[Cite as Wargo v. Susan White Anesthesia, Inc., 2011-Ohio-6271.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96410
LAUREN WARGO
PLAINTIFF-APPELLEE/
CROSS-APPELLANT
vs.
SUSAN WHITE ANESTHESIA, INC., ET AL.
DEFENDANTS-APPELLANTS/
CROSS-APPELLEES
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Common Pleas Court
Case No. CV-653779
BEFORE: Blackmon, P.J., Stewart, J., and Cooney, J.
RELEASED AND JOURNALIZED: December 8, 2011
ATTORNEYS FOR APPELLANTS
Douglas G. Leak
Roetzel & Andress, LPA
1375 East Ninth Street
Suite 900
Cleveland, Ohio 44114
Stephen D. Jones
Roetzel & Andress, LPA
155 East Broad Street
12th Floor
Columbus, Ohio 43215
Murray K. Lenson
Ulmer & Berne LLP
Skylight Office Tower
1660 West 2nd Street, Suite 1100
Cleveland, Ohio 44113-1448
ATTORNEYS FOR APPELLEE
Peter H. Weinberger
Melissa Z. Kelly
Spangenberg, Shibley & Liber LLP
1001 Lakeside Avenue East
Suite 1700
Cleveland, Ohio 44114
PATRICIA ANN BLACKMON, P.J.:
{¶ 1} Appellants Bryan Michelow, M.D. and Contemporary Cosmetic
Surgery, Inc. (collectively referred to as “Dr. Michelow”) appeal the jury
award and various court rulings in favor of appellee Lauren Wargo (“Wargo”).
Dr. Michelow assigns eight errors for our review; Wargo cross-appeals
assigning two errors for our review.1
{¶ 2} Having reviewed the record and pertinent law, we reverse the
trial court’s denial of Dr. Michelow’s motion for summary judgment regarding
Wargo’s claims for fraudulent concealment and punitive damages and
remand for the trial court to conduct a new trial on Wargo’s medical
malpractice claim. The apposite facts follow.
Facts
{¶ 3} On December 18, 2006, Wargo underwent surgery to remove
moles from her back and left eyebrow. Dr. Michelow was the plastic surgeon
who performed the procedure. Because Wargo was nervous, the decision was
made to put her under light anesthesia to sedate her. Nurse Lucinda
Timberlake-Kwit was the assistant anesthesiologist for the surgery.
{¶ 4} The surgery required the use of an instrument to cauterize the
area where the moles were located called a Bovie cautery (“Bovie”). Dr.
Michelow successfully removed the mole from Wargo’s back and then
proceeded to remove the mole from her eyebrow. As soon as the Bovie was
activated, it set off a spark, which caused a flash fire. The oxygen remained
on, which caused the fire. The surgical team reacted immediately and put
out the fire within seconds. Despite this response, Wargo suffered
second-degree burns to the left side of her face, neck, ear, and eyelid.
Wargo’s skin pigment healed, but there was some occasional blotchiness.
She continues to have problems with her left eye.
{¶ 5} Wargo filed a medical malpractice claim against Drs. Bryan
Michelow and Susan White,2 and Nurse Lucinda Timberlake-Kwit. Wargo
later amended her complaint to include a claim against Dr. Michelow for
fraudulent concealment based on his failure to fully disclose the cause of the
fire and the extent of her injuries. Dr. Michelow filed a motion for summary
judgment on Wargo’s claims for fraudulent concealment and punitive
damages, which the trial court denied.
{¶ 6} The matter proceeded to a jury trial where the jury found Dr.
Michelow had committed malpractice and had engaged in fraudulent
concealment. Wargo was awarded $871,359 in compensatory damages and
$425,000 in punitive damages.
{¶ 7} After the verdict, the parties filed numerous post-trial motions.
Wargo filed a motion for prejudgment interest, which was granted, but her
See appendix.
