[Cite as Brahm v. DHSC, LLC., 2019-Ohio-766.]


                                     COURT OF APPEALS
                                    STARK COUNTY, OHIO
                                 FIFTH APPELLATE DISTRICT

                                                        JUDGES:
JAMES E. BRAHM, INDIVIDUALLY                    :       Hon. W. Scott Gwin, P.J.
AND AS EXECUTOR OF THE                          :       Hon. Patricia A. Delaney, J
ESTATE OF MARY KATHLEEN                         :       Hon. Craig R. Baldwin, J.
BRAHM, DECEASED                                 :
                                                :
                       Plaintiff-Appellant      :       Case No. 2018CA00100
                                                :
-vs-                                            :
                                                :       OPINION
DHSC, LLC, DBA AFFINITY
MEDICAL CENTER, ET AL

                 Defendants-Appellees




CHARACTER OF PROCEEDING:                            Civil appeal from the Stark County Court of
                                                    Common Pleas, Case No. 2014CV01545

JUDGMENT:                                           Affirmed


DATE OF JUDGMENT ENTRY:                             March 4, 2019

APPEARANCES:

For Plaintiff-Appellant                             For Defendant-Appellee Joseph Surmitis

STEPHEN GRIFFIN                                     STEPHEN FUNK
4051 Whipple Ave.                                   222 South Main Street
Suite 201                                           Akron, OH 44308
Canton, OH 44718

                                                    For DHSC, LLC DBA Affinity Med. Center
                                                    MICHAEL OCKERMAN
                                                    3737 Embassy Parkway, Ste. 100
                                                    Akron, OH 44333
[Cite as Brahm v. DHSC, LLC., 2019-Ohio-766.]


Gwin, P.J.

         {¶1}   Appellant appeals the judgments in favor of appellees issued by the Stark

County Court of Common Pleas.

                                        Facts & Procedural History

         {¶2}   On June 30, 2014, appellant James E. Brahm, individually and as executor

of the estate of Mary Kathleen Brahm, deceased, filed a complaint against appellee

DHSC, LLC D/B/A Affinity Medical Center (“Affinity”), appellee Joseph Surmitis, M.D.

(“Surmitis”), Paula Hostetler, R.N., Cinda Keener, R.N., Susan Kelley, R.N., and Kellee

Mears, R.T. Appellant alleged in his complaint that on July 10, 2013, decedent Mrs.

Brahm suffered a mild myocardial infarction, she was transported from her home to

Affinity by EMS, the cardiac catheterization team at Affinity was called to perform a

cardiac catheterization/stent procedure on Mrs. Brahm, and during the procedure, the

walls of Mrs. Brahm’s coronary artery were torn or ruptured. Appellant further averred

the rupture caused Mrs. Brahm’s blood volume to accumulate around her heart,

constricting her heart, restricting its ability to move blood volume throughout her body,

and placing her into cardiogenic shock. Appellant alleged subsequent efforts by Surmitis

and his team to mitigate the harm caused by the ruptured coronary artery further

comprised Mrs. Brahm’s condition and Mrs. Brahm expired after subsequent cardiac

surgery failed to repair and/or resume or restore her condition. Appellant included in his

complaint claims for medical negligence survivorship, loss of consortium, and wrongful

death.

         {¶3}   On December 8, 2014, the trial court granted appellant’s motion to file a first

amended complaint to add claims for punitive damages, negligent credentialing, and
Stark County, Case No. 2018CA00100                                                      3


agency by estoppel.      On February 20, 2015, the trial court ordered bifurcation of

appellant’s negligent credentialing and punitive damages claims from appellant’s medical

negligence claims, but ordered discovery be conducted on all claims.

       {¶4}   Appellant voluntarily dismissed his claims against Cinda Keener, Kellee

Mears, Paula Hostetler, and Susan Kelley on April 13, 2015.

