Daniels v. Northcoast Anesthesia Providers, Inc.

• Decision Date: 06 September 2018
• Docket Number: No. 105125,105125
• Citation: 120 N.E.3d 52,2018 Ohio 3562
• Parties: Victoria DANIELS, et al., Plaintiffs-Appellees v. NORTHCOAST ANESTHESIA PROVIDERS, INC., et al., Defendants-Appellants
• Court: Ohio Court of Appeals

120 N.E.3d 52

2018 Ohio 3562

Victoria DANIELS, et al., Plaintiffs-Appellees

v.NORTHCOAST ANESTHESIA PROVIDERS, INC., et al., Defendants-Appellants

No. 105125

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

RELEASED AND JOURNALIZED: September 6, 2018

JOURNAL ENTRY AND OPINION

MELODY J. STEWART, J.:

{¶ 1} Pursuant to App.R. 26(A)(2), Loc. App.R. 26, and McFadden v. Cleveland State Univ. , 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672, the en banc court has determined that a conflict exists between Daniels v. Northcoast Anesthesia Providers, Inc. , 8th Dist. Cuyahoga, 2018-Ohio-2132, 113 N.E.3d 1153 and Richlin v. Gooding Amusement Co. , 113 Ohio App. 99, 170 N.E.2d 505 (8th Dist.1960).¹ Appellee Daniels frames the question for en banc review as follows:

Do alleged errors in a civil appeal need to be individually examined for whether sufficient prejudice justifies a reversal, or can the appellate court simply invoke the "cumulative error doctrine" at some point after more than one mistaken ruling has been identified?

THE EN BANC DECISION:

{¶ 2} An extended discussion of the issue certified for en banc review is unnecessary in this case. Richlin rejected the claim that the cumulative effect of a number of minor errors at trial prejudiced a party:

An error committed by the court in its charge to the jury is either prejudicial or it is not. There is no legal way to add up the separate effects of such claims so that taken together they may be considered as affecting prejudicially the rights of a contending party. Each claim of error must be considered as standing or falling on its own facts unassociated with others on different subjects.

Richlin at 103, 170 N.E.2d 505.

{¶ 3} The rationale stated in Richlin — that there is no legal way to "add up the separate effects" of various trial errors — predated the Ohio Supreme Court's application of the cumulative error doctrine and can no longer be considered valid. "Under the doctrine of cumulative error, ‘a conviction will be reversed when the cumulative effect of errors in a trial deprives a defendant of a fair trial even though each of the numerous instances of trial-court error does not individually constitute cause for reversal.’ " State v. McKelton , 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 321, quoting State v. Powell , 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 223.²

{¶ 4} While the Ohio Supreme Court has only applied the cumulative error doctrine in the criminal context, this court has applied the cumulative error doctrine in an unbroken, 30-year line of civil appeals. See, e.g. , O'Malley v. O'Malley , 8th Dist. Cuyahoga No. 98708, 2013-Ohio-5238, 2013 WL 6221091, ¶ 95 ; Edge v. Fairview Hosp. , 8th Dist. Cuyahoga No. 95215, 2011-Ohio-2148, 2011 WL 1744279, ¶ 46 ; Dawson v. Cleveland Metro. Gen. Hosp. , 8th Dist. Cuyahoga Nos. 51052 and 51779, 1986 WL 13323 (Nov. 20, 1986). Other Ohio appellate districts also apply the cumulative error doctrine to civil cases. See, e.g., Bigler v. Personal Serv. Ins. Co. , 7th Dist. Belmont No. 12 BE 10, 2014-Ohio-1467, 2014 WL 1384572, ¶ 175-176 ; Katz v. Enzer , 29 Ohio App.3d 118, 124, 504 N.E.2d 427 (1st Dist.1985).

{¶ 5} We are aware that some appellate districts do not apply the cumulative error doctrine to civil cases. See, e.g., Wolf v. Rothstein , 2016-Ohio-5441, 61 N.E.3d 1, ¶ 96 (2d Dist.) ; J.P. v. T.H. , 9th Dist. Lorain No. 14CA010715, 2016-Ohio-243, 2016 WL 363247, ¶ 35 ; Stanley v. Ohio State Univ. Med. Ctr. , 10th Dist. Franklin No. 12AP-999, 2013-Ohio-5140, 2013 WL 6157232, ¶ 124 ; Lambert v. Wilkinson , 11th Dist. Ashtabula No. 2007-A-0032, 2008-Ohio-2915, 2008 WL 2404736, ¶ 110. These appellate districts are not, however, emphatic in rejecting the cumulative error doctrine in the civil context because they note that the doctrine is not "typically" or "generally" applicable. See, e.g., Stanley, supra , at ¶ 124 ("the cumulative error doctrine is not typically employed in civil cases"); Lambert, supra ("the cumulative error doctrine is generally not applicable in civil cases."). In addition, two other appellate districts have not explicitly endorsed the application of the cumulative error doctrine in civil cases, but have rejected assignments of error on the assumption that it applied without actually deciding so. See, e.g., State, Dept. of Natural Resources v. Mark L. Knapke Revocable Living Trust , 2015-Ohio-470, 28 N.E.3d 667, ¶ 57 (3d Dist.) (assuming without finding that cumulative error applies in civil cases); McQueen v. Goldey , 20 Ohio App.3d 41, 50, 484 N.E.2d 712 (12th Dist.1984) ("Without addressing the relative merits of the cumulative error concept, we conclude that even if we were to accept and apply the concept to a civil case, the accumulation of harmless errors in the case at bar did not constitute prejudicial error.").