1
2
White was voluntarily dismissed from the case with prejudice and
Timberlake-Kwit received a defense verdict.
motion for attorney fees was denied. Dr. Michelow filed motions for
enforcing the cap on noneconomic damages, to vacate the jury verdict, and for
judgment notwithstanding the verdict (“JNOV”) regarding the punitive
damages, and for a new trial. The trial court denied all of Dr. Michelow’s
motions.
Summary Judgment as to Fraudulent Concealment
and Punitive Damages
{¶ 8} In his first assigned error, Dr. Michelow argues the trial court
erred by denying his motion for summary judgment as to Wargo’s claims for
fraudulent concealment and punitive damages.
{¶ 9} Generally, “any error by a trial court in denying a motion for
summary judgment is rendered moot or harmless if a subsequent trial on the
same issues raised in the motion demonstrates that there were genuine
issues of material fact supporting a judgment in favor of the party against
whom the motion was made.” Continental Ins. Co. v. Whittington (1994), 71
Ohio St.3d 150, 156, 642 N.E.2d 615.
{¶ 10} However, error in the denial of a summary judgment motion that
presents a purely legal question is not rendered harmless by a subsequent
trial on the merits. Id. at 158; Capella III, L.L.C. v. Wilcox, 190 Ohio App.3d
133, 139, 2010-Ohio-4746, 940 N.E.2d 1026. Consequently, an appellate
court may review a denial of a motion seeking summary judgment on a pure
question of law regardless of the movant’s lack of success at trial.
Sicklesmith v. Chester Hoist, 169 Ohio App.3d 470, 2006-Ohio-6137, 863
N.E.2d 677, ¶183; Kelley v. Ferraro, Cuyahoga App. No. 92446,
2010-Ohio-4179. Here, Dr. Michelow argued he was entitled to summary
judgment as a matter of law because Wargo failed to present the evidence
necessary to prove her fraudulent concealment claim or evidence that she was
entitled to punitive damages. Thus, a subsequent trial did not render
harmless the asserted error in the denial of the summary judgment motion.
{¶ 11} We review an appeal from summary judgment under a de novo
standard of review. Baiko v. Mays (2000), 140 Ohio App.3d 1, 746 N.E.2d
618, citing Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 506
N.E.2d 212; N.E. Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs. (1997),
121 Ohio App.3d 188, 699 N.E.2d 534. Accordingly, we afford no deference to
the trial court’s decision and independently review the record to determine
whether summary judgment is appropriate. Under Civ.R. 56, summary
judgment is appropriate when: (1) no genuine issue as to any material fact
exists, (2) the party moving for summary judgment is entitled to judgment as
a matter of law, and (3) viewing the evidence most strongly in favor of the
nonmoving party, reasonable minds can reach only one conclusion that is
adverse to the nonmoving party.
{¶ 12} In Gaines v. Preterm-Cleveland, Inc. (1987), 33 Ohio St.3d 54, 55, 514 N.E.2d
709, the Ohio Supreme Court set forth the elements for a cause of action of fraud in a medical
malpractice action as follows:
“The elements of an action in actual fraud are: (a) a representation or, where
there is a duty to disclose, concealment of a fact, (b) which is material to the
transaction at hand, (c) made falsely, with knowledge of its falsity, or with
such utter disregard and recklessness as to whether it was true or false that
knowledge may be inferred, (d) with the intent of misleading another into
relying upon it, (e) justifiable reliance upon the representation or concealment,
and (f) a resulting injury proximately caused by the reliance.”
{¶ 13} Thus, “[a] physician’s knowing misrepresentation of a material fact concerning
a patient’s condition, on which the patient justifiably relies to his detriment, may give rise to a
cause of action in fraud independent from an action in medical malpractice.” Id. citing,
Annotation (1973), 49 A.L.R.3d 501, 506; Leach v. Shapiro (1984), 13 Ohio App.3d 393, 397,
469 N.E.2d 1047.
{¶ 14} In Gaines, the doctor allegedly told his patient that he had removed an
intrauterine device as she had requested when, in fact, he had not done so. Over three years
later, the patient discovered that the IUD had not been removed and that it had perforated her
uterus. Under these circumstances, the supreme court concluded that a doctor’s knowing
misrepresentation of a material fact concerning a patient’s condition, on which the patient
justifiably relied to her detriment, could give rise to a cause of action in fraud independent
from an action in medical malpractice.
