Duck v. Cantoni, Case No. 11CA20

• Decision Date: 29 January 2013
• Docket Number: Case No. 11CA20
• Citation: Duck v. Cantoni, 2013 Ohio 351, Case No. 11CA20 (Ohio App. Jan 29, 2013)
• Parties: JONATHAN DUCK, IND. & AS ADMIN., E/O ISAAC THOMAS DUCK, DECEASED, Plaintiff-Appellant, v. JAMES DENNIS CANTONI, M.D., et al., Defendants-Appellees.
• Court: Ohio Court of Appeals

2013 Ohio 351

JONATHAN DUCK, IND. & AS ADMIN., E/O ISAAC THOMAS DUCK, DECEASED, Plaintiff-Appellant, v. JAMES DENNIS CANTONI, M.D., et al., Defendants-Appellees.

Case No. 11CA20

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY

Dated: January 29, 2013

DECISION AND JUDGMENT ENTRY

APPEARANCES:

COUNSEL FOR APPELLANT: Kenneth S. Blumenthal and Jonathan R. Stoudt, Rourke & Blumenthal, LLP, 495 South High Street, Suite 450, Columbus, Ohio 43215

COUNSEL FOR APPELLEE Frederick A. Sewards and Scott E. JAMES D. CANTONI, M.D.: Williams, Hammond Sewards & Williams, 556 East Town Street, Columbus, Ohio 43215

COUNSEL FOR APPELLEE Jason P. Ferrante, Sutter O'Connell, Co., MARIETTA MEMORIAL 3600 Erieview Tower, 1301 East 9th HOSPITAL: Street, Cleveland, Ohio 44114

CIVIL CASE FROM COMMON PLEAS COURT

DATE JOURNALIZED: 1-29-13

ABELE, J.

{¶ 1} This is an appeal from a Washington County Common Pleas Court summary judgment in favor of James Dennis Cantoni and Marietta Memorial Hospital, defendants below and appellees herein.

{¶ 2} Jonathan Duck, Individually and as Administrator of the Estate of Isaac ThomasDuck, plaintiff below and appellant herein, assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN GRANTING THE CIV.R. 56 MOTIONS FOR SUMMARY JUDGMENT MADE BY DEFENDANTS-APPELLEES JAMES DENNIS CANTONI, M.D. AND MARIETTA MEMORIAL HOSPITAL."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN GRANTING THE MOTIONS TO STRIKE THE AFFIDAVIT OF CAROLYN CRAWFORD, M.D., MADE ON BEHALF OF DEFENDANTS-APPELLEES."

{¶ 3} Appellant instituted this wrongful death/medical malpractice action following the September 9, 2006 death of his newborn son, Isaac Duck. On September 8, 2006, Isaac was born via an emergency cesarean section. At the time of delivery, Isaac did not have a heart rate and had Apgar scores of 0, which indicated that Isaac did not have a pulse, lacked muscle tone, was not breathing, and failed to respond to stimulation.

{¶ 4} Dr. James D. Cantoni initiated resuscitation efforts and attempted to intubate Isaac.¹ During the first two attempts to intubate, Dr. Cantoni stated that the dim laryngoscope light rendered him unable to see so as to be able to intubate Isaac. Approximately seven to eight minutes after delivery, Dr. Cantoni obtained a laryngoscope with sufficient lighting and was able to intubate Isaac. Isaac then was placed on ventilation and transferred to Nationwide Children's Hospital. Upon examination, doctors determined that Isaac had only brain stem function, withoutany spontaneous activity. Isaac's parents subsequently decided to withdraw life support, and sadly, Isaac died the day after his birth.

{¶ 5} Appellant later instituted a wrongful death claim. Both appellees filed separate summary judgment motions and argued that appellant could not establish proximate cause and, consequently, could not maintain his action. To support their arguments, appellees relied upon appellant's experts' testimony that Isaac would have had a fifty percent chance of survival if he had been intubated immediately after his birth.

{¶ 6} One of appellant's experts, Dr. Kevin Bove,² opined that Isaac "would have had definitely an increased chance to survive" if he had been intubated immediately after birth. Dr. Bove further stated that the approximately eight to nine minute delay in intubating Isaac "made a difference in what this outcome would be." When pressed to state "how much of a difference," Dr. Bove explained:

"Well, it's difficult to say because there are a number of different outcomes that are possible here during the immediate neonatal period; alive with brain injury of varying degrees of severity, and least of all, I think, would be alive with no brain injury whatsoever.

So I'm in the middle there somewhere. I think it's-that the middle two of those is a very real possibility."

{¶ 7} When asked to express his opinion in a percentage, Dr. Bove stated: "It's hard to come up with a percentage. I just use the sort of lay term fifty/fifty. I think he had a chance of surviving within that range, but probably not without brain injury."

