Xiao v. Cleveland Clinic Found.

• Decision Date: 25 February 2016
• Docket Number: No. 101760.,101760.
• Parties: Xiao DI, M.D., et al., Plaintiffs–Appellees v. CLEVELAND CLINIC FOUNDATION, et al., Defendants–Appellants.
• Court: Ohio Court of Appeals

60 N.E.3d 582

2016 Ohio 686

Xiao DI, M.D., et al., Plaintiffs–Appellees

v.CLEVELAND CLINIC FOUNDATION, et al., Defendants–Appellants.

No. 101760.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Feb. 25, 2016.

Joseph E. Herbert, Anna Moore Carulas, Roetzel & Andress L.P.A., Cleveland, OH, Douglas G. Leak, Hanna, Campbell & Powell, L.L.P., Akron, OH, for appellants.

Stephen S. Crandall, Crandall Law L.L.C., Chagrin Falls, OH, Paul W. Flowers, Paul W. Flowers Co. L.P.A., Richard C. Haber, Haber, Polk & Kabat, L.L.P., Cleveland, OH, Norman A. Moses, Crandall

Law L.L.C., Boardman, OH, for appellees.

Before: E.A. GALLAGHER, P.J., BOYLE, J., and BLACKMON, J.

EILEEN A. GALLAGHER, P.J.

{¶ 1} Defendants-appellants the Cleveland Clinic Foundation ("the CCF") and Dr. Andrew Esposito appeal from a medical negligence judgment in the Cuyahoga County Court of Common Pleas in favor of plaintiffs-appellees, Dr. Xiao Di and Nan Qiao. Appellants argue that various errors at trial require either a judgment notwithstanding the verdict or, in the alternative, a new trial on the medical negligence claim. Appellees cross-appeal, arguing that in the event that a new trial is ordered, all claims including those for which a defense verdict was returned at trial must be remanded for a new trial. For the following reasons, we affirm, in part, and reverse, in part.

{¶ 2} Appellees filed a complaint pertaining to injuries to Dr. Di's left eye and raised claims of medical negligence against Dr. James Kim and claims of medical negligence, lack of informed consent, battery and alterations of records against Dr. Andrew Esposito. Dr. Di's wife, Nan Qiao, asserted a claim for loss of consortium. The CCF, as the employer of Doctors Kim and Esposito, was also named as a defendant on all counts.

{¶ 3} Dr. Di's claim against Dr. Kim arose subsequent to an injury Dr. Di suffered to his left eye while he was performing a spine surgery at the CCF. Dr. Di asserted that Dr. Kim, the on-call opthalmalogist at that time, violated the standard of care by failing to properly respond to his request for treatment.

{¶ 4} Dr. Di's claims against Dr. Esposito arose from a surgery conducted by Dr. Esposito on Dr. Di's left eye at the CCF nearly a year later. Dr. Di claimed that Dr. Esposito performed the surgery in violation of the standard of care. Dr. Di further asserted that Dr. Esposito performed surgery on his iris without his informed consent, thus committing a battery, and that Dr. Esposito altered the relevant records to conceal this fact.

{¶ 5} The case proceeded to a jury trial and the jury returned a verdict in favor of Dr. Kim and in favor of Dr. Esposito on Dr. Di's claims of lack of informed consent, battery and alteration of records. However, the jury found in favor of Dr. Di on his medial negligence claim against Dr. Esposito and returned a verdict of $7,200,000. The jury also found in favor of Nan Qiao on her loss of consortium claim and awarded her $500,000. The trial court reduced Dr. Di's noneconomic damages by $500,000 pursuant to R.C. 2323.43 in its entry of judgment.

{¶ 6} Following the trial, appellants filed a motion to enforce the statutory cap on Dr. Di's noneconomic damages, a motion for judgment notwithstanding the verdict and a motion for new trial. The trial court denied appellants' motions on July 28, 2014 and this appeal followed.

{¶ 7} The following relevant evidence was adduced at trial:¹

{¶ 8} Dr. Di entered into a fellowship with the CCF in 2003 and was added to the staff as a neurosurgeon following his fellowship in 2006. Dr. Di specialized in endoscopic surgery and performed 150 to 200 procedures annually. Dr. Di's left eye was injured when struck by a bone fragment during surgery on February 12, 2010. Dr. Di's eye improved in the weeks following the injury but, in September of 2010, he consulted his primary care physician due to gradually decreasing visual acuity in the eye.

{¶ 9} Dr. Di began consulting with Dr. Esposito, an ophthalmologist working as a part time consultant for the CCF, on December 10, 2010. Records from December 10, 2010 and a January 11, 2011 visit with Dr. Esposito indicate that Dr. Di was suffering from blurry vision. Dr. Di had a visually significant cataract as well as a corneal scar and an iris adhesion. The iris adhesion was described as Dr. Di's iris "tenting" or "plugging" a corneal laceration likely acquired from his February 12, 2010 injury. Dr. Di's pupils were reactive to light and able to constrict indicating that the sphincter muscle in his pupil was intact prior to the eye surgery.

