James R. Betz, Administrator v. Timken Mercy Medical Center

Decision Date25 July 1994
Docket Number94-LW-2820,94-CA-0013 and 94-CA-0050
PartiesJAMES R. BETZ, ADMINISTRATOR, Plaintiff-Appellant v. TIMKEN MERCY MEDICAL CENTER, ET AL., Defendants-Appellees Case Nos. 94-CA-0013 and 94-CA-0050.
CourtOhio Court of Appeals

Civil Appeal from the Court of Common Pleas Case No. 91-467.

For Plaintiff-Appellant: EUGENE P. OKEY, STEVEN P. OKEY, The Okey Law Firm, L.P.A., 337 Third Street, N.W., Canton, OH 44702-1786.

For Defendants-Appellees: GARY A. BANAS, Buckingham, Doolittle &amp Burroughs, 3721 Whipple Avenue, N.W., P.O. Box 35548, Canton, OH 44735-5548.

Hon. W. Scott Gwin, P.J., Hon. Irene B. Smart, J., Hon. William B. Hoffman, J.

OPINION

HOFFMAN J.

NEW TRIAL; REMITTITUR

Plaintiff-appellant/cross-appellee is James R. Betz, Administrator of the Estate of Christine M. Betz (hereinafter Betz). Defendants-appellees/cross-appellants are Alan C. Gatz, M.D., et al. (hereinafter Gatz). Both parties appeal following a jury verdict in the Court of Common Pleas of Stark County, Ohio, in favor of Betz in the total amount of $3,045,688.72. Betz's cause of action was for wrongful death due to medical malpractice. Betz appeals the trial court's order of a remittitur while Gatz appeals the trial court's denial of his request for a new trial.

FACTS

On September 23, 1990, at 12:30 p.m., Christine Betz presented herself at the emergency room of Timken Mercy Medical Center complaining of chest pain. She was 23 years old at that time. Ms. Betz was assessed by emergency room personnel, including Dr. Gatz. After various studies were completed, Dr. Gatz again examined Ms. Betz. Ms. Betz was then administered an analgesic and subsequently was discharged at 3:10 p.m. that same day with instructions to return if she did not feel better or to see her family doctor. Dr. Gatz diagnosis at that time was "chest pain-musculoskeletal."

In the early morning hours of September 24, 1990, approximately 16 hours after having been discharged from the hospital, Ms. Betz was found dead in her home by her husband, James Betz. An autopsy revealed that Ms. Betz died from a dissecting ascending aneurysm as a complication of the Marfan Syndrome.

Ms. Betz had been adopted by her biological grandparents, Josephine and Albert Roudebush, immediately after her birth and raised by them. Ms. Betz married James Betz on July 7, 1990.

Betz assigns as error:

I. THE TRIAL COURT ABUSED ITS DISCRETION IN RULING THAT THE JURY'S UNANIMOUS AWARD OF DAMAGES WAS EXCESSIVE AND IN ORDERING A REMITTITUR.

Gatz assigns as errors in his cross-appeal the following:

I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DETERMINED THAT THE JUDGMENT BELOW WAS SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE AND THAT THERE WAS NO BASIS FOR A NEW TRIAL WHEN THE TRIAL COURT FAILED TO INDEPENDENTLY WEIGH THE EVIDENCE.

II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED THE DEFENDANT'S MOTION FOR NEW TRIAL WHERE THE JURY AWARDED EXCESSIVE DAMAGES GIVEN UNDER THE INFLUENCE OF PASSION AND PREJUDICE.
GATZ'S APPEAL

Though Gatz's notice of appeal was filed after Betz's notice of appeal, we begin our opinion with the cross-appeal because resolution of it could potentially render Betz's appeal moot.

I.

Gatz claims herein that a trial court abuses its discretion when it denies a motion for new trial based upon a claim that the verdict is not sustained by the manifest weight of the evidence if the trial court fails to independently weigh the evidence and pass upon the credibility of the witnesses presented at trial. We agree as did the Ohio Supreme Court in Rhode v. Farmer (1970), 23 Ohio St.2d 82, syllabus 3. Gatz asserts the trial court "clearly" abused its discretion since the judgment (verdict] was against the manifest weight of the evidence, and the trial court failed to independently weigh and evaluate the evidence." (Gatz's cross-appellant's brief at 7.)

