LARRY J. MORETZ, et al. v. KAMEL F. MUAKKASSA, M.D., et al.
C.A. No. 25602
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT, OHIO
March 21, 2012
2012-Ohio-1177
DICKINSON, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV-2007-03-2157
INTRODUCTION
{¶1} Following surgery to remove a large, fluid-filled mass in his pelvis, Larry Moretz found that he had lost all control of his bowels and bladder and all sexual function. He and his wife sued his neurosurgeon and general surgeon. The general surgeon, Gary Williams, settled before trial. The Moretzes prosecuted their medical malpractice claims against the neurosurgeon, Kamel Muakkassa, arguing that he violated the standard of care by failing to scrub in on the surgery and failing to use magnification and/or nerve stimulation to help locate and protect nerves during the procedure. The parties do not dispute that Mr. Moretz’s injuries are permanent or that they were caused by the surgery, but Dr. Muakkassa has argued that the injuries were not caused by any deviation from the standard of care. Following a jury verdict of $995,428 against him, Dr. Muakkassa appealed and the Moretzes cross-appealed. This Court affirms in part because the trial court (1) exercised proper discretion in determining there was
BACKGROUND
{¶2} At the time of the surgery, Mr. Moretz was 36 years old, married, and the father of a two-year-old daughter. He had normal sensation and sexual function and normal bowel and bladder function. After experiencing acute abdominal pain and some constipation and hesitancy with urination, he sought treatment for his symptoms. A radiology report revealed a grapefruit-sized mass near his tailbone, and he was referred to Dr. Muakkassa for treatment of an anterior sacral meningocele. Mr. Moretz testified that his doctors told him he had a hole in his tailbone and the fluid around his spinal cord had forced its way out through the hole to form a pouch created by the membrane surrounding the spinal cord. He was told that the large, fluid-filled cyst was pressing on his bladder and other organs, causing his symptoms. Dr. Muakkassa advised
{¶3} The parties agree that Mr. Moretz had a large cyst located near the end of his spinal cord, but they disagree about whether it was a meningocele or a neurenteric cyst. The Moretzes’ neurosurgery expert, Gary Dennis, described the cyst as an anterior sacral meningocele, which he explained is an “outpouching” of the meninges, or covering of the spinal cord, filled with cerebral spinal fluid. Dr. Muakkassa and his neurosurgery expert, Mark McLaughlin, however, testified that the cyst was not a meningocele, but a neurenteric cyst, which is associated with spinal abnormalities, but does not have nerve tissue in it. Dr. McLaughlin explained that a neurenteric cyst is “really more of a digestive [system] abnormality” that typically would be removed by a general surgeon rather than a neurosurgeon.
{¶4} Dr. Williams and Mr. Moretz testified consistently about the surgical plan. According to them, if Dr. Williams was unable to remove the cyst with a less invasive laparoscopic approach, he would switch to an open incision and provide access through the abdomen to the cyst. Then, Dr. Muakkassa would remove the cyst from the tip of the spinal cord and seal it off.
{¶5} Dr. Muakkassa and his expert, Dr. McLaughlin, testified that Dr. Muakkassa did not violate the standard of care in his treatment of Mr. Moretz. Dr. Muakkassa testified that he did not scrub in for Mr. Moretz’s procedure because it was unnecessary. He said that he entered the surgical suite several times in order to consult with Dr. Williams. He described his involvement as checking to see that Dr. Williams located the cyst and properly closed it off to avoid a leak of cerebral spinal fluid. He said that he was not specifically looking for nerves because there are no nerves in that area, but if there had been any there, he would have seen
{¶6} After the jury returned a verdict against Dr. Muakkassa, he moved to apply the statutory cap for non-economic damages and a statutory set-off for the amount paid by Dr. Williams in settlement. The Moretzes opposed the motion for a set-off of the amount paid by Dr. Williams and moved for prejudgment interest. The trial court reduced the verdict by $39,600 to bring the noneconomic damages element in line with the cap, then calculated prejudgment interest before applying a set-off for the prior settlement. The trial court entered judgment for the Moretzes in the amount of $953,858.08 and ordered Dr. Muakkassa to pay costs.