       {¶5}   After multiple interlocutory appeals regarding discovery issues, the case

went to trial on June 18, 2018. Appellant provided this Court with a partial transcript of

the trial. The partial transcript contains an excerpt from June 20, 2018. The excerpt

covers a motion hearing on Affinity’s motion for directed verdict. Affinity argued that,

based upon appellant’s testimony that he signed a release, it was entitled to a directed

verdict. Appellant argued the release was not sufficient based upon the Clark theory.

The trial court granted Affinity’s motion for directed verdict.

       {¶6}   The June 22, 2018 excerpt contains the testimony of Surmitis and Dr. Kevin

Silver. On direct examination, Surmitis described the procedure he performed on Mrs.

Brahm. Surmitis placed a sheath in Mrs. Brahm’s right femoral vein and right femoral

artery, and then inserted a pacemaker. Surmitis passed the wire through the distal part

of the vessel and then moved on to the angioplasty, a procedure by which he uses

balloons or stents to restore proper blood flow to a blood vessel. Surmitis placed the

balloon into the midportion of the right coronary artery. Surmitis testified he used a 2.5

by 15 Maverick balloon, which is a compliant balloon that many interventionalists use. He

re-established a flow of blood through the vessel and then deflated the balloon. Surmitis

chose a Veriflex stent and inserted the stent, but sought to expand the stent further with

a post-dilatation inflation of another balloon. Surmitis chose a 3.5 mm by 20 mm long
Stark County, Case No. 2018CA00100                                                        4


Maverick balloon. Surmitis does not believe the balloon he chose was oversized or that

he used the wrong type of balloon.       Surmitis testified the choice between using a

compliant balloon and non-compliant balloon is based upon physician discretion and the

Maverick balloon he used has the indication for being used for post-dilatation. Surmitis

felt a non-compliant balloon could produce side effects due to the use of very high

pressure.

       {¶7}   Surmitis testified he was trained and it is common practice to go over the

manufacturer’s burst pressure rating. Surmitis stated that, in this case, the balloon did

not burst. After Surmitis’ second inflation of the balloon, he had immediate problems, as

blood was escaping from the middle portion of the stent. Surmitis testified the vessel

perforated. Surmitis does not believe he was negligent in causing the rupture of the

vessel because this is a risk in between 1 and 200 or 500 procedures, even with good

technique. After Surmitis stopped the bleeding at the site, he felt Mrs. Brahm needed to

have pericardiocentesis to try to drain some of the fluid around the heart.            The

pericardiocentesis procedure is where Surmitis would enter the pericardium, drain out the

blood, allow the heart to expand, and then bring up the blood pressure. Surmitis testified

he found out after surgery that the catheter tip was in the right ventricle, even though the

indications in the cath lab were that it was the pericardium. Surmitis stated he did not

believe he was negligent in placing the catheter because, while it was not in the desired

place, it is a known complication of the procedure.

       {¶8}   On cross-examination, counsel for appellant asked Surmitis about an article

written by Antonio Colombo in 2008 (“the Colombo article”).          Counsel for Surmitis

objected to the questioning regarding the article because it was not produced in discovery
Stark County, Case No. 2018CA00100                                                        5


and Surmitis did not have an opportunity to read it. The trial court overruled Surmitis’

objection.    Counsel read portions of the article indicating the use of non-compliant

balloons for post-dilation inflation is preferred over compliant balloons and using a

compliant balloon at high pressure post-dilation increases the risk of perforation. When

being questioned about the data in the article regarding using a compliant or non-

compliant balloon in post-dilatation, Surmitis testified the Colombo article is “just a

snapshot of a few persons’ thoughts from Italy, without any, you know, FDA guidance or

anything. It’s just their opinion at that point in time.” Counsel for appellant asked, “And

published in the American College of Cardiology Journal, right?” Surmitis responded,

“Yeah. There is a large volume – this is only one article out of hundreds of thousands or

millions of articles.” Counsel for appellant then asked, “You’ve read that article, nowhere

in that article does it advocate anywhere the use of compliant balloons in post-stent

deployment dilatation?” Surmitis stated the article does not say that you cannot use

compliant balloons for post-dilatation and he was justified in choosing to do so.

