Update: On May 8, 2014, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.
Read the analysis of the oral argument here.
On November 20, 2013, the Supreme Court of Ohio will hear oral argument in Theresa Hayward v. Summa Health System/Akron City Hospital, et. al., 2013-0021. The issue is whether the appellate court’s finding of reversible error with respect to a remote cause jury instruction after a jury finding of no negligence redefines “prejudicial error.”
Appellee Theresa Hayward underwent abdominal surgery to remove a portion of diseased intestine. The surgery was performed by Dr. Michael Cullado, an abdominal surgeon, and fifth-year surgical resident Dr. Steven A. Wanek. Summa Health Systems/Akron City Hospital, along with Dr. Cullado and Dr. Wanek, (collectively, “Summa”) are the appellants in this case.
Hayward’s surgery was to reduce flare-ups of her chronic diverticulitis. Prior to the surgery, Hayward signed a consent form which specifically lists nerve damage as a potential risk of the surgery. Hayward had no problems with her leg prior to surgery. During the surgery, Dr. Cullado used a Bookwalter retractor to hold open Hayward’s abdominal wall. Dr. Cullado testified that he frequently uses a Bookwalter retractor during abdominal surgeries, and during Hayward’s surgery he continuously checked the positioning of the retractor’s blades to confirm they were appropriately located and to minimize the risk of nerve injury. Nerve injury may be caused when the blades of a Bookwalter retractor are inappropriately placed, causing the blades to dig into the muscle and compress the femoral nerve against bone.
While hospitalized to recover following the surgery, Hayward attempted to stand up from bed to go to the bathroom and fell onto the floor, with no ability to feel her left leg. Dr. Robert A. Lada (not a party in this case), a neurologist, was asked to assist with Hayward’s diagnosis. After ruling out other potential causes, Dr. Lada believed Hayward suffered some kind of nerve compression during the surgery. As a result of the nerve damage, Hayward was in a wheelchair for several months after leaving the hospital. She must use a cane to walk, and continues to have mobility problems. Her physical limitations also caused her to lose her job as a floor technician for various healthcare providers. Hayward presented expert testimony at trial saying she is essentially unemployable.
Hayward sued Dr. Cullado, Dr. Wanek, Summa, and other parties who were subsequently dismissed, for medical malpractice. Hayward’s malpractice case was tried to a jury. Over Hayward’s objection, the jury was given a “remote cause” instruction. The jury returned a verdict for the defense. The jury was also given interrogatories, and was instructed only to answer the one on causation if it found negligence. But the jury answered both interrogatories, finding no negligence and no proximate cause. Hayward filed a motion for a j.n.o.v or a new trial, which was denied. T
he Ninth District Court of Appeals reversed the judgment entered on the jury’s verdict, finding the jury instruction on remote causation was not warranted due to a lack of evidence to support the instruction, which likely “misled the jury in a matter materially affecting the complaining party’s substantial rights.” Relying on Pesek, the Court concluded the evidence could only support the conclusion that the retractor caused the nerve injury, therefore, the remote causation instruction was not warranted. As for the prejudice prong, the jury in this case was instructed to answer the causation interrogatory only if it found negligence. But the jury answered the causation interrogatory despite a finding of no negligence, thus evidencing confusion over the issues of breach of duty and causation.
Key Precedent Pesek v. University Neurologists Ass’n, 87 Ohio St.3d 495 (2000), (a “different methods” charge to the jury is appropriate only if there is evidence that more than one method of diagnosis or treatment is acceptable for a particular medical condition.)
Hampel v. Food Ingredients Specialties, 89 Ohio St.3d 169 (2000), (when an instruction is given that is not supported by the evidence, prejudice is generally presumed. But automatic reversal is not required. Instead, it is incumbent upon the reviewing court to determine if the presumption of prejudice is rebutted by the record.)
Coulter v. Stutzman, 2008-Ohio-4184 (10th Dist.), (the plain language of the jury instruction indicates the remote cause instruction comes into play only after the jury finds defendant negligent; if there is no finding of negligence, the remote cause instruction is not germane to the verdict.)
