Wells v. Miami Valley Hosp.

• Decision Date: 30 August 1993
• Docket Number: No. 13298,13298
• Citation: Wells v. Miami Valley Hosp., 90 Ohio App.3d 840, 631 N.E.2d 642 (Ohio App. 1993)
• Parties: WELLS, Admr., et al., Appellees and Cross-Appellants, v. MIAMI VALLEY HOSPITAL et al., Appellants and Cross-Appellees. *
• Court: Ohio Court of Appeals

Page 840

90 Ohio App.3d 840

631 N.E.2d 642

WELLS, Admr., et al., Appellees and Cross-Appellants, v.MIAMI VALLEY HOSPITAL et al., Appellants and Cross-Appellees. ^*

No. 13298.

Court of Appeals of Ohio, Second District, Montgomery County.

Decided Aug. 30, 1993.

Frederick Davis, Jr., Dayton, for appellees and cross-appellants.

Larry Smith, Dayton, for appellants and cross-appellees.

FAIN, Judge.

The plaintiffs' decedent, Renee Wells, was treated by medical professionals at Miami Valley Hospital for preeclampsia, a serious, life-threatening condition associated with late pregnancy.Her treatment included a caesarian delivery and the insertion of a central venous pressure ("CVP") catheter.There was credible medical testimony to the effect that the improper placement of the CVP catheter caused a cardiac tamponade, in which the pericardium is filled with so much fluid from the misplaced catheter that the resulting pressure shuts the heart down, causing death.The plaintiffs' theory of the cause of death was simple--the treatment rendered by medical professionals at the hospital killed the patient, and no one did anything to stop it, even though the patient's declining vital signs made it clear that something was very wrong.

Although certain defendants were the beneficiaries of a directed verdict, a jury awarded a verdict in the amount of $602,587.80 against defendants-appellants Miami Valley Hospital ("MVH") and Dr. Deborah Miller.These defendants moved for judgment notwithstanding the verdict and for a new trial.The trial court granted the new trial motion, but denied the motion for judgment notwithstanding the verdict.

Dr. Miller and MVH appeal from the trial court's denial of their motion for judgment notwithstanding the verdict.Appellees and cross-appellantsWinfred Wells, Administrator of the Estate of Renee Wells, et al. ("appellees"), assert that the trial court erred by granting a new trial on the issue of liability and erred in directing a verdict in favor of defendants MVH and Dr. Jude Crino.

We conclude that there was sufficient evidence to support the jury's verdict on the proximate cause issue.

We find that the trial court properly denied MVH's motion for judgment notwithstanding the verdict and properly directed a verdict for Dr. Crino and MVH on the issue of Dr. Crino's failure to attend to Wells.

We also find that the trial court erred in granting MVH's motion for a new trial.Although appellees' experts failed to supply predicate facts in advance of offering their opinions, as required by Evid.R. 705, the experts supplied adequate facts after giving their opinion testimony on all determinative issues, so that each violation of Evid.R. 705 amounted to harmless error, except for one instance where expert opinion testimony came in without predicate facts.In that instance, the testimony was elicited by MVH during cross-examination, MVH having successfully objected to and moved to strike the same testimony on direct.Thus, the receipt of expert testimony without predicate facts on the one occasion where it occurred was invited error.

Finally, we conclude that the trial court erred in directing a verdict in favor of Dr. Crino and MVH, under theories of res ipsa loquitur and agency by estoppel, regarding the issue of the CVP catheter placement verification, where Dr. Crino was an employee of MVH at the time of the catheter placement, and where appellees met their burden of proof by showing that (1) Dr. Crino was one of the "OB Staff" who was in the operating room with Wells at the time of the placement of the CVP, (2) Dr. Crino was co-responsible for Wells's treatment, including treatment related to the verification of the placement of the CVP catheter, which was the shared responsibility between the "OB Staff" and anesthesiologists who are not parties to this action, (3) the failure to verify the placement of the CVP catheter probably fell below the applicable standard of care, (4) it was more likely than not that a proximate cause of Wells's death was the fluid from the CVP catheter accumulating in her pericardium, and (5) Wells probably would have survived had her vital signs been interpreted correctly as indicating that a recognized complication of treatment with the CVP catheter.

I

Decedent Renee Wells was admitted to MVH, thirty-four weeks' pregnant and suffering from preeclampsia, a serious, life-threatening condition associated with late pregnancy and characterized by hypertension, proteins in the urine, and subcutaneous edema.Wells underwent a caesarean delivery that included the insertion of a central venous pressure ("CVP") catheter for venous pressure monitoring and fluid replacement, at a rate of about fifty cc's per hour.The caesarian was completed around 3:35 p.m. on November 16, 1987.The next morning, around midnight and again at 1:45 a.m., Dr. Deborah Miller, a second-year resident and employee of MVH, visited Wells and noted her rising CVP readings and falling blood pressure.Dr. Miller admitted that it was her plan to monitor Wells closely, yet Dr. Miller never saw Wells again.

