Michael Dillon, Plaintiff-Appellee, v. OhioHealth Corporation, Defendant-Appellant, John Does et al., Defendants-Appellees. Michael Dillon, Plaintiff-Appellee/Cross-Appellant, v. OhioHealth Corporation, Defendant-Appellant/Cross-Appellee, John Does et al., Defendants-Appellees.
No. 13AP-467 (C.P.C. No. 10CV-9220), No. 14AP-259 (C.P.C. No. 10CV-9220)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
April 9, 2015
2015-Ohio-1389
BRUNNER, J.
(REGULAR CALENDAR)
Rendered on April 9, 2015
Volkema Thomas Miller & Scott, A Legal Professional Association, Michael S. Miller and Warner M. Thomas, Jr., for appellee/cross-appellant Michael Dillon.
Roetzel & Andress, LPA, Robert B. Graziano, Michael R. Traven and Douglas G. Leak; Zeiger, Tigges & Little, LLP, Steven W. Tigges, John W. Zeiger and Matthew S. Zeiger;
APPEAL from the Franklin County Court of Common Pleas
BRUNNER, J.
{¶ 1} This matter involves cross-appeals concerning a trial in the Franklin County Court of Common Pleas in which two different verdicts were rendered for the same trial by the same jury and on the same evidence, the first one for defendant-appellant/cross-appellee, OhioHealth Corporation (“OhioHealth“), and the second one for plaintiff-appellee/cross-appellant, Michael Dillon. The second verdict effectively “replaced” the first verdict and awarded Dillon nearly three million dollars for injuries Dillon alleged were inflicted by OhioHealth, through an employee, Frank Varian. The trial court did not inform any party of the first verdict, and the parties did not discover the fact of the first verdict until after the trial, when counsel were permitted to discuss the case with the jurors. The judgment appealed from is the trial court‘s March 4, 2014 post-trial order, rendered close to one year after the trial. The order we consider in this appeal vacates the trial court‘s final entry on the last jury verdict.
{¶ 2} Dillon appealed the March 4, 2014 order vacating the trial court‘s judgment in his favor. OhioHealth also appeals, claiming that, having correctly vacated the improper entry on the verdict in favor of Dillon, the trial court should have entered judgment in OhioHealth‘s favor based on the prior defense verdict from the same jury. OhioHealth further appeals a number of rulings on jury instructions, evidentiary issues, and motions for directed verdicts. Understandably, both parties appear to be concerned about the cost and expense of a new trial in this matter.1 Unfortunately, on review, the best and only legally correct recourse is to affirm the trial court‘s order for retrial and remand it on all claims and issues.
{¶ 3} Dillon suffers from schizophrenia and has demonstrated tendencies to act erratically when not medicated. When Dillon‘s father discovered on June 20, 2009 that Dillon had not been taking his medication for at least one week, he sought assistance to stabilize Dillon and have him resume his prescribed course of medication. Dillon‘s father called for an emergency squad to transport Dillon to the hospital. An emergency squad in an ambulance responded, and emergency personnel convinced Dillon to accompany them to the hospital.
{¶ 4} Several times, while en route to the hospital, Dillon stood up in the ambulance, causing concern and speculation that he may have been attempting to exit the moving vehicle. Upon arriving at Doctor‘s Hospital West (“Doctor‘s West“), a hospital operated by defendant, OhioHealth, Dillon made several attempts to leave. Evidence varies about how vigorous or violent Dillon‘s attempts were to leave or avoid medical care. However, it is undisputed that Dillon was not compliant with instructions from healthcare workers at Doctor‘s West. A patient care assistant at the hospital, Frank Varian, attempted to physically subdue and hold Dillon in order to place him into a hospital bed.
{¶ 5} Testimony differs about how Varian subdued Dillon. Some witnesses testified that Varian put Dillon in a “full nelson.” This is a hold accomplished by standing behind the subject, facing the subject‘s back, threading each arm underneath each of the subject‘s armpits, and locking hands behind the subject‘s head.3 It is undisputed that this hold has at least the possibility of causing neck damage.
{¶ 6} The evidence about how Dillon was ultimately forced to lie on the hospital bed was conflicting, but it is undisputed that he did not go willingly. Once Dillon was placed prone on the bed, he was chemically sedated and fastened into soft wrist and ankle restraints. Testimony also differs about whether Dillon was still being held in the full nelson position by Varian at the time he was sedated. If he had been, according to Dillon‘s expert, the relaxation of the muscles would have increased the possibility of injury from the hold.
{¶ 8} The next day, June 22, 2009, Dillon underwent a CT scan. Doctors discovered he had a subluxation of the C5-6 vertebrae that had apparently caused compression of the spinal cord and incomplete paralysis. Expert testimony varied on the etiology of Dillon‘s injury. Some suggested the subluxation may have already existed when Dillon came to Doctor‘s West and simply worsened while there. Some testified that it was likely the result of Varian‘s attempts to subdue Dillon, either solely or in conjunction with sedation. Others testified that Dillon could have either injured himself or aggravated an existing injury by whipping about in his restraints. There were a number of possible explanations offered for the undisputed fact that Dillon walked into Doctor‘s West but could not walk out.
