Bromall v. Select Speciality, Hosp. – Akron, L.L.C.

• Decision Date: 21 July 2022
• Docket Number: 110914
• Citation: 193 N.E.3d 609
• Parties: Bonnie G. BROMALL, Executor, Plaintiff-Appellant, v. SELECT SPECIALITY, HOSPITAL – AKRON, L.L.C., et al., Defendants-Appellees.
• Court: Ohio Court of Appeals

193 N.E.3d 609

Bonnie G. BROMALL, Executor, Plaintiff-Appellant,

v.SELECT SPECIALITY, HOSPITAL – AKRON, L.L.C., et al., Defendants-Appellees.

No. 110914

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: July 21, 2022

Casey Law Co., LPA, and James S. Casey ; Kisling, Nestico & Redick, LLC, Christopher J. Van Blargan, and John J. Reagan, Fairlawn, for appellant.

Roetzel & Andress, LPA, Stephen W. Funk, Emily K. Anglewicz, Akron, and Anna Moore Carulas, Cleveland, for appellees.

JOURNAL ENTRY AND OPINION

EILEEN T. GALLAGHER, J.:

{¶ 1} Plaintiff-appellant, Bonnie G. Bromall, executor of the Estate of Paul S. Bromall, Jr. ("the Estate"), appeals from the jury verdict rendered in favor of defendants-appellees, Akron Nephrology Associates, Inc. ("Akron Nephrology"), Americare Kidney Institute, L.L.C. ("Americare Kidney"), and Amr Al-Yafi, M.D. ("Dr. Al-Yafi") (together the "appellees"). The Estate raises the following assignments of error for review:

1. The trial court abused its discretion in failing to articulate its reasoning for excluding the testimony of three witnesses where defendants presented two reasons for doing so, one legal and one within the court's discretion, requiring speculation on appeal whether the trial court's exclusion would be reviewed de novo for error or an abuse of discretion.

2. If the trial court found that Dr. Raina's statements were hearsay and thus inadmissible under Evid.R. 802, it erred because the statements qualified as admissions against interest of a party opponent and were therefore admissible under Evid.R. 801(D)(2).

3. If the trial court found that Dr. Raina's statements were not hearsay, but the risk of unfair prejudice outweighed the statement's probative value, the trial court abused its discretion because the testimony was highly probative to the issues of fault and causation, and the defendants’ criticism went solely to the weight of Dr. Raina's admissions.

{¶ 2} After careful review of the record and relevant case law, we affirm the jury's verdict in favor of the appellees.

I. Procedural and Factual History

{¶ 3} On March 4, 2016, Paul S. Bromall ("Bromall"), age 62, was admitted to Akron General Health Systems ("Akron General") where he was treated for an infected ulcer on his ankle. Bromall had an extensive medical history, including diagnoses of "chronic kidney disease stage 4 secondary to diabetic nephropathy, diabetes mellitus type 2, hypertension, secondary hyperparathyroidism, anemia in chronic kidney disease, and morbid obesity." (Plaintiff's exhibit No. 1, pp. 481-482.) While at Akron General, Bromall was further diagnosed with paroxysmal atrial fibrillation, congestive heart failure, cognitive impairment with incompetence for decision making, and progressive chronic kidney disease. (Id. at pp. 481-484, 519-520.)

{¶ 4} During his hospitalization, Bromall and his treating physicians engaged in extensive discussions concerning his deteriorating kidney function, the need for dialysis, and Bromall's eligibility for a kidney transplant. Ultimately, Bromall was started on hemodialysis following the implantation of a tunneled-dialysis catheter on March 14, 2016. The procedure required the use of sutures at the incision site. Pursuant to the instructional notes entered by the interventional radiologist, the sutures were to remain in place for 30 days.

{¶ 5} On March 22, 2016, Bromall was treated by Rupesh Raina, M.D. ("Dr. Raina"), an employee and partner at Akron Nephrology. Dr. Raina determined that the dialysis was improving Bromall's condition. However, Dr. Raina was concerned that it was premature to discharge Bromall for outpatient care. After speaking with Bromall's wife, who was worried she would not be able to transport Bromall to his outpatient dialysis appointments on her own, Dr. Raina decided it was necessary to refer Bromall to a rehabilitation facility. Once at the rehabilitation facility, Akron Nephrology would continue to manage Bromall's dialysis treatments and renal care.

{¶ 6} On March 23, 2016, Bromall was admitted to Select Specialty Hospital-Akron, L.L.C. ("SSHA"). While at SSHA, Bromall was under the primary care of attending physician, Atul Goswami, M.D. ("Dr. Goswami"). Bromall was also seen by an infectious disease specialist, as well as a number of nephrologists, including Dr. Raina and practicing nephrologist, Dr. Al-Yafi. At the time Dr. Al-Yafi provided care in this matter, he was an employee of Americare Kidney. However, because Americare Kidney was in the process of acquiring Akron Nephrology, Dr. Al-Yafi was treating Akron Nephrology patients and assisting other Akron Nephrology doctors during the merger.

