Merit Decision: A Primer for all Medical Malpractice Practitioners. Mortez v. Muakkassa.

Read what happened on remand in this case here.

On October 24, 2013, the Supreme Court of Ohio handed down a merit decision in Mortez v. Muakkassa, 2013-Ohio-4656.  In a 5-2 decision written by Chief Justice O’Connor, the Court reversed a medical malpractice jury verdict for the plaintiffs on a number of evidentiary grounds.  Justice Pfeifer dissented, joined by Justice O’Neill.  The case was argued April 9, 2013.  This is a long post. The oral argument took over an hour.

Case Background

Larry Moretz suffered from acute back pain for many years. On an emergency room visit in 2005, a CT scan revealed a mass in his pelvis.  Moretz was referred to Dr. Kamel Muakkassa, a neurosurgeon, who diagnosed an anterior sacral menigocele, which is a rare type of cyst in the lowest part of the spinal cord.

Dr. Muakkassa referred Moretz to Dr. Gary Williams, a general surgeon. Williams’ plan was to try to remove the cyst laproscopically, but if he could not, he would remove the cyst by surgically opening Moretz’s abdomen.  Ultimately, Williams had to resort to the open procedure.

Dr. Muakkassa’s role in this procedure was sharply disputed in the case.  He came into the operating room periodically to observe what was going on and to offer suggestions to Dr. Williams, but he did not participate in or perform any part of the procedure himself.

When tissue was sent to a pathologist for analysis, the pathologist identified the cyst as a neurenteric cyst.  The difference between the two types of cyst is important in this case, as menigocele cysts contains nerves and neurenteric cysts do not.

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.  Muakkassa’s motions for a new trial and judgment not withstanding the verdict were denied.The Ninth District Court of Appeals affirmed the judgment entered on the jury’s verdict.

Dr. Muakkassa’s Role in the Surgery

A significant part of the case revolved around the role Dr. Muakkassa was to play during the surgery.  Moretz understood that if an open procedure had to take place, Dr. Muakkassa would perform it, because he was a neurosurgeon and the cyst was attached to the spinal cord. Dr. Muakkassa understood that if the laproscopic procedure failed, Dr. Williams would open the abdomen and remove the cyst, and that he, Dr. Muakassa would be present just to be sure no spinal fluid was leaking after the cyst was closed, and that he would be available to participate in the surgery if needed or asked, which he was not. Relatedly, key to the case was whether the type of cyst Moretz had contained nerves or not-a sharply contested issue in the case. Nerves are the specialty of neurosurgeons.

Dueling Experts

Plaintiffs’ expert testified that Dr. Muakkassa was negligent in four respects.  He failed to participate in the surgery to help remove the cyst.  He failed to use or to recommend that Dr. Williams use magnification and stimulation to identify and protect the nerves.  Finally, Dr. Muakkassa failed to recommend a posterior approach to remove the cyst, which was the best approach to visualize the nerve roots. Plaintiffs’ expert opined that Dr. Williams had cut nerves while operating on the cyst.

Dr. Muakkassa testified himself that there were no nerves in this cyst, and thus his expertise as a neurosurgeon was not needed, and that in modern medicine an anterior approach was preferred for this procedure.  He testified that neither magnification nor nerve stimulation were necessary in this case. Dr. Muakkassa’s expert testified that the plaintiff had a cyst without nerves, that a general surgeon like Dr. Williams was the doctor best suited to perform the surgery, and that it was perfectly appropriate for Dr. Muakkassa just to be in the operating room as an advisor.

Read the oral argument preview of this case here and the analysis of that argument 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.

Robinson v. Bates, 2006-Ohio-6362  addressed the admissibility of write-offs under the common law collateral source rule, holding that just as the original medical bill was relevant to a jury’s determination of the reasonableness of a plaintiff’s medical expenses, so was the write-off.

Jaques v. Manton, 2010-Ohio-1838, permits the admission of “write-offs” in light of the enactment of R.C. 2315.20, which largely abrogated the common law rule against the admissibility of collateral sources, to show the reasonableness of medical bills.  The Court permitted “write-offs” to be presented to the jury to assist in the determination of the reasonable value of medical services.  The “write-off,” or amount accepted as full payment, is appropriate to show the reasonableness and necessity of medical costs.

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 on medicine, established as a reliable authority, to call the attention of an expert witness on cross-examination.  If admitted, the statements may be read into evidence but may not be included as an exhibit.

Civ. R. 49(B) directs the court to submit written interrogatories to the jury upon the request of any party.  The interrogatories may be directed at one or more determinative issues of fact or mixed issues of fact or law.

The Evidentiary Rulings

Four evidentiary rulings form the crux of this appeal.

