[Cite as McMichael v. Akron Gen. Med. Ctr., 2017-Ohio-7594.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
ANTHONY MCMICHAEL C.A. No. 28333
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
AKRON GENERAL MEDICAL CENTER, COURT OF COMMON PLEAS
et al. COUNTY OF SUMMIT, OHIO
CASE No. CV 2013 11 5404
Appellants
DECISION AND JOURNAL ENTRY
Dated: September 13, 2017
CALLAHAN, Judge.
{¶1} Defendant-Appellants, General Emergency Medical Specialists, Inc. (“General
Emergency”) and Dr. John Pakiela, appeal from the judgment of the Summit County Court of
Common Pleas in favor of Plaintiff-Appellee, Anthony McMichael, acting as Administrator for
the Estate of Nakeyia McMichael. This Court affirms.
I.
{¶2} On the morning of June 8, 2012, Mr. McMichael took his wife to the emergency
room at Akron General because she was nauseous and experiencing a severe headache. Ms.
McMichael had been diagnosed with lupus as a teenager and, since 2010, had struggled with
cerebral edema (i.e., brain swelling). She had sought emergency treatment for her headaches
three times between November 2010 and April 2011, had previously been hospitalized, and was
under the care of a neurologist. She also had undergone numerous brain imaging studies for her
condition, including a CT scan and an MRI at Akron General in December 2010. When she and
2
her husband arrived at Akron General, they spoke with a triage nurse and told the nurse that Ms.
McMichael was being monitored for “‘swelling’ in [the] head.” It is undisputed that the nurse
included that information when completing the triage sheet in Ms. McMichael’s chart.
{¶3} Dr. Pakiela, a General Emergency physician, was the attending physician in the
emergency room when Ms. McMichael arrived for treatment. A resident under his supervision
initially spoke with Mr. and Mrs. McMichael, obtained a history, and examined Ms. McMichael.
Dr. Pakiela then spoke with the resident and adopted his planned course of treatment. Ms.
McMichael was ultimately treated for a migraine headache and discharged approximately two
hours after her arrival. During that time, her prior medical records were not reviewed, a
neurologist was not consulted, no imaging studies were ordered, and no edema medications were
administered.
{¶4} After her husband brought her home, Ms. McMichael was bedridden for the
remainder of the day. There was evidence that her headache, while less severe than it had been
that morning, remained and that she was drowsy and repeatedly vomited. She woke her husband
the following morning with severe head pain and, shortly thereafter, became unresponsive. An
ambulance brought her back to Akron General where doctors discovered that her brain had
herniated due to swelling. Because Ms. McMichael could not recover from the injury her brain
had sustained, her family authorized the cessation of treatment, and she died.
{¶5} Following his wife’s death, Mr. McMichael filed a medical malpractice suit
against General Emergency and Dr. Pakiela.1 His complaint raised claims for survivorship and
wrongful death and was subsequently amended to include a request for punitive damages. Upon
1
The complaint also named several other defendants, but Mr. McMichael voluntarily dismissed
his claims against those defendants before trial.
3
motion, the trial court agreed to bifurcate the trial and reserve evidence on the punitive damages
phase until the jury decided the issue of compensatory damages. The first phase of trial lasted
two weeks and, at its conclusion, the jurors were given thirteen interrogatories to complete in
addition to the general verdict form.
{¶6} The jury found Dr. Pakiela negligent in his care and treatment of Ms. McMichael
for the reason that he failed “to request imaging or [a] consult in regard to head ‘swelling.’” The
jury determined that the doctor’s negligence was the proximate cause of her death and awarded
compensatory damages on the wrongful death claim. The jury did not find, however, that Dr.
Pakiela’s negligence was the proximate cause of any pain or suffering that Ms. McMichael
experienced. Accordingly, the jury did not award any damages on the survivorship claim. The
jury’s finding on pain and suffering also negated the claim for punitive damages.
{¶7} Following the jury’s verdict, General Emergency and Dr. Pakiela filed a motion
for setoff as well as a motion for judgment notwithstanding the verdict (“JNOV”) or, in the
alternative, a new trial. They argued that the jury’s verdict was the result of sympathy, passion,
or prejudice rather than the evidence and, further, that several procedural irregularities had
tainted the verdict. Mr. McMichael responded in opposition to their motions, and General
Emergency and Dr. Pakiela filed reply briefs. Upon review, the trial court denied the motion for
JNOV and/or a new trial, granted the motion for setoff, and reduced the jury’s compensatory
damage award.
{¶8} General Emergency and Dr. Pakiela appealed from the trial court’s judgment, and
Mr. McMichael filed a notice of cross-appeal. The record reflects, however, that Mr. McMichael
only filed a brief in response to the initial appeal and did not file a brief in support of his cross-
appeal. As such, the cross-appeal is dismissed, and only General Emergency and Dr. Pakiela’s
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appeal is before this Court for review. See App.R. 18(C). The appeal raises two assignments of
error.
II.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED BY FAILING TO GRANT A [JNOV] IN FAVOR
OF DR. JOHN PAKIELA AND [GENERAL EMERGENCY] ON PLAINTIFF’S
WRONGFUL DEATH CLAIM.
{¶9} In their first assignment of error, General Emergency and Dr. Pakiela argue that
the trial court erred when it denied their motion for JNOV. Specifically, they argue that Mr.
McMichael failed to establish that his wife’s death was the proximate result of Dr. Pakiela’s
negligence. This Court disagrees.
{¶10} After a court enters judgment on a jury’s verdict, a party may file a motion for
JNOV to have the judgment set aside on grounds other than weight of the evidence. See Civ.R.
50(B). “JNOV is proper if upon viewing the evidence in a light most favorable to the non-
moving party and presuming any doubt to favor the non[-]moving party reasonable minds could
come to but one conclusion, that being in favor of the moving party.” Williams v. Spitzer Auto
World, Inc., 9th Dist. Lorain No. 07CA009098, 2008-Ohio-1467, ¶ 9. “If reasonable minds
could reach different conclusions, the motion must be denied.” Magnum Steel & Trading, L.L.C.
v. Mink, 9th Dist. Summit Nos. 26127 & 26231, 2013-Ohio-2431, ¶ 12. “‘Neither the weight of
the evidence nor the credibility of the witnesses is for the court’s determination in ruling upon
[JNOV].’” Williams at ¶ 9, quoting Osler v. Lorain, 28 Ohio St.3d 345, 347 (1986). A de novo
standard of review applies to a trial court’s decision to grant or deny a motion for JNOV.
Williams at ¶ 9.
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{¶11} A medical malpractice claim requires a plaintiff to “establish: (1) the standard of
care, as generally shown through expert testimony; (2) the failure of defendant to meet the
requisite standard of care; and (3) a direct causal connection between the medically negligent act
and the injury sustained.” Smrtka v. Boote, 9th Dist. Summit No. 28057, 2017-Ohio-1187, ¶ 22.
Physicians have a duty “to employ that degree of skill, care and diligence that a physician * * *
of the same medical specialty would employ in like circumstances.” Berdyck v. Shinde, 66 Ohio
St.3d 573, 579 (1993). A breach of duty may arise either by commission or omission; that is,
failing “to do some particular thing or things that such a physician * * * would have done under
like or similar conditions and circumstances.” Bruni v. Tatsumi, 46 Ohio St.2d 127 (1976),
paragraph one of the syllabus. A plaintiff must prove, through medical expert testimony, that his
or her injury “‘was, more likely than not, caused by the defendant’s negligence.’” Segedy v.
Cardiothoracic & Vascular Surgery of Akron, Inc., 182 Ohio App.3d 768, 2009-Ohio-2460, ¶ 11
(9th Dist.), quoting Roberts v. Ohio Permanente Med. Group, Inc., 76 Ohio St.3d 483, 485
(1996).
{¶12} General Emergency and Dr. Pakiela argue that they are entitled to judgment
because Mr. McMichael failed to prove that his wife died as a proximate result of Dr. Pakiela’s
care. According to General Emergency and Dr. Pakiela, only one of Mr. McMichael’s experts,
Dr. Tommasina Papa-Rugino, was qualified to offer proximate causation testimony. They argue
that the actual symptoms Ms. McMichael experienced post-discharge were inconsistent with Dr.
Papa-Rugino’s description of the symptoms one would experience if one were to die as the result
of progressive cerebral edema. They aver that the undisputed evidence, paired with the jury’s
refusal to find pain and suffering, bolsters the conclusion that Ms. McMichael died suddenly and
not as the result of a progressive condition that Dr. Pakiela failed to address.
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{¶13} Ms. McMichael was 33 years old when she died. There is no dispute that, for
many years, she suffered from lupus, an incurable autoimmune disease that causes those afflicted
to experience various forms of inflammation in varying degrees. The parties stipulated to her
medical records, and the records from late 2010 until the time of her death were key pieces of
evidence at trial. To provide context for Dr. Papa-Rugino’s testimony, this Court begins by
outlining Ms. McMichael’s relevant medical history, as gleaned from the medical records and
the testimony offered at trial.