{¶ 7} On March 28, 2016, Dr. Al-Yafi removed Bromall's sutures from the catheter incision site. The following morning, a registered nurse discovered Bromall sitting up in bed with his dialysis catheter lying on the floor next to him. Bromall denied removing the catheter purposely and explained that he may have accidently caught the catheter on the sheets when he attempted to sit up in bed. Once notified, Dr. Al-Yafi immediately contacted Akron General and scheduled Bromall to have his permanent dialysis catheter replaced on Thursday, March 31, 2016, at 8:00 a.m., with dialysis to immediately follow. (Tr. 158, 282.) During this interim period, Bromall was unable to receive dialysis treatments. Dr. Al-Yafi's medical notes indicated that Bromall's potassium level was 5.1 millimoles per liter (mmol/L) on the date his catheter was accidently removed.

{¶ 8} On March 30, 2019, Bromall's potassium level rose to 6.0 mmol/L. Nurses at Akron Nephrology were instructed to notify on-call physicians of potassium levels that rise above 5.5 mmol/L based on the critical dangers associated with hyperkalemia. Despite Bromall's increased potassium level, Dr. Al-Yafi determined that Bromall's clinical condition did not indicate the need to change his treatment plan. Accordingly, Dr. Al-Yafi did not employ "urgent management" treatments for hyperkalemia and did not attempt to move Bromall's catheter procedure to an earlier time.

{¶ 9} Before Bromall's catheter could be replaced, he was found unresponsive at approximately 3:12 a.m. on March 31, 2016. Despite resuscitative measures, Bromall was pronounced dead at approximately 3:55 a.m. on March 31, 2016. Blood drawn at 3:52 a.m. revealed that Bromall had a potassium level greater than 9.0 mmol/L. The attending physician certified on Bromall's death certificate that Bromall died as a result of cardiopulmonary arrest secondary to end stage renal disease.

{¶ 10} On March 27, 2018, the Estate filed a wrongful-death lawsuit against defendants SSHA, Select Medical Corporation ("SMC"), Akron Nephrology, Americare Kidney, Dr. Al-Yafi, Dr. Goswami, and Atul S. Goswami, M.D., Inc. ("AGI").¹ The complaint set forth a single cause of action for negligence, alleging that the defendants’ deviations from acceptable standards of care were the proximate cause of Bromall's death, resulting in damages.

{¶ 11} Between June and October 2019, counsel for the Estate took the depositions of Akron Nephrology employees, Patricia Kaschner ("Kaschner"), Sharon White ("White"), Amanda Sims ("Sims"), and Dr. Raina.

{¶ 12} Relevant to this appeal, Kaschner testified she that is the decedent's sister, as well as a former medical assistant in the outpatient office of Akron Nephrology. Kaschner stated that she was employed by Akron Nephrology at the time of Bromall's hospitalization. On Kaschner's first day back at work following Bromall's death, Dr. Raina consoled Kaschner in the office hallway and asked, "What happened? What happened? What happened to your brother?" (Kaschner depo. at 47.) At that time, Kaschner reported to Dr. Raina that Bromall had "pulled his catheter out and it was never put back in and when he finally passed away, his potassium was at 9.0." (Kaschner depo. at 7.) Kaschner testified that Dr. Raina apologized to her and stated, "[T]his is all Amr's [Dr. Al-Yafi] fault, this is all Amr's fault." (Kaschner depo. at 7.) Kaschner explained that she did not notify Dr. Raina that Bromall's potassium level of 9.0 derived from a measurement that occurred after Bromall "coded." (Kaschner depo. at 47.) Kaschner further testified that she did not believe Dr. Raina even knew Bromall had passed away before someone in the office mentioned it to him on the day Kaschner returned to work. (Kaschner depo. at 8.)

{¶ 13} White was deposed in June 2019. At her deposition, White testified that she was employed as a medical assistant for Akron Nephrology at the time of Bromall's hospitalization. White stated that following Bromall's death, Dr. Raina pulled her aside in the office and asked her how Kaschner was coping with her brother's death. White described their conversation as follows:

[Dr. Raina] said, "How is [Kaschner] doing?"

And I said, "Well, as well as can be expected," I said, "her brother passed away last night."

He proceeded to say, "I know. I know. This is all on Amr. This is all Amr's fault." He's referring to Amr Al-Yafi, Dr. Al-Yafi.

And I said, "Well, what do you mean?"

He was like, "It's all his fault. He killed [Kaschner]’s brother. He killed [Kaschner]’s brother."

It was like okay, you know, whatever.

He was like, "He should have been on dialysis. I had been giving him dialysis and Dr. Al-Yafi * * * did not dialyze him," he was like, "and that's what killed her brother."

(White depo. at 7-8.)

{¶ 14} White testified that she interpreted Dr. Raina's statements as "venting" and an attempt to place fault on Dr. Al-Yafi. She explained that Dr. Raina had a history of blaming others and that "it was a known fact that Dr. Raina did not like Dr. Al-Yafi." (White depo. at 19, 45.) Thus, White stated that she believed Dr. Raina was "trying to throw [Dr. Al-Yafi] under the bus because [he didn't] like him or [was] throwing him up under the bus to cover [himself]." (White depo. at 18-19.)

{¶ 15} Sims was deposed in October...