Hoke v. Miami Valley Hosp.
| Decision Date | 19 June 2020 |
| Docket Number | Appellate Case No. 28462 |
| Citation | 2020 Ohio 3387 |
| Parties | JACQUELINE L. HOKE, et al. Plaintiffs-Appellants v. MIAMI VALLEY HOSPITAL, et al. Defendants-Appellees |
| Court | Ohio Court of Appeals |
(Civil Appeal from Common Pleas Court)
OPINIONDWIGHT D. BRANNON, Atty. Reg. No. 0021657, KEVIN A. BOWMAN, Atty. Reg. No. 0068223, and MATTHEW C. SCHULTZ, Atty. Reg. No. 0080142, 130 West Second Street, Suite 900, Dayton, Ohio 45402 Attorneys for Plaintiffs-Appellants
NEIL F. FREUND, Atty. Reg. No. 0012183, and SHANNON K. BOCKELMAN, Atty. Reg. No. 0082590, One South Main Street, Suite 1800, Dayton, Ohio 45402 Attorneys for Defendant-Appellee, Miami Valley Hospital
JOHN B. WELCH, Atty. Reg. No. 0055337, 580 Lincoln Park Boulevard, Suite 222, Dayton, Ohio 45429, and GREGORY B. FOLIANO, Atty. Reg. No. 0047239, 2075 Marble Cliff Office Park, Columbus, Ohio 43215 Attorneys for Defendant-Appellee, Debra Miller, M.D.
{¶ 1} Jaqueline and James Hoke appeal from an adverse jury verdict on a medical-malpractice action they filed against appellees Debra Miller, M.D., and Miami Valley Hospital. They also appeal from the trial court's denial of a motion for judgment notwithstanding the verdict and a motion for a new trial.
{¶ 2} The Hokes advance three assignments of error. First, they contend the trial court erred in denying their motion for a new trial under Civ.R. 59. Second, they claim the trial court erred in denying the motion for judgment notwithstanding the verdict. Third, they assert that the jury's verdict was against the manifest weight of the evidence.
{¶ 3} In November 2012, on a referral from her gynecologist, Jacqueline Hoke was seen by Debra Miller, M.D., a surgeon board-certified in obstetrics and gynecology and in the sub-specialty of female pelvic medicine and reconstructive surgery. Hoke had previously had surgery for a hysterectomy and for anterior vaginal repair of a cystocele in 2009. Symptoms returned, and she complained of urinary stress incontinence. Dr. Miller diagnosed vaginal vault prolapse (apex of the vagina, where the uterus used to be, falling down into the vaginal vault), a cystocele (the bladder dropping into the vaginal vault), rectocele (the rectum bulging into the vaginal vault), and urinary stress incontinence. Conservative treatment, i.e. a pessary, did not improve the symptoms. In the order of the described diagnoses, Dr. Miller recommended a robotic sacrocolpopexy to repair the vaginal prolapse and cystocele, a rectocele repair, and a transobturator tape procedure. A sacrocolpopexy is a procedure where the vagina is suspended with an inverted y-shaped mesh, the tail of which is stitched to and suspended from the longitudinal ligament located at the sacral promontory. The vaginal suspension was to correct the prolapse and the cystocele. The combination surgery would also include two non-robotic procedures, a vaginal approach rectocele repair and a TOT, a transobturator tape procedure, also performed by a vaginal approach, which involved the placement of a sling-type material underneath the urethra for support to relieve stress incontinence.
{¶ 4} The April 1, 2013 surgery began with Dr. Miller robotically performing the sacrocolpopexy procedure. The surgical team included a certified surgical tech, Andrew Huffman, and a circulating nurse, Shannon Webb. As Dr. Miller was placing the second of two stitches to hold the tail of the mesh to the longitudinal ligament at the sacral promontory, she encountered bleeding. She tied the stitch down to see if what she described in her operation note as "copious venous bleeding" would resolve. It did not. She then applied pressure on the bleeding location with the robotic arm and applied Floseal, a coagulant. When direct pressure was removed after about five minutes, there was still "brisk bleeding." (T. 2797.) Dr. Miller then applied GelFoam, a second coagulant, and with pressure the bleeding stopped. (Id.)
{¶ 5} With the robotic arm locked in position to continue applying pressure, Dr. Miller instructed certified tech Huffman to monitor the bleeding site. Dr. Miller then proceeded to complete the non-robotic vaginal approach portions of the surgery, which took "about 30 or 40 minutes." (T. 2798.) Jacqueline Hoke's vital signs remained stable throughout.