{¶ 9} Initially, Dillon‘s paralysis was quite severe. He had no bowel or bladder control, was completely unable to move his legs, and he had only weak and unreliable control over some muscles in his arms. Dillon received treatment, including surgery and considerable therapy. By the time of trial, Dillon had recovered essentially full use of his arms, had better (though not perfect) control of his excretory functions, and could walk relatively short distances with the aid of a walker.
{¶ 10} Although, initially, a large number of parties were named in the complaint, Dillon ultimately dismissed all of them before trial except for OhioHealth. Dillon went to trial against only OhioHealth on April 5, 2013 before a jury of eight. At the close of Dillon‘s evidence and again at the close of all evidence, OhioHealth moved for directed verdicts. The trial court denied these motions, and jury began deliberations on April 30, 2013.
{¶ 11} Before any verdict was announced in open court, on May 2, 2013, at 10:05 a.m., the trial court‘s bailiff sent a text message to counsel for both parties, informing
{¶ 12} The parties, counsel, the jury, and all other necessary persons again assembled in the courtroom. The judge conferred on the record with the jury foreperson and confirmed that the jury had reached a verdict. Then, the judge read the verdict in open court for $2,866,521.35 in favor of Dillon. After thanking the jury for their service and relieving them from the admonition not to discuss the case, the judge adjourned the trial and freed the jurors to mingle with counsel.
{¶ 13} During informal discussions between jury and counsel for OhioHealth, some jurors apparently mentioned that the jury had initially reached, signed, and attempted to present a verdict in favor of OhioHealth. When OhioHealth learned from the jurors that this had happened, counsel for OhioHealth sought copies of the first set of verdict forms from trial court staff. A trial court staff member informed OhioHealth‘s counsel that the forms had been discarded because they had not been completed properly. After requests by OhioHealth designed to ensure that the trash would not be emptied and/or the prior verdict forms permanently destroyed, the trial judge retrieved the verdict forms from the recycling bin and promised to hold a hearing on the matter.
{¶ 14} On May 6, 2013, the trial judge entered a statement on the record explaining what had happened. Two interrogatories and a general verdict were returned by the jury at approximately 10:00 a.m. on May 2, 2013. One interrogatory sought an answer to the question of whether Varian was negligent. The second sought an answer to whether, if found negligent, Varian‘s negligence was the proximate cause of Dillon‘s
{¶ 15} Based on these circumstances, counsel for OhioHealth requested that the trial court enter a judgment consistent with the first verdict. Instead, the trial court entered judgment later that day on the second verdict, in favor of Dillon.4
{¶ 16} Ten days later, OhioHealth filed a post-trial motion requesting that the trial court vacate its entry of judgment on the second verdict in favor of Dillon and instead enter judgment on the first verdict in favor of OhioHealth. OhioHealth also submitted three affidavits that it had obtained from jurors as evidentiary support for its post-trial motion. Dillon opposed the motion and requested that the affidavits be stricken. The parties appealed the trial court‘s actions, but this court stayed the appeal on June 12, 2013 until the trial court decided the pending motions.
{¶ 17} On March 4, 2014, the trial court vacated the entry on the second verdict in favor of Dillon and struck two of the three juror affidavits. It did not, however, order a new trial or enter judgment consistent with the first verdict.
II. ASSIGNMENTS OF ERROR
{¶ 18} OhioHealth submits five assignments of error:
[I.] The Trial Court Should have Entered Judgment Consistent with Verdict #1.
[II.] The Trial Court Erred in Striking the Affidavits of Maggie Dudley and Mark Garver.
[III.] The Trial Court Erred in Overruling Several of OhioHealth‘s Motions for Direct Verdict.
[IV.] The Trial Court Erred in Ostensibly Ordering a New Trial.
[V.] If a New Trial Is the Only Outcome Available, the Appellate Court Should Limit the Scope of the Remand for Trial.
{¶ 19} Dillon presents a single assignment of error:
THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF PLAINTIFF-APPELLEE CROSS-APPELLANT MICHAEL DILLON IN VACATING THE JUDGMENT ENTERED IN HIS FAVOR.
These assignments of error are addressed out of order to facilitate a cogent review of the issues presented for review.
III. DISCUSSION
A. THE SAME JUROR RULE
{¶ 20} The rule that initially led the trial court to discard the first jury verdict is known as the “same juror rule.” The trial judge in this case discarded the first jury verdict because the six jurors who signed one interrogatory were not the same six who signed the other. The trial court thereafter reconsidered this decision. Determining whether the same juror rule should have applied to the first verdict is fundamental to considering several of the other assignments of error. Therefore, we begin our review of the parties’ assignments of error by first discussing the same juror rule.
{¶ 21} The same juror rule is a requirement established by case law that applies in cases where comparative negligence must be determined. Jurors who seek to apportion negligence in comparative negligence cases must be the same jurors who found negligence and proximate cause. See O‘Connell v. Chesapeake & Ohio RR., Co., 58 Ohio St.3d 226 (1991), syllabus. In other words, if a juror did not find that a defendant was negligent, that juror could not cogently find that, for instance, the defendant was 70 percent negligent. The Supreme Court of Ohio stated, in adopting the same juror rule:
[W]e find that the * * * rational and analytically sound rule is the “same juror” rule. Our decision is based on a number of reasons. First and foremost, we believe the determination of
causal negligence on the part of one party to be a precondition to apportioning comparative fault to that party. It is illogical to require, or even allow, a juror to initially find a defendant has not acted causally negligently, and then subsequently permit this juror to assign some degree of fault to that same defendant. Likewise, where a juror finds that a plaintiff has not acted in a causally negligent manner, it is incomprehensible to then suggest that this juror may apportion some degree of fault to the plaintiff and thereby diminish or destroy the injured party‘s recovery.