{¶ 15} In the instant case, there was no evidence that Wargo justifiably relied upon
any representation made by Dr. Michelow. Wargo was well aware that she
suffered burns that were not an intended part of the treatment, and Dr.
Michelow told her that the Bovie had caught fire. Therefore, there was no
concealment of the fact she was burned. Moreover, according to her
deposition, she knew the next morning when she went to MetroHealth’s
burn unit that the exposure to oxygen had caused the Bovie to ignite. She
informed the burn unit “we knew there was a fire and assumed it was from
oxygen and a spark.” Her intake record at the burn unit also indicated that
the fire was caused by oxygen in the operating room. Whether she provided
the information to the burn unit or they provided it to her, less than 24 hours
after the incident, she was aware of what caused the fire.
{¶ 16} There is no evidence of concealment as to Wargo’s medical
condition. She was well aware she was burned. In Dr. Michelow’s operative
report, he also noted “partial thickness injury” to Wargo’s cheek, ear, and
neck, which is consistent with a second-degree burn. Moreover, the fact he
had a senior plastic surgeon immediately evaluate Wargo’s condition shows it
would have been impossible for Dr. Michelow to have concealed her injuries.
Also, the burn unit diagnosed Wargo the next morning as having
second-degree burns. So, even if she was misled in anyway concerning the
extent of her injuries, by the next morning, she would have definitely been
aware she had second-degree burns.
{¶ 17} There is also no evidence that the doctor’s failure to tell her the
cause of the fire impacted her post-surgery treatment. There was no delay in
her receiving treatment as the doctor immediately contacted the senior
plastic surgeon and an opthamologist to evaluate Wargo, and she
immediately received treatment. The next morning at MetroHealth, she
received the same diagnoses of second-degree burns and was prescribed the
same treatment prescribed by Dr. Michelow.
{¶ 18} There is also no evidence that the doctor’s failure to reveal the
cause of the fire impacted her ability to bring a medical malpractice suit.
According to Wargo’s father, by the next evening, he had consulted with an
attorney regarding the incident. Therefore, the doctor’s alleged failure to
tell her about the oxygen did not result in Wargo’s suffering injuries separate
from her medical malpractice claim.
{¶ 19} Wargo argued that she was psychologically harmed by the
doctor’s failure to disclose the cause of the fire, causing her to have a
“rational fear of physical peril.” It is undisputed that Wargo did not suffer
any physical injury as a result of the doctor’s alleged fraudulent concealment
because, after the fire, she received appropriate medical treatment with no
delay; therefore, any additional injury would have been purely emotional, and
no doubt a result of the incident. Any physical injury was caused by the
medical malpractice. See Prysock v. Bahner, M.D., 10th Dist. No.
03AP-1245, 2004-Ohio-3381 (no compensable injury for fraud due to doctor’s
alleged nondisclosure because the damages were the same for medical
malpractice).
{¶ 20} In Prysock, the court acknowledged that “a plaintiff claiming
emotional distress without contemporaneous physical injuries must
demonstrate that he or she was in fear of physical consequences to his or her
person.” Id. at ¶12. However, “[a] plaintiff cannot recover for emotional
distress ‘where the distress is caused by plaintiff’s fear of a nonexistent
physical peril.’” Id., quoting, Criswell v. Brentwood Hosp. (1989), 49 Ohio
App.3d 163, 165-166, 551 N.E.2d 1315. There is no reason that Wargo would
have a fear of physical peril based on the doctor’s failure to tell her the cause
of the fire because the alleged nondisclosure did not cause her any physical
harm nor was she in danger of physical harm.
