Branch v. Cleveland Clinic Foundation
980 N.E.2d 970
Ohio
2012
Check Treatment

*1 Billiter circumstances, undisputed here is In contrast to those sentencing entry, notice, hearing and sentencing at the received both after Authority up years for to three by the Adult Parole supervised he would be complied that he undisputed And it is prison. his release from under detention. believing himself to be years, for almost three supervision subject of law and to correction is insufficient as matter Although the sanction sentence, actually imposed the trial court nonetheless of the completion before control, had the Authority the Adult Parole postrelease term of three-year it, escape the crime of when and Billiter therefore committed authority to execute he broke his detention. void, not his escape conviction for is Accordingly, because Billiter’s I judicata, of res and would by to it is barred the doctrine challenge

belated judgment appeals. affirm the J., foregoing concurs opinion.

Lundberg Stratton, Ferrero, Attorney, and Richard Mark County Prosecuting John D. Stark Caldwell, Attorney, appellee. Prosecuting Assistant Defender, Hardwick, P. Assistant

Timothy Young, Stephen Ohio Public Defender, appellant. Public Appellant.

Branch, Appellee, Foundation, v. Cleveland Clinic Found., as Branch v. Cleveland Clinic [Cite 114, 2012-Ohio-5345.] 2012.) (No. 2011-1634 -Submitted June 2012 Decided November Brown, J. McGee This appeal involves three in a medical-malpractice trial. Appel-

lee, Margaret suffered stroke during surgery performed brain *2 appellant, result, clinic, the Cleveland Clinic. As a Branch sued the claiming that ventricle, its had struck a causing the stroke. trial, a Following jury a verdict was entered for the clinic. Branch

{¶ 2} appealed, and the Eighth District Court of Appeals found abuses of discretion three rulings Found., the trial court. Branch v. Cleveland Clinic 8th Dist. No. 95475, 2011-Ohio-3975,2011 WL 3505286. The court of that appeals found (1) trial court abused its discretion allowing the clinic to use demonstrative evidence recreating surgery that was provided to counsel for Branch ten (2) testified, minutes before the expert using ordering counsel for Branch not to argue an inference that because the best piece evidence—a computerized image prepared prior saved, to the surgery not it must have been adverse —was (3) clinic, and instructing that evidence of alternative medical approaches was not evidence of negligence, because no evidence of recognized alternate methods of presented. treatment was The clinic now argues that the Eighth was, District’s decision

{¶ 3} in each of respects, these “legally and factually flawed” and inconsistent with our precedent. We agree. us, Based on the record before court did not abuse its in any Therefore, at issue. we reverse the judgment District Court of Appeals and reinstate the jury verdict for the clinic.

Background Evidence at trial that demonstrated Branch is a highly accomplished attorney with a long history of advocating injured for plaintiffs. Prior to the surgery, husband, Branch and her Turner managed a law firm with approximately 30 staff members and 8 attorneys Albuquerque, New Mexico. testified, however, Branch that in 2003 she noticed of a symptoms neurological disorder known as cervical dystonia. The condition irresistibly drew her head downwards and to the right, causing spasms severe and It pain. led to career, serious struggles life, Branch’s personal and mental health. toll, As the condition took its Branch learned that the clinic offered a new

procedure dystonia, (“DBS”). known as deep-brain stimulation DBS, surgeons implant electrodes within the brain to defeat destructive impulses brain such as those causing dystonia. After consulting with clinic physicians, Branch elected to undergo surgery. During surgery, Branch suffered a stroke that caused significant damage

to her physical cognitive and clinic, abilities. Branch then sued the contending the clinic committed medical negligence that permanent caused brain her ability pursue and lost speech, vision impaired paralysis, damage, partial suffering. pain and severe occupation, chosen informed of lack of included counts time, complaint also At one claim for well as loss-of-consortium credentialing, as negligent consent however, all these trial, dropped Branch husband, Turner. Before Branch’s relating to the claim lack-of-informed-consent except portion claims performing identity of the doctors knowledge, experience, Branch for the clinic. trial, unanimous found After a two-week of discretion identified three abuses and the appealed, Branch, 2011-Ohio-3975,2011 WL 3505286. a new trial. reversal and warranted evidence. of demonstrative to the clinic’s use error related The first a three- failed to retain improperly at trial argued assist *3 the to that was created before of her brain mapping dimensional into her brain. The that would be inserted directing probe the surgeon the image, but coun- not saved the electronic that the had clinic admitted surgical procedure. the detailing all notes kept surgeon’s that it had the tered computer clinic three-dimensional point, produced the the To illustrate surgeon’s from the it had retained using data mapping, simulation of the brain that the sim- objected, claiming procedure. regarding *4 abuse its discretion when it allowed a videotaped reconstruction of an accident to evidence); be Cowans, admitted into State v. 68, 73, 87 Ohio St.3d 717 N.E.2d 298 (1999) (a trial court did not abuse its discretion when it allowed a video recreation of a path bloodhound’s in tracking evidence). a suspect to be admitted into We not, however, do defer to trial court rulings unreasonable, that are arbitrary, or Blakemore, unconscionable. Blakemore v. 217, 450 N.E.2d 1140 (1983). case, In this the trial judge carefully reviewed parties’ both arguments