At around 2:45 a.m., chief resident Dr. Jude Crino, who was present in the operating room during the caesarian and insertion of the CVP catheter, was summoned by nurses to evaluate Wells, whose CVP readings increased as her blood pressure continued to fall.

Dr. Crino examined Wells at around 3:00 a.m., ordered a dopamine drip started, and called an anesthesiologist to request that Wells undergo the placement of a Swan-Ganz catheter to monitor the performance of the left side of Wells's heart from the pulmonary artery.The anesthesiologist reportedly told Dr. Crino that he would see Wells later that morning.Wells suffered respiratory arrest shortly after 4:00 a.m., and died about an hour later.

The autopsy showed, among other things, five hundred cc's of fluid in the pericardium.The autopsy report listed preeclampsia as one of the causes of Wells's cardiac tamponade.The defendants' expert, Dr. Snyder, testified on cross that at 1:45 a.m., Wells no longer had hypertension, one of the cardinal symptoms of preeclampsia.

The trial court directed a verdict in favor of Dr. Crino and MVH on the issue of the placement of the CVP catheter, and dismissed Dr. Crino as a defendant.The jury then returned a verdict in the amount of $602,587.80 against Dr. Miller and MVH on the issue of failure to diagnose.

The trial court denied MVH's motion for a judgment notwithstanding the verdict but granted MVH's motion for a new trial and set aside the jury's verdict after finding that (1)appellees' expert opinion testimony failed to establish proximate cause and the probability that Wells would have survived as required in a wrongful death/failure to diagnose action, (2)appellees' expert opinion testimony violated Evid.R. 705 by failing to first set forth specific predicate facts and (3) a misstated word in the jury instructions "may have contributed to and/or resulted in a potential miscarriage of justice."

From the judgment of the trial court, both parties appeal.

II

MVH's sole assignment of error is as follows:

"The trial court erred in denying defendants' motion for a judgment notwithstanding the verdict."

On a motion for judgment notwithstanding the verdict, the test is the same as for a directed verdict: the evidence adduced at trial and the facts established by admissions in the pleadings and in the record must be construed most strongly in the nonmoving party's favor; where there is substantial evidence supporting the nonmovant's case, on which reasonable minds may reach different conclusions, the motion must be denied; and the trial court, when ruling on a motion for directed verdict or a judgment notwithstanding the verdict, is not to weigh the evidence or the credibility of the witnesses.Osler v. Lorain(1986), 28 Ohio St.3d 345, 347, 28 OBR 410, 411, 504 N.E.2d 19, 21.

To maintain a wrongful death action on a theory of negligence, a plaintiff must generally show (1) the existence of a duty owed to plaintiff's decedent, (2) a breach of that duty, and (3) that the breach proximately caused death.Littleton v. Good Samaritan Hosp. & Health Ctr.(1988), 39 Ohio St.3d 86, 529 N.E.2d 449.The plaintiff must prove that the defendant's negligence, in probability, proximately caused the death.Cooper v. Sisters of Charity of Cincinnati, Inc.(1971), 27 Ohio St.2d 242, 56 O.O.2d 146, 272 N.E.2d 97.Proximate cause is a happening or event which as a natural and continuous sequence produces an injury without which the result would not have occurred.Murphy v. Carrollton Mfg. Co.(1991), 61 Ohio St.3d 585, 575 N.E.2d 828.Where a failure to diagnose an injury allegedly prevented the patient from an opportunity to be operated on and eliminated any chance of the patient's survival, the issue of proximate cause can be submitted to the jury only if there is sufficient evidence showing that with proper diagnosis, treatment, and surgery, the patient probably would have survived.Cooper, 27 Ohio St.2d at 253-254, 56 O.O.2d at 152-153, 272 N.E.2d at 104-105.

The medical malpractice plaintiff must prove, by a preponderance of the evidence, that:

" * * * [T]he injury complained of was caused by the doing of some particular thing or things that a physician or surgeon of ordinary skill, care and diligence would not have done under like or similar conditions or circumstances, or by the failure or omission to do some particular thing or things that such a physician or surgeon would have done under like or similar conditions and circumstances, and that the injury complained of was the direct result of such doing or failing to do some one or more of such particular things."Bruni v. Tatsumi(1976), 46 Ohio St.2d 127, 131, 75 O.O.2d 184, 186, 346 N.E.2d 673, 677.

Proof of the recognized standards, unless the lack of skill or care is so apparent as to be within the comprehension of laymen and requires only...