What’s on Their Minds: More Medical Negligence Fundamentals. Moretz v. Muakkassa.

Update: On October 24, 2013, the Supreme Court handed down a merit decision in this case.  Read the analysis here.

On April 9, 2013, the Supreme Court of Ohio heard oral argument in the case of Moretz v. Muakkassa, 2012-0797.  This case presents evidentiary questions pertaining to the late filing of a trial deposition transcript, the admission of an illustration from a medical textbook, and the exclusion of a jury interrogatory and evidence of medical bill “write-offs.”

Case Background

Larry Moretz suffered from acute back pain for many years.  In 2005, a CT scan revealed a mass in his pelvis.  Moretz was referred to Dr. Kamel Muakkassa, a neurosurgeon, who diagnosed Moretz with a cyst on his sacrum and coccyx.  Dr. Muakkassa informed Moretz that his condition was rare and that neither he, nor anyone in the Akron area, had performed this type of surgery.  Moretz decided to proceed with surgery in Akron and Dr. Muakkassa referred him to a general surgeon, Dr. Gary Williams.  The actual role of Dr. Muakkassa during the surgery is disputed. He was present, but did not “scrub in” for the surgery, and had no “hands on” involvement.  Dr. Muakkassa claims he was merely an observer, not a participant. Moretz claims Dr. Muakkassa was consulting, evaluating, and advising Dr. Williams throughout the procedure, and did so negligently in a number of respects.

As a result of the surgery, Moretz lost all bowel, bladder, and sexual function.  Moretz and his wife filed a medical negligence complaint against Muakkassa and Williams. Williams subsequently settled. The jury awarded plaintiffs $999,428.73, later reduced by $235,000 in set-offs.

The Ninth District Court of Appeals affirmed the judgment entered on the jury’s verdict. The Ninth District held that the trial court appropriately exercised its discretion in all the contested rulings.  Read the oral argument preview of this case here.

Key Precedent, Rules and Statutes

R.C. 2317.421-Prima Facie evidence of the reasonableness of medical bills—this statute provides a short cut way to prove the reasonableness of charges for medical care.

Jaques v. Manton, 2010-Ohio-1838, permits the admission of “write-offs” as evidence of the reasonableness of medical bills.  The Court held that both the original medical bill and the amount accepted as full payment are permitted to be presented to the jury to assist in the determination of the reasonable value of medical services.

Civ. R. 32(A) states “[e]very deposition intended to be presented as evidence must  be filed at least one day before the day of trial or hearing unless for good cause shown the court permits a later filing.”

Evid. R. 803(18) permits statements in treatises established as a reliable authority in medicine to be used in the cross examination of an expert witness. If admitted, the statements may be read into evidence but may not be included as an exhibit.

At Oral Argument

Dr. Moukassa’s Argument

Many erroneous rulings at both the trial and appellate levels, contrary to established precedent, unfairly imposed liability on a doctor who had no hands-on involvement in this surgery.

The Deposition

Civil Rule 32(A) clearly and unequivocally requires a trial deposition to be filed at least one day before trial begins, unless for good cause shown. Not only did the plaintiff fail to show any good cause for the failure to timely file his expert’s trial deposition, the trial court unfairly required the defendant to show that he was not prejudiced by this. The plaintiff could have sought leave to file the expert’s deposition late, presented good cause pursuant to the rule, or brought the expert in live, but did none of those things.

The Medical Illustration

Evidence Rule 803(18) allows portions of a medical textbook to be read into evidence, but it may not be received as an exhibit. While the defense expert agreed that the drawing did accurately depict a meningocele, he never authenticated it as being a fair and accurate representation of what the plaintiff had, because he thought the plaintiff had a neurogenic cyst. The reason this prejudiced the defendant was that if it was a cyst, which has no nerves, it was more appropriate for Dr. Williams to perform the surgery.  If it was a meningocele, which does contain nerves, the jury could well have believed it was more appropriate for Dr. Muakkassa to have handled this.