{¶ 6} Upon returning to the site of the bleeding, when pressure was let up "it was still bleeding." (T. 2801.) Dr. Miller then asked for a vascular surgeon. No one was available, so she consulted with Dr. Minia Hellan, an available robotically-trained surgical oncologist. Dr. Hellan sat at the robotic console, dissected part of the area, and concluded that the bleeding could not be robotically repaired. A vascular surgeon, Dr. Garietta Falls, was located, and an abdominal opening was started for Dr. Falls. Dr. Falls, after further sharp and blunt dissection, found holes in the iliac vein and repaired them.
{¶ 7} Subsequent to the surgery, Mrs. Hoke developed deep vein thrombosis (DVT) and a post-thrombotic syndrome. She related this led to debilitating and painful consequences. She testified she is no longer able to work.
{¶ 8} Jacqueline Hoke and her husband filed a personal injury complaint, raising medical negligence claims against Dr. Miller and Miami Valley Hospital by and though its employees, for injuries and damages resulting from the care and treatment of Mrs. Hoke. Among other things, and involving other parties not involved in this appeal, the Hokes included a claim for lack of informed consent against Dr. Miller. The trial court granted Dr. Miller's motion for a directed verdict on the informed-consent claim at the close of all the evidence. (T. 2904.)
{¶ 9} On September 5, 2018 the Hokes filed a "motion for joint and several liability for all defendants and all their employees * * *." That motion appears to contend that Dr. Miller, Miami Valley Hospital and its employees, and Dr. Garietta Falls, if found liable, should be held jointly liable. Dr. Miller was not an employee of the hospital at the time of the surgery. Dr. Falls was not a named defendant, and there was no expert testimony criticizing her involvement. The motion was overruled by entry filed September 10, 2018.
{¶ 10} The trial began on September 11, 2018. On September 7, 2018, the Hokes had filed a motion in limine to prohibit the defendants from soliciting expert opinions from one another's expert witnesses. By entry filed the morning of trial, the court overruled this motion. The Hokes filed a motion in limine to prevent the defendants from using terms such as "complication of surgery" and "clinical" or "professional" judgment. The trial court had not ruled on the motion before trial. During voir dire, the Hokes raised the issue again, and after considerable argument at sidebar the court allowed use of the terminology. (T. 166-171.) At different intervals throughout the trial, the Hokes brought up the "complication of surgery" issue again, and the court overruled those objections.
{¶ 11} When the initial round of voir dire questioning was completed, the court convened a conference in chambers for the exercise of jury challenges. The Hokes contended that they should have six peremptory challenges in that each defendant would have three according to rule. After considerable argument, the court ruled that the plaintiffs would have three peremptory challenges and each defendant would have three peremptory challenges.
{¶ 12} On Thursday afternoon in the third week of the trial, September 27, 2018, the case was submitted to the jury. One of the jurors was unable to be present on the next day, Friday, September 28th. The court instructed the alternate jurors not to discuss the case with anyone in the event they might have to be called back. The court then instructed the remaining jurors:
As far as the Court is concerned we can go late. And I don't want the regular eight, don't rush it. If you can't handle it deliberately at a due pace, but don't rush just because -- there's no deadline on when you have to finish. If [juror 8], you don't get to decide it today, we can call on one of the alternates to replace juror number 8, all right. That's the way we're going to handle it. We're going to -- don't rush. Deliberate as you normally would, as if you had no pressure for a deadline, okay?
(T. 3057).
{¶ 13} The jury returned general verdicts for the defendants. For an interrogatory questioning whether they found Dr. Miller to be negligent, they answered "no." For an interrogatory questioning whether they found Miami Valley Hospital to be negligent, they answered "no." The court entered judgment consistent with the verdicts.
{¶ 14} The Hokes subsequently filed a motion for a new trial and a motion for judgment notwithstanding the verdicts. The issues raised in those motions are substantially similar to those raised in assignments of error 1 and 2 on appeal. The trial court overruled these motions. The Hokes appealed.
{¶ 15} In addition to the various other experts, the Hokes called three physicians who testified that Dr. Miller's performance was below the standard of care. Dr. Earle M. Pescatore, Jr. is a urogynecologist and a gynecologist practicing in Iowa. Dr. Pescatore testified that it was below the standard of care to fail to identify anatomical "landmarks" and to have damaged the iliac vein in this surgery. He also testified that it was below the standard of care to move to the non-robotic portion of the surgery without resolving the bleeding and to keep pressure on the bleeding area for an hour. With regard to the hospital employees, Dr. Pescatore's brief testimony was that the nursing staff "should have said something," and that "the circulating nurse or the tech" should have gotten a vascular surgeon about an hour earlier than they did.
{¶ 16} On cross-examination, Dr. Pascatore admitted that throughout the...
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