and was well aware of the issue’s importance. Indeed, exercising before his discretion to demonstration, allow the judge the explained that it a “tough” decision. The result was not an abuse of discretion. Branch permitted to an use exhibit the trial to deemed be comparable to the clinic’s exhibit. Branch’s counsel had access to the same notes that in used preparing aid, its demonstrative and we defer to the trial court’s judgment that counsel for adequate had to opportunity cross-examine clinic doctors with respect to the despite exhibit the minimal notice. its discretion exercised reasonably trial court that the conclude We far from unreason- decision was That court’s the clinic’s demonstration.

allowing contrary to the ruling District’s Eighth The unconscionable. able, arbitrary, or was in error.

Adverse Inference finding District erred Eighth that the argues clinic next The after the negligence an adverse inference argue unable to Branch was closing during BP oil to the disaster her to refer to allow court refused arguments. determination District’s words, challenges Eighth clinic other the clinic’s arising from an adverse inference argue to

that Branch was entitled stated that Eighth The developed the plan failure to retain to the party unfavorable evidence would be missing that the an adverse inference “ ‘ under is relevant evidence it arises “where there to produce who failed ’ ” satisfactory explanation.” it without produce who fails to party control of a 3505286, 62, Cherovsky v. St. 2011-Ohio-3975, quoting 2011 WL (Dec. 14, 739608, 68326, *7 Cleveland, 1995 WL 8th Dist. No. Hosp. Luke’s 94AP105-628, Corr., 1995) 10th Dist. No. Rehab. & Signs Dept. v. Ohio quoting 1994). however, (Nov. here, was not that the The issue 663454, *2 1994 WL control, disagreed that Branch in its but evidence produce clinic failed produced The clinic surgical plans. deleting practice clinic’s standard had used path that detailed records from the written into the brain. inserting probe actually Branch from prevent the trial court did not importantly, More topic to the to avoid references The order for the adverse inference.

arguing until closing argument. Up of Branch’s the end just occurred moments before The trial court missing repeatedly. records Branch referred point, in this respect. considering argument from not forbid the to determine bound- well within its discretion The trial court was Minch, 53 Ohio Pang an abuse of discretion. absent closing argument aries of (1990). contrary ruling to the District’s St.3d inwas error. Methods

Jury Regarding Instruction Different “disallowing District erred argues that the Finally, *5 jury agree. instruction.” We the different methods methods” the role of “different reviewed previously We have Assoc., Neurologists cases. Pesek Univ. medical-malpractice in instruction (2000). Pesek, that explained In we Inc, 495, 498, with their limited juries, principle ‘on the “grounded is the instruction knowledge, acceptable medical should not be forced to decide which of two ” Id., treatments performed by physician.’ quoting should have been defendant Dailey, The Two Schools Thought and Consent Doctrines in Penn- Informed (1994). A sylvania: Integration, Model 98 Dickinson L.Rev. We held in charge only Peselc the different-methods is appropriate if “there is evidence that more than diagnosis one method of or treatment is acceptable particular medical condition.” at syllabus. Regardless, Id. we found that trial court erred in in giving the instruction that case because no acceptable instead, alternative methods of treatment were presented; Pesek turned on a misdiagnosis. classic Id. at 499. The Eighth District found that give was error to the different-

methods in instruction this case Branch because claimed that the clinic’s surgeon negligent striking the denied, ventricle wall. Id. at 51. The surgeon however, that words, he had struck the ventricle wall. In other the dispute facts, However, turned on not legal theories. this analysis oversimplifies what fact, In transpired trial. the parties’ experts raised a number of questions regarding how different planning procedures could prevented have stroke, all of which required to determine whether another medical approach preferable. would have been For example, parties disputed planned trajecto- whether the clinic’s