The Jury Interrogatory

Since the plaintiff’s expert gave five specific examples of the manner in which Dr. Muakkassa was negligent, the defense was entitled to a narrative jury interrogatory on each of the five allegations. The trial court’s refusal to do so deprived the defense of its right to test the verdict.

The Write-Offs

The trial court explicitly and erroneously issued a ruling that the defense could not put in evidence of the write-offs without laying the foundation with expert testimony.  This is contrary to Supreme Court precedent in Robinson v. Bates and Jaques v. Manton. No expert testimony should be required for this, just as none is required of the plaintiff pursuant to R.C. 2317.421.

Moretz’s argument

Plaintiff’s trial co-counsel both argued before the Court. They split their argument.

The Deposition

The plaintiff did not literally comply with Civ. R. 32. But there was no surprise or prejudice to the defense. If the judge had ruled that the video could not be used, the plaintiff would have called the doctor to testify live.  The civil rules say cases should be determined on their merits, not this type of technicality.

The Medical Illustration

The defense expert agreed that the illustration was similar to what the plaintiff had, and also admitted that the standard of care would be the same whether the plaintiff had a cyst or a meningocele, so the admission of the drawing was not prejudicial. For that reason the judge did not abuse her discretion in admitting it.

The Jury Interrogatory

The plaintiff did not address this in argument

The Write-Offs

The ruling of the trial court and the appeals court were not relevant to this case because plaintiff’s exhibit one, which was admitted into evidence, contained evidence both of the amount billed for medical services, and the amount accepted for payment. The defense chose not to address damages at all in its closing argument, and cannot complain about being deprived of presenting evidence of the write-off.  There was absolutely no intention to circumvent Supreme Court precedent in this case. The jury in fact did not award either the amount billed or the amount paid as damages for medical expenses, but something in between, as is its right. The trial court did not exclude anything in its provisional motion in limine order.  It simply stated the defendant needed expert testimony to present the evidence of write-offs, but the defense never offered or proffered this evidence.

What Was on their Minds

A lot. This argument ran over an hour, with at least half of that spent with the justices trying to figure out exactly what happened with the medical bills. At times, it was painful.

The Deposition

Where was the prejudice to the defendant by the trial court’s ruling asked Justices Pfeifer and O’Neill? And wouldn’t the trial judge have given the plaintiff leeway to bring in his expert live in the case, asked Justice Pfeifer?

Chief Justice O’Connor took the lead for the opposing viewpoint. Her  questions suggested that the rule must be literally complied with. Doesn’t the proponent have the burden of establishing good cause, asked the Chief? And didn’t the plaintiff fail to present any evidence of good cause for the late filing on the record? Was prejudice even mentioned in the rule? She clearly stated her concern for future cases with the Court saying that if plaintiff’s counsel fails to file a deposition according to the rule, the trial court must find prejudice, and the defense has the burden of showing that.

Remedy for Failure to Timely File the Depositon

Now this got really interesting.  Justice French suggested that if the Court agreed with the defense about the evidentiary rulings, the case would have to go back for a new trial. Defense counsel insisted throughout argument that since the deposition wasn’t properly filed, the defense was entitled to a directed verdict in the case on this issue. Plaintiff’s counsel strongly disagreed, saying the matter would have to go back for a new trial in that event, and all that would happen would be the trial court would allow the plaintiff to call the expert live, with the same result for the case.  When defense counsel persisted in rebuttal with the directed verdict argument, Chief Justice O’Connor stated that the defense couldn’t know what ruling the trial court would make if it struck the deposition, and that it was premature to ask for a directed verdict. Then she said, startling almost everyone, “that’s really not on the table here.” Defense counsel regrouped.  Quickly.  And allowed as how a new trial might indeed be an appropriate remedy.

The Medical Illustration

Didn’t the defense expert testify that the illustration was not an accurate depiction of the condition for which Moretz was operated upon, asked the Chief? There was no agreement that it was the same type of cyst, was there?