{¶ 22} The concerns identified by the Supreme Court in O‘Connell are not implicated by what occurred in this case; the same juror rule should not have been applied by the trial court. While the case does involve a claim for comparative negligence, there was no apportioning of negligence by a juror who did not find that defendant or plaintiff was causally negligent. Six persons found that Varian5 was negligent. As to causation, a different grouping of six found that Varian had not proximately caused Dillon‘s injuries. There was no need to apportion fault, because the jury did not reach the issue of comparative negligence, having found no causation. The trial court should not have applied the same juror rule to the differing questions of negligence and causation. For more than just this reason, the trial court should not have refused the first verdict.
{¶ 23} In addition to the factual disparity between O‘Connell and the case at bar, the logical inconsistency that fueled the O‘Connell decision (a juror apportioning negligence who did not find that the defendant or plaintiff was causally negligent) is not present here. Id. There need not be congruency between the six jurors finding negligence and the six jurors finding that negligence was not the proximate cause of the injuries. Jurors who did not find OhioHealth to be negligent could also find that OhioHealth was not the cause of Dillon‘s injuries. Since an actor may cause injury without negligence, a juror who failed to find negligence was still able to determine proximate cause, either for or against OhioHealth.
In a case tried under comparative negligence principles, three-fourths of the jury must agree as to both negligence and proximate cause, and only those jurors who so find may participate in the apportionment of comparative negligence.
(Dillon‘s Brief at 12, quoting O‘Connell at syllabus.) While this quotation is accurate, its factual circumstances make its application to this case inapposite. Proximate cause is a separate question not dependent on a finding of negligence. Palsgraf v. Long Island R.R., 248 N.Y. 339 (N.Y.App.1928). Because the jury found no proximate cause, it did not and could not reach the point of deliberation on comparative negligence and, therefore, the same six jurors who found negligence did not need to be the same six jurors who found no proximate cause. Any six jurors could resolve a case in favor of a defendant by failing to find that either negligence or proximate cause exists.6 Unless and until there is a finding that a defendant, such as OhioHealth, was both negligent and, through such negligence, caused the harm, the same juror rule does not operate to nullify a jury verdict. O‘Connell at 235. Thus, we cannot conclude that only those jurors who agreed that negligence existed were permitted to consider whether proximate cause existed. Further, the Twelfth District has “recognized that a party‘s right to a full jury would in fact be deprived if the full jury were not permitted to deliberate as to both negligence and proximate cause.” Estate of Lawson v. Mercy Hosp. Fairfield, 12th Dist. No. CA2010-12-340, 2011-Ohio-4471, ¶ 16.
{¶ 25} Dillon draws our attention to a model instruction provided in Ohio Jury Instructions 403.01. This instruction contains an interrogatory form which tells jurors that “only those jurors who answered ‘yes’ to [the negligence] Interrogatory * * * are qualified to participate in answering [the proximate causation] Interrogatory,” and cites O‘Connell as justification. Ohio Jury Instructions, CV Section 403.01 (Rev. Oct. 11, 2008). Insofar as this interrogatory format operates to prevent a full jury from considering both negligence and proximate causation, it misapplies the same juror rule.
[W]e are not persuaded by the argument that the same juror rule would deny all parties the right to have a full jury deliberate on all issues. In a comparative negligence case, the initial, and somewhat talismanic question, is whether the defendant is causally negligent for the injury to the plaintiff. The obvious corollary to this is whether the plaintiff was negligent in causing his or her own injury. The full assembly of jurors participates in these determinations and, thereafter, those jurors who find a party to be causally negligent then refine this determination by apportioning fault to the respective parties. Because the full jury undertakes the initial determination as to negligence and proximate cause, neither party is deprived of having all the jurors deliberate the material issue of negligence and proximate cause.
(Emphasis added; citations omitted.) Id. at 235-36. We interpret and apply O‘Connell in such a way that the full jury is to decide both negligence and proximate cause, the sum of which is causal negligence.
{¶ 27} Dillon also argues that the jury instructions given in this case included the same juror rule and, by failing to object, OhioHealth has waived any objection to the application of the same juror rule. However, a review of the jury instructions and interrogatories given to the jurors shows that the actual language given to the jurors in this case does not contain language that the same jurors who find negligence must be those who consider proximate cause.7 Rather, the interrogatories suggest the opposite, instructing the entire jury “if six or more of the jurors agree on an answer to this Interrogatory [regarding whether Varian was negligent], and that answer is ‘[y]es,’ please proceed to the next Interrogatory.” (May 8, 2013 Motion to Stay, exhibit B.) Nonetheless, Dillon argues that when the instructions used the word “you” they were addressing each individual juror and thereby implicitly giving instructions on the same juror rule. Dillon argues that the instruction, “[i]f you find that the defendant was negligent, you must also
{¶ 28} Dillon‘s argument that “you” in the jury instruction and interrogatory is to be interpreted solely in the singular does not work linguistically. The first section devoted to “you” in the Oxford English Dictionary, for instance, is to its use in the plural (such as the entire jury): “Used to address two or more persons, animals, or personified things.” Oxford English Dictionary (3d Ed.2012). Only at a later point in the entry does the Oxford English Dictionary define the word, “you,” as: “Used to address a single person, animal, or personified thing, originally as a mark of respect, deference, or formality but later in general use.” Oxford English Dictionary (3d Ed.2012). From our reading of the transcript of these proceedings and our review of the trial court‘s instructions, the judge instructed the jury collectively, not one at a time. We find that OhioHealth was under no duty to object to the instructions based on Dillon‘s interpretation of the language and, therefore, has not waived objection to the use of the same juror rule.