  • The untimely admission of the trial deposition of plaintiffs’ expert.
  • Allowing a medical illustration to be included as an exhibit
  • Refusing the defendant’s tendered jury interrogatory
  • Requiring expert testimony for the admission of medical bill write-offs as evidence of the reasonableness of medical services

The majority found error in all four rulings. While the first was deemed harmless error, the combination of the rest warranted a reversal and a new trial.  (Dr. Muakkassa died in May of 2012.)

The Trial Deposition of Plaintiff’s Expert Witness

There was no disagreement among the justices that the plaintiffs failed to timely file the transcript of the deposition of their expert pursuant to Civ. R. 32(A) or show good cause for the late filing. But the plaintiffs got a break on this one.  The high court agreed with the appeals court that there was no abuse of discretion in allowing the late filing even though the court failed to make any express finding of good cause for the late filing.  (Dr. Muakkassa’s attorney had argued that the doctor should have been granted a directed verdict had the video deposition been properly excluded.  That went nowhere. It was clear at oral argument Chief Justice O’Connor was having none of that argument.) In short, there was simply no prejudice to the defense, since the defense fully participated in the taking of the trial video deposition, and everyone knew it was going to be used as evidence in the case in lieu of calling the expert live. The Court also suggested the trial court inartfully tried to say there was good cause for the late filing. So this one was deemed harmless error. But that was the last break for the plaintiffs.

Learned Treatises

The defense challenged the admission into evidence of a medical illustration of an anterior sacral meningocele from a medical textbook.  The defense expert agreed that it was an accurate representation of an anterior meningocele, but disagreed that was what Moretz had. The trial court not only allowed it into evidence (that part was not disputed) on the grounds that the defense expert had authenticated it, but also permitted it to be received as an exhibit.  The majority concluded allowing this as an exhibit violated the express text of Evid.R. 803(18). The Court concluded that the purpose of the exhibit was to establish that this type of cyst contained nerves—a key contested issue in this case, so allowing this illustration to be received as an exhibit unfairly boosted plaintiff’s theory and prejudiced the defendant.

Jury Interrogatory

Dr. Muakkassa submitted an interrogatory asking the jury to state (in narrative form) the respect in which it found that he was negligent.  The trial court refused, finding that plaintiffs’ theory of malpractice boiled down to a single allegation—that Dr. Muakkassa had failed to scrub in for the surgery. The Court found that trial court was incorrect, that there were several distinct allegations of negligence in the case, and the narrative form of the doctor’s proposed interrogatory was proper.  Rejecting the interrogatory deprived the doctor of his right to test the jury verdict.

Evidence of Write-Offs

At trial, Dr. Muakkassa wished to present evidence of amounts “written-off” of the full amount of Moretz’s medical bills.  The trial court granted Moretz’s motion in limine to exclude this evidence because of the lack of a proper foundation.   The trial court concluded that the admission of the “write-offs” required establishing their reasonableness through expert testimony. The Supreme Court found this to be error.

The majority reviewed its tortured jurisprudence on the collateral source rule. R.C. 2317.421 makes medical bills prima facie evidence of the reasonable value of charges for the medical services so that a doctor doesn’t have to come in to court to testify about this.

It is now established that both under the common law and R.C. 2315.20, the original medical bills and evidence of write-offs can be admitted as evidence to help the jury make the ultimate determination about the fair and reasonable value of the medical services.

The Court has declined to adopt a bright line rule that the reasonable value of medical services is either the amount billed or the amount paid, leaving that determination to the jury.

In this case the Court reaffirmed its holding that under R.C. 2317.421, evidence of write-offs in medical bills and statements is prima facie evidence of the reasonable value of medical services, but found it to be an open question whether this evidence requires the party offering it to lay a foundation for its admission through expert testimony.  The trial court found the statutory presumption of reasonableness did not extend to write-offs. The majority disagreed, noting that there is nothing in the statutory language that excludes write-offs from its presumption, and no expert testimony was required for this. On remand, Dr. Muakkassa  will be allowed to argue that the reasonable value of Mr. Moretz’s medical services is the amount equal to the amount paid after write-offs without supporting that argument with expert testimony.

Dissenting Opinion

Justice Pfeifer criticizes the majority for cherrypicking and not seeing the forest for the trees, finding the verdict “both justified and reasonable.”

Medical Illustration from Learned Treatise

Justice Pfeifer agrees with the majority that its admission as an exhibit was error, but not one that “affected the framework of the trial.” The defendant’s expert authenticated the drawing, and the jury clearly understood that it was nothing more than an illustration of a representative cyst, and nothing more. There was no evidence that its admission led the jury astray—on the contrary, there was ample evidence to sustain a verdict of negligence in this case. Pfeifer would find this, like the late video filing, nothing more than harmless error when viewed in the context of the entire trial.


