McMichael v. Akron Gen. Med. Ctr.

[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
 4

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
 7

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.
 8

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.
 11

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
 35

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
 36

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
 37

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
 38

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
 39

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
 41

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.
 42

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.