CIVIL RULE 32(A)
{¶7} Dr. Muakkassa’s first assignment of error is that the trial court incorrectly permitted the Moretzes to present expert witness testimony via a videotape deposition that was not timely filed as required by
{¶8} Under
{¶9} The 1970 Staff Notes to
{¶10} Dr. Muakkassa has not explained to this Court how he was prejudiced by the trial court’s admission of the deposition. There is no argument that he was surprised or somehow handicapped in his trial preparation due to the fact that the deposition had not been filed one day before the start of the trial. His only argument is that, because Dr. Dennis was the Moretzes’ only medical expert, Dr. Muakkassa would have been entitled to a directed verdict if the
JURY INTERROGATORY
{¶11} Dr. Muakkassa’s second assignment of error is that the trial court incorrectly refused to give a narrative jury interrogatory he requested. Dr. Muakkassa proposed a jury interrogatory that, in the event the jury found negligence, would have asked the jury to “[s]tate the respect in which you find Kamel Muakkassa was negligent.” The trial court acknowledged the mandatory language of
{¶12}
{¶13} “The purpose of an interrogatory is to ‘test the jury’s thinking in resolving an ultimate issue so as not to conflict with its verdict.’” Freeman v. Norfolk & W. Ry. Co., 69 Ohio St. 3d 611, 613 (1994) (quoting Riley v. Cincinnati, 46 Ohio St. 2d 287, 298 (1976)). “Proper jury interrogatories must address determinative issues and must be based upon trial evidence.” Ramage v. Cent. Ohio Emergency Servs. Inc., 64 Ohio St. 3d 97, 107 (1992). Interrogatories that ask for conclusions that are not legitimate issues are improper. Freeman, 69 Ohio St. 3d at 614. The Ohio Supreme Court has held that, “[w]hen only one act of negligence is alleged against a defendant, an interrogatory asking the jury to specify the manner in which the defendant was negligent is improper.” Id.
{¶14} The trial court told Dr. Muakkassa that it would reject his interrogatory for two reasons: (1) all allegations of negligence were dependent upon his failure to scrub in to the surgery, and (2) the narrative form was likely to confuse the jury. At trial, the Moretzes’ medical expert, Dr. Dennis, testified that Dr. Muakkassa violated the applicable standard of care in the treatment of Mr. Moretz in three ways: (1) failure to scrub in to the procedure; (2) failure to use magnification via a microscope or telescopic glasses called Loupes; and (3) failure to use neurophysiological monitoring or nerve stimulation to help locate nerves to avoid injury during the procedure. He testified that these failures proximately caused Mr. Moretz’s injuries.
{¶15} According to Dr. Dennis, Dr. Muakkassa “agreed to operate on Mr. Moretz, but, unfortunately, he never did.” Dr. Dennis testified that Dr. Muakkassa fell below the standard of care because he “did not use the techniques that ordinarily he would have used if he were doing the procedure himself to be certain that nerves were not being injured and nerves were being
{¶16} Dr. Muakkassa testified that he did not need to look for nerves because there are no nerves in that area of the body. He also testified that the nerves involved in this injury are large enough to have been seen with the naked eye even from where he was standing without scrubbing in. There is no evidence that Dr. Muakkassa could have used either magnification or nerve stimulation techniques without scrubbing in to the procedure. As the evidence suggests that Dr. Muakkassa was criticized for not physically participating in the surgery, which would have allowed him to use magnification and nerve stimulation techniques to avoid injury to the nerves responsible for controlling bowel, bladder, and sexual function, the trial court correctly determined that the Moretzes’ allegations boil down to one act of negligence. Therefore, the proposed narrative interrogatory would not have been appropriate in this case. Freeman v. Norfolk & W. Ry. Co., 69 Ohio St. 3d 611, 614 (1994). Dr. Muakkassa’s second assignment of error is overruled.