{¶ 29} Dillon finally argues that the first verdict was defective because all eight jurors signed the general verdict, but only six signed the interrogatory finding no proximate causation. Even if the two jurors who failed to find a lack of proximate causation would not have signed the general verdict form, it was signed by the requisite six other jurors who also found no proximate cause. At best, this was harmless error. See, e.g., Snapp v. Castlebrook Builders, Inc., 3d Dist. No. 17-12-22, 2014-Ohio-163, ¶ 109; Segedy v. Cardiothoracic & Vascular Surgery of Akron, Inc., 182 Ohio App.3d 768, 2009-Ohio-2460, ¶ 35 (9th Dist.); Oliver v. MetroHealth Med. Ctr., 8th Dist. No. 70347 (Dec. 12, 1996). Moreover, had this verdict been announced in open court and counsel been provided the opportunity to poll the jurors under
{¶ 30} When the trial court misapplied the same juror rule under these circumstances and incorrectly discarded the first verdict it committed error. OhioHealth‘s
B. Dillon‘s First Assignment of Error and OhioHealth‘s First and Fourth Assignments of Error – Whether the Trial Court Should Have Ordered a New Trial or Entered Judgment on the First or Second Verdicts
{¶ 31} OhioHealth argues that the trial court had a duty to promptly enter judgment on the first verdict, based on
In all civil actions, a jury shall render a verdict upon the concurrence of three-fourths or more of their number. The verdict shall be in writing and signed by each of the jurors concurring therein. All jurors shall then return to court where the judge shall cause the verdict to be read and inquiry made to determine if the verdict is that of three-fourths or more of the jurors. Upon request of either party, the jury shall be polled by asking each juror if the verdict is that of the juror; if more than one-fourth of the jurors answer in the negative, or if the verdict in substance is defective, the jurors must be sent out again for further deliberation. If three-fourths or more of the jurors answer affirmatively, the verdict is complete and the jury shall be discharged from the case.
(Emphasis added.) In reviewing the record, the trial court skipped the steps of reading the verdict in favor of OhioHealth in open court and offering counsel the opportunity to poll the jury. Once the trial court reviewed the first verdict and interrogatory forms it
[Polling the jury completes and verifies the jury‘s verdict.] A jury poll‘s purpose is to “give each juror an opportunity, before the verdict is recorded, to declare in open court his assent to the verdict which the foreman has returned and thus to enable the court and the parties to ascertain with certainty that a unanimous verdict has in fact been reached and that no juror has been coerced or induced to agree to a verdict to which he has not fully assented.”
State v. Hessler, 90 Ohio St.3d 108, 121 (2000), quoting Miranda v. United States, 255 F.2d 9, 17 (1st Cir.1958). We note these issues arise infrequently, but approximately 70 years ago, the Fifth District also endorsed this reading:
Until the conclusions of the jury is submitted to and accepted by the court, it is nothing more than a tentative agreement among the jurors, subject to revocation or change at any time before such submission and acceptance. Indeed under the quoted statute when the jury is asked whether it is the verdict of three-fourths or more of their number, a denial by a signing juror would vitiate the tentative agreement, the court would not accept it, and there would be no verdict.
Ralston v. Stump, 75 Ohio App. 375, 377 (5th Dist.1944).
{¶ 32} OhioHealth argues that, when interrogatories are consistent with the general verdict (as they were with the first verdict),
{¶ 33} OhioHealth also draws our attention to two cases to persuade us that judgment can be rendered on a verdict not read and verified in open court. Caserta v. Allstate Ins. Co., 10th Dist. No. 84AP-1036 (July 23, 1985); Tullos v. Motorist Mut. Ins. Co., 10th Dist. No. 74AP-34 (June 18, 1974). While this district in Caserta in 1985 permitted a trial court to enter judgment on interrogatories notwithstanding a verdict, the case had more to do with inconsistency with the general verdict than with a failure to read the general verdict in open court. The focus on
{¶ 34} In its second example, Tullos, one of the three verdicts rendered by the jury in that case was unverified. However, the facts in Tullos differ from the facts of the case under review such that we cannot apply it. In Tullos, one plaintiff sought judgment against two defendants. Three verdicts were returned, one in favor of one defendant, one in favor of the plaintiff against a second defendant, and one in favor of the plaintiff against both defendants. It was only the third verdict that was against both defendants that was not read and verified in open court. Under those circumstances, the Tenth District found that the plaintiff had proved his case, with the only confusion among the verdicts concerning the question of from which defendant the plaintiff could recover. Under the read and verified verdicts, the plaintiff could only have recovered against one defendant. Under the unread and unverified verdict, another defendant was exposed to liability. Under those circumstances, this court said that a mistrial resulting in a new trial (wherein plaintiff again would have to prove his entitlement to a recovery) was unjustified. However, even in subsequent, related litigation, judgment did not enter on the verdict that had not been read and verified in open court. Tullos v. Motorists Mut. Ins. Co., 10th Dist. No. 75AP-192 (Dec. 16, 1975).
