Lewis v. Nease, 2006 Ohio 4362 (Ohio App. 8/21/2006)
| Decision Date | 21 August 2006 |
| Docket Number | No. 05CA3025.,05CA3025. |
| Citation | 2006 Ohio 4362 |
| Parties | Vickie H. Lewis, Plaintiff-Appellee/Cross-Appellant, v. Blaine D. Nease, M.D.<SMALL><SUP>1</SUP></SMALL>, Defendant-Appellant/Cross-Appellee. |
| Court | Ohio Court of Appeals |
Gary W. Hammond, HAMMOND, SEWARDS & WILLIAMS, Columbus, Ohio, for appellant/cross-appellee.
William L. Mundy and Debra A. Nelson, MUNDY & NELSON, Huntington, West Virginia, for appellee/cross-appellant.
DECISION AND JUDGMENT ENTRY
{¶1} D. Blaine Nease, M.D. appeals, and Vicki H. Lewis cross-appeals, the judgment of the Scioto County Court of Common Pleas in favor of Lewis upon her complaint for medical malpractice. First, Dr. Nease contends that the trial court erred in dismissing the jury without giving counsel an opportunity to review the jury's answers to the interrogatories and discover internal inconsistencies within those answers. We disagree because we find that Dr. Nease waived all but plain error with regard to any alleged inconsistency in the interrogatory answers by failing to ask to inspect the interrogatories before the court dismissed the jury. And, we do not find plain error.
{¶2} Next, Dr. Nease contends that the trial court erred by permitting Dr. Lopez to testify, when Lewis failed to disclose him as an expert witness in the parties' joint pretrial statement, and when he was not qualified to testify as an expert witness. We disagree, because Dr. Nease suffered no prejudice as a result of Lewis' failure to disclose Dr. Lopez in the joint pre-trial statement, and because the record contains some competent, credible evidence supporting the trial court's decision to allow him to testify as an expert.
{¶3} Next, Dr. Nease contends that the trial court erred in denying his motion for judgment notwithstanding the verdict, or, in the alternative, his motion for new trial. We conclude that the trial court did not err in overruling Dr. Nease's motion for JNOV because we find that, construing the evidence most strongly in Lewis' favor, there is some evidence upon which reasonable minds could come to different conclusions on the essential elements of Lewis' claim. Likewise, the trial court did not abuse its discretion in denying Dr. Nease's motion for a new trial based upon its decision to admit Dr. Lopez's testimony. Additionally, because Dr. Nease waived his objections to any inconsistencies in the interrogatory answers, we cannot find that the trial court erred as a matter of law in refusing to grant Dr. Nease's motion for a new trial pursuant to Civ.R. 59(A)(7).
{¶4} Next, Dr. Nease contends that the trial court erred by permitting Lewis' counsel to cross-examine him with the answer filed by his counsel. Because we find that Dr. Nease has failed to demonstrate any prejudice resulting from such questioning, we find that any error in permitting such cross-examination was harmless.
{¶5} Next, Dr. Nease contends that the trial court erred in admitting the testimony of certain individuals over timely objection. Because we find that Dr. Nease failed to cite any caselaw or statutes in support of his various arguments, we decline to address his fifth assignment of error pursuant to App.R. 16(A)(7) and App.R. 12(A)(2).
{¶6} Finally, Dr. Nease contends that the trial court erred when it ordered him to pay post-judgment interest from the date that it first received a proposed judgment entry, instead of from the date that the court finally entered the judgment. Because we find that R.C. 1343.03 grants a prevailing party a right to post-judgment interest from the date that the judgment is rendered to the date on which the judgment is paid, and because the trial court did not enter a judgment in Lewis' favor until July 29, 2005, we agree.
{¶7} In Lewis' sole assignment of error, she contends that the trial court erred by decreasing the jury verdict in an effort to reconcile apparent inconsistencies between the jury's answers to special interrogatories and the general verdict. We find that the trial court abused its discretion by reducing the jury's damage award without Lewis' consent. Therefore, we sustain Lewis' sole assignment of error.
