Johnson v. Stachel

Decision Date15 May 2020
Docket NumberNo. 2019CA00123,2019CA00123
Citation154 N.E.3d 577,2020 Ohio 3015
Parties Russell JOHNSON, Plaintiff-Appellee/Cross-Appellant v. David Craig STACHEL, M.D., Defendant-Appellant/Cross-Appellee
CourtOhio Court of Appeals

RHONDA BAKER DEBEVEC, The Debevec Law Firm, LLC, 700 W. Saint Clair – Suite #214, Cleveland, Ohio 44113, For Plaintiff-Appellee/Cross-Appellant.

STEPHEN P. GRIFFIN, 4051 Whipple Avenue – Suite #201, Canton, Ohio 44718, MICHAEL J. KAHLENBERG, 3570 Executive Drive – Suite #216, Uniontown, Ohio 44685, For Defendant-Appellant/Cross-Appellee.

JUDGES: Hon. William B. Hoffman, P.J., Hon. W. Scott Gwin, J., Hon. Patricia A. Delaney, J.

OPINION

Hoffman, P.J.

{¶1} Appellant/Cross-Appellee David Craig Stachel, M.D. ("Stachel") appeals the judgment entered by the Stark County Common Pleas Court awarding Appellee/Cross-Appellant Russell Johnson ("Johnson") damages in the amount of $501,742.15 on his claim for medical malpractice.

STATEMENT OF THE FACTS AND CASE

{¶2} Johnson was admitted to a nursing home in December of 2012, after suffering a stroke

. The stroke initially left Johnson's left side flaccid, with no function. Stachel served as Johnson's attending physician from December of 2012, until August of 2014. Stachel ordered physical and occupational therapy for Johnson. Although Johnson regained some muscle tone from rehabilitation, he plateaued in February of 2013, and was transferred to long-term care. He was able to walk in a supervised setting, and transfer from his wheelchair with moderate assistance.

{¶3} On March 23, 2013, Johnson fell at the nursing home, but was not injured. Johnson fell again on August 28, 2013, this time sustaining a hip fracture. Stachel was notified Johnson developed significant hip pain, and Stachel ordered an x-ray. Advised by the radiologist the x-ray was negative for a hip fracture, Stachel attributed the continuing pain in Johnson's hip to a soft tissue injury. Johnson's condition deteriorated to the point where he was unable to transfer from his wheelchair without the assistance of a sit-to-stand apparatus. By the third day after the fall, Johnson was unable to bear weight and was complaining of hip pain at a level of 10 out of 10, which was communicated to Stachel.

{¶4} Stachel did not evaluate Johnson's condition until September 11, 2013, which was Johnson's next scheduled visit. Despite Stachel's awareness of Johnson's repeated complaints of hip pain and functional decline, Stachel did not examine Johnson's left leg or hip. Stachel next saw Johnson on September 27, 2013, and again failed to examine Johnson's hip.

{¶5} On October 14, 2013, Stachel diagnosed Johnson with a blood clot

and prescribed Coumadin, a blood thinner, to treat the clot. Several weeks later, Johnson suffered a complication from the medication, and was transferred to the emergency room. Johnson was found catatonic in the dining room of the rehabilitation facility on November 8, 2013, and was re-admitted to the hospital.

{¶6} During the November 2013 hospital admission, Johnson was diagnosed with a left hip fracture. According to the orthopedic surgeon who treated Johnson, had the fracture been diagnosed two months earlier, a hip replacement could have addressed the fracture and provided enhanced stability to bear weight for transfers. However, when the surgeon first examined Johnson, his leg was chronically shortened and his left hip was unstable. Due to the delay in diagnosing the fracture, his treatment options were changed, and Johnson required complete removal of his hip joint, rendering the hip non-weight-bearing.

{¶7} On February 5, 2015, Johnson filed a complaint against three sets of defendants: the nursing home defendants, Altercare of Ohio, Inc. and Altercare of Louisville Center for Rehabilitation ("Altercare"); the radiologist defendants Gillermo Zaldivar, M.D. and Radiology Services of Stark and Summit Co., LLC ("RSSS"), and Stachel. He alleged three negligence claims in the complaint: failure to prevent the fall by Altercare and Stachel, failure to timely diagnosis the fracture by all three sets of defendants, and violation of the nursing home Bill of Rights by Altercare. Johnson settled all claims against Altercare and RSSS.