       {¶9}    On re-direct examination, Surmitis testified he is sure there is plenty of

literature published on the topic from 2008 to 2013. Further, that from 2008 to 2013, there

have been many advances and revisions of recommendations of how to use stents.

Surmitis stated the balloon he chose for the post-dilatation was the appropriate size for

the vessel he was going to post-dilate.

       {¶10} Prior to Dr. Kevin Silver’s (“Silver”) testimony, counsel for appellant

informed the trial court he intended to cross-examine Silver on several articles that Silver

had not read and were not provided in discovery. Counsel sought to utilize these articles

to impeach Silver.     The trial court informed counsel he would permit such cross-
Stark County, Case No. 2018CA00100                                                          6


examination and asked counsel how many articles he would be utilizing. Counsel stated

as follows: Well, I have three or four. But if we were going to use the article that we

identified this morning because I do understand that I haven’t – I don’t want to drag this

out this afternoon, everybody wants to get out this afternoon, I appreciate that. So rather

than have to give them copies and spend a half hour, 45 minutes doing it, I’ll just rely on

the article that we produced this morning.” When opposing counsel asked if the only

piece of literature counsel for appellant was going to bring out is the one already

discussed with Surmitis, counsel for appellant stated, “Yeah, just in the interest of judicial

economy.” The trial court stated if counsel for appellant chose to do something different

during the cross-examination, he should approach the bench for a sidebar.

       {¶11} Counsel for Surmitis called Silver as an expert witness. Silver testified his

opinion is that Surmitis met the standard of care required of him. Silver noted Mrs. Brahm

was a 72-year old woman, hypertensive, and cigarette smoker. Silver went through each

step of Surmitis’ procedure and stated each step was within the standard of care. As to

the coronary artery perforation, Silver stated this is a well-recognized complication and

Surmitis followed the protocol after the complication. Further, that the placement of the

catheter into the right ventricle was a complication. Silver testified neither the perforation

of the right coronary artery nor the placement of the catheter into the right ventricle was

due to negligence by Surmitis. Silver stated the “blind” method Surmitis used in placing

the catheter was reasonable, appropriate, and pursuant to the standard of care in such

an emergency situation.

       {¶12} As to the balloon selected and the pressure utilized, Silver testified there

are two types of balloons, compliant balloons and noncompliant balloons, and under the
Stark County, Case No. 2018CA00100                                                       7


same pressures, the compliant balloons will stretch more than the noncompliant balloons.

Silver stated the FDA has approved both type of balloons to be used to post-dilate stents.

Silver testified it was reasonable of Surmitis to conclude if he inflated a balloon to the

same pressure once, he would not oversize the balloon if he used it again under the same

pressure. Silver opined there was a rupture because calcium in the artery pushed through

the vessel wall. Silver testified the Maverick balloon Surmitis used was one of several

balloons that are equally acceptable for post-dilation inflation and that Surmitis inserted

the balloon appropriately and the balloon was expanded appropriately.

       {¶13} When Silver was asked how he could inflate a balloon to higher

atmospheres of pressure when the manufacturer says the limit is lower, Silver testified as

follows:

              They typically go to high pressures. And there were studies back in

       the 1990’s, late 1990’s, supporting this. I believe one of the articles was

       pulled for that. And that’s a review article, but there are many articles and

       there are many studies done. Now it’s become standard of care. I go to

       between two and three interventional courses every year where we watch

       anywhere from 10 to 50 live cases being done from around the world, and

       these cases are brought in by satellite, you watch them on a big screen,

       and you can go up to a microphone, you can talk to the operator while

       they’re doing these cases and you ask them questions: Why are you

       inflating? Why’d you use that balloon? Why did you use this pressure? You

       know, and this is not just in Cleveland, this is throughout the United States,
Stark County, Case No. 2018CA00100                                                       8


       this is throughout the world. This is standard of care. I’ve seen people go

       very, very high atmospheres just to get the balloon to be the right size.