Justice Pfeifer notes that narrative interrogatories are strongly discouraged because they can confuse or distract juries. The better practice for the defense would have been to submit a yes/no question to each allegation plaintiffs contended was negligent. While he did not agree with the trial court that the only theory of negligence was Dr. Muakassa’s failure to scrub in, he would not find an abuse of discretion—the standard of review—in the trial court’s decision here. He would also find that in failing to submit alternative interrogatories, the defense has waived this error.

Evidence of the Write-Offs

The defense had ample opportunity during the trial to introduce evidence about the reasonableness of the write-offs through a testifying medical-billing specialist, but did not do so, nor did it proffer evidence of the reasonableness of the write-offs at trial.  Pfeifer would find no abuse of discretion in the trial court’s decision here. Finally he notes that even if this was an error, it can be corrected by remittitur, obviating the necessity of a new trial.

“We have stated many times that criminal defendants are entitled to a fair trial, not a perfect trial. A fair reading of the majority opinion leaves one with the unmistakable impression that from this day forward a doctor in a medical malpractice case is entitled to a perfect trial, ” Pfeifer wrote.

Justice O’Neill joined this dissent.

Case Syllabus

1. Illustrations from medical textbooks are subject to the learned-treatise hearsay exception set forth in Evid.R. 803(18) and therefore shall not be admitted into evidence as an exhibit over the objection of a party.

2. When both the content and the form of a proposed interrogatory are proper, Civ.R. 49 imposes a mandatory duty upon the trial court to submit the interrogatory to the jury.

3. R.C. 2317.421 obviates the necessity of expert testimony for the admission of evidence of write-offs, reflected on medical bills and statements, as prima facie evidence of the reasonable value of medical services. (R.C. 2317.421, construed.)

Concluding Observations

Here’s what I wrote after argument: “it definitely looks like a new trial, although Justices Pfeifer and O’Neill may well disagree with a series of no prejudice findings.” Indeed.  The two of them have been joining forces with some frequency on plaintiffs’ tort issues, and I suspect that will only intensify.

The Chief seemed unlikely at argument to give a pass on the late filing of the deposition, but apparently let that go. I thought the admission of the illustration would likely be deemed prejudicial since there was so much disagreement about the type of cyst the plaintiff actually had. I also thought—and still do—that the interrogatory issue should go the plaintiffs’ way because the trial judge has considerable discretion if an interrogatory is confusing, and narratives have generally not been favored.

As for the issue on the write-offs, the defense really got a break, because there was no proffer of the reasonable value of the write-offs.  Further there was nothing in the decision about a point much discussed at argument, and that was the fact that the jury actually saw that write-off  number in plaintiff’s exhibit one in the case. But it didn’t surprise me that the majority gave the defense the same break on prima facie reasonableness on write-offs the statute affords to the plaintiff on the medical bills.

I used to be a plaintiff’s medical malpractice lawyer back in the day.  That job has gotten considerably harder, it seems.

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One Response to Merit Decision: A Primer for all Medical Malpractice Practitioners. Mortez v. Muakkassa.

  1. Closing comment : handling medical claims has become
    “considerably harder.” Marianna, you are, as always, so admirably diplomatic.

    As part of the “Supreme Court Watch, I would like to see an analysis not just of an individual case decision, but a “meta analysis” of the totality of the Court’s jurisprudence since Republicans gained control of it, that has resulted in making pursuing medical claims “considerably harder.”

    For example, how many medical malpractice cases have been decided by the Court? How many decisions have been in favor of the medical provider vs. the patient? How many times has the OSMA (and other medical amici lining up in Moretz) appeared as an amicus, and how many times in those cases has its position been adopted? That, more than any individual case analysis may well reveal the true “reasoning” behind any given decision. As Justice Pfeifer noted, sometimes the forest is more revealing than the trees….

    For those of us struggling “considerably harder” in this litigation, it is easy to suppose that had the verdict and appellant been switched in Moretz, the outcome on appeal would have been as well. I respectfully doubt any plaintiff/appellant would ever be deemed to have demonstrated prejudice sufficient to reverse a verdict in favor of a physician simply by virtue of a jury having an illustration sent back to the jury room as an exhibit, as opposed to just seeing and hearing it discussed repeatedly during the course of trial. I can actually visualize those very words being written, denying the plaintiff-appellant a new trial.

    Without intending to disparage your incredible powers of observation and analysis (I love “How It Looks From the Bleachers”), while handling medical claims has become considerably harder, predicting outcomes has become “considerably easier.”

    Thanks, MB, as always for your intelligent discussion and insights.

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