{¶ 6} The difference of opinion among appellate districts gives us no reason to depart from more recent precedent in this appellate district. We have not cited Richlin as support for rejecting the application of the cumulative error doctrine in civil cases for over 50 years. See Nicholas v. Yellow Cab Co. , 116 Ohio App. 402, 412, 180 N.E.2d 279 (8th Dist.1962) ("Any error shown upon the record must stand or fall on its own merits and is not aided by the accumulative effect of other claims of error. The court has recently passed on this question in the case of Richlin v. Gooding Amusement Co., Inc. , 113 Ohio App. 99, 170 N.E.2d 505."). We hold that the cumulative error doctrine can be applied to civil appeals. Richlin and Nicholas are overruled to the extent that they are inconsistent with this opinion.

PATRICIA ANN BLACKMON, MARY J. BOYLE, FRANK D. CELEBREZZE, JR., EILEEN A. GALLAGHER, A.J., EILEEN T. GALLAGHER, SEAN C. GALLAGHER, LARRY A. JONES, SR., KATHLEEN ANN KEOUGH, MARY EILEEN KILBANE, and ANITA LASTER MAYS, JJ., CONCUR

TIM McCORMACK, J., RECUSED

THE DECISION OF THE MERIT PANEL:

{¶ 7} As plaintiff-appellee Victoria Daniels was about to have surgery, the defendant-appellant-anesthesiologists Zoard Vasarhelyi, M.D. and Rostyslav Koziy, M.D., approved the placement of a transdermal patch on her to prevent postoperative nausea. Daniels appeared to have an allergic reaction to the patch and went into anaphylactic shock. She stopped breathing and experienced low blood oxygen for close to 30 minutes, causing her to suffer brain damage. Alleging that the active ingredient in the transdermal patch was part of the same family of drugs to which she had previously disclosed a serious allergic reaction , Daniels brought this medical malpractice action against both physicians and their employer, defendant-appellant Northcoast Anesthesia Providers, Inc., claiming that they violated the standard of care by failing to formulate an anesthesia plan to prevent her from being given drugs belonging to the same class of drugs to which she had an established allergy.³ She also alleged that the physicians violated the standard of care in failing to give her adequate doses of a drug called "Epinephrine" to resuscitate her. A jury found in Daniels's favor and awarded damages. The court subsequently awarded her prejudgment interest on the damages award.

{¶ 8} The ten assignments of error on appeal contest various pretrial and trial rulings by the court, as well as an award of prejudgment interest. We conclude that the court abused its discretion by admitting Daniels's summary of the medical records evidence to go to the jury; that the court abused its discretion by not giving the "bad results" instruction to the jury; and that the court abused its discretion by allowing Daniels's demonstrative boards to be considered by the jury. We further find that the cumulative effect of these errors deprived Vasarhelyi and Koziy of a fair trial. The assignments of error relating to the limitation on closing argument and prejudgment interest are moot.

I. Hearsay

{¶ 9} The first assignment of error is that the court abused its discretion by admitting into evidence, and sending to the jury for its deliberations, a learned treatise in violation of Evid.R. 803(18).

{¶ 10} The basis of Daniels's claims against Vasarhelyi and Koziy was that prior to surgery, she disclosed an allergy to an asthma medication called Atrovent. She maintained that the antinausea patch placed on her prior to surgery contained a drug called Scopolamine and that Scopolamine and Atrovent belong to the same family of drugs known as "belladonna alkaloids." She maintained that the allergic reaction to Scopolamine could have been prevented had Vasarhelyi and Koziy cross-checked the drug using, among other resources, an online service called Lexi-Comp that provides drug information such as dosing, warnings, and precautions.

{¶ 11} Daniels's expert testified at trial that there were a variety of resources that doctors and nurses could consult about drugs, including Lexi-Comp. The expert identified plaintiff's exhibit No. 26 as a printout from Lexi-Comp titled "Belladonna Alkaloid Allergy." The printout contained a list of "associated drugs" including Scopolamine. According to Daniels's expert, the printout showed that Scopolomine "could potentially crossreact in that category." The expert said that the Lexi-Comp entry "instructs to avoid scopolamine, which was in the patch; it talks about Atrovent * * *." The expert then identified a second printout from Lexi-Comp, plaintiff's exhibit No. 26B, titled, "Reported Allergy: Patient Management Considerations." The expert testified that the printout stated: "In general, when a previous severe reaction has occurred, repeated exposure to the initial agent and related compounds should be avoided. * * * Per the manufacturer's labeling, use is normally contraindicated in patients with prior allergic reactions."

{¶ 12} "Hearsay" is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the...