Oyer v. Adler

• Court: Ohio Court of Appeals
• Writing for the Court: HOOVER, P.J.
• Citation: Oyer v. Adler, 33 N.E.3d 71 (Ohio App. 2015)
• Decision Date: 01 May 2015
• Docket Number: No. 13CA3405.,13CA3405.
• Parties: Joe OYER, et al., Plaintiffs–Appellees, v. Roger T. ADLER, M.D., et al., Defendants–Appellants.

33 N.E.3d 71

Joe OYER, et al., Plaintiffs–Appellees

v.Roger T. ADLER, M.D., et al., Defendants–Appellants.

No. 13CA3405.

Court of Appeals of Ohio, Fourth District, Ross County.

May 1, 2015.

Karen L. Clouse, Gerald J. Todaro, Arnold Todaro & Welch Co., LPA, Columbus, OH, for appellants Harmeet Chawla, M.D. and Eye Specialists, Inc. James S. Savage, Anspach Meeks Ellenberger, LLP, Columbus, OH, for appellees Joe and Elaine Oyer.

Opinion

HOOVER, P.J.

{¶ 1} Defendants-appellants, Harmeet Chawla, M.D. and Eye Specialists, Incorporated, appeal the jury verdict and several pre and post-trial judgments of the Ross County Court of Common Pleas, in a medical negligence action filed by plaintiffs-appellees Joe and Elaine Oyer. For the following reasons, we affirm the judgment of the trial court, in part, reverse the judgment of the trial court, in part, and we remand this case for proceedings consistent with this opinion.

I. FACTS & PROCEDURAL HISTORY

{¶ 2} On May 13, 2009, appellee Joe Oyer visited appellant, Eye Specialists, Incorporated, dba Eye Specialists of Ohio, an ophthalmology practice owned by appellant Harmeet Chawla, M.D. Mr. Oyer was examined by employee-physician, Roger Adler, M.D. Mr. Oyer described a rapid deterioration of the vision in his right eye; however, there is some dispute over whether Mr. Oyer reported worsening vision over the course of a few days or over the course of a week. On the day of his initial examination Mr. Oyer could not see straight ahead and could only count fingers in his peripheral vision with his right eye. Dr. Adler's examination revealed a detached retina, with macula-off, fluid bullous, and fixed folds.¹ Dr. Adler informed Mr. Oyer that the detached retina would not heal itself and discussed the risks, benefits, and alternatives to surgery to re-attach the retina.

{¶ 3} Mr. Oyer returned to Eye Specialists of Ohio on May 15, 2009, for surgery. Dr. Chawla re-examined the eye and agreed with the prior diagnosis of retina detachment with macula-off. Dr. Chawla then performed a posterior vitrectomy with scleral buckling to re-attach the retina to the right eye.

{¶ 4} Following the first surgery, Mr. Oyer's retina was re-attached and his right eye was able to recover useful vision of 20/70 and 20/60 over the course of several weeks. However, in mid-July 2009, Mr. Oyer indicated that his vision in his right eye had been like looking through a veil for a period of several days. On July 23, 2009, Dr. Adler diagnosed a recurrent retinal detachment with macula-off the right eye.

{¶ 5} On July 27, 2009, Dr. Chawla attempted his second posterior vitrectomy to re-attach the retina to the right eye. However, during the course of the surgery Mr. Oyer suffered a choroidal hemorrhage of the eye and surgery was aborted. Dr. Chawla immediately referred Mr. Oyer to the Cleveland Clinic.

{¶ 6} A retinal specialist at the Cleveland Clinic made further attempts to re-attach the retina and to restore vision to the right eye. However, Mr. Oyer's vision remains severely diminished; especially his depth perception and peripheral vision.

{¶ 7} Appellees commenced this action on October 7, 2010.² The lawsuit initially named Dr. Adler as a defendant in addition to the appellants, but he was dismissed pursuant to stipulation on October 2, 2012. Appellees alleged that Dr. Chawla was negligent in the performance of the surgical procedures on Mr. Oyer's right eye to repair the retinal detachment with macula-off, and that such negligence caused permanent loss of vision. The appellees further alleged that the Eye Specialists of Ohio was negligent in credentialing Dr. Chawla to perform the procedure, that the appellants failed to obtain Mr. Oyer's informed consent prior to surgery, and that Mrs. Oyer was entitled to damages for loss of consortium.

{¶ 8} The case proceeded to trial on May 20, 2013. Nancy Holekamp, M.D., an ophthalmologist and retinal specialist from St. Louis, Missouri, testified as an expert witness for the appellees. Dr. Holekamp noted that she reviewed the medical records; deposition testimonies of Dr. Chawla, Dr. Adler, and Mr. Oyer; as well as certain other exhibits. Ultimately, Dr. Holekamp opined that Dr. Chawla's care fell below the applicable standard of care in performing the surgical procedures on Mr. Oyer for a multitude of reasons. The defense attempted to discredit Dr. Holekamp by offering competing testimony from Dr. Chawla regarding the standard of care. However, the jury returned a verdict in favor of the appellees. In response to interrogatories, the jury found deviations from the standard of care as follows: (1) Dr. Chawla lacked proper training and qualifications to perform the procedures in question; (2) Dr. Chawla performed the procedures incorrectly; and (3) the appellants kept poor medical records. The jury also determined that the appellants' negligence caused Mr. Oyer to suffer permanent vision loss in his right eye and awarded him damages of $195,000, with $150,000 representing non-economic loss and $45,000 being awarded for medical expenses. The jury awarded $0 to Mrs. Oyer on her loss of consortium claim.