{¶14} On November 22, 2010, Ms. McMichael went to the emergency room at Akron
General for a headache. She reported that the headache had started a few days before and that
she was experiencing pain at a 10 out of 10 level. She was not, however, vomiting or suffering
any changes in vision or neurological complaints. The doctors at the emergency room treated
her with IV fluids as well as Benadryl, Reglan, and Zofran. A few hours later, they discharged
her because she reported an improvement in her symptoms. The doctors then provided her with
discharge instructions related to headaches and migraines and instructed her to seek further
treatment should her symptoms worsen. Although her headache returned that same evening, Ms.
McMichael did not immediately return to the emergency room. Instead, she attempted to
manage the headache herself and left for a planned trip to Kentucky.
{¶15} Four days later, while in Kentucky, Ms. McMichael sought emergency treatment
at St. Elizabeth Hospital. She reported that she had been suffering from a headache for several
days, that it was not responding to narcotics, and that it was causing her to be nauseous. She
further reported that she had been treated at Akron General a few days earlier. The doctors at St.
Elizabeth requested a neurology consult and, though Ms. McMichael’s neurological exam was
normal, both a CT scan and an MRI were ordered. The doctors also gave Ms. McMichael a
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variety of medications, including Reglan, Zofran, and Dilaudid. Ms. McMichael experienced
some relief from the administered medications, but, upon review, her brain scans appeared
abnormal. Accordingly, the doctors at St. Elizabeth gave her the option of either being admitted
or being discharged to follow-up with a neurologist at home. Ms. McMichael chose to be
discharged.
{¶16} Following her discharge from the hospital in Kentucky, Ms. McMichael
scheduled an appointment with a local neurologist. Before her appointment could occur,
however, she once again sought emergency treatment at Akron General for a headache
registering a 10 out of 10 pain level and vomiting. Ms. McMichael was admitted and remained
at Akron General for four days, from December 5, 2010, until December 9, 2010. The initial
medications she was provided, including Benadryl, Reglan, and Zofran, afforded her no relief, so
the doctors continued to observe her condition, sought the results of her scans from St. Elizabeth
Hospital, and ordered a neurology consult. Ms. McMichael ultimately received a neurology
consult, a neurosurgery consult, a CT scan, and an MRI at Akron General. Both brain scans
were abnormal and indicative of cerebral edema (i.e., swelling of the brain), so, on December
8th, the doctors gave her Mannitol, a medication that treats edema by extracting water from cells.
Ms. McMichael finally experienced relief following the Mannitol treatment and was discharged
the next day to follow-up with her neurologist.
{¶17} Ms. McMichael met with Dr. Roderick Spears for the first time on December 15,
2010. At the time, Dr. Spears was a neurologist with the Cleveland Clinic, and Ms. McMichael
remained a patient of his until May 2011. Dr. Spears diagnosed Ms. McMichael with cerebral
edema. He explained that cerebral edema results in increased intracranial pressure that can cause
headaches, nausea, vomiting, and light or sound sensitivity. He testified that he placed Ms.
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McMichael on medication for her edema, but also stressed to her that she ought to seek
emergency treatment if she ever experienced a 10 out of 10 headache with nausea, vomiting, or
an inability to function. Dr. Spears described cerebral edema as a serious condition that could
cause brain herniation and death if left untreated.
{¶18} Ms. McMichael saw Dr. Spears again for a follow-up visit on January 27, 2011, at
which time she was headache free. Though her headaches had abated, Ms. McMichael was
experiencing side effects from her edema medication, so they decided to try decreasing her
dosage. Less than two weeks later, however, she called Dr. Spears to notify him that her
headache symptoms had returned and, as a result, she was increasing her dosage. She also called
the next day to report that she was experiencing severe headaches with no relief. Dr. Spears then
prescribed an additional medication for her, and two full months elapsed without incident.
{¶19} Ms. McMichael received another MRI at the end of March 2011. The MRI
depicted extensive cerebral edema and sagging of the brain stem and prompted another office
visit to the Cleveland Clinic. Because Dr. Spears was unavailable, another neurologist saw Ms.
McMichael and ordered an increase in her edema medication. Ms. McMichael then began
experiencing headaches on a daily basis and called Dr. Spears twice in April 2011 to report the
change in her symptoms. Although Dr. Spears once again adjusted her medications, Ms.
McMichael’s symptoms ultimately caused her to seek emergency treatment.
{¶20} On April 26, 2011, Ms. McMichael went to the emergency room at the Cleveland
Clinic for a headache registering a 10 out of 10 pain level and several bouts of vomiting. The
doctors at the Cleveland Clinic admitted her, administered pain medications, and ordered a
neurology consult. Although Ms. McMichael experienced a few decreases in her pain level
throughout the day and her neurological exam was normal, her headache persisted. Per the
9
neurologist’s instructions, an MRI was ordered, and Ms. McMichael received a dose of Solu-
Medrol, a strong anti-inflammatory used to treat brain swelling. Ms. McMichael then began to
show signs of improvement, and the neurology department continued to monitor her. The
following day, she reported that she was pain free and was discharged.
{¶21} Following her April 27, 2011 discharge, Ms. McMichael began seeing Dr.
Cynthia Bamford, the Cleveland Clinic neurologist who treated her during her last emergency
room visit. While under Dr. Bamford’s care, Ms. McMichael underwent additional MRI scans,
the first of which showed a slight improvement in her edema. She spoke with Dr. Bamford a few
times during the remainder of the year and, though she reported intermittent headaches, she
avoided any further trips to the emergency room. She did not seek emergency treatment again
until June 8, 2012, the day before she died.
{¶22} At 5:38 a.m. on June 8, 2012, Ms. McMichael’s husband brought her to the
emergency room at Akron General where she presented with a headache registering a 10 out of
10 pain level. Ms. McMichael and her husband informed the triage nurse that the headache had
onset suddenly, waking her from sleep. They further reported to the nurse that Ms. McMichael
had a history of lupus and was being monitored for “‘swelling’ in [her] head.” Dr. Pakiela was
the attending physician on shift when Ms. McMichael and her husband came to the emergency
room. A first-year resident, Dr. Scott Blanchard, was working under his supervision that day and
initially examined Ms. McMichael.
{¶23} It is undisputed that, while at the emergency room, Ms. McMichael was in
significant pain, had one bout of vomiting, and was experiencing light sensitivity. Her medical
records from that day evidence that she saw the triage nurse at 5:47 a.m. and, thirteen minutes
later, Dr. Blanchard prescribed her a migraine cocktail, consisting of Zofran, Toradol, and
10
Reglan. At some point during those thirteen minutes, Dr. Blanchard conducted his entire
evaluation and examination of Ms. McMichael, which consisted of a physical exam and an oral
patient history. He then presented the case to Dr. Pakiela, as the attending physician. Dr.
Pakiela briefly met with the McMichaels before approving the orders for the migraine cocktail.
The migraine cocktail was administered at 6:26 a.m. and, when it afforded no relief, Ms.
McMichael was given a narcotic at 6:40 a.m. There is no dispute that a shift change occurred at
7:00 a.m., at which point Dr. Blanchard transferred Ms. McMichael’s care to another resident.
{¶24} It is undisputed that Mr. McMichael left the hospital at approximately 7:15 a.m. to
return home and make additional child care arrangements. Shortly thereafter, the second resident
who had inherited Ms. McMichael as a patient entered her room and found her sleeping. He
reported that he awakened Ms. McMichael for a reassessment and found that she “was feeling
significantly better” with only a “very mild” headache. Because Ms. McMichael was feeling
better and was comfortable being discharged, the second resident discharged her at 7:34 a.m.
Ms. McMichael then sent a text message to her husband, asking him to pick her up at the
hospital.
{¶25} The resident who discharged Ms. McMichael testified that he understood her to
be suffering from chronic headaches. It was his understanding that she was experiencing one of
her typical headaches and had come to the emergency room for pain relief. While he spoke with
Ms. McMichael, he conceded that he did not examine her or attempt to diagnose her. He further
conceded that he signed her discharge papers within five to ten minutes of meeting her. He
testified that he was never told she was suffering from cerebral edema, was under a neurologist’s
care, or had been hospitalized previously for brain swelling. According to the resident, he
discharged Ms. McMichael based on Dr. Pakiela’s plan for her care, as relayed to him by Dr.
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Blanchard. The plan consisted of reassessing Ms. McMichael to see if she was responding to the
pain medications and discharging her if she showed signs of improvement and was comfortable
with that course of action. When discharging Ms. McMichael, the resident provided her with
discharge instructions for a migraine and instructed her to return if her symptoms worsened.
