Update: On May 8, 2014, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.
On November 20, 2013, the Supreme Court of Ohio heard 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.”
During surgery to remove a portion of diseased intestine, Theresa Hayward suffered a nerve compression injury caused by the placement of the retractor. Hayward sued the surgeons involved and Summa Health Systems/Akron City Hospital (collectively, the Hospital). While nerve injuries are a known risk of this procedure, the parties in the case (and their experts) differed on whether the injury was just an unavoidable bad result, or malpractice.
At trial, 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 ones on causation if it found negligence. But the jury answered both sets of interrogatories, finding no negligence and no proximate cause. Hayward’s post trial motions were denied.
The 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, and was prejudicial. Read the oral argument preview of the case here.
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.)
At Oral Argument
I’m not following my regular format with this post, because this case pretty much ended before the plaintiff/appellee ever started, because the Hospital’s lawyer really pulled a rabbit out of the hat in this one. After starting out conventionally asking the Court to reverse the appellate decision vacating what he described as “a legally and factually sound jury verdict,” and insisting that there was neither confusion nor prejudice in this case, he was initially faced with considerable skepticism, because the retractor in the case clearly caused the injury (much time was spent on whether that was an unavoidable bad result or the result of negligence). But about midway into his argument, all skepticism vanished when defense counsel gave the following explanation for his insistence there was no prejudice in the case, quoting this sequence of events from the record:
The jury in the case returned with a general verdict, but had not answered the interrogatories. Two of the interrogatories were on negligence; the other two were on proximate cause. When the trial judge realized the interrogatories had not been answered, the judge said, “ok this may be my fault, you will have to sign the interrogatories that you answer –all of you who agree must sign the interrogatories —do it before 1, 2, 3, and 4-go back and do it” The judge specifically instructed the jury to answer all four interrogatories, and the jurors did so. So there was no confusion in the case over the remote cause jury instruction. Defense counsel repeated, several times, that the appellate decision fails because the record eliminates confusion and provides an explanation for why all four interrogatories were answered.
Plaintiff’s counsel never recovered from this. He admitted that what defense counsel said was correct. When he lamely tried to argue unfair surprise, that this argument was waived because it had never been raised before, and that the appeals court could not be faulted for not considering an argument it had not heard, an incredulous Chief Justice O’Connor said, “if that’s in the record, presumably the 9th district is reading it?” He then gamely tried to argue that was only part of the issue, insisting that the jury could have confused standard of care with remote causation, repeatedly relying on Pesek and Hampel.
The Chief really pushed back, noting that the plaintiff might have had an argument for confusion if the jury had answered the interrogatories first, but that hadn’t happened.
I think the justices are all going to agree that the remote cause jury instruction, while a correct statement of law, was not warranted in the case. Defense counsel’s argument for why it was warranted was unpersuasive. In a question to plaintiff’s counsel, Justice O’Neill even stated that he thought “we all agree there was no evidence of a remote cause.” He again asked plaintiff’s counsel what evidence there was of confusion. Plaintiff’s counsel insisted the instruction gave the jury “an alternate path to find no breach of duty.” To me, that argument had no legs, although plaintiff’s counsel repeated it again and again. He insisted that although the appeals court did not cite Hampel, it carefully followed the steps set forth in the case, presuming prejudice from a jury instruction unsupported by the evidence, looking for evidence in the record to rebut that presumption, and finding none. Given what defense counsel cited from the record, that argument sounded pretty lame.
How it Looks From the Bleachers
To Professor Bettman
Like a total and embarrassing loss for the plaintiff, although the Court is likely to say the remote cause instruction should not have been given.
To Student Contributor Rebecca Campbell
Throughout the semester, the Appellate Practice class at UC Law has repeatedly been told the most important part of appellate advocacy is knowledge of the record, and the Appellant’s argument seized upon the record and used it as a weapon. It is important to remember the 9th District Court of Appeals reversed a jury verdict, based on the conjecture the jury’s answer on interrogatories could have shown it was confused, which is where the Court of Appeals found prejudicial error. The record, however, showed the jury originally returned with a verdict but had forgotten to complete the interrogatories, and were then instructed by the Court to complete all of the interrogatories, which undermined the use of the interrogatory answers as evidence of confusion. Even with the lingering question whether the remote causation instruction was appropriate, I think the Court is going to look at the evidence presented from the record and unanimously determine it was wrong to reverse the jury’s verdict.