EVIDENCE RULE 803(18)
{¶18} Under
{¶19} Exhibit 36 is a medical illustration described as “a congenital anterior sacral meningocele.” It is a photocopy of page 1157, Figure 83.1, from the second edition of a medical textbook entitled, “Spine Surgery Techniques, Complication, Avoidance and Management.” Dr. Muakkassa’s expert, Dr. McLaughlin, testified that he is familiar with the book and that he read the chapter regarding anterior sacral meningoceles several times in preparation for his trial testimony. He agreed the text is authoritative and that the relevant chapter is “excellent.” Dr. McLaughlin testified that the illustration was an accurate depiction of what can occur with an anterior sacral meningocele. He testified, however, that he did not agree that Mr. Moretz had an anterior sacral meningocele or that the liquid inside the cyst was cerebral spinal fluid. He testified that Mr. Moretz had a neurenteric cyst, which can look very similar to an anterior sacral
{¶20} Evidence may not be admitted unless it is first properly authenticated via “evidence sufficient to support a finding that the matter in question is what its proponent claims.”
{¶21} Tangible objects used demonstratively “are relevant if they aid the trier [of fact] in understanding the witness’s testimony, which itself makes a fact of consequence more or less probable.” 2 George E. Dix et al., McCormick on Evidence § 212, at 3 (Kenneth S. Broun ed. 2006)). If the object played no part in the events underlying the litigation, “[i]ts source and how it was created may be of no significance whatever.” Id. at § 214, at 15. “Instead, the theory justifying its admission is that the item is a fair and accurate representation of relevant testimony or documentary evidence otherwise admitted in the case. Typically a[ ] [visual] aid will be identified by a witness, during the witness’s testimony, as a substantively correct representation
{¶22} A properly authenticated medical illustration of the human anatomy discussed by medical experts can be helpful to the jury in understanding the issues in a medical malpractice case. Here the Defendant’s own expert vouched for the accuracy of this depiction of the anomalous anatomical condition the plaintiff sought to prove that he had. As the exhibit was authenticated and relevant, it was admissible at the discretion of the trial court unless prohibited by some other rule or statute.
{¶23} At common law, “[m]edical books or treatises, even though properly identified and authenticated and shown to be recognized as standard authorities on the subjects to which they relate, [were] not admissible in evidence to prove the truth of the statements therein contained.” Hallworth v. Republic Steel Corp., 153 Ohio St. 349, paragraph two of the syllabus (1950). The common law later evolved to allow parties to use a learned treatise for the limited purpose of impeaching the credibility of an expert who had either relied on it or acknowledged it as authoritative in the field. Stinson v. England, 69 Ohio St. 3d 451, 458 (1994). In 1998, Ohio codified that concept in Evidence Rule 706. In 2006, the Supreme Court repealed Evidence Rule 706 when it adopted
{¶24} This exception to the hearsay rule is primarily aimed at passages in treatises containing “theories and opinions” of the author “representing inductive reasoning.” See Piotrowski v. Corey Hosp., 172 Ohio St. 61, 69 (1961) (explaining bases for the exclusion of learned treatises including lack of certainty regarding opinions and conclusions asserted in treatises and the inability to cross-examine the authors). Although an illustration in a textbook could include “statements” of the type
{¶25} Dr. Muakkassa has not argued that the author of the textbook made any “statements” in this illustration of a type
{¶26} Dr. Muakkassa has argued that he was prejudiced because the admission of the exhibit made it more likely the jury would give undue weight to the theory that Mr. Moretz had a meningocele rather than a neurenteric cyst. There is no evidence to suggest the admission of the exhibit prejudiced Dr. Muakkassa. The illustration did not tend to prove that Mr. Moretz had a meningocele.
{¶27} Dr. Muakkassa has also argued exhibit 36 was not properly identified and authenticated because the Moretzes’ lawyer failed to mark the exhibit while cross-examining Dr. McLaughlin and failed to establish which of two drawings he later marked as exhibit 36. If Dr. Muakkassa’s lawyer felt there was some confusion about which illustration had been marked as exhibit 36, he did not raise that objection with the trial court when that confusion could have been eliminated, even though they twice discussed whether exhibit 36 should be admitted into evidence. This Court will not consider his argument for the first time on appeal. See State v. Williams, 51 Ohio St. 2d 112, paragraph one of the syllabus (1977). Dr. Muakkassa’s third assignment of error is overruled.
