Estate Of Hall v. Akron Gen. Med. Ctr., 2008-1980.

• Decision Date: 24 March 2010
• Docket Number: No. 2008-1980.,2008-1980.
• Citation: 2010 Ohio 1041,125 Ohio St.3d 300,927 N.E.2d 1112
• Parties: ESTATE OF HALL, Appellee,v.AKRON GENERAL MEDICAL CENTER et al.; Patterson et al., Appellants.
• Court: Ohio Supreme Court

125 Ohio St.3d 300

927 N.E.2d 1112

2010 Ohio 1041

ESTATE OF HALL, Appellee,v.AKRON GENERAL MEDICAL CENTER et al.; Patterson et al., Appellants.

No. 2008-1980.

Supreme Court of Ohio.

Submitted Sept. 2, 2009.

Decided March 24, 2010.

Paul W. Flowers Co., L.P.A., and Paul W. Flowers, Cleveland; Stan B. Schneiderman; and Gary T. Mantkowski, Medina, for appellee.

Roetzel & Andress, L.P.A., Douglas G. Leak, and Stacy Ragon, Akron, for appellants.

LUNDBERG STRATTON, J.

{¶ 1} The issue before us is whether the plaintiff in this medical malpractice case was entitled to a jury instruction on the doctrine of res ipsa loquitur. The defendants-appellants argue that the plaintiff was not entitled to the instruction for two reasons: (1) the plaintiff presented testimony of expert witnesses who offered opinions on the specific act of negligence that they believe caused the injury and (2) evidence was presented on two equally efficient causes of the injury, one of which is not attributable to negligence.

{¶ 2} For the reasons that follow, we hold that the trial court properly declined to instruct the jury on the doctrine of res ipsa loquitur. Therefore, we reverse the judgment of the court of appeals and remand for further consideration of the assignments of error that the appellate court considered moot.

{¶ 3} Lurene N. Hall died on September 10, 2003, at Akron General Medical Center following a procedure performed by defendant-appellant Richard Patterson Jr., M.D., to place a dialysis catheter into her jugular vein. Prior to the procedure, Hall had a number of medical problems including high blood pressure and chronic kidney disease. She began kidney dialysis in June 2003. Treatments were administered into her jugular vein through a dialysis catheter in the right side of her neck. Three months later, the catheter became infected and Hall was referred to Dr. Patterson, an interventional radiologist, who removed the catheter on September 8, 2003, without incident.¹

{¶ 4} Two days later, on September 10, 2003, Patterson was scheduled to insert a new dialysis catheter. He chose to use the vein in the left side of Hall's neck to avoid the infection that had been present in the vein on the right side. Using an ultrasound image to locate the vein, Patterson inserted a needle just above the collarbone. Patterson then inserted a microwire through the needle into the jugular vein toward the superior vena cava.² He monitored this procedure with a fluoroscope that produces real-time images of what is happening inside the patient.

{¶ 5} Patterson removed the needle, leaving the microwire in the vein. He fitted a coaxial introducer over the microwire and then removed the microwire. Next, Patterson slid a guidewire through the introducer, monitoring this process with a fluoroscope. Once the guidewire was in place, he successively inserted three dilators of increasing size over the guidewire in order to increase the size of the puncture hole created by the needle. Patterson pushed each dilator through the skin, muscle, and vein until the hole was large enough for him to implant the catheter.

{¶ 6} Shortly after the procedure was concluded, Hall complained of pain at the incision site. Patterson prescribed medication and checked her condition 15 minutes later. She was lethargic, and her skin was cool and clammy. He checked her vital signs and instructed a nurse to call Hall's treating physician.

{¶ 7} Soon thereafter, Hall lost consciousness, and efforts to resuscitate her were unsuccessful. An autopsy revealed a laceration in the superior vena cava. As a result of the laceration, blood had leaked into the sac that surrounds the heart, which led to cardiac arrest, resulting in her death.

{¶ 8} The plaintiff-appellee, April E. Couch, administrator of the estate of Lurene N. Hall, filed this action on behalf of her mother's estate and next of kin. The complaint alleged that Patterson had negligently performed the dialysis-catheterization procedure, causing Hall's death.

{¶ 9} At trial, the plaintiff presented two expert witnesses who testified that Patterson's negligence proximately caused Hall's death. Dr. Michael Foley, an interventional radiology expert, testified that Patterson's actions fell below the standard of care as he inserted a very sharp dilator over a guidewire. According to Dr. Foley, Patterson most likely pulled the guidewire back somewhat as he advanced the dilator over it, exposing the dilator's sharp edge, which lacerated the superior vena cava. Foley testified that, in his opinion, Patterson failed to notice the laceration as he was inserting the dilators, something that should not occur with careful monitoring of the patient. Dr. Jeffrey Kremen, a vascular surgeon, also testified that the dilator veered off course during the procedure and caused the laceration.

