[Cite as Woessner v. Toledo Hosp., 2016-Ohio-5764.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Catherine Woessner, etc. Court of Appeals No. L-14-1260
Appellee/Cross-Appellant Trial Court No. CI0201201614
v.
The Toledo Hospital, et al. DECISION AND JUDGMENT
Appellants/Cross-Appellees Decided: September 9, 2016
*****
Jeffrey T. Stewart, Robert M. Scott and Peter D. Traska,
for appellee/cross-appellant.
John S. Wasung, Susan Healy Zitterman and Anne M. Brossia,
for appellants/cross-appellees.
Anne Marie Sferra and Sean McGlone, for amici curiae, Ohio
Hospital Association, Ohio State Medical Association and Ohio
Osteopathic Association.
*****
JENSEN, P.J.
{¶ 1} Defendants-appellants/cross-appellees Patrick White, M.D. and Toledo
Hospital appeal from a judgment rendered against them, following a jury verdict, in a
medical malpractice wrongful death action. Plaintiff-appellee/cross-appellant Catherine
Woessner, Administrator of the Estate of Brady Woessner, appeals a decision denying
Woessner’s motion for pre-judgement interest.
The Toledo Hospital and Dr. White assign the following errors for review:
I: The Trial Court Erred In Denying Defendants’ Motions For A
Directed Verdict.
II: The Trial Court Erred In Denying Defendants’ Motion for
Judgment Notwithstanding The Verdict.
III: The Trial Court Erred In Denying Defendants’ Motions To
Strike Plaintiff’s Proximate Cause Expert Dr. Pelletier Under Evid.R.
702(C).
IV: The Trial Court Erred In Overruling Defendants’ Objection And
Instructing The Jury On Causation Theories Of Both A Traditional
Wrongful Death And Lost [sic] Of Less Than Even Chance.
V: The Trial Court Erred In Holding That The Cap On
Noneconomic Damages, R.C. 2323.43, Is Unconstitutional, And Declining
To Apply it Here.
VI: The Trial Court Erred In Denying Defendants’ Motion For A
New Trial Or Remittitur.
2.
{¶ 2} Woessner assigns the following error for our review:
Plaintiff respectfully submits that the trial court erred in denying
plaintiff’s post-trial motion for prejudgment interest and the subsequent
motion for reconsideration.
{¶ 3} On February 17, 2011, Brady Woessner arrived at the Toledo Hospital’s
emergency room complaining of severe abdominal pain. Brady revealed that he had
previously been diagnosed with alpha-1 antriypsin deficiency, a genetic disorder that
caused him to suffer from portal hypertension (an increase in the blood pressure within
the portal vein system), cirrhosis (slow progressing disease in which healthy liver tissue
is replaced with scar tissue), and esophageal varices (swollen veins in the lining of the
lower esophagus).
{¶ 4} Various tests were performed and Brady was admitted to the hospital. The
radiologist who reviewed results of a CT scan reported abnormalities in a segment of
Brady’s small bowel “reflective of a mechanical obstruction,” but noted that ischemia (an
inadequate blood supply) or inflammation were also possibilities. The radiologist
reported a density change within the branches of Brady’s superior mesenteric vein, the
vein that transports blood out of the small intestine.
{¶ 5} Dr. White treated Brady conservatively—no food or drink, intravenous
fluids, and a nasogastric tube—consistent with a diagnosis of a partial small bowel
obstruction. While it initially appeared to Dr. White that Brady’s condition was
improving, Brady’s health took a turn for the worse on February 22, 2011. A second CT
3.
scan was performed. The radiologist noted “extensive small bowel thickening with mild
dilation. Possible cause ischemia and hemorrhage.” Dr. White decided to transfer Brady
to a liver transplant center for further treatment and evaluation.
{¶ 6} On February 23, 2011, Brady was transferred to the University of Michigan
Health System. A third CT scan was performed. A team of University of Michigan
medical professionals diagnosed a thrombus (clot) in a branch off of and into the superior
mesenteric vein. The team attempted to break up the clot with thrombolytic therapy
(non-surgical injection of anticoagulants into the vein), but the clot did not dissolve.