{¶ 36} In Anselmo v. Davis, 8th Dist. No. 69794 (May 16, 1996), the Eighth District affirmed the decision of a trial court to declare a mistrial when it was unable to comply with
[T]he trial court did not abuse its discretion in declaring a mistrial because the court did not have the ability to poll the jury and obtain an oral confirmation of the decision in open court and therefore could not accept the decision as a verdict upon which it could enter judgment. Hence, the court had no alternative other than to declare a mistrial.
A trial court cannot reduce to judgment a written verdict that has not been read in open court and for which the parties have not been offered the opportunity to poll the jury rendering it. Absent the fulfilling of these procedural requirements, a trial court has no alternative but to declare a mistrial.
{¶ 37} In reaching this conclusion, we find no value in distinguishing between whether the ability for a trial court to comply with
{¶ 38} Conversely, Dillon argues that “substantial justice” was done by the second verdict, and, thus, it does not matter that OhioHealth perhaps may have won the case as a result of the first verdict. Dillon would have us hold, consistent with
{¶ 39} After the existence of the first verdict came to light, the bailiff testified about her off-the-record communications with the jury. She did not believe she influenced them, nor did she admit to having done so. However, her recollection of what she said to the jury was admittedly not verbatim. There is no record of exactly what she said to the jury. We have every confidence that the bailiff did not intend to prejudice the results by talking to the jury, but, because we cannot determine exactly what she said to its members, we cannot find that the jury was uninfluenced by her statements in reaching a diametrically opposite verdict. This danger is exactly why the Ohio Revised Code prohibits bailiffs, among other persons, from communicating with the jury. See, e.g.,
{¶ 40} The conundrum in which the trial court found itself was this: if the trial court entered judgment on the first verdict, it violated
{¶ 41} Because we have fully addressed the same juror rule and
D. OhioHealth‘s Third Assignment of Error – Whether the Trial Court Erred in Refusing to Direct a Verdict
{¶ 42} OhioHealth urges in its third assignment of error that the trial court erred in overruling motions of OhioHealth for directed verdict. We address each motion separately within our discussion of this third assignment of error.
{¶ 43} The standard of review for a motion for a directed verdict is as follows:
When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, 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, the court shall sustain the motion and direct a verdict for the moving party as to that issue.
1. Medical Malpractice Claim
{¶ 44} OhioHealth argues that neither of the two persons actually engaged in restraining Dillon (Varian and Steven Ison, a paramedic who may have held Dillon‘s legs) testified to any forceful flexion of Dillon‘s spine that could have caused the injury. Thus, posits OhioHealth, there was no evidence from which the jury could conclude that Dillon had proven causation. However, contrary to OhioHealth‘s assertion, there was evidence sufficient that reasonable minds could differ on whether Varian injured Dillon. Ison testified on direct examination that Varian came up behind Dillon and placed him in a full nelson:
Q. Okay. And what did [Dillon] do?
A. Basically, he just tried to get out [of the hospital].
Q. Okay. And how did he do that?
A. Oh, he turned around. He was ready to go right back out the door.
Q. Okay. What did you do?
A. Well, as he turned around, you could tell he was going to leave. I mean, you could tell he was ready to go.
I just kind of stopped like this and wasn‘t going to let him get around me. And at that time [Varian], you know, all I seen -- all I seen was -- was just a quick set of hands and he was done. I mean, he was like this. And I‘m like, huh, well, all right.
Then the doctor said, well, let‘s just put [Dillon] in this bed over here. [Varian] leaned back a little bit. He was going to take [Dillon] over to the bed. I reached down and I grabbed [Dillon] right behind the knees and over top of his thighs, and it was about maybe four or five steps. I can‘t remember. It was one of the first beds. The beds were all aligned this way. It was one of the first beds that went this way, and he was like right here. So it was right within a couple steps, that I can remember, of that bed, and we laid him into that bed.
* * *
Q. Okay. So when [Varian] came up from behind him and put him in the hold, what kind of hold did he put him in?
A. Well, it was a full nelson.
Q. And when you say a full nelson, I‘m going to put up -- can you see this picture --
A. Yeah.
Q. -- that we have up there?
Is that the hold that you‘re talking about?
A. That would be the hold * * *.
(Tr. Vol. III, 420-23; see also Tr. Vol. III, 486-87 “[Varian] grabs [Dillon] and puts him in a full nelson.“). Ison also testified on redirect that “[t]he amount of force being applied to [Dillon] was the force needed to hold him where he was at.” (Tr. Vol. III, 509-10.) And,
{¶ 45} The other paramedic, Joseph West, testified to similar effect on direct:
Q. So what happened?
A. Well, what happened -- at that point, [Dillon] was trying to get out the ER any way he can, and [Varian] came up, and I think he went to grab him, and I think [Dillon] did a gesture, like, I don‘t want to be touched, like, don‘t touch me, Hey, he didn‘t want anybody to touch him. So everything is starting to escalate real quick. [Ison] is trying to calm [Dillon] down, and at that point [Varian] kind of got behind him and put him in a nelson hold.
Q. A full nelson?
A. A full nelson * * *.
(Tr. Vol. IIIA, 530-31; also describes that Dillon was held and continued to struggle till drugs took effect.)
