the tracheostomy tube that remained in his throat. On several occasions, Tucker used
{¶13} We agree with Beard that the court erred by sustaining the objection because Beard‘s expert raised the issue of Tucker modifying the tracheostomy tubes in his report. The report stated:
Dr. Tucker‘s care and management of Mr. Beard relative to his post-surgical care and management of Mr. Beard‘s tracheostomy surgeries performed on 12/04/2012 and 01/18/2013 also fell below the standard of care in that Dr. Tucker‘s use of different types and sizes of tracheostomy tubes and manipulation of them by cutting windows into the tubes on “trial and error” basis, worsened Mr. Beard‘s breathing difficulties and agitated and prevented Mr. Beard‘s trachea from healing, thereby prolonging Mr. Beard‘s use and dependence on the tracheostomy tube for more than a year (and in fact now permanently), even though Dr. Tucker‘s records indicate it was to be only “a few months.”
{¶14} Tucker does not dispute that Beard‘s expert gave this opinion in his report, but maintains that without any record of the sidebar that occurred following the objection, we must presume the regularity of the court‘s decision. A presumption of regularity is employed when the record is “silent.” State v. Ward, 8th Dist. Cuyahoga Nos. 104493 and 104495, 2017-Ohio-933, ¶ 17. The record in this case, however, is not silent — the court refused to allow Beard‘s expert to offer an opinion based on an articulated objection that the expert was expressing a “new” opinion. It is disingenuous for Tucker to argue that the court did not err by sustaining the objection to previously disclosed opinions held by Beard‘s expert.
{¶15} Nevertheless, we agree with Tucker that the error was harmless under
I believe that it would be impossible with accuracy and precision to create a hole without the hole potentially causing tissue trauma. And also, it would be hard just to do a guess work or estimate basis to do this as these are highly precisely manufactured products, medical grade products, and I would not feel that I have the mechanical skills to carve in like the machine in which the manufacturer can fabricate it. They fabricate fenestrated tracheostomy tubes. You can order them.
{¶16} Beard‘s expert went on to say that Beard‘s throat anatomy was such that he required custom-ordered tubes. Finally, Beard‘s expert testified that Beard ultimately had to seek a second opinion after Tucker‘s attempts to modify the tracheostomy tubes failed. The physician offering the second opinion custom-ordered tracheostomy tubes that fit Beard without modification.
II. Directed Verdict
{¶18} Beard next argues that the court erred by failing to direct a verdict on the issue of informed consent in his favor at the close of evidence. He maintains that Tucker, who testified on cross-examination during Beard‘s case-in-chief, admitted that he
did not obtain written informed consent for the surgery and further admitted that he did not inform Beard of the risk that a tracheostomy could become permanent.
{¶19} When the court denies a motion for a directed verdict at the close of the plaintiff‘s case-in-chief, the disappointed party must renew the motion at the close of all the evidence in order to preserve it for appeal. See Chem. Bank of New York v. Neman, 52 Ohio St.3d 204, 207, 556 N.E.2d 490 (1990) (finding that a plaintiff “waived any claim of error in the denial of the directed verdict by failing to renew his motion at the close of all evidence“); Helmick v. Republic-Franklin Ins. Co., 39 Ohio St.3d 71, 72, 529 N.E.2d 464 (1988), paragraph one of the syllabus (“When a motion for directed verdict is made by a defendant at the conclusion of the plaintiff‘s case and is overruled, the defendant‘s right to rely on the denial of that original motion as error is not waived when the defendant proceeds to present his evidence and defense as long as the motion is renewed at the conclusion of all the evidence.“).
{¶20} There is nothing in the record to show that Beard renewed his motion for a directed verdict at the close of all the evidence. By failing to do so, he forfeited the right to raise as error on appeal the court‘s failure to direct a verdict in his favor. Even if Beard had not forfeited his right to raise this assigned error, it would nonetheless fail because the jury ultimately decided all factual issues against him.
{¶21} The court must direct a verdict if, after construing the evidence most strongly in favor of the party against whom the motion is directed, it “finds that upon any determinative issue reasonable minds could come to but one conclusion upon the
evidence submitted and that conclusion is adverse to such party[.]”
{¶22} With summary judgments,
[a]ny error by a trial court in denying a motion for summary judgment is rendered moot or harmless if a subsequent trial on the same issues raised in the motion demonstrates that there were genuine issues of material fact supporting a judgment in favor of the party against whom the motion was made.
Continental Ins. Co. v. Whittington, 71 Ohio St.3d 150, 155, 1994-Ohio-362, 642 N.E.2d 615, syllabus. So, too, with directed verdicts. See Altercare of Mayfield Vill., Inc. v. Berner, 8th Dist. Cuyahoga Nos. 104259 and 104306, 2017-Ohio-958, ¶ 37 (any error by the trial court in refusing to grant a directed verdict rendered harmless when jury‘s verdict corrected the error).
{¶23} The jury returned a verdict in favor of Tucker on all aspects of the case, including the lack of informed consent. By doing so, it demonstrated that there were genuine factual issues against Beard. The jury‘s verdict thus rendered harmless any error in the court‘s refusal to direct a verdict in Beard‘s favor at the close of his case-in-chief.
III. Amendment of Answer
{¶24} Nearly 18 months after initially filing its answer, and after Beard filed a motion for summary judgment on the issue of informed consent, the court granted MetroHealth leave to amend its answer to assert as an affirmative defense the statutory
offsets for political subdivisions contained in
{¶25} As with our disposition of the fifth assignment of error, the jury verdict in favor of Tucker and MetroHealth moots Beard‘s argument that the court erred by allowing MetroHealth to amend its answer to assert the affirmative defense of political subdivision immunity. Beard concedes this point and raises this assignment solely for purposes of preserving the issue for further review. See appellant‘s reply brief at 8.3
{¶26} Judgment affirmed.
It is ordered that appellees recover of appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MELODY J. STEWART, JUDGE
EILEEN A. GALLAGHER, P.J., and ANITA LASTER MAYS, J., CONCUR