{¶ 7} On February 25, 2011, University of Michigan surgeons removed necrotic
(dead tissue) portions of Brady’s bowel. A second surgery removed more necrosis.
Brady developed multi-system organ failure and several episodes of sepsis. On May 11,
2011, Brady was transferred to The Cleveland Clinic. He died on May 21, 2011.
{¶ 8} Catherine Woessner filed this matter alleging, in relevant part, that Dr.
White was negligent and that his negligence was the direct and proximate cause of
Brady’s death.
{¶ 9} At trial, Dr. Todd Campbell testified that, under the applicable standard of
care, Dr. White should have transferred Brady to a liver transplant facility for specialized
treatment in the first 24-36 hours of his arrival at Toledo Hospital.
{¶ 10} Dr. Campbell opined that ischemia was “a cause” of Brady’s death and the
“main reason” Brady “ended up getting an infection and then subsequently getting sepsis,
septic shock and then death.” Dr. Campbell acknowledged that Brady suffered from an
4.
underlying liver disease, but indicated he did not have an opinion as to whether Brady
would have survived the disease had Dr. White not breached the standard of care.
{¶ 11} Dr. Shawn Pelletier is a liver and bile duct surgeon formerly employed as
the director of liver transplantation at the University of Michigan. Dr. Pelletier testified
that upon Brady’s arrival at the University of Michigan, he and his team determined that
Brady’s immediate problem was “ischemic bowel from mesenteric venous thrombosis.”
In other words, there was a clot in Brady’s superior mesenteric vein. Dr. Pelletier
explained, “the outflow of blood from the bowel through those veins was blocked off to
the point the bowel * * * [was] not getting enough blood supply to stay viable, and we
were worried that it had progressed to the point of having gangrene, what we would call
being necrotic.”
{¶ 12} Dr. Pelletier testified that he and the team tried to restore blood flow to
Brady’s bowel with thrombolytic therapy. The therapy, however, proved unsuccessful.
The following day, Dr. Pelletier opened Brady’s abdomen and removed 100 centimeters
of necrotic bowel. A second surgery was later performed and additional necrotic bowel
was removed.
{¶ 13} Dr. Pelletier opined that Brady had both bowel eschemia and a
decompensated liver before he arrived at Toledo Hospital. He further opined that bowel
necrosis was “the major cause that led to all the other problems and death.” The
following exchange occurred during direct examination:
5.
Q. Now, Doctor, looking at the bowel ischemia itself – and, I’m
sorry, let’s close the circle. You said bowel ischemia is a deadly process
itself?
A. Yes.
Q. Was it a deadly process in Brady Woessner?
A. Yes.
Q. Going back to the 17th, do you have an opinion to a reasonable
degree of medical probability as to whether Brady’s bowel ischemia could
have been successfully treated had you been able to start then rather than on
the 23rd?
A. I do.
***
Q. What is your opinion, doctor?
A. Based on the clinical findings that when he came in, I believe
that he had bowel ischemia, but it had not progressed to necrosis at that
point.
Q. Do you have an opinion to a reasonable medical certainty as to
whether if the treatment you wound up initiating six days later had been
started six days earlier, it would more likely than not have been successful?
A. I do.
6.
Q. And what is that opinion?
A. I believe that if early treatment was started for the bowel
ischemia, there is a high likelihood of success; the process could have been
reversed.
Q. Now, Doctor, Brady Woessner was a liver patient on top of that?
A. That’s correct.
Q. Does that complicate his overall situation?
A. Absolutely.
Q. What are the things that can go wrong with a liver patient even if
they recover or are in the process of recovering from their bowel ischemia?
A. Basically the bowel ischemia can be the process that sets off the
decompensation. Many times if you can reverse whatever process it was
that started the decompensation, patients go back to their baseline. So,
there’s some chance in Brady’s case if the ischemia was reversed, he may
have developed liver failure, maybe even temporary kidney failure,
infections, had a long hospital stay, but ultimately, after a period of weeks
or months, gone back to the state that he was at. There’s also a chance that
the liver failure may not have been reversible, but if he did not develop the
sepsis and severe infections that ensued after that, he would have been a
liver transplant candidate at that point.