EVIDENCE OF CO-DEFENDANT’S SETTLEMENT
{¶28} Dr. Muakkassa’s fourth assignment of error is that the trial court incorrectly refused to allow him to present evidence of the fact that Dr. Williams, a witness at the trial, had been named as a co-defendant, but had settled the Moretzes’ claims against him before trial. Dr.
{¶29} Under
{¶30} At trial, Dr. Muakkassa called Dr. Williams as a witness. Dr. Muakkassa asked him whether he realized that, in deposition, the Moretzes’ medical expert had said that Dr. Williams had deviated from the standard of care in his treatment of Mr. Moretz. Dr. Williams testified that he was aware of that and that he did not agree with that assessment. Dr. Muakkassa then asked two leading questions that made it clear to the jury that Dr. Williams had been a defendant in the lawsuit until he had settled the claim. Dr. Muakkassa’s two questions were “you chose apparently at some point in time not to proceed to trial to defend yourself?” and “you were dismissed from this case I believe last year, 2009?” Dr. Williams responded affirmatively
{¶31} Even if this Court could find error in the trial court’s ruling, Dr. Muakkassa has not pointed to any “damaging testimony” in the record nor explained how introducing further evidence about the settlement would have helped him avoid whatever prejudice he believes he suffered. App. R. 16(A)(7). Dr. Muakkassa has not affirmatively demonstrated prejudicial error. See
EVIDENCE OF MR. MORETZ’S MEDICAL BILLS
{¶32} Dr. Muakkassa’s fifth assignment of error is in two parts. He has seemingly argued that the trial court incorrectly admitted Mr. Moretz’s medical bills without competent evidence regarding the necessity and reasonableness of the charges. He has also argued that the trial court incorrectly excluded evidence of the write-offs of the medical bills without expert testimony regarding reasonableness.
{¶33} In considering the first part of this assignment of error, it is unclear whether Dr. Muakkassa intended to argue that the medical bills were inappropriately admitted and/or that the trial court should have excluded the testimony of Dr. Dennis regarding those bills. In any event, his argument appears to be limited to questioning the competence of the evidence tending to show the medical charges were reasonable.
{¶34}
{¶35} In addition to the presumption triggered by compliance with the statute, the Moretzes offered further evidence of the reasonableness of the charges. On direct examination, Dr. Dennis considered exhibit one, which was identified as a compilation of Mr. Moretz’s medical bills with a summary sheet on top that was prepared by his lawyer. Dr. Dennis testified that the charges were reasonable and necessary. On cross-examination, he testified that he had not considered each line on each bill, but had relied on the accuracy of the summary sheet to support his opinion that the bills reflected reasonable and necessary charges for medical services rendered to Mr. Moretz due to the injuries received via Dr. Muakkassa’s alleged deviation from the standard of care. Dr. Dennis offered a competent expert opinion regarding the reasonableness of the charges for the services rendered. Dr. Muakkassa’s cross-examination may have affected the credibility of that opinion, but that goes only to the weight and not the admissibility of the evidence. See Segedy v. Cardiothoracic & Vascular Surgery of Akron Inc., 182 Ohio App. 3d 768, 2009-Ohio-2460, at ¶ 18 (9th Dist. 2009).