{¶26} Ms. McMichael’s medical records from Akron General indicate that she was
diagnosed with a migraine. The notes in her chart, as dictated by the two residents who treated
her, describe her as having a “known history of migraines” and lupus, but do not mention
cerebral edema. Dr. Blanchard, the first resident who treated Ms. McMichael, conceded that he
did not attempt to review any of her prior medical records when treating her. He testified that he
did not do so because he felt that the oral history he obtained during his examination was
adequate. He acknowledged, however, that most of the answers he received came from Mr.
McMichael because Ms. McMichael was in too much pain to respond. While Dr. Blanchard
claimed that he was aware of Ms. McMichael’s history of cerebral edema when he treated her
and that cerebral edema was part of his differential diagnosis, he did not document any of that
information in her chart.
{¶27} Dr. Blanchard did not request a neurological consult or imaging studies for Ms.
McMichael. He testified that he felt both were unnecessary because Ms. McMichael had come
to the emergency room for pain control and, other than the fact that she was in pain, the results of
her physical examination were unremarkable. Dr. Blanchard acknowledged, however, that Ms.
McMichael described her pain as being worse than usual. He also acknowledged that he could
not complete a portion of the neurological examination due to her light sensitivity. According to
Dr. Blanchard, he and Dr. Pakiela agreed that Ms. McMichael would be treated with pain
medications, reassessed, and discharged if she had improved and felt comfortable going home.
12
As noted, however, neither doctor was present when the time came to reassess her. A different
resident reassessed her and discharged her pursuant to Dr. Pakiela’s plan. That resident testified
that he was not made aware of her prior history of cerebral edema.
{¶28} Mr. McMichael specifically testified that neither he, nor his wife ever told the
doctors that Ms. McMichael came to the emergency room strictly for pain control. According to
Mr. McMichael, he told the medical staff that his wife had experienced brain swelling, but no
one suggested that brain swelling was the current cause of her symptoms. He stated that Dr.
Blanchard was the only one to examine his wife and that the examination lasted eight to nine
minutes. Meanwhile, Ms. McMichael was in significant pain and started drifting off after being
administered a narcotic. Mr. McMichael confirmed that neither he, nor his wife attempted to tell
the doctors what type of medications she had received in the past. Rather, he believed the
doctors would review her prior medical records.
{¶29} Mr. McMichael described being taken aback when his wife notified him that she
was being discharged only twenty minutes or so after he had left the hospital. He explained that
he had expected his wife to be kept at the hospital for a longer period of time or else he would
not have left her there alone. When he arrived back at the hospital, Mr. McMichael saw his wife
was sitting alone on a bench, clutching her discharge papers. He observed that she was slouched
over and appeared to be “dozing off.” He then roused her, helped her to the car, and drove her
home. Once there, he helped her to bed, where she remained for the rest of the day. Although
Mr. McMichael tried to give his wife food, water, and medicine that evening, he testified that she
repeatedly vomited and was “really sleepy.” He stated that he did not take his wife back to the
hospital because her symptoms were consistent with the symptoms she had been having at the
13
hospital, he knew the doctors had discharged her with those symptoms, and he assumed the
medication they gave her might need more time to be effective.
{¶30} Mr. McMichael testified that he went to sleep that evening and, the following
morning, his wife woke him because she had a “really bad” headache. Shortly thereafter, she
became unresponsive, and he called for an ambulance. Ms. McMichael was taken back to Akron
General in respiratory failure and measures were taken to secure her airway. A CT scan was
performed and revealed cerebral edema, as well as herniation. Because Ms. McMichael had
suffered brain death and stood no chance of recovery, her family authorized the cessation of
treatment. Her cause of death was listed as “tonsillar herniation of [the] cerebellum” due to
“diffuse cerebral edema.”
{¶31} Dr. Papa-Rugino, a board certified neurologist with a subspecialty board in
headache medicine, testified as a neurology expert on behalf of Mr. McMichael. Dr. Papa-
Rugino testified that there are two types of headaches: primary headaches and secondary
headaches. Primary headaches, such as migraines and tension headaches, cause pain, but are not
life-threatening. Meanwhile, secondary headaches are symptoms of an underlying condition
such as a neurological disorder, an infection, a tumor, or a trauma. While both types of
headaches can respond to pain medication in the short term, Dr. Papa-Rugino stated that being
able to differentiate between the two is of critical importance because the condition underlying a
secondary headache may be deadly if left untreated. She classified a headache resulting from
cerebral edema as a secondary, “dangerous headache.”
{¶32} Dr. Papa-Rugino explained that cerebral edema causes swelling in the brain due
to the presence of increased fluid. Because the skull is a fixed, rigid structure, a person’s brain
only has a limited amount of room in which to swell before it “presses against blood vessels, it
14
presses against nerves, [and] it presses against vital structures * * *.” Dr. Papa-Rugino testified
that, as the brain gets closer to exceeding the maximum amount of room in the skull, even “small
change[s] in pressure can lead to significant changes within the brain.” If the swelling is allowed
to continue, the brain eventually shifts down through the hole at the base of the skull. Dr. Papa-
Rugino confirmed that, when the brain herniates in that manner, it “causes life-threatening
changes and death.”
{¶33} Dr. Papa-Rugino testified that certain medical conditions such as lupus can cause
chronic cerebral edema. She testified that, much like other chronic conditions, chronic cerebral
edema has a “waning and spiking process” where an individual may function relatively well
during a waning period, but require intervention when they have flare ups. For patients with
chronic cerebral edema, she stated that an acute exacerbation of their condition is “extremely
dangerous” due to the chronic swelling that is already present. She testified that it is important
for doctors to intervene as quickly as possible and treat the swelling while the patient is still
responsive and fully functional. She explained that the three types of medications doctors use to
treat cerebral edema are Mannitol, Solu-Medrol, and hypertonic saline. All three medications act
by either decreasing the inflammation or the amount of fluid in the brain.
{¶34} In forming her expert opinion, Dr. Papa-Rugino testified that she reviewed Ms.
McMichael’s medical records from June 8, 2012, as well as her prior medical records. She
testified that Ms. McMichael’s older records showed that she suffered from chronic cerebral
edema and that she had previously experienced acute exacerbation spikes in December 2010 and
April 2011. She further testified that Ms. McMichael displayed several red flags associated with
acute exacerbation on June 8th, including that she had a history of cerebral edema, had been
awoken from sleep by a headache, had a headache that was worse than usual, was nauseous,
15
vomited at the hospital, and was drowsy. Dr. Papa-Rugino opined that, had a neurology consult
been ordered on June 8th, the neurologist would have ordered brain scans and “[a]bsolutely”
would have administered either Mannitol, Solu-Medrol, or hypertonic saline based on Ms.
McMichael’s history and symptoms. She opined within a reasonable degree of medical certainty
that Ms. McMichael would have survived if she had received the foregoing treatment.
According to Dr. Papa-Rugino, there was no evidence that anything other than brain herniation
caused by an untreated, acute exacerbation of her chronic cerebral edema led to Ms.
McMichael’s death.
{¶35} As noted, General Emergency and Dr. Pakiela argue that they were entitled to a
JNOV on the issue of proximate cause because the actual symptoms Ms. McMichael experienced
post-discharge were inconsistent with Dr. Papa-Rugino’s description of the symptoms one would
experience if one were to die as the result of progressive cerebral edema. They note that Ms.
McMichael experienced a significant decrease in her pain level after being treated with narcotics
and did not inform her husband until the following morning that she was having severe head
pain. They also note that Ms. McMichael was able to sleep through the night and had no
changes in her mental status until she became unresponsive. They argue that, had she died of
progressive, untreated edema, she would have experienced painful, progressively worsening
symptoms.
{¶36} Upon review, this Court cannot conclude that General Emergency and Dr. Pakiela
were entitled to a JNOV on the issue of proximate cause. Mr. McMichael produced evidence
that his wife suffered from chronic cerebral edema and, prior to June 8th, had been repeatedly
hospitalized and treated for the same. There was evidence that she was suffering from severe
headache pain on the morning of June 8th, that her headache was worse than usual, that it had
16
awoken her from sleep, that she had light sensitivity, and that she was vomiting. Although Ms.
McMichael experienced some degree of pain relief after being given narcotics, Dr. Papa-Rugino
confirmed that even secondary headaches may respond temporarily to pain medications. She
also noted that Ms. McMichael was not monitored for a sufficient length of time to know
whether her severe pain would return. Mr. McMichael specifically testified that his wife still had
a headache for the remainder of the day, that she was drowsy, and that she was unable to keep
down any food, water, or medicine because she was vomiting. Moreover, he never testified that
his wife slept through the night. His testimony was that he fell asleep and his wife woke him the
next morning with severe head pain. Shortly thereafter, she became unresponsive.
