        [Cite as O'Loughlin v. Mercy Hospital Fairfield, 2015-Ohio-152.]

                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO




EMMETT O’LOUGHLIN, a Minor,                      :          APPEAL NO. C-130484
                                                            TRIAL NO. A-1100372
DARA O’LOUGHLIN, Individually and :
as Parent and Natural Guardian of                               O P I N I O N.
Emmett O’Loughlin,                :

  and                                            :

JAMES O’LOUGHLIN, Individually :
and as Parent and Natural Guardian of
Emmett O’Loughlin,                    :

       Plaintiffs-Appellants,                    :

 vs.                                             :

MERCY HOSPITAL FAIRFIELD,
                                                 :
MERCY HEALTH PARTNERS                      OF
SOUTHWEST OHIO,                                  :

KAREN HAUSER, R.N.,                              :

AMY RISOLA, R.N.,                                :

LORI TRAMMEL, R.N.,                              :

JUDY FRY, R.N.,                                  :

DANIEL CLIFFORD BOWEN, M.D.,                     :

  and                                            :

THE    PROFESSIONAL ORGAN- :
IZATION OF DANIEL CLIFFORD
BOWEN, M.D.,               :

    Defendants-Appellees.                        :
                    OHIO FIRST DISTRICT COURT OF APPEALS



Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: January 21, 2015



Paul W. Flowers Co., Paul W. Flowers, The Becker Law Firm, Michael F. Becker,
Pamela Pantages and John H. Metz, for Plaintiffs-Appellants,

Rendigs, Fry, Kiely & Dennis, LLP, Jeffrey M. Hines, Thomas M. Evans and Karen
A. Carroll, for Defendants-Appellees Mercy Hospital Fairfield, Mercy Health
Partners of Southwest Ohio, Karen Hauser, R.N., Amy Risola, R.N., Lori Trammel,
R.N., and Judy Fry, R.N.,

Calderhead, Lockemeyer & Peschke, David C. Calderhead and Joel L. Peschke, for
Defendants-Appellees Daniel Clifford Bowen, M.D., and the Professional
Organization of Daniel Clifford Bowen, M.D.




Please note: this case has been removed from the accelerated calendar.




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                     OHIO FIRST DISTRICT COURT OF APPEALS




HILDEBRANDT, Judge.

       {¶1}   Plaintiff-appellant Emmet O’Loughlin, a minor, suffered a traumatic

brain injury at birth. Emmet and his parents, plaintiffs-appellants Dara and James

O’Loughlin, sued defendants-appellees Dr. Daniel Bowen, the doctor that delivered

Emmet, Dr. Bowen’s practice group, the hospital where Emmet was born, Mercy

Fairfield, and four obstetrical nurses assisting in the labor and delivery of Emmet for

medical malpractice.    Following a four-week jury trial, the trial court entered

judgment in favor of Dr. Bowen and his practice group and Mercy Fairfield and its

nurses. The O’Loughlins now appeal, asserting six assignments of error. For the

following reasons, we affirm the trial court’s judgment.

                                 Peremptory Challenges

       {¶2}   In their first assignment of error, the O’Loughlins contend that the

trial court abused its discretion and thus, skewed the jury-selection process by

allowing “the aligned defendants” to each exercise three peremptory challenges.

       {¶3}   Civ.R. 47(C) provides that “each party peremptorily may challenge

three prospective jurors. If the interests of multiple litigants are essentially the

same, ‘each party’ shall mean ‘each side.’ ” In LeFort v. Century 21-Maitland Co., 32

Ohio St.3d 121, 125, 512 N.E.2d 640 (1987), citing Chakeres v. Merchants &

Mechanics Fed. S. & L. Assn., 117 Ohio App. 351, 355, 192 N.E.2d 323 (2d Dist.1962),

the Ohio Supreme Court held that

              [u]nder statutes which allow a specific number of challenges

              to ‘each party,’ the majority view is that those who have

              identical interests or defenses are to be considered as one



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                      OHIO FIRST DISTRICT COURT OF APPEALS


               party and therefore only collectively entitled to the number

               of challenges allowed to one party by the statute. * * *

               However, if the interests of the parties defendant are

               essentially different or antagonistic, each litigant is

               ordinarily deemed a party * * * and entitled to the full

               number of peremptory challenges.


       {¶4}    In LeFort, the court held that the defendants were each entitled to

three peremptory challenges, because (1) each defendant had been represented by its

own counsel; (2) each defendant had filed separate replies and defenses; and (3) one

of the defendants had filed a separate motion for partial summary judgment, alleging

they had owed no duty to the plaintiffs. Id.