{¶ 10} On January 14, 2011, Dr. Esposito performed surgery to remove Dr. Di's cataract and repair his iris. All parties agree that the cataract portion of the surgery was a success. In attempting to repair Dr. Di's iris adhesion, Dr. Esposito used a cyclodialysis spatula to "tint the iris away from the back surface of the cornea." Dr. Esposito then used endoshears to dissect the scarred iris tissue from the cornea. Dr. Esposito's operative note reports that "at this point, about 2–3 o'clock iris defect was noted." Dr. Esposito attempted to close the defect with two stitches but was unsuccessful and aborted the procedure.

{¶ 11} Following the surgery, Dr. Esposito met with Dr. Di's wife Nan Qiao. She testified that Dr. Esposito indicated that Dr. Di's iris had been torn during the attempt to remove the corneal scar. Dr. Esposito indicated that problem could be addressed with stitches after the swelling from the procedure receded in a few months.

{¶ 12} Dr. Di met with Dr. Esposito after the surgery and Dr. Esposito indicated that he had accidentally torn Dr. Di's iris during the surgery but that he could fix it. Following the surgery, Dr. Di reported that he suddenly began experiencing glare, photophobia and ghost images. Prior to surgery his only symptom was blurry vision.

{¶ 13} Concerned about his new symptoms, Dr. Di was referred to Dr. Kosmorsky, an ophthalmologist with the CCF. A record of Dr. Di's January 17, 2011 consult with Dr. Kosmorsky reported that Dr. Di was suffering from blurred and double vision, dizziness and a headache.

{¶ 14} In describing Dr. Di's surgery, Dr. Kosmorsky initially wrote in a draft that Dr. Di's eye had been "macerated" but withdrew this language. Dr. Kosmorsky later wrote a letter stating the following:

Dr. Xiao Di has been under my care for a complicated cataract surgery performed on his left eye on 1/14/2011. He sustained iris damage during the surgery and now has an eccentric pupil that is causing ghosting and refractive halos. Additionally, he has an acquired astigmatism that will likely require refractive surgical correction, and this will need to wait at least several months for the cataract surgery to heal completely. In the interim he has lost his depth perception and this will make it impossible for him to work as a neurosurgeon until and unless he heals to the point of regaining stero [sic] visual acuity. It is anticipated that his final vision outcome will not be determined for another 3 months at which time a judgment can be made as to whether or not he will be capable of performing the kind of fine visual tasks required of a neurosurgeon.

{¶ 15} Dr. Di testified that Dr. Kosmorsky refused to operate further on his iris to fix the post-surgery defect because it could not be fixed. During his course of post-surgery treatment with Dr. Kosmorsky, Dr. Di attempted to use a piggyback lens to address his symptoms but he was unable to tolerate it. Finally, Dr. Kosmorsky testified that, on June 13, 2011, it was decided that the best remaining option was for Dr. Di to use a colored contact lens to completely block out the vision in his left eye. At the time of trial, Dr. Di remained monocular.

{¶ 16} At trial, five ophthalmologists offered varying opinions on the condition of Dr. Di's left eye and the cause of his vision problems. Dr. George Corrent, an ophthalmologist with the Bascom Palmer Eye Institute in Florida consulted with Dr. Di about potential solutions to his vision problems. He found that Dr. Di had a corneal scar with some astigmatism that had caused an irregularity in the shape of Dr. Di's cornea. He further stated that Dr. Di's iris was damaged and did not respond to light. Dr. Corrent concluded that these problems were minor in comparison to what he saw as the major problem with Dr. Di's eye: changes in the left optic nerve. Dr. Corrent stated that treatments could improve some of Dr. Di's problems but no intervention would fix his optic nerve and restore sufficient vision for him to have good depth perception. Dr. Corrent did not offer an opinion on the cause of the damage to Dr. Di's optic nerve.

{¶ 17} Dr. Marc Abrams, an ophthalmologist with 29 years of experience in private practice, including iris surgery, testified as an expert for Dr. Di. He agreed with Dr. Kosmorsky's assessment from the above-quoted letter, which indicated that Dr. Di had sustained iris damage during his eye surgery. He further agreed with Kosmorsky's assessment that the iris damage was causing Dr. Di to experience ghosting and reflective halos and that Dr. Di had lost the depth perception necessary to work as a neurosurgeon. Dr. Abrams explained that Dr. Di currently has a "sector defect" in his eye that lets in too much light leading to fluctuating vision from glare and brightness.

{¶ 18} Dr. Abrams opined that Dr. Di did not have an iris defect of any kind prior to his eye surgery. He explained that although the records reflect that Dr. Di had a corneal scar with iris tenting, the tenting was not causing any of Dr. Di's decreased visual acuity. Abrams testified that the sole cause of Dr. Di's decreased visual acuity prior to surgery was the cataract. Dr. Abrams further confirmed that medical records established that the sphincter muscle in Dr. Di's eye was intact prior to surgery and allowed his pupils to react to light and constrict.

{¶ 19} Dr. Abrams testified that, in his opinion,...