{¶37} In ruling on a motion for JNOV, a court must view the evidence in a light most
favorable to the non-moving party, and neither the weight of the evidence, nor the credibility of
the witnesses, may factor into its determination. Williams, 2008-Ohio-1467, at ¶ 9. Akron
General ultimately attributed Ms. McMichael’s cause of death to “tonsillar herniation of [the]
cerebellum” due to “diffuse cerebral edema.” Further, Dr. Papa-Rugino testified, within a
reasonable degree of medical certainty, that (1) Ms. McMichael died as the result of an untreated,
acute exacerbation of her chronic cerebral edema; (2) medications used to treat cerebral edema
would have saved her life; and (3) a neurology consult, if requested, would have resulted in Ms.
McMichael being administered the cerebral edema medications. It was not the jury’s finding
that Ms. McMichael did not experience any pain and suffering before she died; only that Dr.
Pakiela was not the cause of her pain and suffering. The jury could have believed that, even with
the proper treatment, Ms. McMichael still would have experienced pain and suffering as a result
of her underlying condition. Because reasonable minds could conclude that Ms. McMichael died
as a proximate result of Dr. Pakiela’s negligence, the trial court did not err when it denied the
17
motion for JNOV. See Magnum Steel & Trading, L.L.C., 2013-Ohio-2431, at ¶ 12. Thus,
General Emergency and Dr. Pakiela’s first assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED BY FAILING TO GRANT A NEW TRIAL ON
PLAINTIFF’S WRONGFUL DEATH CLAIM.
{¶38} In their second assignment of error, General Emergency and Dr. Pakiela argue
that the trial court erred when it denied their motion for a new trial. They argue that they were
denied a fair trial because: (1) the court allowed Mr. McMichael to present cumulative,
incompetent expert testimony while denying them the opportunity to present certain rebuttal
testimony; (2) the jury instructions were flawed in several respects; and (3) Mr. McMichael’s
counsel made a number of improper and highly prejudicial remarks in closing argument. They
also argue that the cumulative effect of these errors deprived them of a fair trial. For the reasons
that follow, this Court rejects their second assignment of error.
{¶39} Civ.R. 59(A) permits a party to seek a new trial on certain enumerated grounds or
“for good cause shown.” Relevant to this appeal, those enumerated grounds include:
(1) Irregularity in the proceedings of the court, jury, magistrate, or prevailing
party, or any order of the court or magistrate, or abuse of discretion, by which an
aggrieved party was prevented from having a fair trial;
(2) Misconduct of the jury or prevailing party;
***
(4) Excessive or inadequate damages, appearing to have been given under the
influence of passion or prejudice;
***
(6) The judgment is not sustained by the weight of the evidence * * *;
(7) The judgment is contrary to law; [or]
***
18
(9) Error of law occurring at the trial and brought to the attention of the trial court
by the party making the application.
Civ.R. 59(A). “‘Depending upon the basis of the motion for a new trial, this Court will review a
trial court’s decision to grant or deny the motion under either a de novo or an abuse of discretion
standard of review.’” Jackovic v. Webb, 9th Dist. Summit No. 26555, 2013-Ohio-2520, ¶ 17,
quoting Calame v. Treece, 9th Dist. Wayne No. 07CA0073, 2008-Ohio-4997, ¶ 13.
Cumulative and Incompetent Expert Testimony
{¶40} First, General Emergency and Dr. Pakiela argue that they are entitled to a new
trial because the lower court erred in the admission and exclusion of certain expert testimony.
They argue that Dr. Eric Gershwin (rheumatology) and Dr. Papa-Rugino (neurology) were not
qualified to offer opinions as to whether Dr. Pakiela, an emergency physician, met the standard
of care applicable to doctors practicing in his specialty. They also argue that Dr. Gershwin, Dr.
Michael MacQuarrie (emergency medicine), and Dr. Jerome Barakos (radiology) were not
qualified to offer proximate causation testimony. According to Emergency General and Dr.
Pakiela, they were prejudiced by the admission of the foregoing cumulative, incompetent expert
testimony. They also argue that they were denied the opportunity to lessen that prejudice
because the trial court excluded an admission from Ms. McMichael’s former neurologist, Dr.
Spears. That admission was that Dr. Spears could not say, within a reasonable degree of medical
probability, whether Ms. McMichael’s death could have been avoided if brain imaging studies
had been ordered on June 8, 2012.
{¶41} In moving for a new trial on the foregoing grounds, General Emergency and Dr.
Pakiela cited Civ.R. 59(A)(1), (7), and (9). An abuse of discretion standard of review applies
when this Court reviews a trial court’s decision to deny a new trial under Civ.R. 59(A)(1). See,
e.g., Simon v. Simon, 9th Dist. Summit No. 26767, 2014-Ohio-1390, ¶ 21-23; Kallergis v.
19
Quality Mold, Inc., 9th Dist. Summit Nos. 23651 & 23736, 2007-Ohio-6047, ¶ 10. Likewise, the
admission or exclusion of expert testimony “is within the discretion of the trial court[, and]
[s]uch decisions will not be disturbed absent abuse of discretion.” Valentine v. Conrad, 110
Ohio St.3d 42, 2006-Ohio-3561, ¶ 9. An abuse of discretion implies that a trial court was
unreasonable, arbitrary or unconscionable in its judgment. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983).
{¶42} An expert tendered “‘to establish the recognized standards of the medical
community * * * must be qualified to express an opinion concerning the specific standard of care
that prevails in the medical community in which the alleged malpractice took place * * *.’”
Eschen v. Suico, 9th Dist. Lorain No. 07CA009304, 2008-Ohio-4294, ¶ 18, quoting Bruni, 46
Ohio St.2d at 131-132. Generally, if a physician practices in a board-certified specialty, the
applicable standard of care “should be that of a reasonable specialist practicing medicine or
surgery in that same specialty in the light of present day scientific knowledge in that specialty
field * * *.” Bruni at paragraph two of the syllabus. Yet, an exception to the general rule exists
when “fields of medicine overlap.” Alexander v. Mt. Carmel Med. Ctr., 56 Ohio St.2d 155, 158
(1978). “Where * * * fields of medicine overlap and more than one type of specialist may
perform [a] treatment, a witness may qualify as an expert even though he does not practice the
same specialty as the defendant.” Id.
Dr. Gershwin
{¶43} Dr. Gershwin, who was board certified in internal medicine, rheumatology, and
allergy and immunology, testified regarding lupus and the complications that can arise from that
disease. Dr. Gershwin began studying lupus in 1978 and stated that, over the course of his
career, he had seen hundreds of lupus patients. He verified that the subject of lupus is taught in
20
medical schools and that the manner in which the disease waxes and wanes is a matter of
common knowledge in the medical profession. He testified that, when lupus results in brain
swelling, treatment consists of involving a neurologist and administering certain drugs that target
the swelling.
{¶44} Dr. Gershwin reviewed Ms. McMichael’s medical records in forming his expert
opinion. He testified to a reasonable degree of medical certainty that her prior scans showed that
she was suffering from cerebral edema as a result of her lupus. He also testified that, on June 8,
2012, she was exhibiting the “hallmark signs of * * * a patient who’s dramatically at risk.”
According to Dr. Gershwin, there was no indication in Ms. McMichael’s records from June 8th
that the doctors at Akron General had paid attention to her history of cerebral edema. He
testified that her symptoms warranted a neurological consult and additional imaging studies and
that, had those things been ordered, Ms. McMichael would have survived. Dr. Gershwin noted
that Ms. McMichael had previously experienced similar symptoms, as documented in her
records, and had survived prior spikes in her cerebral edema after being seen by neurologists and
treated with either Mannitol or Solu-Medrol. He opined that Dr. Pakiela’s conduct on June 8th
ultimately led to her brain herniation.
{¶45} On cross-examination, Dr. Gershwin acknowledged that he was not a specialist in
emergency medicine and was not testifying to the standard of care for emergency medicine
specialists. Rather, he stated that he was “testifying [to] the standard of care for any physician.”
He clarified that any physician has the ability to read medical records and to review prior
hospitalizations and treatments. There was no indication, however, that Dr. Pakiela or his
resident acted on the information contained in Ms. McMichael’s medical records. Therefore, it
was Dr. Gershwin’s opinion that Ms. McMichael “died for lack of care.”
21
{¶46} General Emergency and Dr. Pakiela argue that Dr. Gershwin’s testimony was
improper because he was not qualified (1) to testify on the standard of care for an emergency
medicine specialist, or (2) to offer an expert opinion on the appropriate diagnosis and treatment
for cerebral edema, given that he was not a neurologist. Yet, Dr. Gershwin specifically stated
that he was not testifying as to the standard of care for an emergency medicine specialist. His
testimony was that Dr. Pakiela breached the standard of care applicable to any qualified
physician because there was no evidence that he or his resident reviewed Ms. McMichael’s
medical records or acted on her patient history. As a seasoned physician with multiple board
certifications, Dr. Gershwin had a wealth of experience with treating patients and reviewing their
records in conjunction with those treatments. The trial court, therefore, could have determined
within its sound discretion that he was competent to offer an opinion on the standard of care
applicable to any physician. See Alexander, 56 Ohio St.2d at 158. Accord Ishler v. Miller, 56
Ohio St.2d 447, 453-454 (1978).