ry into Branch’s brain dangerously close to vascular structures the middle brain; of her Branch’s experts proposed an alternative trajectory they claim would have been safer. Similarly, Branch’s experts challenged the clinic’s approach creating map Branch’s brain for surgery and testified to an alternative mapping strategy that Likewise, could have employed. Branch’s experts questioned whether the clinic’s surgeon many conducted too “tracks” into Branch’s brain while searching for the best site for electrode placement. respect issues, With to each of professionals these medical in the disagreed case about the best method of performing short, raised number of questions about whether the clinic adopted the correct medical approach her surgery despite the existence of alternative methods. These fall questions outside the limited knowledge medical juries. Therefore, that we expect court did not err in allowing different-methods instruction.

Conclusion Based on foregoing, we conclude that the trial court did not abuse its in any the three at issue. Accordingly, we reverse the *6 and we reinstate Appeals, District Court of the decision for the clinic. verdict

Judgment reversed. Lundberg and Cupp, C.J., Lanzinger, Stratton, O’Donnell, and O’Connor, JJ., concur. J., dissents.

Pfeifer, J., dissenting.

Pfeifer, a trial court’s review of case, appeals’ a court of In this we review “the trial court is that holding decisions. Our jury-instruction evidentiary Undoubtedly, three at issue.” any not abuse its discretion and a matter of for the Branches personal interest great case is matter this Foundation, but it does not meet Clinic interest for the Cleveland corporate great great general “of or public of a case jurisdictional requirement this court’s 2(B)(2)(e). Constitution, IV, I would hold Article Section interest.” Ohio allowed in this case. improvidently jurisdiction Flowers; Firm and Co., L.P.A., Paul and Becker Law Paul W. Flowers Becker, for appellee. Michael Leak, Carulas, L.P.A., Ingrid Anna Moore Andress, G. Douglas

Roetzel & appellant. Kinkopf-Zajac, Anderson, Appellant, ex rel.

The State Appellee. City v. Vermilion, Vermilion, ex rel. Anderson [Cite as State 120, 2012-Ohio-5320.] St.3d Ohio notes notice of its provided adequate clinic had not prejudicial ulation was counsel, trial court permit- exhibit. After discussion intent to offer the District, however, concluded Eighth the exhibit. The ted the clinic to use had no Branch because she prejudiced of the evidence the late admission Branch, 2011-Ohio-3975, to effective cross-examination. opportunity prepare ¶ 18, at 27. 2011 WL also involved the Eighth by second error identified The automati- trial, computer systems that its explained At surgery plan. them, saved employees affirmatively plans unless cally deleted Branch, however, suggested only. for clinical studies they typically which complication plan significant to save the after the clinic’s failure suspicious. But repeatedly. Branch to refer to this failure trial court allowed failure to maintain the closing that the began argue Branch’s counsel to when safety to BP’s destruction of the clinic’s action compared plan suspicious Mexico, trial court 2010 oil the Gulf spill after the disastrous plans that there’s suggestion “there’s no topic” Branch to “avoid that because ordered Branch claims that documents.” any the destruction of anything willful about inference that an adverse seeking her from effectively prevented this directive clinic, the clinic had failed because have been unfavorable plan would save it. The Eighth District agreed and found that the trial court abused its ¶ 2011-Ohio-3975, the ruling. 2011 WL at 63-64. The third and final by error identified District related to an instruction given by the trial court at the request clinic’s that informed that alternative methods could be used and that the use of one approach medical rather than another did not necessarily constitute negligence. The Eighth District determined that this instruction was not appropriate because the dispute turned on whether a clinic surgeon had violated standard of care and thus had by caused the bleed improperly ventricle, striking Branch’s a vascular structure ¶ 49, 51, in the Therefore, brain. Id. at District, 54. according to the Eighth issue before the was not whether the clinic had employed the best of several appropriate methods, medical rather, but whether the method chosen was proper- ly performed. Id. 51-52. The clinic appealed, and this accepted review. 131 Ohio St.3d 1410, 2012-Ohio-136,959 N.E.2d 1055. Admission Demonstrative Evidence The clinic’s first proposition of law alleges that District’s decision disallowing the use of demonstrative evidence at was both legally factually flawed. In considering this proposition, we are mindful that a trial court is in the best position to make evidentiary rulings and that an appellate court should not substitute its judgment for that of the trial judge absent an abuse of discretion. Wells, Vogel v. 91, 95, (1991) (a Ohio St.3d trial court did not

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