{¶ 21} Additionally, the evidence does not support Wargo’s claim that
the doctor attempted to conceal the malpractice. Immediately after the
incident, he had another plastic surgeon and an opthamologist both examine
Wargo. Also, in his report he had written: “Cautery was applied to the base
of the open operative wound. At this moment, a flash flame was noted. The
mask was immediately removed. The oxygen was turned off.” The
anesthesia record written by Timberlake-Kwit, stated: “After the nevus was
excised, Bovie was used to cauterize the skin. I was at the head of the bed
throughout procedure and noticed an immediate spark, O2 immediately
turned off, etc.” These records were available to Wargo and indicate no
intent to conceal or alter what had occurred. It appears Wargo believes that
Dr. Michelow should have immediately accepted blame for the cause of the
fire, but the cause and responsibility for the fire are matters resolved as part
of Wargo’s medical malpractice claim. See Katz v. Guyuron (July 6, 2000),
Cuyahoga App. No. 76342, the doctor’s failure to fully disclose the patient’s
condition was related to the patient’s malpractice claim; thus, it did not
create an independent claim for fraud.
{¶ 22} There was also no evidence of actual malice that would have
supported a punitive damages claim. The Ohio Supreme Court in Preston v.
Murty (1987), 32 Ohio St.3d 334, 512 N.E.2d 1174, defined “actual malice” in
pertinent part as “a conscious disregard for the right and safety of other
persons that has a great probability of causing substantial harm.” There is
no evidence that Dr. Michelow exhibited a conscious disregard for Wargo’s
safety. Wargo was told a fire occurred. Immediately following the fire,
Wargo was evaluated by a plastic surgeon and opthamologist and provided
treatment. The fact the doctor failed to tell Wargo the exact cause of the fire
or accept blame for the fire did not cause substantial harm, nor did it even
create a probability of causing substantial harm to Wargo.
{¶ 23} Accordingly, we conclude that Wargo’s claims for fraudulent
concealment and punitive damages fail as a matter of law; thus, the trial
court erred by not granting summary judgment in favor of Dr. Michelow. As
a result of the trial court’s failure to grant summary judgment and allowing
the fraudulent concealment claim to go to the jury, the trial as to Wargo’s
malpractice claim was prejudicially tainted by the focus on the doctor’s
alleged fraudulent concealment. We, therefore, remand the matter for a new
trial on Wargo’s medical malpractice claim.
{¶ 24} The remaining assigned errors and Wargo’s cross-appeal are
rendered moot by our disposition of Dr. Michelow’s first assigned error.
Therefore, we need not address them. App.R. 12(A)(1)(c).
Judgment reversed and case remanded.
It is ordered that appellants recover from the appellee the costs herein
taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, PRESIDING JUDGE
MELODY J. STEWART, J., and
COLLEEN CONWAY COONEY, J., CONCUR
APPENDIX
Assignments of Error
“I. The trial court erred in denying defendants-appellants’ motion for partial
summary judgment on plaintiff-appellee’s claims for fraud, concealment, and
punitive damages.”
“II. The trial court erred in denying defendants-appellants’ motion to bifurcate trial
of plaintiff-appellee’s claims for compensatory and punitive damages.”
“III. The trial court erred in denying defendants-appellants’ motion for directed
verdict on plaintiff-appellee’s claims for fraud, concealment, and punitive damages.”
“IV. The trial court erred in its jury charge pertaining to plaintiff-appellee’s claims
for fraud, concealment, and punitive damages.”
“V. The trial court erred in failing to properly use general verdict forms pursuant to
Civ.R. 49.”
“VI. The trial court erred in granting plaintiff-appellee’s motion for partial
summary judgment that a permanent and substantial physical deformity was
sustained and, therefore, erred in applying the $500,000 cap on non-economic
damages as a matter of law.”
“VII. The trial court erred in holding that the punitive damages cap in R.C.
2315.21(D)(2) and the non-economic damages cap in R.C. 2323.43 are
unconstitutional.”
“VIII. The trial court abused its discretion in granting plaintiff-appellee’s motion
for prejudgment interest.”
Cross-Appeal
“I. The trial court abused its discretion when it denied plaintiff’s motion for fees
and expenses under Rule 37 of the Civil Rules.”
“II. The trial court improperly denied plaintiff’s motion for fees based on the jury’s
award of punitive damages.”