{¶47} This Court likewise cannot conclude that the trial court abused its discretion when
it admitted Dr. Gershwin’s testimony on the issue of proximate cause. Dr. Gershwin had treated
hundreds of lupus patients over the course of his career and was entirely familiar with the
symptoms of that disease and the complications that afflict lupus patients. While he admitted
that he would defer to a neurologist on the question of the appropriate treatment for a lupus
patient with brain swelling, the point of his testimony was that Dr. Pakiela failed to even consult
with a neurologist. He stated that all physicians are trained to read medical records, to recognize
lupus, and to identify the conditions that warrant a neurology consult. He testified that Ms.
McMichael’s medical records clearly showed that she had suffered previous spikes in her
cerebral edema that required hospitalizations, consults with specialists, and certain treatments.
22
He further testified that her records showed that she died as the result of brain herniation due to
untreated cerebral edema. Based on his extensive experience treating lupus patients, it was not
unreasonable for the trial court to find him competent to testify that Dr. Pakiela’s failure to seek
a neurology consult for Ms. McMichael led to her death. Accordingly, this Court rejects General
Emergency and Dr. Pakiela’s argument insofar as it pertains to Dr. Gershwin.
Dr. Papa-Rugino
{¶48} This Court outlined much of Dr. Papa-Rugino’s testimony in its discussion of the
first assignment of error. Dr. Papa-Rugino, a board-certified neurologist with a subspecialty
board in headache medicine, testified on the issue of proximate cause, but also offered standard
of care testimony over the objection of the defense. She testified that the fields of neurology and
emergency medicine routinely interact because hospitals see a significant number of headache
patients in need of neurology consults or referrals. In addition to interacting with emergency
room physicians on a daily basis through her practice, Dr. Papa-Rugino testified that she was
part of several committees, including a clinical excellence committee, a clinical medical
executive committee, and a quality outcomes committee. She testified that emergency room
physicians were also involved in the foregoing committees and that her committee work included
being responsible for establishing departmental protocols and monitoring procedures at eleven
hospitals in her state. According to Dr. Papa-Rugino, her committee work had given her insight
into the “minimum competence * * * of all the physicians involved in these protocols,
particularly the ER physicians.” Dr. Papa-Rugino testified that, as a result of her committee
work and her “day-to-day interaction with ER physicians, [she was] capable of determining what
is even the basic competence of ER physicians * * * in the treatment not just of neurological
disorders but neurological emergencies for [] patients.” She opined that Dr. Pakiela breached the
23
applicable standard of care by not obtaining Ms. McMichael’s medical records and by ignoring
her medical history.
{¶49} General Emergency and Dr. Pakiela do not dispute that Dr. Papa-Rugino was
competent to testify on the issue of proximate cause. Their argument only concerns her
testimony on the standard of care. Specifically, they contend that her standard of care testimony
was improperly admitted because she was not an emergency medicine specialist and had never
practiced in that field.
{¶50} General Emergency and Dr. Pakiela fail to address Dr. Papa-Rugino’s testimony
that she was familiar with the standard of care applicable to emergency medicine specialists due
to her daily interaction with emergency physicians and her committee work. Even assuming that
the trial court abused its discretion in admitting her standard of care testimony, however, the
record reflects that the error was harmless. See Buckingham, Doolittle, Burroughs, L.L.P. v.
Izaldine, 9th Dist. Summit No. 27956, 2016-Ohio-2817, ¶ 11. Mr. McMichael otherwise
presented expert testimony on the standard of care. As discussed below, he presented the
testimony of Dr. MacQuarrie, an expert in emergency medicine. He also presented the testimony
of Dr. Gershwin, whose testimony this Court has already deemed admissible. Because General
Emergency and Dr. Pakiela have not shown that the admission of Dr. Papa-Rugino’s standard of
care opinion affected their substantial rights, this Court rejects their argument. See Civ.R. 61.
Dr. MacQuarrie
{¶51} Dr. MacQuarrie testified as a board-certified expert in emergency medicine. He
outlined the role of an emergency physician and identified the numerous ways in which Dr.
Pakiela failed to meet the applicable standard of care. Specifically, he testified that Dr. Pakiela
breached the standard of care by failing to obtain an adequate medical history from Ms.
24
McMichael, to review her medical records, and to order a neurology consult and brain imaging.
He also agreed that the standard of care requires emergency room doctors to rule out brain
swelling, a life-threatening condition, as the cause of a patient’s headache symptoms before
discharging the patient.
{¶52} Apart from his extensive testimony on the standard of care, Dr. MacQuarrie also
responded to a single question about proximate cause. When asked if he had come to a
conclusion, within a reasonable degree of medical certainty, whether Ms. McMichael would
have survived if Dr. Pakiela had met the standard of care, Dr. MacQuarrie replied “I think she
would have.” General Emergency and Dr. Pakiela take issue with the doctor’s solitary
statement, arguing that he was not qualified to testify on proximate cause. Their brief, however,
does not expound on that point, and this Court will not construct an argument on their behalf.
See App.R. 16(A)(7); Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8
(May 6, 1998). Moreover, Dr. Papa-Rugino gave detailed testimony on the issue of proximate
cause, and General Emergency and Dr. Pakiela do not take issue with that testimony. As such,
any error in the admission of Dr. MacQuarrie’s single statement was harmless. See Civ.R. 61.
Dr. Barakos
{¶53} Dr. Barakos, a board-certified radiologist with subspecialty training in
neuroradiology, testified regarding all of the brain imaging studies that Ms. McMichael received
from November 2010 until the day of her death. He testified that her scans showed a history of
cerebral edema, with fluctuations in severity. He specified that there were severe periods of
edema in November and December 2010, a slight improvement in the edema in March 2011, and
a severe instance of edema in April 2011 that included signs of early herniation. He further
specified that her scans from June 2011 and September 2011 once again looked more favorable,
25
but her final scan on the day of her death was indicative of extensive swelling and herniation.
Dr. Barakos opined to a reasonable degree of medical certainty that Ms. McMichael died as the
result of herniation from brain swelling.
{¶54} During a portion of his direct examination, Dr. Barakos was asked about
Mannitol, a medication that treats edema by extracting water from cells. Dr. Barakos confirmed
that he had seen imaging scans from cerebral edema patients who had been treated with
Mannitol, including Ms. McMichael. The following exchange then occurred:
[PLAINTIFF’S COUNSEL]: So based upon that experience, Doctor, what does
[Ms. McMichael’s previous] relief from pain from mannitol indicate to you in
terms of a diagnosis?
[DEFENSE COUNSEL]: Objection.
[THE COURT]: Based on the images he has seen?
[PLAINTIFF’S COUNSEL]: That’s based on the images, yes.
***
[DR. BARAKOS]: So, yes, that’s confirmatory. We * * * have imaging that
proves that she has got brain swelling; you give a medication that is specifically
designed to reduce brain swelling. The brain swelling causes the headache. So
that’s what we refer to as a diagnostic test or tool: Give mannitol, patient gets
better, and it confirms that it’s treating what we see here, which is the global brain
swelling.
According to General Emergency and Dr. Pakiela, the foregoing exchange amounted to opinion
testimony that, had Ms. McMichael received Mannitol on June 8, 2012, she would have
survived.
{¶55} The record does not support General Emergency and Dr. Pakiela’s assertion that
Dr. Barakos offered inadmissible testimony on proximate cause. It was not Dr. Barakos’
testimony that Ms. McMichael would have lived if she had received Mannitol. Rather, it was his
testimony that Mannitol could be used as a diagnostic tool to confirm brain swelling. Because
26
Dr. Barakos did not offer an opinion on whether Dr. Pakiela proximately caused Ms.
McMichael’s death, this Court rejects General Emergency and Dr. Pakiela’s argument.
Dr. Spears
{¶56} As noted, Dr. Spears was Ms. McMichael’s treating neurologist from December
2010 until May 2011. He testified in detail about her condition and his instructions to her to seek
emergency medical treatment if he was unavailable and she was experiencing a 10 out of 10 pain
level headache with nausea or vomiting and an inability to function. He explained that Ms.
McMichael was a herniation risk if her swelling increased and she did not receive treatment for
it, so he instructed her to go to the emergency room where she could be evaluated for treatments,
consultations, or additional imaging studies. He outlined her previous hospitalizations and the
treatments she had received on those visits. He also testified that the symptoms she reported
experiencing on June 8, 2012, sounded similar to the symptoms she had experienced in April
2011 when she had gone to the Cleveland Clinic’s emergency room. Dr. Spears confirmed that,
on June 8th, Ms. McMichael was discharged without receiving a neurology consult, without her
prior medical records being obtained, without additional imaging studies being performed, and
without any edema medications being administered.