{¶36} The second part of Dr. Muakkassa’s fifth assignment of error is that the trial court incorrectly excluded evidence of the medical providers’ write-offs of the medical bills. In personal injury cases, “[a] plaintiff is entitled to recover the reasonable value of medical expenses incurred due to the defendant’s conduct.” Jaques v. Manton, 125 Ohio St. 3d 342, 2010-Ohio-1838, at ¶ 15. The reasonable cost of any given medical procedure is generally
{¶37} The General Assembly created a shortcut for proving the reasonableness of medical charges in a personal injury or wrongful death case via the rebuttable presumption created by compliance with
{¶38} The collateral source rule has been described as “the judicial refusal to credit to the benefit of the wrongdoer money or services received in reparation of the injury caused which emanates from sources other than the wrongdoer.” Roberts v. State Farm Mut. Auto. Ins. Co., 155 Ohio App. 3d 535, 2003-Ohio-5398, at ¶ 69 (2d Dist.) (quoting Carville v. Estate of Phillips, 2d Dist. No. 99CA52, 2000 WL 1209272 at * 2 (Aug. 25, 2000)). The collateral source rule “is an exception to the general rule that in a tort action, the measure of damages is that which will compensate and make the plaintiff whole.” Robinson v. Bates, 112 Ohio St. 3d 17, 2006-Ohio-6362, at ¶ 11. “Through this exception, the plaintiff is allowed to receive more than the amount of damages [ ]he actually incurred.” Roberts, 2003-Ohio-5398, at ¶ 69. The purpose of the collateral source exception to the general rule of tort damages is to ensure that “benefits the plaintiff receives from a source wholly independent of the wrongdoer [do] not benefit the wrongdoer by reducing the amount of damages that a plaintiff might otherwise recover from him.” Id. The rationale is that a negligent defendant should not reap the advantage created by a plaintiff’s foresight in securing insurance or other sources of benefits to help cover the cost of injuries caused by the defendant. Robinson, 2006-Ohio-6362, at ¶ 11. “As an evidentiary rule, the collateral source rule bars the introduction into evidence of collateral payments to the plaintiff in order to prevent the jury’s consideration of such payments in determining the amount of damages.” Roberts, 2003-Ohio-5398, at ¶ 69 (quoting Carville, 2000 WL 1209272 at *2).
{¶39} In 2005, the General Assembly adopted a statute essentially limiting the collateral source rule to sources of benefits that carry a right of subrogation. Under
{¶40} In this case, the trial court excluded evidence of the amounts written off by medical providers due to a lack of foundation, not because of the collateral source rule. Dr. Muakkassa sought to offer evidence of the amounts written off of the medical bills in order to prove that the reasonable value of the medical services was less than the amounts the providers charged. He did not, however, offer any expert testimony on the issue of the reasonable value of the medical services rendered. “[T]he reasonable value of medical services is a matter for the jury to determine from all relevant evidence.” Jaques v. Manton, 125 Ohio St. 3d 342, 2010-Ohio-1838, at ¶ 15 (quoting Robinson v. Bates, 112 Ohio St. 3d 17, 2006-Ohio-6362, at ¶ 17). In Jaques, the Ohio Supreme Court held that, regardless of the collateral source rule and any applicable subrogation rights, write-offs by medical providers are relevant evidence bearing on the reasonable value of medical services. Id. at ¶ 16. Jaques, however, did not address the question at issue in this case, that is, how to lay a foundation for such evidence.
{¶41} As the reasonable value of medical services is outside the common knowledge of laymen, expert testimony is necessary as a foundation for presentation of this evidence to the jury. See
{¶42} Defendants offer evidence of write-offs in hopes that juries will determine the reasonable value of the medical services was actually equal to the amount charged minus the amount written off by the provider. See Evans v. Thobe, 195 Ohio App. 3d 1, 2011-Ohio-3501, at ¶ 18 (2d Dist). Despite the Ohio Supreme Court’s holding in Jaques that such evidence is relevant and admissible, there is no presumption or shortcut available to allow such evidence to be introduced without a proper foundation. As Dr. Muakkassa offered evidence of the amounts written off by Mr. Moretz’s medical providers as evidence to contradict the statutory presumption of reasonableness of the charges, the trial court correctly excluded the evidence in the absence of competent expert testimony. Dr. Muakkassa’s fifth assignment of error is overruled.
CUMULATIVE EFFECT OF TRIAL ERRORS
{¶43} Dr. Muakkassa’s sixth assignment of error is that the trial court denied him a fair trial through the cumulative effect of the trial court’s errors. As this Court has identified no trial error, this assignment of error is overruled.
PREJUDGMENT INTEREST
{¶44} Dr. Muakkassa’s seventh assignment of error is that the trial court incorrectly awarded prejudgment interest. He has argued that the prejudgment interest statute is unconstitutional, the Moretzes failed to satisfy their burden to prove they were entitled to prejudgment interest, and the trial court abused its discretion in calculating the interest. Under
Constitutionality of Section 1343.03(C)
{¶45} Dr. Muakkassa has argued that the prejudgment interest statute is unconstitutional because it violates the right to trial by jury and the equal protection clause. His arguments are brief and do not cite either the state or federal constitution. It appears he has argued that the statute violates the right to a jury trial because it abrogated the common law right to have the jury make prejudgment interest determinations and the statute punishes defendants for exercising their right to go to trial.