       {¶5}    In Bernal v. Lindholm, 133 Ohio App.3d 163, 727 N.E.2d 145 (6th

Dist.1999), the appellate court applied the LeFort factors to affirm a trial court’s

award of nine peremptory challenges to defendants in comparison to the plaintiff’s

three challenges. There, the court noted that although the defendants promoted a

common causation theory, if the jury had rejected that theory, it could have found

one of the defendants liable and not the others. Thus, “the defenses asserted did not

necessarily stand or fall together.” Id. at 176, citing LeFort at 125.

       {¶6}    In this case, we find that the trial court did not err in granting each

defendant three peremptory challenges. Here, the hospital and the nurses were one

party-defendant and Dr. Bowen and his practice group were another party-

defendant. Each party was represented by separate counsel, and separate pleadings

and motions were filed. With respect to the defenses asserted, we recognize that the

shared theory that Dara and James O’Loughlin had been committed to natural




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                      OHIO FIRST DISTRICT COURT OF APPEALS



childbirth and had refused medical intervention could have exonerated all the

defendants. But if the jury had chosen not to accept that theory, it nevertheless could

have found one defendant liable and not the other, because Dr. Bowen and the

nurses were subject to different standards of care. Thus, the parties’ defenses did not

necessarily stand or fall together. The first assignment of error is overruled.

                                    Evidentiary Issues

       {¶7}    In their second assignment of error, the O’Loughlins maintain that the

trial court abused its discretion by refusing to allow them to impeach the credibility

of Dr. Bowen with evidence that he had failed to pass his OB/GYN board certification

examination.

       {¶8}    “A trial court is in the best position to make evidentiary rulings and an

appellate court should not substitute its judgment for that of the trial judge absent an

abuse of discretion.” Branch v. Cleveland Clinic Found., 134 Ohio St.3d 114, 2012-

Ohio-5345, 980 N.E.2d 970, ¶ 17. An abuse of discretion is more than an error of law

or judgment; instead, it implies that the court’s attitude is unreasonable, arbitrary or

unconscionable. Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d

1140 (1983).

       {¶9}    The O’Loughlins believed that questioning Dr. Bowen about his failed

attempt at board certification was relevant because it related to his credibility. But

Ohio courts have held that questions concerning a doctor’s failure to pass a board

examination are not relevant to his or her credibility in medical-malpractice cases.

See Shoemake v. Hay, 12th Dist. Clermont No. CA2002-06-048, 2003-Ohio-2782, ¶

15; Nash v. Hontanosas, 12th Dist. Clermont No. CA2001-02-027, 2002-Ohio-1741;

Keller v. Bacevice, 9th Dist. Lorain No. 94CA005812, 1994 Ohio App. LEXIS 5444




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                      OHIO FIRST DISTRICT COURT OF APPEALS



(Nov. 30, 1994); Johnston v. Univ. Mednet, 8th Dist. Cuyahoga No. 65623, 1994

Ohio App. LEXIS 3495 (Aug. 11, 1994), overruled on other grounds, 71 Ohio St.3d

608, 646 N.E.2d 453 (1995) (trial court did not abuse its discretion in finding that

questions on cross-examination about doctor’s failure to pass pediatrics board

certification examination were not relevant to competency or credibility). Mainly

because such questioning is not relevant to or determinative of the ultimate issue of

whether a particular doctor has breached the applicable standard of care.

       {¶10} The O’Loughlins argue that the cases cited above are not persuasive

authority because the doctors in those cases were not qualified to testify as experts,

as Dr. Bowen was here. But the doctor in Hay offered his expert opinion on the

ultimate issue of his medical negligence, similar to Dr. Bowen. Dr. Bowen testified as

to the facts of what happened before, during and after the alleged malpractice. He

only opined, as an expert, that he had met the standard of care; he did not testify as

an expert as to the causation of Emmet’s injury or any other matter. Further, the

jury heard on cross-examination that Dr. Bowen was not board certified, thus leaving

the jury to weigh his testimony, as a non-board-certified doctor, with the

O’Loughlins’ experts, who were board certified.

       {¶11} Based on the foregoing, we hold that the trial court did not abuse its

discretion by refusing to allow the O’Loughlins to question Dr. Bowen about his

failed attempt at board certification.