{¶57} Dr. Spears’ testimony was recorded in advance of trial and played for the jury in
lieu of having the doctor appear in court. Before the recording was shown to the jury, the court
struck a specific portion of his testimony, during which defense counsel asked Dr. Spears for an
admission. Specifically, defense counsel asked the doctor to confirm that he was not testifying
to a reasonable degree of medical certainty that Ms. McMichael’s death could have been
avoided. Mr. McMichael’s counsel objected to the question, and the trial court ultimately
27
sustained the objection and excluded that portion of the recorded testimony when it was played
for the jury.
{¶58} General Emergency and Dr. Pakiela argue that the trial court’s ruling prejudiced
them because the trial was littered with “incompetent expert testimony,” Dr. Spears was an
important witness, and, without the “important admission” he made, his testimony created the
impression that Dr. Pakiela’s conduct caused Ms. McMichael’s death. Upon review, their
arguments lack merit.
{¶59} First, General Emergency and Dr. Pakiela have not shown that the trial court
repeatedly erred by admitting “incompetent expert testimony.” The trial court acted within its
discretion in admitting the testimony of Dr. Gershwin and Dr. Barakos. As to Dr. MacQuarrie,
General Emergency and Dr. Pakiela have failed to explain why the lower court erred in its
admission of his single statement, so this Court has not reached any conclusion on that issue. Dr.
Papa-Rugino was the only expert who gave certain testimony of questionable admissibility (i.e.,
her testimony on the standard of care), but the admission of that testimony was harmless at best.
Thus, the record simply does not support General Emergency and Dr. Pakiela’s assertion that the
trial court made “multiple errors in admitting incompetent expert testimony * * *.”
{¶60} Second, the record does not support General Emergency and Dr. Pakiela’s
representation that Dr. Spears made an “important admission” when asked whether he was
offering an opinion on proximate causation. The portion of his testimony that the court excluded
reads as follows:
[DEFENSE COUNSEL]: And Dr. Spears, just so I understand, you are not giving
an opinion here to a reasonable degree of medical probability that [Ms.]
McMichael’s death could have been avoided, correct?
***
28
[DR. SPEARS]: I think imaging could have made a difference in the case. I don’t
know for sure if it would have or not. So what is it, 51 percent? I don’t -- I don’t
think I would have been comfortable as her treating physician with a discharge
call from an emergency room physician without imaging having been done. So I
would need the imaging studies showing chronic change on the record before I
would agree with that statement.
Thus, Dr. Spears did not definitively make any admission. In fact, he expressed his concern that
Ms. McMichael was discharged without brain imaging studies having been performed.
{¶61} Neither party called Dr. Spears as an expert witness. Rather, Mr. McMichael
called him as his wife’s treating neurologist. Dr. Spears, therefore, was not meant to testify on
the standard of care or proximate cause. The record reflects that the trial court acted within its
discretion when it excluded the foregoing exchange, as it was intended to elicit from Dr. Spears
testimony related to proximate causation. General Emergency and Dr. Pakiela’s argument to the
contrary lacks merit.
Flawed Jury Instructions
{¶62} General Emergency and Dr. Pakiela next argue that they are entitled to a new trial
because the jury instructions were flawed. First, they argue that the trial court erred when it
refused to give a hindsight instruction. Second, they argue that it erred in its instruction on life
expectancy. Third, they argue that it erred when it read an insurance instruction on two separate
occasions.
{¶63} In moving for a new trial on the foregoing grounds, General Emergency and Dr.
Pakiela once again cited Civ.R. 59(A)(1), (7), and (9). As noted, an abuse of discretion standard
of review applies when this Court reviews a trial court’s decision to deny a new trial under
Civ.R. 59(A)(1). See, e.g., Simon, 2014-Ohio-1390, at ¶ 21-23; Kallergis, 2007-Ohio-6047, at ¶
10. This Court also generally applies the abuse of discretion standard when reviewing a trial
court’s decision to include or exclude specific jury instructions. Nist v. Mitchell, 9th Dist.
29
Summit No. 27160, 2015-Ohio-4032, ¶ 27. An exception to the general rule exists when the
issue is whether an instruction is a correct statement of law. See AirBorn Electronics, Inc. v.
Magnum Energy Solutions, L.L.C., 9th Dist. Summit No. 28034, 2017-Ohio-70, ¶ 12. In those
instances, a de novo standard of review applies. Id.
{¶64} “Requested [jury] instructions should be given if they correctly state the law as
applied to the facts in the case and if reasonable minds might reach the conclusion sought by the
instruction.” Nist at ¶ 26. “A trial court’s failure to give a proposed jury instruction is reversible
error only if the party demonstrates not only that the trial court abused its discretion but also that
it was prejudiced by the trial court’s refusal to give the proposed instruction.” Valleaire Golf
Club, Inc. v. Conrad, 9th Dist. Medina No. 03CA0006-M, 2003-Ohio-6575, ¶ 8. “If there is no
inherent prejudice in the inclusion of a particular jury instruction, prejudice must be affirmatively
shown on the face of the record, and it cannot be presumed.” Cromer v. Children’s Hosp. Med.
Ctr. of Akron, 142 Ohio St.3d 257, 2015-Ohio-229, ¶ 35. “An unnecessary, ambiguous, or even
affirmatively erroneous portion of a jury charge does not inevitably constitute reversible error.”
Id. “[A] reviewing court must consider the jury charge as a whole and ‘must determine whether
the jury charge probably misled the jury in a matter materially affecting the complaining party’s
substantial rights.’” Kokitka v. Ford Motor Co., 73 Ohio St.3d 89, 93 (1995), quoting Becker v.
Lake Cty. Mem. Hosp. W., 53 Ohio St.3d 202, 208 (1990).
Hindsight Instruction
{¶65} General Emergency and Dr. Pakiela asked the court to issue a hindsight
instruction that reads as follows:
In determining whether Dr. Pakiela was negligent, you are to consider his conduct
in light of all the facts before him under the same or similar circumstances. You
are not to evaluate his care based on after acquired information, but you may
30
consider his care based on the then known facts and the existing state of medical
knowledge at the time the events were occurring.
They acknowledged that the instruction was not included in the Ohio Jury Instructions, but cited
Bruni v. Tatsumi, 46 Ohio St.2d 127 (1976) and several appellate court cases in support of their
request for the instruction. The trial court ultimately refused to issue the instruction.
{¶66} The Bruni Court pronounced that, to prove a medical malpractice claim in
instances of omission, a plaintiff must show that a physician omitted to do something that
another physician would have done “under like or similar conditions or circumstances.” Bruni at
paragraph one of the syllabus. General Emergency and Dr. Pakiela argue that their proffered
hindsight instruction was in accord with Bruni’s “similar conditions or circumstances” language.
See, e.g., Miller v. Andrews, 5th Dist. Richland No. 12CA44, 2013-Ohio-2490, ¶ 35-36. They
argue that they were prejudiced by the court’s refusal to give the instruction because Mr.
McMichael’s entire case hinged on the improper use of hindsight.
{¶67} Even assuming that the proffered hindsight instruction was a correct statement of
law, the record does not support General Emergency and Dr. Pakiela’s contention that they were
prejudiced by its absence. See Valleaire Golf Club, Inc., 2003-Ohio-6575, at ¶ 8. The trial court
specifically instructed the jury that “[t]he existence of a physician-patient relationship places on
the physician the duty to act as a physician of reasonable skill, care, and diligence * * * under
like or similar conditions or circumstances.” The court likewise instructed the jury that the
standard of care for physicians who specialize in a practice is that of a “reasonable specialist
practicing medicine exercising reasonable skill, care, and diligence under like and similar
circumstances * * *.” The court also issued a foreseeability instruction, instructing the jury that
medical professionals (1) were only expected to be aware of harms that their peers “would
foresee under similar circumstances,” and (2) were not expected to guard against risks of harm
31
that their peers “would not foresee.” Moreover, apart from the jury instructions themselves,
General Emergency and Dr. Pakiela were able to draw attention to the concept of hindsight
through several experts. Dr. MacQuarrie and Dr. Papa-Rugino both agreed on cross-examination
that it would have been inappropriate for them to form their opinions on the basis of hindsight
and that they had not done so. Further, the defense presented two experts, both of whom testified
that Ms. McMichael’s death was not foreseeable based on the information available to Dr.
Pakiela on June 8th. Upon review, Emergency General and Dr. Pakiela have not shown that a
hindsight instruction would have changed the result in this matter. Thus, this Court rejects their
argument insofar as it concerns that instruction.
Life Expectancy Instruction
{¶68} Next, General Emergency and Dr. Pakiela take issue with the trial court’s life
expectancy instruction. The court instructed the jury as follows:
Life Expectancy. [Ms.] McMichael was a 33-year-old African American female.