{¶8} Before trial on the claims against Stachel, the parties agreed to a stipulated dismissal which provided in pertinent part:

Now come the Parties, by and through counsel, and pursuant to Civ. R. 41(A)(1)(b), herein stipulate to dismiss Plaintiff's complaint other than upon the merits and without prejudice preserving the Plaintiff's right to re-file his complaint within one year. The Parties further stipulate that this dismissal shall not adversely impact Plaintiff's subsequent ability to file a voluntary dismissal pursuant to Civ. R. 41(A)(1)(a) and to then re-file his complaint within one-year pursuant to R.C. § 2305.19(A).

{¶9} Stipulation, October 18, 2016.

{¶10} Johnson refiled his complaint on October 16, 2017, alleging negligence by Stachel in failing to develop a fall policy related to the care of Johnson by Altercare, and negligence in failing to timely diagnose the hip fracture following the August 28, 2013 fall.

{¶11} Stachel filed a motion to dismiss the refiled complaint on the basis it was filed outside the four-year time limitation of the statute of repose. The trial court denied the motion, finding the savings statute applied, and the refiled complaint related back to the original filing for purposes of application of the statute of repose.

{¶12} The case proceeded to jury trial in the Stark County Common Pleas Court. The jury returned a verdict in favor of Stachel on the claim for negligence related to the failure to formulate a fall policy, and in favor of Johnson on the claim for negligence based on the delayed diagnosis. The jury awarded Johnson damages in the amount of $636,000.00, apportioned as $98,000.00 for past economic damages, and $538,000.00 for noneconomic loss damages, past and future. The trial court entered judgment on the verdict on October 29, 2018.

{¶13} Stachel filed a motion seeking to setoff the settlements with Altercare and RSSS against the jury's verdict pursuant to R.C. 2307.28(A) in the amount of $225,000. The trial court entered a partial setoff in the amount of $134,257.85 on April 1, 2019. Stachel also filed a motion for new trial and for judgment notwithstanding the verdict ("JNOV"), which were overruled by the trial court on February 6, 2019. Johnson filed a motion for prejudgment interest on November 7, 2018, which he withdrew on August 7, 2019. On August 9, 2019, Stachel filed a motion for a nunc pro tunc judgment based on the amount of noneconomic damages exceeding the high cap on such damages. On the same date, Stachel filed the instant notice of appeal. Johnson filed a notice of cross-appeal on August 19, 2019.

{¶14} It is from the judgments of the trial court entering judgment on the verdict of the jury, reducing the award by a partial setoff of the settlements, and denying Stachel's motions for new trial and JNOV Stachel prosecutes this appeal, assigning as error:

I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS UNDER THE APPLICABLE STATUTE OF REPOSE.
II. THE TRIAL COURT ERRED IN FAILING TO ORDER A COMPLETE SETOFF OF ALL AMOUNTS PAID BY ALTERCARE UNDER R.C. § 2307.28(A).
III. THE TRIAL COURT ERRED IN ADMITTING PLAINTIFF'S CLAIMED MEDICAL BILLS.
IV. THE TRIAL COURT ERRED IN FAILING TO DIRECT A VERDICT AND GRANT JNOV IN FAVOR OF DEFENDANT AS TO PLAINTIFF'S CLAIM FOR ECONOMIC LOSS DAMAGES.
V. THE TRIAL COURT ERRED IN FAILING TO GRANT JNOV REGARDING APPLICATION OF THE "LOW CAP" ON ECONOMIC LOSS DAMAGES OF R.C. § 2323.43(A)(2).
VI. THE TRIAL COURT ERRED IN AWARDING NONECONOMIC LOSS DAMAGES IN EXCESS OF THE "HIGH CAP" OF R.C. § 2323.43(A)(3).
VII. THE TRIAL COURT ERRED IN FAILING TO GRANT A NEW TRIAL DUE TO THE IRREGULARITIES AND UNFAIRNESS OF THE PROCEEDINGS RELATIVE TO EXPERT WITNESS DISCOVERY AND TESTIMONY AT TRIAL.