{¶46} The Ohio Supreme Court has ruled that “Section 1343.03(C) does not infringe upon a party’s right to a jury trial.” Galayda v. Lake Hosp. Sys. Inc., 71 Ohio St. 3d 421, 427 (1994) (quoting Kalain v. Smith, 25 Ohio St. 3d 157, 160 (1986)). Although the statute has been amended several times over the intervening years, the substance of the section applicable to Dr. Muakkassa’s arguments remains the same today. The Ohio Supreme Court has ruled that imposing a requirement of a “good faith effort to settle” does not force a defendant to forgo the right of having a jury determine the existence of his liability in a tort action. Id. (quoting Kalain, 25 Ohio St. 3d at 160). Although a defendant who chooses to try his case risks the possibility that he may ultimately be found liable for a larger total judgment under
{¶47} The Ohio Supreme Court has also held that
Award of Prejudgment Interest
{¶48} As part of his seventh assignment of error, Dr. Muakkassa has argued that the Moretzes failed to satisfy their burden of proof under
{¶49} The Supreme Court has also written that, “[i]f a party has a good faith, objectively reasonable belief that he has no liability, he need not make a monetary settlement offer.” Kalain v. Smith, 25 Ohio St. 3d 157, 159 (1986). It has also issued a caveat that “the ‘good faith, objectively reasonable belief’ language of Kalain must be ‘strictly construed so as to carry out the purposes of
{¶50} The prejudgment interest statute uses mandatory language. “Therefore, if a party meets the four requirements of the statute, the decision to allow or not allow prejudgment interest is not discretionary. What is discretionary with the trial court is the determination of lack of good faith.” Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St. 3d 638, 658 (1994). Thus, “[w]e review a trial court’s determination regarding whether a party made a ‘good faith effort’ to settle for an abuse of discretion.” Kane v. Saverko, 9th Dist. No. 23908, 2008-Ohio-1382, at ¶ 9.
{¶51} In this case, the Moretzes alleged that, despite mounting evidence against him, Dr. Muakkassa failed to make any settlement offer over the course of this lengthy litigation in the face of settlement overtures from the Moretzes. There was evidence that, in May 2009, the Moretzes provided both defendants with a settlement package and demand in preparation for mediation. There was also evidence that they settled with Dr. Williams at the mediation
{¶52} Dr. Muakkassa has argued that the evidence introduced at the prejudgment interest hearing established that he had a good faith, objectively reasonable belief that he had no liability. Therefore, he did not need to make a settlement offer in order to avoid paying prejudgment interest under
{¶53} The Moretzes have argued that Ms. Gorjup’s “cavalier attitude” at the hearing may have influenced the trial court’s opinion of the reasonableness of the insurer’s belief that Dr. Muakkassa had no liability for Mr. Moretz’s injuries. The Moretzes argued that the insurer’s position was largely based on online medical research conducted by Ms. Gorjup, who has no medical training. Ms. Gorjup testified that she considered reviews of the case by the defense lawyer and several medical panels and she concluded that the case was defensible. She testified that, although the company reserved a million dollars for the case based on damages alone, she did not think a jury would find that Dr. Muakkassa had proximately caused Mr. Moretz’s injuries
{¶54} Experts on both sides agreed that Mr. Moretz’s injuries are permanent and that they were caused by the surgery. Dr. Williams testified at deposition that, before the surgery, he believed the two would be co-surgeons participating in the procedure together. Dr. Muakkassa admitted at his deposition that he did not scrub in or make any effort to locate any nerves at any time during the surgery. Although he testified at deposition that Dr. Williams never asked him to scrub in, Dr. Williams later testified at his deposition that he had invited Dr. Muakkassa to scrub in during the procedure.