Summa first argues that Hayward’s challenge to the remote jury charge is moot because the jury’s interrogatory answers found no negligence, thus making any proposed error harmless. Specifically, Summa points to Coulter, where the Tenth District Court of Appeals determined when a jury finds the defendants were not negligent the remote cause instruction is “not germane” to the verdict. Failure to address the Coulter decision, argues Summa, redefines “prejudicial error” regarding jury instructions in general, and particularly with regard to the remote causation charge. Next, Summa argues the Ninth District’s finding that the remote causation charge caused confusion is inconsistent with the Court’s precedent for finding prejudicial error. Summa looks to Hampel, reading that decision to hold that a reviewing court cannot order a new trial “upon a presumptive finding of prejudice where the record actually establishes the contrary.” Summa argues the Ninth District did exactly what Hampel prohibited by finding presumptive prejudice, because there was no basis to determine the jury was confused.
First, Hayward responds by arguing Summa’s reading of Hampel is incorrect, because Hampel dealt with the two-issue rule (when two causes of action or two defenses have been presented, and a general verdict has been returned, it will be presumed all issues were so determined and if one issue was tried free from error, the error in presentation of the second issue will be disregarded), and Hayward’s case does not present two distinct issues, but two elements of the same issue (negligence and causation). Hayward’s interpretation of Hampel is that prejudice is presumed when an instruction given is not supported by the evidence presented in the case, therefore the reviewing court must determine if the presumption is rebutted by the record – and the Ninth District complied by looking for evidence to rebut the presumption of prejudice, finding none.
Hayward’s second argument is that there is no rule of law in Ohio that a finding of no negligence moots any consideration of error in causation instructions. Hayward contends that causation drove the question of negligence and that the two elements were inseparable – “if the doctors did not cause injury with the retractor, then they were not negligent.” The instruction was prejudicial because the record showed the cause of the injury was not really in dispute. What was disputed was whether there was a departure from the standard of care in the use of the retractor in this case. Finally, Hayward argues that in the Coulter case, the plaintiff failed to object to the jury instruction, thus the appeals court used a plain error review—a very different scenario from her case.
Summa’s Proposed Proposition of Law
The Ninth District’s decision in finding reversible error with respect to a remote cause jury instruction where a jury finds no negligence has effectively redefined what constitutes “prejudicial error” in jury instructions and, consequently, the Ninth District has created a direct conflict with this Court and other appellate courts throughout Ohio.
Hayward’s Proposed Counter-Proposition of Law
When a jury instruction is not supported by evidence, a presumption arises that the giving of that instruction is prejudicial error. It is then incumbent upon the reviewing court to examine the record for an indication that the error was harmless. Hampel v. Food Ingredients Specialties, Inc., 89 Ohio St. 3d 169 (2000) followed.
The Summit County Association for Justice filed an amicus brief in support of Hayward. The SCAJ’s stated interest in the case is to uphold the stability of Ohio’s long-established jurisprudence concerning jury instructions and the standard of prejudicial error. The amicus asserts remote cause jury instructions are not applicable in all medical malpractice cases, because evidence must be presented at trial to support the proposed jury instruction before it can be given.
Amicus argues Summa provided little or no testimony on an alternate theory of causation; therefore it was improper for the instruction to be given to the jury. Further, amicus argues if a jury instruction is inadequate and misleads the jury, the error in giving the instruction is reversible error. In this case, the jury answered the interrogatory on proximate cause, even though it had been instructed to do so only if it found negligence, thus indicating juror confusion on the causation instruction. The amicus also mirrors Hayward’s arguments about the misapplication of Hampel, urging that the two issue rule does not apply to this case, therefore Hampel should be distinguished. Finally, the amicus argues none of the cases offered by Summa support the adoption of a bright-line rule that a proximate cause jury instruction that includes foreseeability shall never constitute prejudicial error if the jury finds there was no negligence, because the circumstances of each case were examined on a case-by-case basis.
Student Contributor: Rebecca Campbell