{¶ 46} Even Varian admitted on cross-examination that, while holding the struggling Dillon, he felt like his arms were breaking with the strain. In addition, several medical personnel testified that a full nelson can cause injury, and one expert testified that this full nelson did cause Dillon‘s injuries.
{¶ 47} Particularly when construing the issue in the light most favorable to Dillon, the nonmoving party, there was evidence from which a reasonable jury could have concluded that OhioHealth was liable. We affirm the denial of a directed verdict as to this issue.
2. Negligent Training Claim
{¶ 48} OhioHealth argues that it should have been given a directed verdict as to Dillon‘s claims that it negligently failed to train Varian in appropriate holds for restraining patients without injuring them. Specifically, OhioHealth argues that the evidence indisputably shows that it complied with the relevant regulations in order to qualify for government reimbursement. In fact, OhioHealth stresses that the evidence showed that personnel from Healthcare Facilities Accreditation Program (“HFAP“) believed Doctor‘s West was meeting the relevant standards.
{¶ 50} In this regard, the record discloses evidence from which a jury could have found for Dillon on negligent training. For instance, one expert testified on direct as follows:
Q. * * * What‘s your understanding of the training that Mr. Varian had regarding appropriate and proper physical restraint techniques for patients?
A. Well, according to him he didn‘t have any training at all relative to proper physical restraint processes.
Q. What is your understanding from the testimony you‘ve reviewed regarding whether or not staff in the emergency room at Doctors Hospital, including Mr. Varian, nursing staff, and PCAs, whether or not they were participating in physically restraining patients prior to June 20, 2009?
A. Well, my understanding from reviewing the depositions of the staff, working in the emergency department, was that they did it on a regular basis, which didn‘t surprise me. That‘s something that any emergency department would do, and so I‘m not surprised, and that‘s what the testimony was, that they are involved in this on a regular basis. Mr. Varian said that what he did was not any bigger of a deal than taking vital signs, I believe.
Q. Do you hold a medical opinion whether or not OhioHealth, doing business as Doctors Hospital, had provided proper training to Frank Varian, Jr. regarding physically restraining patients or taking down patients prior to June 20, 2009?
A. Yes, I do.
Q. Please state that opinion and the basis.
A. My opinion is that he was not given appropriate training to do the things that he was apparently doing on a routine basis, that is, providing physical restraint, including being a primary provider for that restraint, he said, on a regular basis. So, if in fact he was doing that and he had not been trained properly as to how to do that and what not to do in circumstances like that and when he should be involved in that kind of a take-down or a restraint, then they were negligent or they were inappropriate in their training of Mr. Varian.
Q. Dr. Kiehl, why is appropriate training essential for staff and patient safety?
A. Well, I touched on that a little earlier, but I‘ll restate it, in that training is important in a variety of ways but particularly in patient care, so that we can provide safe environment for patients and for staff and also for appropriate treatment, particularly in situations that have potentials for significant serious problems and consequences.
Like, for instance, in our heart care, time is muscle for the heart. We need to get the patient quickly to the cath lab as soon as we identify it. So everybody is assigned a responsibility; EKGs are gotten; IVs are started; medications are given, so forth. Everybody sort of knows what their role is. And when you are involved in a situation where there are high stakes for staff and for patients, it‘s important for us to rehearse and go over these types of things, which can be done just by practice on-site. But it also is reinforced, and before you would do it the first time, you would need to have appropriate training so you know what to do and what not to do.
So it‘s very important, and repeated training is also important because its [sic] ingraining, you know, it‘s reps, you know, in a sports sense. It‘s doing the same thing over and over again, so you know what to do without having to think about it too much.
Q. And how does that repetitive training affect or impact the incident of injury or deaths in a restraint-and-seclusion situation?
A. That‘s a great question, because again restraint and seclusion is well-known to be high stakes. Patients can get hurt, and staff can get hurt. Unfortunately, in my practice, over the number of years that I‘ve been doing this, I‘ve seen both of those on a number of occasions. We try to learn from those things. Fortunately, over the years, we have accumulated more and more data which help us prevent injury to patients and staff. So our training, then, and policy and procedure follow that.
So we learn from what we‘ve done in the past and what we‘ve experienced in the past codify that to a policy and procedure and regulations in the effort to make sure that patients are not injured and staff are not injured. When it‘s high stakes, you need to take advantage of training, experience, expertise, so that we can prevent something from happening and then not have to be stuck with trying to undue [sic] the damage that has been done.
(Tr. Vol. V, 748-51.) Based on this testimony, we find the trial court appropriately denied a directed verdict on this issue. Construing the evidence in a manner most favorably to Dillon, a reasonable jury could have found in his favor. We affirm the trial court‘s denial of a directed verdict on this issue.
3. Statutory Caps on Damages
{¶ 51}
(2) Except as otherwise provided in division (A)(3) of this section, the amount of compensatory damages that represents damages for noneconomic loss that is recoverable in a civil action under this section to recover damages for injury, death, or loss to person or property shall not exceed the greater of two hundred fifty thousand dollars or an amount that is equal to three times the plaintiff‘s economic loss, as determined by the trier of fact, to a maximum of three hundred fifty thousand dollars for each plaintiff or a maximum of five hundred thousand dollars for each occurrence.