{¶55} Through depositions taken nearly two years before the trial, the Moretzes developed some credible medical evidence that Dr. Muakkassa fell short of the standard of care in his treatment of Mr. Moretz, that Mr. Moretz suffered serious permanent injuries, and that the causation of those injuries is arguably attributable to Dr. Muakkassa’s conduct. See Galayda v. Lake Hosp. Sys. Inc., 71 Ohio St. 3d 421, 428 (1994). At the prejudgment interest hearing, the trial court heard evidence tending to show that, while the Moretzes made various attempts at initiating settlement discussions and successfully settled with a co-defendant, Dr. Muakkassa steadfastly refused to make any offer of settlement. See Id. This Court cannot say that the trial court improperly exercised its discretion in determining that Dr. Muakkassa did not make a good faith effort to settle the claims against him. To the extent that assignment of error number seven addressed the basis for the trial court’s determination that prejudgment interest should be awarded, it is overruled.
{¶56} The last part of Dr. Muakkassa’s seventh assignment of error is that the trial court incorrectly calculated prejudgment interest by basing it on the amount of the verdict before applying the statutory set-off for the amount of his co-defendant’s settlement. Under
{¶57} At common law, injured parties had a right to prejudgment interest because “if reparation for the injury is delayed for a long time by the wrong-doer, the injured party can not be made whole unless the damages awarded include compensation, in the nature of interest, for withholding the reparation which ought to have been promptly made.” Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St. 3d 638, 656 (1994) (quoting The Lawrence RR Co. v. Cobb, 35 Ohio St. 94, 98-99 (1878)). The Supreme Court has explained that, in addition to encouraging good faith efforts to settle cases in order to conserve judicial resources, “[Section] 1343.03(C), like any statute awarding interest, has the additional purpose of compensating a plaintiff for the defendant’s use of money which rightfully belonged to the plaintiff.” Musisca v. Massillon Cmty. Hosp., 69 Ohio St. 3d 673, 676 (1994) (citing West Virginia v. United States, 479 U.S. 305, 310 n.2 (1987)).
{¶58} In this case, the trial court indicated that it calculated prejudgment interest on the verdict before applying the set-off in order to prevent Dr. Muakkassa from benefitting from his co-defendant’s good faith settlement efforts. If prejudgment interest is calculated before the set-off is applied, however, then the plaintiff receives a windfall. See Mowery v. Welsh, 9th Dist. No. 22849, 2006-Ohio-1552, at ¶ 34 (construing
THE MORETZES’ ASSIGNMENT OF ERROR ON CROSS-APPEAL
{¶59} The Moretzs’ assignment of error on their cross-appeal is that the trial court incorrectly granted a set-off under
{¶60} Following the verdict in this case, Dr. Muakkassa moved the trial court to reduce the jury’s award of noneconomic damages to the statutory cap of $500,000 and to further reduce
CONCLUSION
{¶61} Dr. Muakkassa’s first through sixth assignments of error are overruled. His seventh assignment of error is sustained to the extent that it addressed the trial court’s calculation of prejudgment interest. The remainder of his seventh assignment of error is overruled. The Moretzes’ assignment of error is overruled. The judgment of the Summit County Common Pleas Court is reversed, in part, and this matter is remanded for a recalculation of prejudgment interest consistent with this opinion.
Judgment affirmed in part, reversed in part, and remanded.
There were reasonable grounds for this appeal.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
CLAIR E. DICKINSON
FOR THE COURT
MOORE, J. CONCURS.
CARR, P. J. CONCURRING IN PART, AND DISSENTING IN PART.
{¶62} I concur in all of the majority opinion except for the third and seventh assignments of error. With respect to the third assignment of error, I concur in judgment only on the basis that if there was any error, it was harmless. I respectfully dissent in regard to the seventh assignment of error on the basis that the trial court did not err in calculating prejudgment interest prior to applying the set-off from Dr. Williams’ settlement.
DOUGLAS G. LEAK, Attorney at Law, for Appellant / Cross-appellees.
THOMAS A. TREADON, Attorney at Law, for Appellant / Cross-appellees.
MARK D. AMADDIO, Attorney at Law, for Appellees / Cross-appellants.
DAVID M. TODARO, Attorney at Law, for Appellees / Cross-appellants.
MARK S. FUSCO, Attorney at Law, for Appellees / Cross-appellants.