The record does not demonstrate that the trial court failed to independently weigh the evidence or independently assess the credibility of the witnesses. In fact the record is inapposite. In its January 10,1994, judgment entry, the trial court directly addresses Gatz's claim that the judgment is not sustained by the weight of the evidence. The trial court states:

The record of the trial speaks for itself. This court has revisited the trial record with reference to the weight of the evidence, the credibility of the witnesses, their testimony and demeanor and readily finds that there is no basis for a new trial on the weight of the evidence.
Judgment entry at 2.

Gatz fails to point to anything in the record to suggest that the trial court did not do what it said it did. To the contrary, we presume the trial court did exactly what it said it did. This alone would be sufficient reason for us to overrule this assignment of error.

However, we perceive the real thrust of Gatz's argument herein is that the jury's verdict was against the manifest weight of the evidence. Gatz's argument that the trial court's failure to so find indicates that it failed to independently review the evidence is a non-sequitur.

In the syllabus of C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, the Ohio Supreme Court set forth the appropriate standard of review of claims involving manifest weight of the evidence as follows:

Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence.

See also Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80.

Upon our review of the evidence, we believe there was competent, credible evidence to support the verdict. The opinions of Dr. Abramson and Dr. Pyeritz that Gatz's examination and treatment of Ms. Betz: failed to meet the standard of good medical care in that he failed to order an electrocardiogram or consult with a cardiac specialist each support the verdict. It was Betz's contention that such test should have been ordered as part of the preliminary workup in order to rule out possible cardiac and pulmonary causes for Ms. Betz's chest pain. Whether the electrocardiogram would have been normal or abnormal is not the crucial issue. The failure to order the test was part of Betz's claim that Dr. Gatz's exam was superficial given Ms. Betz's symptoms and complaints and was evidence that Dr. Gatz failed to consider that a cardiovascular catastrophe was occurring. When asked if it was below the standard of good medical care for Dr. Gatz not to order an electrocardiogram, even Gatz's own expert witness, Dr. Keihl, opined that such would be "controversial" and that he himself would have ordered one. Additionally, Dr. Hay-Roe, an officer of the defendant corporation, testified that he would find it hard to say whether the standard of care had beef met or not.

For both the foregoing reasons, Gatz's first assignment of error is overruled.

II.

Civ.R. 59(A)(4) provides that a new trial may be granted where excessive (or inadequate) damages appear to have been given under the influence of passion or prejudice.

In support of his claim herein, Gatz points out that Betz was unable to demonstrate any economic loss and failed to present evidence that James Betz was having a difficult time dealing with his wife's death. Gatz notes that James Betz did not suffer any pecuniary loss for grief counselling or suffer any lost wages due to his mental anguish or grief. Gatz then recites a number of comparative cases as authority for the premise that the judge's award was excessive. Finally, Gatz directs us to several instances of alleged improper conduct on the part of Betz's counsel which he claims impassioned or prejudiced the jury.

We have reviewed the record regarding the instances of plaintiff's counsel's alleged misconduct and conclude none of the instances of conduct, even if assumed; arguendo, to have been misconduct, were sufficient to demonstrate that, either standing alone or taken together, they would have evoked an impassioned or prejudiced verdict. Plaintiff's counsel's question regarding an investigation of Dr. Gatz by the hospital was never answered, and the jury was instructed to disregard the question. Plaintiff's counsel's attempt to introduce a nurse's manual was unsuccessful as the manual was excluded from evidence. Plaintiff's counsel's interjection of "huh" during a bench conference concerning the admissibility of the nurse's manual is nondescript and cannot be considered to have improperly influenced the jury. Finally the plaintiff's counsel's analogy to the value of a race horse during closing argument does not go outside the wide latitude afforded counsel during argument. See Stonerock v. Miller Brothers Paving, Inc. (1991), 72 Ohio App.3d 123,137, for an analogous result.

Betz counters Gatz's comparative case argument by reciting a number of his own comparative cases as authority for the premise that the jury's award was not excessive. We find this battle of comparative cases by both parties unpersuasive. What we must decide is whether "...the jury's assessment of damages was so disproportionate as to shock reasonable sensibilities...." Jeanne v. Hawkes Hospital (1991), 74 Ohio App.3d 246, 256-258. The mere return of a large verdict does not warrant a finding of passion or prejudice.

The trial court directly addressed this issue in its entry and found that though the jury's award was manifestly excessive, it did not appear to be due to passion or prejudice. We agree with the trial court that the jury's award was not influenced by passion or prejudice and therefore conclude the trial court did not abuse its discretion in overruling Gatz's motion for new trial on this basis.

Gatz's second assignment of error is overruled.

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