***
7.
Q. There’s also a chance, however, that none of those things would
go well, correct?
A. That is true.
Q. When you look at the whole picture, the chance that you might
not succeed in treating the bowel ischemia, the chance that one of these
other things might go wrong, have you tried to form an opinion that you
can state to a reasonable medical probability as to what Brady’s chances
were of clearing all of those hurdles and being with us today?
A. I have.
Q. What is your opinion?
A. My opinion is that he had at least a 40 percent chance going
through all those hurdles if therapy had been started when he initially –
initially presented.
{¶ 14} Appellants moved for a directed verdict pertaining to the claim under the
traditional theory of wrongful death from medical malpractice. They argued that
Woessner failed to present any evidence that the alleged deviations from the standard of
care proximately caused Brady’s death. Appellants asserted that the matter would best be
construed under the loss of less-than-even chance of recovery or survival theory first
recognized in Roberts v. Ohio Permanente Med. Group, Inc., 76 Ohio St.3d 483, 668
N.E.2d 480 (1996), overruling Cooper v. Sisters of Charity of Cincinnati, Inc., 27 Ohio
St.2d 242, 272 N.E.2d 97 (1971).
8.
{¶ 15} To the contrary, appellee cited McMullen v. Ohio State Univ. Hosps., 88
Ohio St.3d 332, 725 N.E.2d 1117 (2000) and Segedy v. Cardiothoracic & Vascular
Surgery of Akron, Inc., 182 Ohio App.3d 768, 2009-Ohio-2460, 915 N.E.2d 361 (9th
Dist.), for the proposition that “a plaintiff who may very well die of an underlying
condition has a traditional malpractice case when discrete acts of negligence bring about
the death, even though it is conceivable that death would have ensued anyway.” In
support of her position, appellee highlighted the following excerpt from Dr. Pelletier’s
direct testimony:
Q: By the time [Brady] got to the University of Michigan with
active bowel necrosis as you discovered a couple of days later, do you have
an opinion as to whether that active bowel necrosis contributed or – I’m
sorry – was the principal reason why he wound up dying?
A: It was the major cause that led to all the other problems and
death, yes.
Q: Did he have to be a liver disease patient for that to be true?
A: No.
***
Q: Was the liver disease an essential ingredient of his dying of his
bowel ischemia?
A: Bowel ischemia alone is a deadly process.
9.
After lengthy discussion with counsel outside the presence of the jury, the trial court
denied appellants’ motion for directed verdict stating, “the passage of which Mr. Stewart
highlighted to the Court I believe is sufficient enough to get past a directed verdict.”
{¶ 16} The jury awarded a verdict in the amount of $4 million against Dr. White
and White’s employer, The Toledo Hospital. As part of the verdict, the jury answered
several interrogatories. In these interrogatories, the jury found that Dr. White was
negligent and that his negligence was a direct and proximate cause of the death of Brady
Woessner. The jury was instructed, because of its proximate cause conclusion, to skip
the interrogatory addressing the loss of less-than-even chance of recovery or survival
theory (often referred to as the “lost chance” theory).
{¶ 17} The general verdict form was journalized by the trial court on February 18,
2014. The trial court denied Woessner’s motion for pre-judgment interest and a
subsequent motion to reconsider the denial.
{¶ 18} This appeal and cross-appeal followed.
{¶ 19} Under their first assignment of error, appellants assert that the trial court
erred when it denied their motion for directed verdict on the traditional medical
malpractice wrongful death claim. The crux of their argument is that Woessner failed to
offer sufficient evidence to allow reasonable minds to differ as to whether Dr. White’s
alleged breach of the standard of care proximately caused the death of Brady Woessner.