(3) The amount recoverable for noneconomic loss in a civil action under this section may exceed the amount described in
division (A)(2) of this section but shall not exceed five hundred thousand dollars for each plaintiff or one million dollars for each occurrence if the noneconomic losses of the plaintiff are for either of the following: (a) Permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system;
(b) Permanent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life sustaining activities.
{¶ 52} OhioHealth argues that there was evidence that Dillon could perform life-sustaining activities. Thus, says OhioHealth, Dillon could not show that he was prevented from “being able to independently care for self and perform life sustaining activities.” (Emphasis added.)
{¶ 53} “Life-sustaining activities” is a phrase that remains undefined in the Ohio Revised Code, and case law on that subject is scant. In fact, though courts in several cases discuss the statute, only two appear to discuss “life-sustaining activities” in any direct detail. Weldon v. Presley, N.D.Ohio No. 1:10-cv-1077 (Aug. 9, 2011), report and recommendation adopted (Aug. 25, 2011); Williams v. Bausch & Lomb Co., S.D.Ohio No. 2:08-cv-910 (June 22, 2010).
{¶ 54} In Weldon, the plaintiff suffered whiplash in an automobile collision and, though no anatomical or structural alteration of her spine was visible, she complained of aching, stiffness, and burning of her neck and back. She had surgery to correct whatever physical problems were causing her symptoms, but the surgery apparently did not improve her condition. Nonetheless, the plaintiff reported that her life had changed little as a result of her injuries and that she did the “same old thing. House cleaning, clothes, grocery shopping, bill paying, just the normal routine.” She did, however, claim that she could no longer perform some tasks like “running a sweeper, moving furniture around in her home, and performing yard maintenance including weed whacking and cutting the grass.” The court found that these circumstances fell short of showing an inability to accomplish “life-sustaining activities.”
{¶ 55} In Williams, due to an eye disease and a corrective procedure that did not improve the condition as expected, the plaintiff lost most vision in one eye and retained only mediocre vision in the other. The plaintiff in Williams was, however, able to pass an eye exam to continue to hold a driver‘s license and was able to dress herself, brush her teeth, wash her hands, comb her hair, and walk without assistance. This too, said the court, fell short of showing an inability to accomplish “life-sustaining activities.”
{¶ 56} In contrast, there was evidence in this case to the effect that Dillon cannot walk any significant distance, cannot dependably make his way into the bathtub without assistance, cannot accomplish even the most basic of homemaking tasks by himself, and cannot even make it to the toilet every time without having accidents. While he can, like the plaintiff in Williams, brush his teeth and comb his hair, taking a view of the evidence most favorable to Dillon, reasonable minds could differ about whether Dillon is able to accomplish “life-sustaining activities.” The decision of the trial court denying OhioHealth a directed verdict on this issue is affirmed.
{¶ 57} Accordingly, OhioHealth‘s third assignment of error is overruled.
E. OhioHealth‘s Fifth Assignment of Error – Whether Issues in the New Trial of this Case Should be Limited
{¶ 58} OhioHealth‘s fifth assignment of error is that this court, in remanding the case to the trial court for retrial, should limit the issues to be heard. The issues that OhioHealth urges limited are set out separately within our discussion of this assignment of error.
1. Negligent Training/Punitive Damages and Whether the Case Involves a “Medical Claim”
{¶ 59} OhioHealth argues that, in the new trial, Dillon should be foreclosed from asserting certain issues that OhioHealth argues were already settled by the jury in the first trial. OhioHealth urges that the first verdict, a favorable but unverified general verdict in OhioHealth‘s favor, and the second verdict for OhioHealth on negligent training and punitive damages, settled those issues of fact and, in addition, foreclose Dillon from arguing that this case did not involve a “medical claim.” OhioHealth argues that these issues should not be retried.
{¶ 60} In support of its claim, OhioHealth maintains that
{¶ 61} The first verdict was discarded sua sponte by the judge as violating the same juror rule. The record does not reflect how the judge obtained the verdict and related interrogatories before they were presented by the jury in open court. But the bailiff recalled the parties’ counsel to the courtroom by text message which informed counsel, “We have a verdict. Please come to the courtroom.” (R. 672, exhibit No. 1.) When the parties’ counsel arrived at the courtroom, the trial court informed counsel that the jury had not reached a verdict and that it simply had a question. Consequently, the first verdict was never read or verified on the record and cannot, consistent with Rule 48, be considered to have settled anything.
{¶ 62} In addition, because of the way the interrogatories were structured and the way the first verdict was reached in finding OhioHealth not liable, the jury, in rendering its first verdict, did not answer the interrogatories or make written findings of fact concerning what they found Varian knew, what his training was, whether OhioHealth was negligent in its training of him, whether Varian was ordered by a physician to restrain Dillon, whether the restraint required expertise, or whether the restraint was necessary and ancillary to his treatment upon admission to the hospital. In short, there is no record that the jury, in rendering the first verdict, even considered the issues OhioHealth asks we declare settled and not subject to further trial on remand.