       {¶12} The O’Loughlins also assert that the trial court abused its discretion by

not allowing them to question Dr. Bowen about the hospital’s concern that he was

not board certified. Although they raise this issue, the O’Loughlins did not present

any argument to support their assertion. Nevertheless, a review of the record reveals




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                     OHIO FIRST DISTRICT COURT OF APPEALS



that the hospital only expressed concern about Dr. Bowen’s lack of board

certification when he began to teach residents in the hospital’s residency program;

there had been no concern expressed by the hospital in the previous years, including

the year Emmet was born.        Thus, because the O’Loughlins’ questions were not

relevant to whether Dr. Bowen met the standard of care, we cannot say that the trial

court abused its discretion in refusing to allow questioning on this issue.

       {¶13} The second assignment of error is overruled.

       {¶14} In the third assignment of error, the O’Loughlins contend that the trial

court abused its discretion when it permitted the defendants “to introduce a highly

prejudicial ‘refusal of treatment’ form that misleadingly suggested that [the

O’Loughlins] had waived their legal rights.” We find no abuse of discretion and

overrule this assignment of error. The defendants did not argue at trial that the

O’Loughlins had waived their legal rights.         The form was relevant because the

O’Loughlins maintained that they did not refuse any necessary treatment during the

labor and delivery of Emmet, including a necessary cesarean section. Finally, we

cannot see how the presentation of this form to the jury was prejudicial to the

O’Loughlins, when they introduced the exhibit themselves and relied on it during the

testimony of their experts.

       {¶15} Next, in the fourth assignment of error, the O’Loughlins maintain that

the trial court further abused its discretion by restricting rebuttal testimony. The

record demonstrates that the O’Loughlins wanted to present rebuttal testimony on

approximately 15 issues. The court only allowed rebuttal on six of those issues. The

O’Loughlins argue that the trial court applied the wrong standard in determining

when to allow rebuttal testimony. We hold otherwise.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶16} The Ohio Supreme Court has held that “a party has an unconditional

right to present rebuttal testimony on matters which are first addressed in an

opponent’s case-in-chief and should not be brought in the rebutting party’s case-in-

chief.” Phung v. Waste Mgt., Inc., 71 Ohio St.3d 408, 410, 644 N.E.2d 286 (1994).

An abuse of discretion will be found when this right has been unreasonably violated.

Klem v. Consol. Rail Corp., 6th Dist. Lucas No. L-09-1223, 2010-Ohio-3330.

       {¶17} The record demonstrates that the trial court applied this standard

when reviewing the O’Loughlins’ request for rebuttal testimony.              While the

O’Loughlins claim that the trial court refused to permit rebuttal in several highly

prejudicial respects, they did not provide argument for each instance. Instead, they

only refer to one issue involving Dr. Bowen’s testimony, during his case-in-chief,

where he testified that Dara had said “no” to a cesarean section, and that he

remembered her saying “no” because when she shook her head a “scrunchy” fell out

of her hair. Dara wanted to rebut that testimony by explaining that she has never

worn a scrunchy and that she could not have said “no” or anything else to Dr. Bowen

because an oxygen mask had been strapped to her face at that time. The trial court

denied this rebuttal because it determined that the scrunchy was a “collateral detail,”

and that Dara had already testified during her case-in-chief that she had had an

oxygen mask on and that she had not refused a necessary cesarean section. We find

that the trial court did not abuse its discretion in refusing rebuttal testimony in this

instance. We have no reason to disagree with the trial court that the scrunchy was a

“collateral detail,” and the record reflects that Dara had already testified that she had

been wearing an oxygen mask and thus, could not, and did not, refuse a necessary

cesarean section.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶18} With respect to the other instances complained of, we have reviewed

the record and hold that the trial court did not abuse its discretion in refusing

rebuttal testimony on the remaining five issues.

       {¶19} The fourth assignment of error is overruled.

                               Lack of Informed Consent

       {¶20} In their fifth assignment of error, the O’Loughlins maintain that the

trial court erred “by sua sponte entering a directed verdict on their claim of informed

consent.” In their complaint, they alleged, separate and apart from their theory of

negligence, that damages were owed as a result of Dr. Bowen’s failure to fully and

timely disclose the risk of continuing with a vaginal delivery, and fully explain the

necessity of a cesarean section. The trial court determined at the close of evidence

that the informed-consent claim was subsumed in the negligence claim, and

therefore, it did not instruct the jury on lack of informed consent. We hold that the

trial court did not err.