{¶ 8} Dr. Carolyn S. Crawford, appellant's other expert, testified similarly. Dr.Cantoni's counsel asked whether she agreed with Dr. Bove that Isaac "had a 50/50 chance of survival if intubated immediately at birth." She stated that she agreed "because the heart rate would have come up." Cantoni's counsel continued:

"Q. And so you—okay, so your opinion is that Baby Duck had a 50 percent chance of survival if intubated immediately upon delivery?

A. Yes."

{¶ 9} Dr. Crawford offered further testimony regarding Isaac's chance of survival following intubation. She opined that "somewhere around 15, 16 minutes" after birth Isaac "had an Apgar score of 3, and if the score is less than 3 * * * at 15 minutes, the mortality rate has been reported to be 53 percent. So, his around 15 minutes was probably a 3 because he—or maybe a minute later, he was right on that borderline, so I think he had probably a mortality risk around 50 percent." She also believed that at twenty minutes, he had an Apgar score of 4 and that "he had at least a 50/50 chance."

{¶ 10} In their summary judgment motions, appellees argued that appellant's experts' testimony failed to establish that any negligent failure to intubate Issac proximately caused Isaac's death. Appellees observed that (1) both of appellant's experts testified that if Isaac had been intubated immediately after his birth, he would have had a fifty percent chance of survival, and (2) neither expert stated that Isaac would have had a fifty-one percent or greater chance of survival had he been intubated immediately. Appellees thus asserted that because neither expert could state that Isaac had a fifty-one percent or greater chance of survival, appellant could not establish that appellees' alleged negligence more likely than not caused Isaac's death. Appellees additionally contended that the loss of chance doctrine could not save appellant's case. They asserted that the doctrine does not apply when a patient, like Isaac, has an even chance of survival.

{¶ 11} In opposition, appellant's presented an affidavit that Dr. Crawford prepared. In it, she stated that "had [appellees] acted in accordance with the standard of care, Isaac would have avoided approximately eight to nine minutes of asphyxia and would have had an increased chance of survival." She further stated:

"Isaac's chances of survival at that time were slightly less than even. During my February 16, 2010 deposition in this matter, I stated that I agreed chances of survival were fifty percent. In answering this question, I agreed with the general sentiment that Isaac's chances of survival at that point were close to even, but meant to convey only that I could not state that he probably would have survived, i.e.[,] that his odds were more-likely-than-not. However, my opinion is that Isaac's odds of survival did not meet this threshold and were rather slightly less-likely-than-not at that time."

{¶ 12} She additionally opined:

"Isaac had an Apgar score of 2 at fifteen minutes post-delivery, suggestive of a fifty-three percent mortality rate. As such, in terms of a specific percentage, it is my opinion that Isaac's odds of survival at the time of the Defendants' negligence was forty-seven percent. These risks were greatly increased by the negligence of the Defendants in this matter, leading to Isaac's eventual death * * *."

{¶ 13} In his opposition memorandum, appellant asserted that Dr. Crawford's affidavit, opining that Isaac had a forty-seven percent chance of survival, created a genuine issue of material fact regarding the loss of chance doctrine. Appellant also argued that Dr. Bove's testimony that Isaac's chance of survival "within [the fifty/fifty] range" showed that a genuine issue of material fact remained regarding whether Isaac's survival was less than probable if he had been intubated immediately.

{¶ 14} Appellees filed motions to strike Dr. Crawford's affidavit and argued that the affidavit that Isaac's chance of survival was forty-seven percent conflicted with her deposition testimony, where she agreed that Isaac's chance of survival was fifty percent.

{¶ 15} On July 11, 2011, the trial court granted appellees' motions to strike Dr. Crawford's affidavit and entered summary judgment in their favor. This appeal followed.

I

{¶ 16} In his first assignment of error, appellant argues that the trial court improperly entered summary judgment in appellees' favor. Appellant contends that genuine issues of material fact remain as to whether appellees violated the standard of care and whether that violation increased Isaac's risk of harm. Appellant asserted that his experts' testimony placing Isaac's chance of survival "within [the fifty/fifty] range" and "around 50 percent" could allow a reasonable jury to conclude that Isaac's chances were "somewhat less than probable." Appellant further disputes appellees' claim that the loss of chance doctrine does not apply when a patient has a fifty percent chance of survival. Appellant argues that the Ohio Supreme Court did not intend to create a gap between the loss of chance and proximate cause theories for the fifty-fifty chance of survival plaintiff.

{¶ 17} Appellees argue that the loss of chance doctrine only applies when a plaintiff already has a less-than-even (i.e., less than fifty-fifty) chance of recovery or survival, which chance is then further diminished by defendant. Appellees claim that the loss of chance doctrine set forth in Roberts does not apply when the injured person has an even or greater-than-even chance of recovery or survival.

ASUMMARY JUDGMENT STANDARD

{¶ 18} Appellate courts conduct a de novo review of trial court summary judgmentdecisions. E.g., Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Accordingly, an appellate court must independently review the record to determine if...