       {¶14} Silver testified the numbers on the manufacturer’s literature are a rough idea

and every patient is different. Silver stated he goes over the manufacturer’s limit on

pressures greater than fifty percent of the time. Further, his partners, who have trained

in a variety of different places, all go over the rated burst when they post-dilate a stent

because this has become a standard of care.

       {¶15} On cross-examination, Silver confirmed that he did not have the names of

any of the articles supporting high pressures. Silver testified “there are many different

articles, it would be hard for me to list them all. So, no, I did not give him the names.”

Silver confirmed that in his deposition, he did not give the names of any of the articles,

but referred to various journals such as the Journal of the American College of Cardiology

and New England Journal of Medicine. Silver also gave counsel the name of Antonio

Colombo.     Counsel inquired as to why, seven months after his deposition, Silver still

didn’t have the name of one article that he is basing his opinions on and Silver testified,

“I did not bring an article or book with me.”

       {¶16} Later in cross-examination, counsel for appellant inquired as to whether the

literature differentiates between complications that are negligent and those that are not.

Silver testified the literature does not.       The end of Silver’s testimony and cross-

examination is the end of the transcript excerpt provided to this Court.

       {¶17} On June 25, 2018, the jury found in favor of Surmitis on both appellant’s

survivorship claim and wrongful death claim. In the jury interrogatories, the jury found

appellant did not prove by a preponderance of the evidence that the care provided to Mrs.
Stark County, Case No. 2018CA00100                                                           9


Brahm by Surmitis was negligent. The trial court issued a judgment entry on the verdict

on June 26, 2018, awarding judgment to Surmitis.

       {¶18} Appellant filed a motion to enforce settlement agreement on July 5, 2018.

Attached to the motion is the affidavit of counsel for appellant, stating all factual

allegations set forth in the motion are verified and authenticated and all attached

exhibits/correspondence were prepared by him. The exhibits consist of several e-mails

between counsel for appellant, counsel for Affinity, and their office staff.

       {¶19} Counsel for appellant e-mailed Affinity on Thursday, June 21, 2018, stating

the family appreciated the $50,000 offer to settle as communicated by the trial judge and

stating he was authorized to offer Affinity a full and final release for $120,000. On Friday,

counsel for Affinity responded that the carrier was not interested in increasing their offer,

but if counsel for appellant wanted to talk, he should call counsel for Affinity. The following

Monday, counsel for appellant sent an e-mail stating appellant accepted the offer of

$50,000 as a cost settlement and, in exchange, no appeal would be filed on the court’s

ruling awarding Affinity a directed verdict and, further, appellant would file a voluntary

dismissal with prejudice to Affinity on the negligent credentialing claim. Counsel for

Affinity thanked him for his response.

       {¶20} On Tuesday, counsel for appellant’s assistant e-mailed counsel for

appellant, stating counsel for appellee’s office told her Brahm had to be on the check

since it is being settled on their behalf. The assistant sent an e-mail to the office staff of

Affinity’s counsel informing them who to make the check out to and Affinity’s counsel’s

staff responded, “Got it.” Later than afternoon, counsel for Affinity sent counsel for

appellant an e-mail stating it was their position that when they offered $50,000 and
Stark County, Case No. 2018CA00100                                                       10


appellant countered at $120,000 and they refused the demand of $120,000, the offer of

$50,000 was off the table and thus there was no offer on the table to be accepted by

appellant on June 25th.

       {¶21} In his motion, appellant argues Affinity did not limit their offer in time or

duration and appellant accepted the offer prior to the verdict; thus the parties resolved

their claims for $50,000 in exchange for a promise not to appeal the directed verdict ruling

and a dismissal of the negligent credentialing claim with prejudice.        Appellant also

contends the office staff of the attorneys acted in conformity with a meeting of the minds

for settlement. Appellant stated in his motion that all supportive exhibits were attached.