The evidence of life expectancy of African American females 33 years of age is
an estimate of the average remaining length of life of all persons in this country
based on a limited number of persons of that age. It’s an incomplete figure and
does not indicate the future life span of any individual. Such evidence is not
conclusive; however, it may be considered along with all the other evidence.
The estimated average * * * remaining length of life of an African American
female born on October 24, 1978, at 33 years of age on June 12th, is 47 years of
an estimated age of death of 80 years.
If you find for the plaintiff, you may consider what the probable normal length of
[Ms.] McMichael’s life would have been.
According to General Emergency and Dr. Pakiela, Ms. McMichael did not have a normal life
expectancy due to her autoimmune disease, so it was error for the court to instruct the jury on the
estimated average remaining life expectancy for a woman of her age.
{¶69} Even assuming that the court erred by instructing the jury on the average life
expectancy of a woman Ms. McMichael’s age, General Emergency and Dr. Pakiela have not
32
shown that they suffered resulting prejudice. See Valleaire Golf Club, Inc. at ¶ 8. First, the
court’s instruction, taken as a whole, specifically informed the jury that life expectancy evidence
was not conclusive or indicative of the life span of any particular individual. See Wozniak v.
Wozniak, 90 Ohio App.3d 400, 410 (9th Dist.1993) (jury instructions must be reviewed as a
whole). Second, Mr. McMichael’s economy expert readily admitted that he was not testifying
about Ms. McMichael’s actual life expectancy. His present value estimates also were not
contingent upon her living until the age of 80. Rather, his estimates included the calculations he
made should Ms. McMichael only have lived for another ten, twenty, or thirty years. Third, the
jury heard testimony that Ms. McMichael did not have a normal life span. Dr. Gershwin, the
rheumatologist and expert on lupus, specifically testified that she likely would have died in her
early 50s. Thus, upon review, this Court cannot conclude that General Emergency and Dr.
Pakiela were prejudiced by the court’s life expectancy instruction.
Insurance Instruction
{¶70} Finally, General Emergency and Dr. Pakiela argue that the trial court erred when
it issued the jury instructions on insurance. The court instructed:
In deciding damages, * * * you must not consider whether either party had
insurance. Any assumption that either party had or did not have insurance is not
relevant and may be wrong. You must not add or subtract from an award based
on * * * any assumption regarding insurance. You must resolve all issues
presented to you only on the evidence admitted and the law in these instructions.
The court gave the foregoing instruction twice; once when instructing on damages related to the
survivorship claim and once when instructing on damages related to the wrongful death claim.
General Emergency and Dr. Pakiela argue that the instruction was inappropriate because it
suggested that they had insurance. They argue that its prejudicial effect “was then compounded
33
by the fact that the trial court read the instruction twice, thereby placing an over-emphasis on this
issue.” (Emphasis sic.)
{¶71} “Because courts realize that jurors will be tempted to inappropriately speculate
regarding the impact of insurance, it is not improper to include an instruction for the jurors that
there was no evidence taken on that issue, and therefore, they must not allow speculation about
that issue to enter their discussions.” Davis v. Wooster Orthopaedics & Sports Med., Inc., 193
Ohio App.3d 581, 2011-Ohio-3199, ¶ 29 (9th Dist.). General Emergency and Dr. Pakiela
attempt to distinguish Davis on the basis that, here, the court’s insurance instruction came “just
moments after a highly improper suggestion by Plaintiff’s counsel at the end of their rebuttal
closing argument that Defendants would have acted differently ‘if it was their $10 million that
they are now here defending.’” (Emphasis omitted.) They assert that the court’s instruction
reinforced the impression that they had insurance.
{¶72} “‘[J]uries are presumed to follow the court’s instructions * * *.’” Price v. KNL
Custom Homes, Inc., 9th Dist. Summit No. 26968, 2015-Ohio-436, ¶ 34, quoting State v. Lowe,
164 Ohio App.3d 726, 2005-Ohio-6614, ¶ 14 (10th Dist.). The court’s instruction to the jury was
specifically not to consider whether either party had insurance. General Emergency and Dr.
Pakiela essentially invite this Court to speculate that, upon hearing the court’s instruction not to
consider insurance, the jury was somehow led to consider it. This Court declines to engage in
such rampant speculation. Moreover, the fact that Mr. McMichael’s counsel referenced a large
sum of money in closing argument was, if anything, all the more reason for the court to caution
the jury against speculating about insurance. See Discussion, infra. General Emergency and Dr.
Pakiela’s argument lacks merit.
34
Improper and Prejudicial Remarks in Closing Argument
{¶73} General Emergency and Dr. Pakiela next argue that they are entitled to a new trial
due to improper and inflammatory comments that Mr. McMichael’s counsel made during closing
argument. They argue that counsel: (1) improperly suggested that they had $10 million available
to them, but refused to take responsibility for Ms. McMichael’s death; (2) improperly suggested
that it was the jury’s province to decide the applicable standard of care in the medical
community; and (3) made several factual misrepresentations.
{¶74} In moving for a new trial on the foregoing grounds, General Emergency and Dr.
Pakiela cited Civ.R. 59(A)(1), (2), (4), (7), and (9). They make no attempt to independently
analyze any of the foregoing grounds on appeal. Instead, they simply argue that they were
prejudiced by Mr. McMichael’s counsel’s alleged misconduct.
“[C]ounsel should be afforded great latitude in closing argument, * * * and * * *
the determination of whether the bounds of permissible argument have been
exceeded is, in the first instance, a discretionary function to be performed by the
trial court * * *. Therefore, the trial court’s determination will not be reversed
absent an abuse of discretion. However, [w]here gross and abusive conduct
occurs, the trial court is bound, sua sponte, to correct the prejudicial effect of
counsel’s misconduct.”
(Internal citations omitted.) Riechers v. Biats, 9th Dist. Summit No. 25248, 2010-Ohio-6448, ¶
13, quoting Pesek v. Univ. Neurologists Assn., Inc., 87 Ohio St.3d 495, 501 (2000). An abuse of
discretion implies that a trial court was unreasonable, arbitrary or unconscionable in its
judgment. Blakemore, 5 Ohio St.3d at 219.
References to $10 Million and Defendants’ Refusal to Take Responsibility
{¶75} During rebuttal closing argument, Mr. McMichael’s counsel argued that General
Emergency and Dr. Pakiela would have been far more careful if, instead of caring for Ms.
McMichael, they were caring for “their $10 million that they are now here defending * * *.” The
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court initially overruled an objection to counsel’s statement, but counsel then attempted to
expound on his point by stating: “If there was that $10 million in that room and Dr. Pakiela’s job
was to make sure it was safe before that money left the hospital * * *.” At that point, defense
counsel interrupted with a second objection, and the court sustained it.
{¶76} General Emergency and Dr. Pakiela argue that any reference to their financial
status was highly prejudicial. They further argue that counsel’s remarks, when paired with his
accusations about their refusal to take responsibility, warranted a new trial. Yet, the court
sustained their objection and, as a general rule, “[a]n appellant cannot predicate error on
objections the trial court sustained.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, ¶ 162.
General Emergency and Dr. Pakiela attempt to circumvent that rule by arguing that the trial court
only sustained their second objection, not their first. They argue that “the damage was already
done” at that point, so the court’s ruling did not cure the error. As previously noted, however,
the trial court specifically instructed the jurors that they could not make any assumptions about
insurance in deciding damages. Even if the jurors, upon hearing counsel’s first remark, inferred
that General Emergency and Dr. Pakiela possessed a sizeable amount of insurance, they were
then told not to consider that fact in any damage award.
{¶77} This Court in no way condones counsel’s remarks, and it would caution counsel
against the inclusion of such remarks in future litigation. While attorneys are afforded great
latitude in closing argument, the bounds of zealous advocacy are not endless and impassioned
argument must not give way to inflammatory or fallacious argument. See Riechers, 2010-Ohio-
6448, at ¶ 13, quoting Pesek, 87 Ohio St.3d at 501. Counsel’s choice to make the foregoing
remarks was ill advised, at best. Even so, the question is whether General Emergency and Dr.
Pakiela have demonstrated prejudice as a result of those remarks. Under these particular facts
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and circumstances, this Court cannot conclude that they have satisfied their burden. Because the
trial court sustained their objection and because it specifically instructed the jury not to speculate
as to the availability of insurance, General Emergency and Dr. Pakiela have not shown that they
were prejudiced by counsel’s remarks about the $10 million. See Civ.R. 61.
{¶78} General Emergency and Dr. Pakiela also fault Mr. McMichael’s counsel for
making disparaging remarks about their refusal to accept responsibility here. Their brief
contains one citation to the record on this point. The citation relates to a single statement that
Mr. McMichael’s counsel made at the beginning of his closing argument. The statement was
that one of the reasons Mr. McMichael was suing was because General Emergency and Dr.
Pakiela had “refused to take responsibility.”