Justice Pfeifer asked if defense counsel was saying that it was perfectly fine to have  a blow-up of the illustration everywhere during the trial but that the jury couldn’t take it back in the deliberation room? (yes, he was saying exactly that).  Could an artist’s rendering go in? (answer:no).

Under 803(18), this should not have gone back to the jury, asked Justice Lanzinger and the Chief?

But was there any record evidence that the drawing was not anatomically correct, asked Justice O’Neill?

The Jury Interrogatories

Justice Pfeifer took the lead with this one, commenting that he had never seen an interrogatory where the jury was asked to give a narrative. Shouldn’t any such interrogatory be multiple choice rather than an essay? Was the jury supposed to remember the details of all five theories of negligence? Then he commented that no interrogatory was mandatory if the judge felt it would create confusion.

Justice French asked if defense counsel would agree there was no prejudice to his client in the court’s refusal to give this (he would not).

The Chief added that it seemed pretty simple—the defendant didn’t scrub in, and should he have?

The Write-Off

Whew! Everyone went kind of crazy on this one. Here’s a recap of what was on each justice’s mind.

Chief Justice O’Connor

What kind of expert can testify about these?  Someone from the insurance industry? Didn’t the exhibit offered by the plaintiff show both the amount charged and the amount accepted? (absolutely, yes, said plaintiff’s counsel). But didn’t the Court of Appeals say expert testimony was required for the write-offs? (yes, said plaintiff’s counsel, but that is not our case). No foundation testimony is required for the value of the medical services because of the statute, but there is no equivalent shortcut for the write-offs, mused the Chief.  Do you really need an expert to spoonfeed the reasonableness of the write-offs to the jury? What evidence was excluded in the motion in limine?

Justice Lanzinger

Did the trial court require expert testimony if the bill was to be presented to the jury? Specifically what did the trial judge say about what the defendant could or could not do with respect to the write-offs?

Justice O’Neill

Without expert testimony wasn’t the jury being asked to speculate on the actual value of the services rendered? Was an expert needed to explain the value of medical services to the jury? In a key comment of the day, he said, isn’t the write-off there for all to read on exhibit 1? (Justice O’Donnell also asked this).

Justice O’Donnell (who always asks for specifics)

What were the amounts of the write-offs? The statute allows a presumption of reasonableness for the medical bills, but says nothing about write-offs. Was the defense trying to admit the amount that was actually paid, as opposed to the amount billed? (yes) What was the vehicle to admit that? Would that show on an invoice? Was an argument made to the jury on the value of the medical services? Was there a jury interrogatory on the value of the medical services rendered? (yes, $125,000, which was neither the amount billed nor the amount accepted for payment, but somewhere in between, as permitted in Jaques). Was the defense forbidden to use plaintiff’s exhibit one in its final summation to the jury?

Breaking the intensity, he asked whether there was confusion about  the Court’s precedent in this area in the practicing bar (yes!) and what the Court could do to help with this.

Justice Pfeifer

If the jury awarded too much in medical bills, why not just remit that amount? Wouldn’t remittitur be an appropriate remedy in the interest of judicial economy? And didn’t defense counsel make the tactical decision at trial not to argue damages in closing argument—a perfectly understandable decision given the horrific injuries to the plaintiff?

Justice French

Did the defense waive this by not presenting evidence or a proffer of the write-offs? Rather than a remittitur, as suggested by Justice Pfeifer, wouldn’t the matter need to be remanded for a calculation of any overpayment awarded? The statute provides a nice easy way to establish reasonableness of the medical bills for the plaintiff, but what comparable easy format is there for the defense?

Justice Kennedy

What was the purpose of the motion in limine? Because of the trial court’s ruling, wasn’t the defense limited in the questions it could ask about the write-offs? Limited as to what was on Exhibit One? And why shouldn’t R.C. 2317.421 apply equally to the defendant and to the plaintiff?