{¶ 10} Two expert witnesses testified on behalf of Patterson. Dr. Matt Leavitt, an interventional nephrologist, testified that a laceration was a rare complication of this procedure. He testified that an abnormality or weakness in Hall's vessel may have made it susceptible to laceration and that in his opinion, the laceration was most likely caused by friction from an instrument rubbing along the wall of the superior vena cava. He further testified that a physician can cause a tear while performing this procedure even if his performance complies with the standard of care and that such an injury is a known possible complication of the procedure.

{¶ 11} Dr. Mark Dean, an interventional radiologist, testified that Hall's blood vessels were likely weakened by the infection from the prior catheter or by her overall compromised medical condition and that the weak vessel was lacerated in the regular course of the procedure.

{¶ 12} At the close of all evidence, the plaintiff asked for a jury instruction on the doctrine of res ipsa loquitur. The court denied the request. The court stated that because there were multiple potential causative factors, it was “up to the trier of fact to determine which version they believe.” The jury returned a defense verdict.

{¶ 13} The plaintiff moved for a new trial on the basis that the trial court erred as a matter of law when it refused to instruct the jury on the doctrine of res ipsa loquitur. The trial court denied the motion, and the plaintiff appealed.

{¶ 14} The Ninth District Court of Appeals reversed and remanded the case for a new trial. The court concluded that the plaintiff's evidence met the requirements for an instruction on the doctrine of res ipsa loquitur and that the lower court erred by refusing to so instruct the jury.

{¶ 15} The cause is before this court upon the acceptance of a discretionary appeal. 120 Ohio St.3d 1504, 2009-Ohio-361, 900 N.E.2d 622.

Evolution of Res Ipsa Loquitur

{¶ 16} Res ipsa loquitur is an evidentiary rule that permits, but does not require, a jury to draw an inference of negligence from circumstantial evidence. Fink v. New York Cent. RR. Co. (1944), 144 Ohio St. 1, 28 O.O. 550, 56 N.E.2d 456, paragraph two of the syllabus. Fink examined the historical underpinnings of the rule of res ipsa loquitur, which originated by necessity when the true cause of an occurrence was known by or could be determined by the defendant but not by the plaintiff. Id. at 5, 28 O.O. 550, 56 N.E.2d 456. Fink noted that the term first appeared in Byrne v. Boadle (Ex.1863), 2 H. & C. 722, 159 Eng.Rep.R. 299, a case in England in which a barrel of flour had rolled from a shop window and struck a passerby below. In that case, the plaintiff was unable to produce evidence to explain how or why the barrel had fallen. The court in Byrne determined that the falling barrel itself was sufficient evidence of negligence, or “res ipsa loquitur,” which, literally translated, means “the thing speaks for itself.”

{¶ 17} Seven years later, an English court applied the rule in a case where a brick had fallen upon the plaintiff from the wall of a bridge that was exclusively controlled by the defendant. Fink at 5-6, 28 O.O. 550, 56 N.E.2d 456, citing Kearney v. London B. & S.C. Ry. Co., L.R. (1870), 5 Q.B. 411. The use of the phrase spread through England and into the United States. The rule allows a common sense appraisal of the circumstances surrounding an unusual accident, permitting a jury to draw the obvious conclusion that the accident was the defendant's fault and requiring the defendant to explain why the accident was not his fault. Wampler, Fly in the Buttermilk: Tennessee's Desire to Dispense with Layperson Common Sense and the Medical Malpractice Locality Rule (2002), 69 Tenn.L.Rev. 385, 391.

{¶ 18} The term was first mentioned in an Ohio Supreme Court opinion in Cincinnati Traction Co. v. Holzenkamp (1906), 74 Ohio St. 379, 78 N.E. 529, a case in which a trolley pole fell on a person who was about to step onto the car. The court held that the trial court “was warranted in taking judicial notice of the fact” that a trolley pole does not break and fall in the ordinary course of events unless there was negligence in the construction or management of it and therefore the court had properly charged the jury on the maxim of res ipsa loquitur. Id. at 389, 78 N.E. 529.

{¶ 19} In Soltz v. Colony Recreation Ctr. (1949), 151 Ohio St. 503, 39 O.O. 322, 87 N.E.2d 167, this court reviewed some of its past decisions that applied the rule of res ipsa loquitur. The rule was applied most often in cases involving falling objects, passenger common carriers, or other situations that presented a dangerous threat of serious injury or death. Id. at 508, 39 O.O. 322, 87 N.E.2d 167; Worland v. Rothstein (1943), 141 Ohio St. 501, 26 O.O. 80, 49 N.E.2d 165 (window cleaner dropping a wet sponge); Walters v. Baltimore & Ohio Southwestern Ry. Co. (1924), 111 Ohio St. 575, 146 N.E. 75 (high-voltage electric wires fell on a highway). See also Scrabic v. Cincinnati, New Orleans & Texas Pacific Ry. Co. (1932), 42 Ohio App. 473, 182 N.E. 528 (train...