Appellant did not request a hearing on the motion to enforce.

       {¶22} Appellant filed a notice of voluntary dismissal, with prejudice, of his

negligent credentialing claim, but subsequently filed a notice of withdrawal of the

dismissal after the trial court overruled appellant’s motion to enforce.

       {¶23} The trial court overruled appellant’s motion to enforce settlement agreement

on July 12, 2018.

       {¶24} Appellant appeals the judgments in favor of appellees issued by the Stark

County Court of Common Pleas and assigns the following as error:

       {¶25} “I. THE TRIAL COURT ERRED IN PERMITTING DR. SURMITIS AND HIS

EXPERTS TO TESTIFY THAT THEIR OPINIONS REGARDING THE SELECTION AND

DEPLOYMENT OF A COMPLIANT BALLOON IN A POST-DILATION INFLATION WERE

SUPPORTED BY THE ‘MEDICAL LITERATURE.’
Stark County, Case No. 2018CA00100                                                       11


       {¶26} “II. THE TRIAL COURT ERRED IN PERMITTING DR. SURMITIS’ EXPERT

TO TESTIFY THAT ‘EVERYONE’ OVERINFLATES COMPLIANT BALLOONS IN A

POST-DILATION INFLATION.

       {¶27} “III. THE TRIAL COURT ERRED IN DIRECTING A VERDICT IN FAVOR

OF AFFINITY MEDICAL CENTER UPON PLAINTIFF’S AGENCY BY ESTOPPEL

LIABILITY THEORY.

       {¶28} “IV. THE TRIAL COURT ERRED IN FAILING TO CONDUCT A HEARING

ON PLAINTIFF’S MOTION TO ENFORCE THE SETTLEMENT BETWEEN PLAINTIFF

AND AFFINITY MEDICAL CENTER.

       {¶29} “V. THE TRIAL COURT’S ERRONEOUS RULINGS COLLECTIVELY

DEPRIVED PLAINTIFF OF A FAIR TRIAL AND CONSTITUTED CUMULATIVE ERROR,

WARRANTING A NEW TRIAL.”

                                              I. & II.

       {¶30} In his first and second assignment of error, appellant argues the trial court

erred in allowing Surmitis and Silver to refer to certain medical literature during their

testimony. Appellant also contends the trial court erred in allowing Silver to testify about

his observations at medical conferences and to the techniques used by his colleagues.

       {¶31} Decisions regarding the admissibility of evidence are within the broad

discretion of the trial court. Beard v. Meridia Huron Hospital, 106 Ohio St.3d 237, 834

N.E.2d 323 (2005). A decision to admit or exclude evidence will be upheld absent an

abuse of discretion. Id. Abuse of discretion is more than an error of law or judgment;

rather, it implies that the court’s attitude is unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
Stark County, Case No. 2018CA00100                                                         12


       {¶32} “An improper evidentiary ruling constitutes reversible error only when the

error affects the substantial rights of the adverse party or the ruling is inconsistent with

substantial justice.” Beard v. Meridia Huron Hospital, 106 Ohio St.3d 237, 834 N.E.2d

323 (2005). To determine if a ruling affects the substantial rights of the adverse party or

is inconsistent with substantial justice, a “reviewing court must not only weigh the

prejudicial effects of those errors but also determine that, if those errors had not occurred,

the jury * * * would probably have made the same decision.” Id.

       {¶33} We first note that appellant did not object to any of the testimony he now

seeks to argue that the trial court erred in admitting. It is well-settled that a party must

object in order to preserve an issue for appeal. See, e.g., State v. Jones, 91 Ohio St.3d

335, 2001-Ohio-57, 744 N.E.2d 1163; State v. Robb, 88 Ohio St.3d 59, 723 N.E.2d 1019

(2000).