How it Looks from the Bleachers

To Professor Bettman

It definitely looks like a new trial, although Justices Pfeifer and O’Neill may well disagree with a series of no prejudice findings.  As for the late filing of the deposition, Civil Rule 32 (A) was clearly violated.  While Justices Pfeifer and O’Neill would probably let this error pass on a “no prejudice” analysis, the rule clearly contains no such provision, and the Chief was adamant about not reading that into the rule. But defense counsel definitely overreached when he suggested the defense should get a directed verdict because of this. At worst, the trial court would have granted a short continuance to allow the plaintiff to bring his expert in live, as Justice Pfeifer suggested.  In the event of a re-trial, either that will happen or the deposition transcript will be timely filed.

The medical illustration also was improperly admitted.  Evid R. 803(18) clearly says such things should not be received as exhibits.  Since the two experts did disagree about what plaintiff had, and defense counsel was persuasive about how this affected the standard of care, this would likely be deemed prejudicial.

The jury interrogatory issue is likely to go plaintiff’s way. The trial judge has considerable discretion if an interrogatory is confusing, and narratives have generally not been favored.

As for the write-offs–originally the only issue the Court accepted in the case—it seemed like there was no error in this case either because of the failure of the defense to proffer the reasonable value of the write-offs (this is a good reminder that a ruling on a motion in limine is only provisional), or because the jury actually saw and reviewed that number in plaintiff’s exhibit one, or because as Justice Pfeifer suggested, the defense made a tactical decision not to argue damages.  The portion of the verdict in this case allocated to medical bills (there was an interrogatory on this) seems to comply with what precedent requires.

Any rule the Court writes will be applied in what looks like an inevitable re-trial. It will be interesting  to see if the Court gives the defense the same break on prima facie reasonableness the statute affords to the plaintiff, and if so, how it does so.  What I have always found more problematic is the lack of guidance as to exactly what a jury is supposed to do in determining medical specials when it has evidence of both the amount billed and the amount accepted for payment.

To Student Contributor Katlin Rust

This one looks like a new trial for the defense – possibly on several grounds.  Most of the argument focused on Muakkassa’s propositions one and four, the deposition issue and write-off issue respectively.  Muakkassa originally asked for a directed verdict in his favor on issue one, which the Chief Justice made very clear he was not going to receive.  All but Justice Pfeifer, who seemed to believe the decision not to delay the trial was in the trial court’s discretion, seemed to agree that the trial court was incorrect in allowing the transcript and video without good cause shown, to which Moretz admitted.  The Chief Justice appeared very concerned with the lower courts shifting the burden onto the defendant when no such requirement is directed by the rule.

On proposition four, it seems that a majority of the justices took issue with allowing Moretz to introduce medical bills as prima facie evidence of reasonableness but withholding the same privilege from the defense.  The Chief Justice in particular seemed troubled with requiring Muakkassa to produce an expert witness.  However, the fact that Muakkassa never attempted to get the write-off evidence on record at trial did not make the Court’s decision any easier.  As the Chief Justice intimated, regardless of whether or not this was “a problem” in the instant case (as Moretz argued), because the Ninth District stated as such, and the Court accepted the proposition, the Court was going to have to make a determination on this issue.  I expect the Court to make, at the very least, a statement overruling the lower courts decision requiring an expert witness for write-offs and offering defendants the same presumption of reasonableness granted to plaintiffs.

Proposition three, the issue of jury interrogatories, was only superficially addressed.  The denial did not appear to garner a great deal of attention, and, as such, I don’t expect a win for the defense on this ground.  On proposition three, Justice Pfeifer seemed particularly perturbed by Muakkassa’s pronouncement that Moretz could have displayed the medical textbook image all over the court room during trial but was precluded from allowing it to be taken into the deliberation room – in fact, counsel received a not so subtle eye-roll.  However, it seems a majority of the justices agree with Muakkassa that the image should not have been entered as an exhibit.

 

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