Oral Argument Preview: Some Medical Malpractice Fundamentals. Branch et al. v. Cleveland Clinic Foundation.

Update: On November 21, 2012, the Supreme Court handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the oral argument in this case here.

On June 20, the Supreme Court of Ohio will hear oral argument in the case of Branch et al. v. Cleveland Clinic Foundation, 2011-1634. This case challenges a number of alleged errors at the trial stage.

Margaret Branch suffered from a severe neurological condition in her neck called cervical dystonia.  In February of 2007 she underwent a relatively new form of brain surgery called Deep Brain Stimulation (DBS) at the Cleveland Clinic for that condition.   The procedure involved lacing electrodes in a particular region of the brain to prevent irregular nerve impulses. Branch signed a consent form acknowledging the potential risks of the surgery, which included paralysis, coma, stroke, and death.

The procedure required the surgeon, using imaging data, to develop a detailed “stereotactic target plan” before surgery to reflect the entry point, target point, and trajectory for the surgery. The surgeon had to avoid a critical region of the brain while inserting the devices. During the surgery, Branch suffered a stroke when the doctor breached that critical region with a cannula. Branch was left with significant and permanent injuries.The Clinic’s failure to keep the fused image of Branch’s brain and the original target planning data was a key aspect of Branch’s case.

At trial, Branch’s expert used a 2-D computer animation to demonstrate how the surgeon could have prevented Branch’s injuries had he properly planned the surgery beforehand. The surgeon had conceded earlier in the trial that the Clinic had not retained the images and data used to plan the surgery.  However, just before the surgeon returned to the stand as the final defense witness, the defense disclosed that the surgeon would re-create the plan using a 3-D software system. The trial court initially sustained Branch’s objection to this demonstration but later reversed the ruling and allowed the demonstration to proceed.

Second, the Clinic proposed, and the trial court permitted, the “different methods” jury instructions, where the jury is instructed that the fact that another surgeon would have used different methods does not by itself mean that the defendant surgeon was negligent.

Third, throughout the trial, Branch’s counsel asserted that because the images and data used to create the surgery plan were missing, the jury was entitled to draw inferences unfavorable to the Clinic. During closing arguments, Branch’s counsel mentioned the “coincidence that the best piece of evidence as to what happened [the images and data] is missing” and compared the case to the alleged cover up in the BP Oil Disaster. The trial court sustained defense counsel’s objection, admonishing plaintiff’s counsel in front of the jury that “there’s no suggestion that there’s anything willful about the destruction of any documents…and you will avoid that topic because there is no evidence to support it.”

After a two week trial, the jury returned a unanimous verdict in favor of the Clinic, which was reversed by the Eighth District Court of Appeals in a split decision.  On the assignments of error relevant to this appeal, the appeals court found that (1) the trial court abused its discretion in allowing the defense to present its computer re-creation of the surgery plan given the eleventh-hour disclosure, (2) the trial court erred in giving the “different methods” instruction and (3) Branch’s counsel was entitled to argue the adverse inference to the jury, and the trial court was wrong to prohibit counsel from discussing the missing image and target data plan.

On appeal to the Supreme Court of Ohio, the Clinic’s three propositions of law deal with the use of demonstrative evidence, the use of an adverse inference argument to the jury, and  the “different methods” jury instruction.

The Clinic first argues that the trial court properly allowed defense counsel to present an in-court demonstration of the re-created surgery plan, in spite of the eleventh-hour disclosure, because the plan was demonstrative evidence, which is very different from a trial exhibit that goes to a jury. The demonstration was done in an attempt to rebut plaintiff counsel’s repeated arguments regarding the adverse inference from the missing data. The Clinic argues that it had no notice until the last minute that Branch intended to make an issue of any allegedly missing data.

In response, Branch argues that demonstrative evidence needs to comply with the same standards as trial exhibits. The trial court’s allowing the demonstration was not “inconsequential” to the overall defense, because the demonstration was sold to the jury as a precise reconstruction of the operation procedures and ended up being one of the most important parts of the defense. Thus, Branch argues that the defense’s failure to disclose the demonstration was inexcusable and the trial court abused its discretion by not requiring disclosure.

Second, the Clinic argues that the Court of Appeals was incorrect when it held that Branch was precluded from arguing  an adverse inference of negligence to the jury.  The Eighth District confused the elements of a spoliation claim with the requirements for an adverse inference instruction—the latter not requiring evidence of intentional destruction.  The trial court properly sustained defense counsel’s objection to Branch’s counsel’s comparison of the case to the BP Oil Disaster (which it sustained because there was no evidence of intentional or willful destruction of evidence). But according to the Clinic, the trial court did not disallow adverse inference comments on the allegedly missing data plan. Thus, it argues that the Eighth District’s opinion creates a confusing and contradictory precedent that the Supreme Court should reverse.

In response, Branch argues that the trial court’s admonishment of plaintiff’s counsel during closing arguments undermined the plaintiff’s entire adverse inference theory which the jury had been instructed on up to that point in trial. Branch argues that the standards in Ohio for adverse inference and spoliation are not uncertain or inconsistent, and the Eighth District properly concluded that the trial court’s admonishment regarding the viability of the adverse inference claim was improper.

Third, the Clinic argues that the “different methods” instruction was proper. The Eighth District held that “different methods” evidence was irrelevant because Branch’s theory of negligence was based on the surgeon’s deviation from his own standard of care established by his own plan for the surgery, and was not based on any testimony recognizing alternative methods of treatment. The Eighth District explained that the instruction misled the jury into thinking that violating the standard of care that the surgeon himself had established did not necessarily mean that negligence had occurred.  The Clinic argues that the instruction was relevant because there was ample evidence adduced at trial that there were multiple possible ways to perform the same surgery and evidence of different methods popped up throughout the case.

In response, Branch argues that Ohio case law permits “different methods” instruction only if there is evidence that more than one method of diagnosis or treatment is acceptable for a particular medical condition. No such testimony was offered in this case, because the performing surgeon acknowledge that he had decided on a particular trajectory for the surgical device he was using in order to avoid a critical region of the brain; had he hit that region of the brain, he would have been off course. Branch says no other proof was offered to the contrary. Because the issue was whether the surgeon deviated from his own surgery plan, and not whether he had deviated from the standard methods used by other surgeons for the same surgery, there was no evidence of “different methods” offered at trial that would justify a jury instruction on the issue.

Student Contributor: Greg Kendall

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