       {¶34} Because appellant failed to object to the testimony during the trial, we must

determine whether the trial court committed plain error in allowing the testimony. To

invoke the plain error doctrine, the party claiming error must establish: (1) that an error,

i.e., a deviation from a legal rule, occurred; (2) that the error was an “obvious” defect in

the trial proceedings; and (3) that this obvious error affected substantial rights, i.e., the

error must have affected the outcome of the trial. State v. Morgan, 153 Ohio St.3d 196,

2017-Ohio-7565, 103 N.E.3d 784. In appeals of civil cases, the plain error doctrine is not

favored and may be applied only in the extremely rare case involving exceptional

circumstances where error seriously affects the basic fairness, integrity, or public

reputation of the judicial process itself. Goldfuss v. Davidson, 79 Ohio St.3d 116, 679

N.E.2d 1099 (1997). The Ohio Supreme Court stated the public’s confidence is rarely
Stark County, Case No. 2018CA00100                                                          13


upset merely by forcing civil litigants to live with the errors they themselves or the attorney

chosen by them committed at trial. Id. Plain error does not exist unless it can be said

that but for the error, the outcome of the trial would have clearly been otherwise. State v.

Moreland, 50 Ohio St.3d 58, 552 N.E.2d 58 (1990); In the Matter of D.M., 5th Dist.

Guernsey No. 18 CA 18, 2018-Ohio-4737.

       {¶35} Appellant first contends the trial court erred in allowing the testimony of

Surmitis that, “There is a large volume – this is only one article out of hundreds of

thousands or millions of articles.”     This testimony was given by Surmitis on cross-

examination, when counsel for appellant questioned him about the Colombo article and

whether the Colombo article was published in the American College of Cardiology

Journal.

       {¶36} Appellant also argues the trial court erred in allowing the testimony of Silver

that “we typically go to high pressures. And there were studies back in the 1990’s

supporting this. I believe that one of the articles was pulled for that. And that’s a review

article, but there are many articles and there are many studies done.”

       {¶37} Appellant contends the trial court erred in admitting Silver’s testimony about

watching “anywhere from 10 to 50 live cases being done from around the world * * * this

is not just in Cleveland, this is throughout the United States, this is throughout the world.

This is standard of care. I’ve seen people go very, very high atmospheres just to get the

balloon to be the right size.”

       {¶38} In Beard v. Meridia Huron Hospital, the Ohio Supreme Court held that “an

expert witness may testify that his or her opinions are based, in part, on a review of

professional literature.” 106 Ohio St.3d 237, 834 N.E.2d 323 (2005). The Supreme Court
Stark County, Case No. 2018CA00100                                                       14


reasoned that experts are permitted to testify regarding the information that provides the

basis for their opinions and because experts are permitted to base their opinion on their

education, including review of professional literature, training, and experience, it follows

that experts are also allowed to testify regarding that information. Id.

       {¶39} As stated by the Ohio Supreme Court and previously cited by this Court,

“there is a difference between a witness’s referring to specific statements in professional

literature as substantive evidence and an expert witness’s referring to the literature as

being part of the basis for that expert’s opinion. While the former reference would be

inadmissible hearsay, numerous courts in Ohio have held that the latter reference is

admissible. We agree with the decisions in those cases.” Id.; State v. Cheesman, 5th

Dist. Fairfield No. 15 CA 59, 2016-Ohio-5040.

       {¶40} Evidence Rule 803(18) allows for a learned-treatise exception to the

hearsay rule. The exception to the hearsay rule contained in Evidence Rule 803(18) was

adopted in acknowledgment of the fact that “every expert brings a certain amount of

‘background hearsay’ to his or her opinion, in the form of the out-of-court statements of

textbook authors, colleagues, and others that forms much of the basis of the expert’s

training and education.    Ohio law now allows experts to rely on that knowledge in

establishing their qualifications and in forming opinions.” 2006 Staff Notes to Evid.R.

803(18).