{¶8} Accordingly, we affirm in part, reverse in part, and remand this cause for further proceedings consistent with this decision.
{¶9} On February 14, 2002, Dr. Nease performed a laparoscopic repair of Lewis' recurrent left inguinal hernia. During the course of the surgery, Dr. Nease used twenty-seven spiral tacks to secure polypropylene mesh at the site of the hernia. After the surgery, Lewis experienced bladder pain, spasms and difficulty urinating. Upon seeking further medical care for her symptoms, Lewis discovered that eight of the spiral tacks, intended to hold the mesh to the abdominal wall, actually went into her bladder. Dr. William T. Esham performed a second surgery to remove the polypropylene mesh and the spiral tacks from Lewis' abdomen. During that surgery, Dr. Esham successfully removed the mesh and all but one of the spiral tacks from Lewis' abdomen. He left the sole remaining tack in Lewis' abdomen because he was unable to locate it.
{¶10} Lewis continued to suffer pain in her left groin, lower abdomen, and left thigh. In an effort to eliminate that pain, Dr. Steven M. Steinberg performed a third surgery to remove the sole remaining spiral tack from Lewis' abdomen.
{¶11} In August 2003, Lewis filed her complaint against Dr. Nease alleging that he negligently performed her laparoscopic hernia repair surgery, causing injury to her bladder and to a nerve innervating her left thigh and/or lower abdomen. Lewis alleged that as a direct and proximate result of Dr. Nease's negligence, she suffered in the past, and would continue to suffer physical and emotional injuries, loss of her ability to enjoy life, as well as pain and mental anguish. Additionally, she alleged that she incurred and would continue to incur medical expenses and lost wages as a direct and proximate result of Dr. Nease's negligence.
{¶12} In his answer, Dr. Nease denied all negligence. But, before trial Dr. Nease admitted that his negligence proximately caused the injury to Lewis' bladder, and that Dr. Esham's surgery was necessary to remove the spiral tacks from Lewis' bladder. However, Dr. Nease denied that his negligence proximately caused any injury to Lewis' left groin, lower abdomen, and left thigh. Therefore, he claimed that his negligence did not proximately cause Dr. Steinberg's surgery.
{¶13} The matter proceeded to a jury trial. The jury heard the testimony of Dr. Nease; Dr. Ronald Lopez, Lewis' treating gynecologist; Dr. William Esham; and Dr. Steven Steinberg. Additionally, the jury heard the testimony of Lewis, her husband, her supervisor and two of her co-workers.
{¶14} At the close of evidence, the trial court instructed the jury on the applicable law and submitted five special written interrogatories to the jury that it had prepared with the assistance of counsel for both parties. After deliberations, the jury returned a verdict for Lewis and awarded her damages of $603,539.96. The trial court reviewed the jury's answers to the interrogatories and stated, "The verdict forms appear to be in order." The trial court then read each of the interrogatories and the jury's answers into the record.
{¶15} The following interrogatories, as submitted to and answered by the jury, are relevant to this appeal:
Eight jurors signed the form.
{¶19} After the trial court read the jury interrogatories and answers into the record, the court thanked the jurors for their participation. The judge then indicated that he would meet with the jurors in the jury room and dismiss them from there. No one disputes that the trial court dismissed the jury before Dr. Nease's counsel discovered several alleged inconsistencies in the jury's answers to interrogatories.
{¶20} Thereafter, Dr. Nease filed an objection to Lewis' proposed final judgment entry, motion for judgment notwithstanding the verdict, or, in the alternative, motion for new trial. Therein, Dr. Nease noted that, in answering Jury Interrogatory No. 1, six members of the jury specifically found that Lewis' claims of injury to her left groin, lower abdomen and left thigh were not the direct and proximate result of his negligence. Additionally, Dr. Nease noted that in responding to Jury...
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