       {¶21} We review this assignment de novo. Wilson v. Harvey, 164 Ohio

App.3d 278, 2005-Ohio-5722, 842 N.E.2d 83 ¶ 10 (8th Dist.2005). The tort of lack

of informed consent is established when: (1) the physician fails to disclose to the

patient and discuss the material risks and dangers inherently and potentially

involved with respect to the proposed therapy; (2) the unrevealed risks and

dangers which should have been disclosed by the physician actually materialize and

are the proximate cause of the injury to the patient; and (3) a reasonable person in

the position of the patient would have decided against the therapy had the

material risks and dangers inherent and incidental to treatment been disclosed to




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                     OHIO FIRST DISTRICT COURT OF APPEALS



him or her prior to therapy. Nickell v. Gonzalez, 17 Ohio St.3d 136, 477 N.E.2d 1145

(1985), paragraph two of the syllabus.

       {¶22} By its definition, a lack-of-informed-consent claim contemplates

something more than a failure to disclose; it requires an act against the patient

without his or her full knowledge or understanding of the attendant risks of that act.

In considering a lack-of-informed-consent claim, Judge Cardozo stated that “the

wrong complained of is not merely negligence. It is trespass.” Schloendorf v. Soc. of

New York Hosps., 211 N.Y. 125, 105 N.E. 92 (1914). Here, Dr. Bowen did not

trespass on his patient. Dr. Bowen recommended a cesarean delivery, which Dara

and James refused at the time it was offered. If they had agreed to a cesarean

delivery at that time, Dr. Bowen would have been required to inform them of any

risks attendant to that type of delivery. Failing to disclose the need for a cesarean

delivery, while not amounting to an informed-consent claim, may have been

considered negligence, and the jury was able to consider this issue under the

O’Loughlins’ medical-malpractice claim, which relied on the same facts as the lack-

of-informed-consent claim.

       {¶23} Likewise, the allegation that Dr. Bowen failed to disclose the risks of

continuing with a vaginal delivery does not support a lack-of-informed-consent

claim, because Dr. Bowen did not recommend continuing with the vaginal delivery

over other options, such as a cesarean delivery. But the fact that he allowed Dara to

continue to attempt to vaginally deliver for a while could have been considered

negligence, and again, the jury was able to consider this theory under the

O’Loughlins’ medical-malpractice claim.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶24} Accordingly, because there was no treatment recommended by Dr.

Bowen that Dara and James agreed to undertake, a claim of lack of informed consent

was not tenable, and the trial court did not err in refusing to include a jury

instruction on that claim. The fifth assignment of error is overruled.

                                    Jury Instructions

       {¶25} In their final assignment of error, the O’Loughlins maintain that the

court gave erroneous and inapplicable jury instructions.          They contend these

erroneous instructions misled the jury and warrant a new trial.

       {¶26} “A trial court has discretion whether to give a requested jury

instruction based on the dispositive issues presented during trial. It is the duty of a

trial court to submit an essential issue to the jury when there is sufficient evidence

relating to that issue to permit reasonable minds to reach different conclusions on

that issue.” Renfro v. Black, 52 Ohio St.3d 27, 30, 556 N.E.2d 150 (1990). “A trial

court must give a jury instruction that correctly and completely states the law. An

inadequate jury instruction that misleads the jury constitutes reversible error.”

Groob v. KeyBank, 108 Ohio St.3d 348, 2006-Ohio-1189, 843 N.E.2d 1170 ¶ 32.

       {¶27} The O’Loughlins first challenge the instruction involving the

foreseeability of Emmet’s injury as it relates to the standard of care Dr. Bowen and

the nurses owed to Dara and Emmet.           In order to prove a claim of medical

malpractice, the plaintiff must establish (1) the standard of care, as generally shown

through expert testimony; (2) the failure of defendant to meet the requisite standard

of care; and (3) a direct causal connection between the medically negligent act and

the injury sustained. Bruni v. Tatsumi, 46 Ohio St.2d 127, 346 N.E.2d 673 (1976).

The existence of a duty, or standard of care, depends on the foreseeability of the




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                     OHIO FIRST DISTRICT COURT OF APPEALS



injury. Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707

(1984). In order to determine what is foreseeable, a court must determine “whether

a reasonably prudent person would have anticipated that an injury was likely to

result from the performance or nonperformance of an act.” Id. at 77.

       {¶28} Here, the trial court instructed the jury that:


              In deciding whether reasonable care was used, you will

              consider whether the defendant or defendants ought to

              have foreseen under the circumstances that the likely

              result of an act or failure to act would cause some injury.


              The test for foreseeability is not whether the defendant or

              defendants should have foreseen the injury exactly as it

              happened to plaintiffs.    The test is whether, under all

              circumstances, a reasonably careful person would have

              anticipated that an act or failure to act would likely result

              in some injury.


