What Happened on Remand: Plaintiffs win again in Medical Negligence Case. Even more this time. Moretz v. Estate of Muakkassa

Update: On November 25, 2014, the plaintiffs filed a satisfaction of judgment in the case.

Case Background

Larry Moretz had suffered from acute back pain for many years. In 2005, Dr. Kamel Muakkassa, a neurosurgeon, diagnosed Moretz with an anterior sacral menigocele, a rare type of cyst in the lower spinal cord. Muakkassa referred Moretz to a general surgeon, Dr. Gary Williams, who removed the cyst under Dr. Muakkassa’s supervision.

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.

Plaintiffs had argued at the Supreme Court that Dr. Muakkassa was negligent in failing to participate in the surgery to help remove the cyst, in failing to use or to recommend that Dr. Williams use magnification and stimulation to identify and protect the nerves, and in failing to recommend a posterior approach to remove the cyst. It was Dr. Muakkassa’s position that there were no nerves in this cyst, and thus his expertise as a neurosurgeon was not needed, 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.

As a result of the surgery, Moretz lost all bowel, bladder, and sexual functions. He and his wife filed a medical negligence complaint against both doctors, though Williams eventually settled. A 6-2 jury awarded the plaintiffs $999,428.73, later reduced by $235,000 in setoffs. Muakkassa’s motions for a new trial and judgment notwithstanding the verdict were denied. The Ninth District Court of Appeals affirmed the judgment entered on the jury’s verdict.

Merit Decision

In Moretz v. Muakkassa, 2013-Ohio-4656, the Court reversed the jury verdict in favor of the plaintiffs in a 5-2 decision written by Chief Justice O’Connor. The court found that the trial court allowed unfairly prejudicial evidence to be received as an exhibit, improperly rejected a jury interrogatory, and incorrectly concluded that certain write-offs presented to the court as evidence required expert testimony to establish their reasonableness. According to the court, these errors warranted a reversal and a new trial. Read the analysis of the merit decision in Moretz here.

Dr. Muakkassa died May 13, 2012. Rola Muakkassa, fiduciary of Dr. Muakkassa’s estate has been substituted as the defendant in the case.

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.)

What Happened on Remand

On remand the case was re-tried to a jury, which returned a unanimous verdict for the plaintiffs.  In the second interrogatory, the jury was asked to state in what respect it found Dr. Muakkassa negligent. The jury listed the following:

  1. Failure to scrub in
  2. Failure to attempt to locate nerves
  3. Failure to follow plan communicated to Doctor Williams and Larry Moretz
  4. Failure to [meet] the required standard of care.

On September 26, 2014, judgment was entered on the jury’s verdict in favor of the plaintiffs for $2,753,000 by Summit County Common Pleas Judge Mary Margaret Rowlands.  Of that amount, $185,000 was for past economic damages and $1,400,000 for future economic damages for Larry Moretz, and non-economic damages in the amount of $750,000 for Larry and $400,000 for Larry’s wife Nicole Moretz.

Rola Muakkassa has filed a motion to apply the statutory $500,000 cap on non-economic damages to the verdict, and a motion to set off the $235,000 settlement amount with co-defendant Dr. Williams from the verdict.  She intends to file a motion for a new trial or judgment notwithstanding the verdict.

The plaintiffs have filed a motion for prejudgment interest in the case for failure to make a good faith offer to settle it.

Student Contributor: Michael Elliott

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