{¶ 20} “A motion for directed verdict * * * does not present factual issues, but a
question of law, even though in deciding such a motion, it is necessary to review and
10.
consider the evidence.” O’Day v. Webb, 29 Ohio St.2d 215, 280 N.E.2d 896 (1972),
paragraph three of the syllabus. Because we are presented with a question of law, we
apply a de novo standard of review. White v. Leimbach, 131 Ohio St.3d 21, 2011-Ohio-
6238, 959 N.E.2d 1033, ¶ 1.
{¶ 21} When a trial court rules on a directed verdict motion, it must not consider
either the weight of the evidence or witness credibility. See Texler v. D.O. Summers
Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 679-80, 693 N.E.2d 271 (1998);
Wagner v. Roche Laboratories, 77 Ohio St. 3d 116, 671 N.E.2d 252 (1996); Strother v.
Hutchinson, 67 Ohio St.2d 282, 284, 423 N.E.2d 467 (1981). Instead, a directed verdict
motion tests the legal sufficiency of the evidence. See Eldridge v. Firestone Tire &
Rubber Co., 24 Ohio App.3d 94, 96, 493 N.E.2d 293 (1985). “‘If there is substantial
competent evidence to support the party against whom the motion is made, upon which
evidence reasonable minds might reach different conclusions, the motion must be
denied.’” Strother at 284-285, quoting Hawkins v. Ivy, 50 Ohio St.2d 114, 115, 363
N.E.2d 367 (1977) (citation omitted); see also Texler. The Civ.R. 50(A)(4) “reasonable
minds” test “calls upon the court only to determine whether there exists any evidence of
substantial probative value in support of [the nonmoving party’s claims].” Wagner at
119-120; see also Texler at 679-80; Ruta v. Breckenridge-Remy Co., 69 Ohio St.2d 66,
68-69, 430 N.E.2d 935 (1982).
{¶ 22} In order to prove traditional medical malpractice, the plaintiff has the
burden of demonstrating, by a preponderance of the evidence, that the defendant
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breached the standard of care owed to the plaintiff and that the breach proximately caused
an injury. Segedy, 2009-Ohio-2460 at ¶ 11, citing Bruni v. Tatsumi, 46 Ohio St.2d 127,
346 N.E.2d 673 (1976), paragraph one of the syllabus.
{¶ 23} Expert testimony with respect to proximate cause must be stated in terms of
probability. Stinson v. England, 69 Ohio St.3d 451, 633 N.E.2d 532 (1994), paragraph
one of the syllabus. “In a medical malpractice action premised on a failure to properly
diagnose or treat a medical condition which results in a patient’s death, the proper
standard of proof on the issue of causation is whether with proper diagnosis and treatment
the patient probably would have survived.” Miller v. Paulson, 97 Ohio App.3d 217, 222,
646 N.E.2d 521 (10th Dist.1994). “‘Probably’ is defined as ‘more likely than not’ or a
greater than fifty percent chance.” Id.
{¶ 24} In the present case, the parties do not dispute there was sufficient evidence
produced at trial to demonstrate that Dr. White breached his duty of care. Appellee
presented testimony from Dr. Campbell that Dr. White should have transferred Brady to a
liver transplant facility for specialized treatment in the first 24-36 hours of arrival at
Toledo Hospital. However, in order to proceed under the traditional theory of medical
malpractice, appellee was also required to demonstrate a causal link between the breach
and Brady’s death. Because of the complications involved with Brady’s underlying liver
disease, expert testimony that the ischemia was “the principal reason” Brady “wound up
dying” is not sufficient. On this point, appellee’s causation expert, Dr. Pelletier, testified
12.
that Brady had “at least a 40 percent chance” of survival if thrombolytic therapy had been
initiated when he initially presented at Toledo Hospital.
{¶ 25} Here, the issue is whether the evidence warranted a directed verdict on the
traditional medical malpractice claim that would have allowed the trial to continue on the
lost chance theory only. As stated above, in a traditional medical malpractice claim,
proximate cause must be established by a probability. The loss-of-chance theory,
however, is an exception to “the traditionally strict standard of proving causation in a
medical malpractice action.” Roberts, 76 Ohio St.3d at 485.