{¶79} This Court cannot conclude that the foregoing statement amounts to a disparaging
remark. As noted, counsel is “‘afforded great latitude in closing argument.’” Riechers at ¶ 13,
quoting Pesek at 501. The trial court reasonably could have concluded that the foregoing
statement was within the bounds of permissible argument. Accordingly, this Court rejects
General Emergency and Dr. Pakiela’s argument to the contrary.
Standard of Care
{¶80} Next, General Emergency and Dr. Pakiela argue that they were deprived of a fair
trial when Mr. McMichael’s counsel ended his closing argument with the following remarks:
When you get back in there, take your time. I know you have been anxious to
probably start discussing the case. Make sure you talk about why you feel the
way you do. You decide the standard of care in this community. You decide
what’s required in this community when a patient goes to the emergency room.
Good luck. Thank you.
General Emergency and Dr. Pakiela did not object to counsel’s remarks, but moved for a new
trial on the basis that his remarks misrepresented the law. According to General Emergency and
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Dr. Pakiela, the remarks suggested that the jurors could overlook the requirement for competent,
expert testimony and decide the applicable standard of care based on their personal opinions.
{¶81} The record simply does not support General Emergency and Dr. Pakiela’s reading
of counsel’s argument. Mr. McMichael’s counsel never suggested to the jurors that they ought
to disregard the expert testimony in this case. He simply impressed upon the jurors that they
would be the ones to decide whether the standard of care had been met. Moreover, the trial court
issued the jury detailed instructions on the applicable standard of care following closing
argument. As previously noted, “‘[j]uries are presumed to follow the court’s instructions * *
*.’”. Price, 2015-Ohio-436, at ¶ 34, quoting Lowe, 2005-Ohio-6614, at ¶ 14. There is no
evidence in the record that the jurors disregarded the court’s instruction or decided the standard
of care strictly on the basis of their personal opinions. Accordingly, General Emergency and Dr.
Pakiela’s argument lacks merit.
Factual Misrepresentations
{¶82} Next, General Emergency and Dr. Pakiela argue that they were denied a fair trial
because Mr. McMichael’s counsel made several factual misrepresentations during closing
argument. They fault counsel for: (1) suggesting that they intentionally failed to secure the
availability of their emergency medicine expert for another day of trial; (2) falsely telling the
jury that no one had recommended an autopsy; and (3) misrepresenting to the judge and jury that
a specific doctor from Akron General had made a statement about Ms. McMichael’s cause of
death. This Court addresses each issue in turn.
i. The Availability of the Defense Expert
{¶83} Dr. Kristopher Brickman testified for the defense as an emergency medicine
expert. The defense called Dr. Brickman on a Friday afternoon. As the day’s proceedings were
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drawing to a close, Mr. McMichael’s counsel was still conducting his cross-examination. The
parties and the court then began having discussions at sidebar because the defense could not
guarantee Dr. Brickman’s availability after that day. The court informed the parties that the
courthouse only remained open until 5:00 p.m., so it would not permit questioning to extend past
that time. When that time expired, the court sent the jury home for the day, and the parties
discussed the matter on the record. During that conversation, Mr. McMichael’s counsel stated
that he had additional questions for Dr. Brickman, but that he was “comfortable not insisting that
he come back” if the doctor was no longer available for either party to ask additional questions.
{¶84} During closing argument, defense counsel discussed Dr. Brickman’s testimony
and specifically noted that Mr. McMichael’s counsel had not even asked the doctor questions
about the standard of care. Mr. McMichael’s counsel then presented his rebuttal and reminded
the jury that his cross-examination of Dr. Brickman had been cut short. He stated:
Guess who didn’t come back on Monday. So when [defense counsel] said: Oh,
[Mr. McMichael’s counsel] didn’t ask [Dr. Brickman] about this, that, or the
other; they didn’t bring him back.
General Emergency and Dr. Pakiela argue that Mr. McMichael’s counsel misled the jury because
he made it appear as if it was their fault that Dr. Brickman did not return when, in fact, the
parties had agreed that he would not return.
{¶85} General Emergency and Dr. Pakiela did not object to Mr. McMichael’s counsel’s
statement at trial. Moreover, the record reflects that he made the statement in response to
defense counsel’s assertion that he had failed to ask Dr. Brickman any questions about the
standard of care. Having reviewed the record, this Court concludes that the foregoing statement
fell within the bounds of permissible argument. Riechers, 2010-Ohio-6448, at ¶ 13, quoting
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Pesek, 87 Ohio St.2d at 501. Accordingly, General Emergency and Dr. Pakiela’s argument to
the contrary lacks merit.
ii. The Autopsy
{¶86} Next, General Emergency and Dr. Pakiela argue that Mr. McMichael’s counsel
falsely told the jury that there was no evidence anyone had recommended an autopsy for Ms.
McMichael. They note that Mr. McMichael specifically testified that Akron General had
suggested he have an autopsy done. As such, they argue that counsel’s statement misled the
jury.
{¶87} Mr. McMichael’s counsel’s exact statement to the jury was: “There is no evidence
in here that anyone recommended an autopsy.” (Emphasis added.) Around the time he made
that statement, he had been referring to Ms. McMichael’s chart and her various medical records.
Without additional information, this Court cannot determine what counsel meant when he stated
that there was no evidence of an autopsy recommendation “in here.” If counsel was gesturing to
a specific medical record when he made that statement, his statement may have been accurate
and, therefore, not misleading. The record simply does not contain enough information for this
Court to make a determination. Because the burden of demonstrating error rests on General
Emergency and Dr. Pakiela, this Court must conclude that they failed to satisfy their burden. See
Rosen v. Lax, 9th Dist. Summit No. 27367, 2016-Ohio-182, ¶ 22.
iii. The Cause of Death Statement
{¶88} Next, General Emergency and Dr. Pakiela argue that they were denied a fair trial
when Mr. McMichael’s counsel elicited certain testimony from Mr. McMichael on direct
examination. Counsel asked Mr. McMichael to tell the jury what a specific doctor at Akron
General had told him about the cause of his wife’s death. Mr. McMichael then stated that he was
40
told that swelling in his wife’s brain had “caused a portion of [her brain] to just go down and that
pretty much caused her to be brain dead.” On cross-examination, Mr. McMichael acknowledged
that he could not recall the name of the doctor with whom he had spoken. Because he could not
recall the doctor’s name, General Emergency and Dr. Pakiela argue that the doctor’s purported
statement was inadmissible hearsay. They argue that the trial court only admitted the statement
because Mr. McMichael’s counsel falsely attributed it to a specific doctor.
{¶89} Even assuming that Mr. McMichael’s counsel ought not to have attributed the
foregoing statement to a specific doctor before confirming that Mr. McMichael could remember
the doctor’s identity, General Emergency and Dr. Pakiela have not established prejudice as a
result of the admission of the statement. At best, the testimony was cumulative. Mr. McMichael
presented expert testimony on the issue of proximate cause, and Ms. McMichael’s death
certificate listed her cause of death as “tonsillar herniation of [the] cerebellum” due to “diffuse
cerebral edema.” Thus, General Emergency and Dr. Pakiela have not shown that the admission
of the foregoing testimony affected their substantial rights. See Civ.R. 61.
Cumulative Error
{¶90} Lastly, General Emergency and Dr. Pakiela argue that the cumulative effect of all
of the foregoing errors deprived them of a fair trial.
Under the cumulative error doctrine, a judgment may be reversed if the
cumulative effect of multiple errors deprives a party of his constitutional rights
even though, individually, the errors may not rise to the level of prejudicial error
or cause for reversal. However, “the cumulative error doctrine is not typically
employed in civil cases.”
(Internal citation omitted.) J.P. v. T.H., 9th Dist. Lorain No. 14CA010715, 2016-Ohio-243, ¶ 35,
quoting Stanley v. Ohio State Univ. Med. Ctr., 10th Dist. Franklin No. 12AP-999, 2013-Ohio-
5140, ¶ 124. Moreover, General Emergency and Dr. Pakiela did not raise cumulative error as an
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argument in support of their motion for a new trial. Even assuming the civil nature of this case
would not have foreclosed a cumulative error argument, this Court will not address new
arguments for the first time on appeal. JPMorgan Chase Bank, Natl. Assn. v. Burden, 9th Dist.
Summit No. 27104, 2014-Ohio-2746, ¶ 12. This Court, therefore, rejects General Emergency
and Dr. Pakiela’s attempt to raise cumulative error for the first time on appeal. Their second
assignment of error is overruled.
III.
{¶91} General Emergency and Dr. Pakiela’s assignments of error are overruled, and Mr.
McMichael’s cross-appeal is dismissed. The judgment of the Summit County Court of Common
Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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.
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Costs taxed to Appellants.
LYNNE S. CALLAHAN
FOR THE COURT
CARR, P. J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
STEPHEN W. FUNK and LEIGHANN K. FINK, Attorneys at Law, for Appellant.
ANNA MOORE CARULAS and JOSEPH E. HERBERT, Attorneys at Law, for Appellee.