       {¶29} This jury instruction mimics the language given by the Supreme Court

and used in pattern instructions from the Ohio Jury Instructions. See Menifee at 77;

Miller v. Defiance Regional Med. Ctr., Lucas App. No. L-06-111, 2007-Ohio-7101.

Further, multiple appellate districts in Ohio have upheld the use of a similar

foreseeability instruction in medical-malpractice cases. Ratliff v. Mikol, 8th Dist.

Cuyahoga No. 94930, 2011-Ohio-2147 (foreseeability instruction proper in medical-

malpractice case alleging that doctor’s failure to order a cesarean section in light of

fetal distress signs caused brain injury at birth); Cox v. MetroHealth Med. Ctr. Bd. of


                                              12
                     OHIO FIRST DISTRICT COURT OF APPEALS



Trustees, 2012-Ohio-2383, 971 N.E.2d 1026 (8th Dist.); Clements v. Lima Mem.

Hosp., 3d Dist. Allen No. 1-09-24, 2010-Ohio-602; Peffer v. Cleveland Clinic Found.,

8th Dist. Cuyahoga No. 94356, 2011-Ohio-450; Joiner v. Simon, 1st Dist. Hamilton

No. C-050718, 2007-Ohio-425, ¶ 59-61; Miller, supra.

       {¶30} The issue of foreseeability was a dispositive issue in this case. The

O’Loughlins presented testimony from their experts that under the circumstances

presented, especially during the last four hours of Dara’s labor, Dr. Bowen and the

nurses should have seen or known that the baby’s condition was deteriorating and

that an injury could result. Based on the foregoing, we cannot say that the trial court

abused its discretion in including an instruction on foreseeability.

       {¶31} The O’Loughlins cite to Cromer v. Children’s Hosp. Med. Ctr. of

Akron, 2012-Ohio-5154, 985 N.E.2d 548 (9th Dist.), discretionary appeal allowed,

134 Ohio St.3d 1484, 2013-Ohio-902, 984 N.E.2d 28, which held that the trial court

had erred by including the foreseeability instruction in that medical-malpractice

case. But that case is distinguishable because the trial court in Cromer, instead of

instructing the jury to consider whether the doctor should have foreseen that his act

would cause “some injury,” instructed the jury to consider whether the doctor should

have foreseen that his actions or lack thereof would “cause [Cromer’s] death.” Ohio

law is clear that doctors only have to foresee that their actions or lack thereof could

have caused any injury, not a specific injury. Thus, the jury instruction in Cromer

was an incorrect statement of the law.

       {¶32} Next, the O’Loughlins contend that the jury instruction in this case was

an incorrect statement of the law. They maintain that including the word “likely” in

the foreseeability instruction effectively required them to prove that foreseeable




                                              13
                       OHIO FIRST DISTRICT COURT OF APPEALS



harm was “probable” (more than 50 percent). But the Eighth Appellate District has

repeatedly rejected this same argument in medical-malpractice cases. See Cox, 2012-

Ohio-2383, 971 N.E.2d 1026; Ratliff, 8th Dist. Cuyahoga No. 94930, 2011-Ohio-

2147, at ¶ 10; Peffer, 8th Dist. Cuyahoga No. 94356, 2011-Ohio-450, at ¶ 44-57.

       {¶33} Because the language used by the trial court here to instruct the jury

on foreseeability has been approved by the Ohio Supreme Court, we cannot say that

the trial court erred in its statement of the law, regardless of whether there is merit to

the O’Loughlins argument. See Menifee, 15 Ohio St.3d at 77, 472 N.E.2d 707.

       {¶34} Finally, the O’Loughlins maintain that the trial court erred by

including a “different methods” instruction in the jury charge. We disagree. The

defendants’ experts testified that Dr. Bowen had alternative methods of care to

choose from in treating Dara, ranging from an emergency cesarean section or vaginal

delivery, intermittent fetal monitoring or continuous monitoring, or vacuum assisted

delivery, as opposed to forceps delivery. The nurses also had different options for

treatment, including holding transducers in place by hand or applying them with

belts, performing intrauterine resuscitation or not, and using the uterine-contraction

monitor or not. Because there was evidence presented to the jury that different

methods could have been utilized by the medical professionals, a “different methods”

instruction was proper, and the trial court did not abuse its discretion in including

such an instruction.

       {¶35} The sixth assignment of error is overruled, and the judgment of the

trial court is affirmed.

                                                                    Judgment affirmed.

CUNNINGHAM, P.J., and HENDON, J., concur.




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                      OHIO FIRST DISTRICT COURT OF APPEALS




Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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