{¶ 9} Following trial, appellants filed a motion for judgment notwithstanding the verdict (“motion for JNOV”), arguing that appellees' expert, Dr. Holekamp, failed to express her opinions regarding the causation of Mr. Oyer's injuries to the required greater than 50% probability. The appellants had made nearly identical arguments previously, once in a motion to exclude proximate cause testimony of plaintiffs' expert filed in October 2012 following the deposition of Dr. Holekamp, once in a motion in limine to exclude proximate cause testimony of plaintiffs' expert filed just prior to commencement of trial, and in a motion for directed verdict made during trial. The trial court overruled each motion, including the motion for JNOV.

{¶ 10} Meanwhile, appellees filed a post-trial motion for pre-judgment interest. The trial court held an evidentiary hearing on the motion. The trial court announced its decision from the bench on the day of the hearing and also journalized its decision on August 29, 2013, finding in favor of the appellees and granting pre-judgment interest in the amount of $17,934.66.

{¶ 11} It is from the jury verdict, judgment on the motion for JNOV, and judgment on pre-judgment interest that the appellants now appeal.

II. ASSIGNMENTS OF ERROR

{¶ 12} Appellants assign three errors for our review:

First Assignment of Error

THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO FIND THAT THE TESTIMONY OF THE PLAINTIFFS' SOLE MEDICAL LIABILITY EXPERT FAILED TO ESTABLISH TO A REASONABLE DEGREE OF MEDICAL PROBABILITY THAT ANY ALLEGED NEGLIGENCE BY APPELLANTS WAS THE PROXIMATE

CAUSE OF THE INJURIES ALLEGED.

Second Assignment of Error

THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO APPLY THE ROBINSON V. BATES RULE REGARDING A PLAINTIFF'S MEDICAL EXPENSES AND FAILING TO ALLOW APPELLANTS TO PRESENT EVIDENCE THAT WOULD ALLOW THE JURY TO CONSIDER BOTH THE AMOUNT CHARGED AND THE AMOUNT ACCEPTED BY THE PROVIDER IN DETERMINING THE AMOUNT TO AWARD FOR THAT ELEMENT OF ECONOMIC LOSS.

Third Assignment of Error

THE TRIAL COURT ERRED AS A MATTER OF LAW IN AWARDING PREJUDGMENT INTEREST TO PLAINTIFFS AS THE REQUIREMENTS OF R.C. § 1343.03(C) WERE NOT SATISFIED.

III. STANDARD OF REVIEW

A. First Assignment of Error

1. Ruling on motion for directed verdict and motion for JNOV

{¶ 13} A motion for JNOV, like a motion for a directed verdict, tests the legal sufficiency of the evidence. See Posin v. A.B.C. Motor Court Hotel, Inc., 45 Ohio St.2d 271, 275, 344 N.E.2d 334 (1976) ; McKenney v. Hillside Dairy Co., 109 Ohio App.3d 164, 176, 671 N.E.2d 1291 (8th Dist.1996). Thus, the standard of review when ruling on a motion for JNOV is the same as that used when ruling on a directed verdict motion. Wagner v. Roche Laboratories, 77 Ohio St.3d 116, 121, 671 N.E.2d 252 (1996), fn. 2, citing Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 318–319, 662 N.E.2d 287 (1996) ; Posin at 275, 344 N.E.2d 334. If the record contains any competent evidence, when construed most strongly in favor of the nonmoving party, upon which reasonable minds could reach different conclusions, the court must deny the motion. See Meyers v. Hot Bagels Factory, Inc., 131 Ohio App.3d 82, 92, 721 N.E.2d 1068 (1st Dist.1999). Like the directed verdict motion, a JNOV motion also presents a question of law, which we review de novo. Id., citing Tulloh v. Goodyear Atomic Corp., 93 Ohio App.3d 740, 746–747, 639 N.E.2d 1203 (4th Dist.1994).

B. Second Assignment of Error

1. Write-off of medical expenses as evidence of economic loss

{¶ 14} A trial court has broad discretion in the admission or exclusion of evidence, and so long as the court exercises its discretion in line with the rules of procedure and evidence, we will not reverse its judgment absent a clear showing of an abuse of discretion with attendant material prejudice to defendant. Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991) ; State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). A finding that a trial court abused its discretion implies that the court acted unreasonably, arbitrarily, or unconscionably. Lauer v. Positron Energy Resources, Inc., 4th Dist. Washington No. 13CA39, 2014-Ohio-4850, 2014 WL 5501675, ¶ 9. When applying the abuse of discretion standard, we may not substitute our judgment for the trial court's judgment. Berk v. Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990).

C. Third Assignment of Error

1. Ruling on motion for prejudgment interest

{¶ 15} Whether a prejudgment interest award is warranted depends on whether a court finds the existence of a good faith effort to settle the case. That finding, and the decision to award prejudgment interest on a tort claim, lies in a trial court's sound discretion and its decision will not be disturbed absent an abuse of that discretion. See generally Lewis v. Alfa Laval...