{¶ 26} Appellee argues “the testimony established that bowel ischemia is a disease
independent of liver disease; that it can occur and kill without any liver disease being
present; and that more likely than not, Mr. Woessner’s bowel ischemia would have been
reversed had treatment not been delayed.” While the foregoing is an accurate
representation of a portion of Dr. Pelletier’s testimony, it ignores the doctor’s qualifying
testimony on direct examination explaining the unique complications presented by
Brady’s underlying liver disease. Notably, Dr. Pelletier testified that the ischemia—even
if diagnosed and treated properly—could have started the decompensation (failure) of
Brady’s liver. “Many times,” Dr. Pelletier explained, “you can reverse whatever process
it was that started the decompensation, patients go back to their baseline.” While Dr.
Pelletier explained there was a chance that Brady “after a period of weeks or months”
could have gone back to the state he was in before the ischemia, there was also “a chance
that the liver failure may not have been reversible.” If the liver failure was reversible and
13.
had Brady not developed sepsis, he would have been a liver transplant candidate with a
good chance of survival. There was a third possibility, however, and that was “that none
of those things would go well.” So, when “look[ing] at the whole picture,” Dr. Pelletier
opined, Brady “had at least a 40 percent chance going through all those hurdles if therapy
had been started when he initially * * * presented.”
{¶ 27} We disagree with appellee’s assertion that Dr. Pelletier’s testimony was
sufficient for a jury to determine that Dr. White’s “negligence was the proximate cause of
the harm” and that the “failure to diagnose and treat the bowel ischemia was as much an
independent cause of death as the mishandling of the endotracheal tube in McMullen.”
{¶ 28} In fact, when reviewed in its entirety, Dr. Pelletier’s testimony proves this
case to be exactly what appellants’ counsel argued at trial: a lost chance case and not a
case where the evidence is sufficient to meet the elements of a traditional medical
malpractice claim. In McMullen, Justice Alice Robie Resnick explained:
In reviewing the many cases on the subject, a particular factual
situation is discernible to which the [lost chance] doctrine is invariably
applied. In those cases, the plaintiff or the plaintiff’s decedent is already
suffering from some injury, condition, or disease when a medical provider
negligently diagnoses the condition, fails to render proper aid, or provides
treatment that actually aggravates the condition. As a result, the underlying
condition is allowed to progress, or is hastened, to the point where its
inevitable consequences become manifest. Unable to prove that the
14.
provider’s conduct is the direct and the only cause of the harm, the plaintiff
relies on the theory that the provider’s negligence at least increased the risk
of injury or death by denying or delaying treatment that might have inured
to the victim’s benefit. The focus then shifts away from the cause of the
ultimate harm itself, and is directed instead on the extent to which the
defendant’s negligence caused a reduction in the victim’s likelihood of
achieving a more favorable outcome. (Citations omitted.) McMullen, 88
Ohio St.3d at 338.
{¶ 29} In order to survive a motion for directed verdict on a traditional medical
malpractice claim alleging a failure to properly diagnose and treat Brady’s blood clot,
Woessner was required to present sufficient evidence that but for the alleged negligence,
Brady had a greater than fifty percent chance of survival. In examining the trial
testimony, the only evidence produced on the issue of proximate cause was Dr. Pelletier’s
testimony that Brady had “at least a 40 percent chance” of survival if the blood clot had
been diagnosed and treatment had been initiated upon arrival at Toledo Hospital. Dr.
Pelletier’s testimony, when taken in its entirety, failed to establish Brady had a greater
than 50 percent chance of survival. After construing the evidence in a light most
favorable to the appellee, we find there did not exist evidence of substantive probative
value to create a factual question for the jury on the issue of proximate cause in
appellant’s traditional malpractice claim. For this reason, the trial court erred in
overruling a directed verdict in favor of Dr. White on that claim.
15.
{¶ 30} Appellants’ first assignment of error is found well-taken. The remaining
assignments of error and cross-assignment of error are moot, and we decline to address
them. See App.R. 12(A)(1)(c). The judgment of the Lucas County Court of Common
Pleas is reversed and the cause remanded for further proceedings consistent with this
decision. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
16.