{¶15} Johnson assigns the following errors on cross-appeal:

I. TRIAL COURT ERRED BY REDUCING THE VERDICT AGAINST CROSS-APPELLEE.
II. THE TRIAL COURT'S DENIAL OF CROSS-APPELLANT'S MOTION FOR ATTORNEY FEES WAS ERROR GIVEN THE EGREGIOUS AND PERSISTENT PATTERN OF MISCONDUCT CULMINATING IN CROSS-APPELLEE'S COUNSEL THREATENING DISBARMENT OF CROSS-APPELLANT'S COUNSEL DURING THE FINAL PRETRIAL IF HE PREVAILED AT TRIAL.

{¶16} Johnson assigns the following conditional assignments of error on cross-appeal:

I. THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING CROSS-APPELLEE TO PROCEED WITH THREE DUPLICATIVE EXPERTS WITHIN INTERNAL MEDICINE.
II. THE TRIAL COURT ERRED IN PERMITTING CROSS-APPELLEE TO NOT DISCLOSE WHETHER HE WAS SEEKING APPORTIONMENT UNTIL THE CLOSE OF EVIDENCE AND CONSTITUTED TRIAL BY AMBUSH.
III. ALLOWING DR. FEIGHAN TO CRITICIZE DR. GLASS'S INITIAL ATTEMPT TO DO AN [SIC] HIP REPLACEMENT WAS ERROR SINCE HE ADMITTED HER ATTEMPT DID NOT CAUSE ANY LONG-TERM HARM TO THE PATIENT AND IT WAS APPROPRIATE TO OFFER THIS SURGICAL OPTION TO THE PATIENT.
IV. THE TRIAL COURT ABUSED ITS' [SIC] DISCRETION BY PERMITTING THE CROSS-EXAMINATION OF DR. GLASS ABOUT HER AGE
V. TO IMPROPERLY SUGGEST HER RELATIVE YOUTH MADE HER LESS QUALIFIED THAN COLLEAGUES RATHER THAN ON HER RELEVANT EXPERIENCE.
VI. THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING CROSS-EXAMINATION OF PLAINTIFF'S STANDARD-OF-CARE EXPERT REGARDING PAST LAWSUITS WHICH HAD NO NEXUS OR RELEVANCY TO THE CASE NOR TO THE EXPERT'S POTENTIAL BIAS.
VII. ALLOWING CROSS-APPELLEE TO ADMIT A SUMMARY OF MEDICAL BILLS WITHOUT SUPPORTING DOCUMENTATION WAS AN ABUSE OF DISCRETION.
I.

{¶17} In his first assignment of error, Stachel argues the court erred in overruling his motion to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted, pursuant to Civ. R 12(B)(1) and (6), based on the expiration of the statute of repose prior to its filing.

{¶18} Civ.R. 12(B)(1) permits...

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    ...and substantial physical deformities" for purposes of R.C. 2323.42(A)(3)(a) is the Fifth Appellate District in Johnson v. Stachel , 5th Dist. Stark, 2020-Ohio-3015, 154 N.E.3d 577. In Johnson , the plaintiff brought suit against the defendant-doctor for failure to timely diagnose a hip frac......
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    ...release.” Spalla v. Fransen, 188 Ohio App.3d 666, 676, 936 N.E.2d 559, 566 (2010); see Johnson v. Stachel, 2020-Ohio-3015, ¶ 38, 154 N.E.3d 577, 591 (Ct. App.) (referring § 2307.28 as the “setoff statute”). Plaintiffs rely on Eysoldt v. Proscan Imaging, 2011-Ohio-6740 (Ct. App.), for the pr......
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    ... ... “visibly severe” to constitute a substantial and ... permanent physical deformity. Johnson v. Stachel, ... 154 N.E.3d 577, 597 (Ohio Ct. App. 2020) (quoting with ... approval the trial court's determination that ... ...

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