{¶ 63} While the second verdict does not suffer from the same obvious procedural problems as the first, because it was read and verified in open court, the very genesis of the verdict and the fact that it was not the jury‘s first verdict leaves its reliability open to
{¶ 64} During the post-trial hearing on May 6, 2013, when the trial court was faced with what to do with two conflicting verdicts by the same jury, the bailiff‘s non-verbatim testimony about the substance of her off-the-record communications with the jury shed no new light on how to sort it out. Moreover, as we do not have her exact wording, even giving fair consideration to her testimony, it is impossible to rule out the potential that the jury may have reached the second verdict because it collectively perceived it had been instructed that the first verdict was wrong. From any appearance, when a jury apparently reached a complete defense verdict, then the bailiff spoke to its members off the record; then, in a matter of hours and without hearing any additional evidence, they reached a unanimous verdict in favor of the plaintiff for nearly three million dollars, it cannot be said that any factual finding concerning such a verdict is settled and need not be considered by a future fact finder. No outcome pinned on a process lacking the requisite verification and the safeguards of transparency can be relied on as an anchor for future proceedings. Because of this, we cannot say that any part of the jury‘s two verdicts was “free from error,” and, therefore, we cannot allow any part of either of the two verdicts to stand.
2. Statutory Immunity
{¶ 65} OhioHealth sought to argue at trial that it was entitled to immunity under
{¶ 66}
{¶ 67}
The trial court found that appellants were not entitled to immunity, pursuant to
R.C. 5122.34 , since there was no written statement by the Columbus police or [the doctor who ordered Barker restrained] setting forth the basis for taking Barker into custody, as required byR.C. 5122.10 . Inasmuch as appellants failed to comply with the requirements ofR.C. 5122.10 , the court concluded they were not entitled to immunity pursuant toR.C. 5122.34 . Appellants argue that the trial court erred in this decision because they are entitled to immunity and they acted in good faith.”
R.C. 5122.34 does not apply to immunize mental health professionals from liability in all contexts.” Estates of Morgan v. Fairfield Family Counseling Ctr. (1977), 77 Ohio St.3d 284, 304, 673 N.E.2d 1311. The grant of immunity presupposes that affirmative action was taken underR.C. Chapter 5122 . Id. The preparation of the written statement explaining the basis for the detention “is a requirement for the initiation of an emergency involuntary commitment. The statement ensures the existence of probable cause to support the involuntary commitment of a person who may be mentally ill and in need of court-ordered hospitalization.” In re Miller (1992), 63 Ohio St.3d 99, 585 N.E.2d 396, paragraph one of the syllabus.In this instance, no written statement was prepared as required by
R.C. 5122.10 . While there is some evidenceappellants questioned Barker‘s mental health, there is no evidence appellants believed Barker was a mentally ill person subject to hospitalization by court order. Because there is no evidence appellants complied with or were proceeding pursuant to R.C. 5122.10 , the trial court did not err in finding that appellants were not entitled to immunity pursuant toR.C. 5122.34 .
(Footnote deleted.) Id. at 13-14.
{¶ 68} OhioHealth recognizes that the typical Application for Emergency Admission was not completed in this case but quotes a portion of the court‘s decision in Barker in arguing that no written statement is necessary. But, Barker stands for the proposition that a written statement must be prepared in conformity with
{¶ 69} Alternatively, OhioHealth argues that there is, in fact, a written statement in this case that would satisfy
{¶ 70} We affirm the trial court‘s decision to grant Dillon‘s motion in limine preventing OhioHealth from claiming immunity under
3. Whether Dillon Should be Permitted to Argue, in the New Trial, That Negligence in the Intensive Care Unit (Rather Than Restraint in the Emergency Room) Caused His Injuries
{¶ 71} OhioHealth argues that the trial court should have granted it a directed verdict on the issue of whether it was liable for injuries Dillon may have sustained in the Intensive Care Unit (“ICU“) and that different jury instructions should have been given to take account of this issue. Additionally, OhioHealth claims that Dillon should not be permitted to argue in a new trial that OhioHealth is liable for negligence that may have occurred in the ICU.
{¶ 72} OhioHealth admits that Dillon did not argue that his injury resulted from ICU negligence. OhioHealth argued that, while in the ICU, Dillon injured himself. In response, Dillon suggested that, even if that were the case, the ICU staff should, perhaps,
4. Whether the Trial Court Should, in the New Trial, Give a Different Standard of Care Instruction or Different Comparative Negligence Instruction
{¶ 73} OhioHealth also asks that we order the trial court to give different jury instructions on remand. We are unable to do so because of the same ripeness deficit. Id. at 89. On remand, the parties may try the case differently. The trial court may find different pretrial arguments persuasive and, without interference from us, use different jury instructions. The parties could settle the case without a trial. The question of jury instructions on remand and retrial is not ripe to be addressed on appeal.8
{¶ 74} For the reasons stated, we overrule OhioHealth‘s fifth assignment of error except to the extent that some issues raised thereunder are unripe for review. In remanding this case to the trial court for retrial, we decline to limit any issues for trial as having been decided by a previous trier of fact; we affirm the trial court‘s ruling in limine on OhioHealth‘s assertion of immunity pursuant to
{¶ 75} Accordingly, we overrule both parties’ assignments of error except to the extent that they are rendered moot or attempted to raise unripe issues. We find the trial below to have been of such character in its irregularity to warrant a completely new trial as to all claims. We affirm the trial court‘s ruling in limine preventing OhioHealth‘s assertion of immunity and its vacating of the judgment in favor of the plaintiff. We decline to rule on issues that are moot or not yet ripe and remand this matter for a new trial on all claims and issues.
Judgment affirmed.
TYACK and LUPER SCHUSTER, JJ., concur.