       {¶41} In this case, the reference to medical literature by Surmitis and Silver is not

inadmissible hearsay. The testimony by Surmitis was in response to a question by

counsel for appellant on cross-examination about the Colombo article. Surmitis did not

seek to introduce any specific article as substantive evidence in violation of Evid.R.
Stark County, Case No. 2018CA00100                                                        15

803(18) and did not present any testimony that violated Beard. Silver’s testimony about

the “studies back in the 1990’s” was made while Silver was explaining the basis for his

opinion on the standard of care. Silver did not seek to admit any medical literature itself

as substantive evidence. Such testimony is specifically allowed pursuant to Beard and

Evid.R. 803(18). Further, Silver’s testimony about medical procedures in Cleveland and

throughout the world is not testimony about what others “told” him at the medical

conferences, but was testimony by Silver as to what he actually observed at medical

conferences, watching via satellite on a big screen. Thus, Silver was testifying about his

own background and experience in order to explain the basis of his opinion in compliance

with Beard and Evid.R. 803(18).

       {¶42} Appellant cites Piotrowski v. Corey Hospital in support of his arguments.

172 Ohio St. 61, 173 N.E.2d 355 (1961). In Piotrowski, the Court found it was prejudicial

error to admit an Ohio State Medical Journal article as an exhibit over objection and with

the comments favorable to the plaintiff underlined in ink. Id. The Court held, “generally,

it is prejudicial error to admit in evidence over objection, medical articles or treatises as

independent evidence of the theories and opinions therein expressed, and this is

particularly true where the evidence in the case is conflicting * * *.” The same reasoning

is not applicable in this case. Appellant did not object to the testimony. Neither Surmitis

nor Silver acted as a conduit for the out-of-court statements of others. Surmitis was

answering a question on cross-examination regarding the Colombo article. Silver utilized

information from various sources, including medical literature, to reach his own opinion

about the applicable standard of care. Silver testified to his opinion and was cross-
Stark County, Case No. 2018CA00100                                                            16


examined regarding that opinion during which counsel for appellant challenged his

reasoning and attacked the basis for his opinion.

       {¶43} Appellant lastly argues that because neither Surmitis nor Silver ever

produced one specific piece of literature to support their testimony, he had no way to

effectively cross-examine Surmitis or Silver to counter the effect of their testimony about

medical literature. Additionally, appellant states he could not effectively cross-examine

Silver with specific articles due to the length of time it took to elicit the testimony regarding

appellant’s introduction and cross-examination with the Colombo article.

       {¶44} Appellant essentially advances the argument of the dissent in Beard that a

party suffers significant prejudice when an expert is permitted to refer to unspecified and

vague medical literature. Beard v. Meridia Huron Hospital, 106 Ohio St.3d 237, 834

N.E.2d 323 (2005). However, as detailed above, this is not the holding of the majority in

Beard. See also Morris v. McQuillen, 5th Dist. Richland No. 2008-CA-87, 2009-Ohio-

2848 (finding no plain error when there was no objection to the testimony and when the

appellant had the opportunity to cross-examine appellee on the testimony); State v.

Henderson, 6th Dist. Ottawa No. OT-15-047, OT-15-048, 2017-Ohio-412 (overruling

appellant’s argument that the trial court abused its discretion in allowing the expert to

make repeated references to literature, but never identifying specific literature or admitting

it into evidence and finding no abuse of discretion in allowing expert to reference literature

that assisted him in forming his opinion); Werden v. The Children’s Hosp. Med. Ctr., 1st

Dist. Hamilton No. C-040889, 2006-Ohio-4600 (overruling appellant’s argument that

permitting an expert to mention various studies without specifying the particular literature

prevented effective cross-examination and finding it was proper to allow the expert to
Stark County, Case No. 2018CA00100                                                           17

refer to articles and literature to support his opinion); Schultz v. Mayfield Neurological

Inst., 1st Dist. Hamilton No. C-120764. 2013-Ohio-4146 (overruling appellant’s argument

that the trial court erred by permitting expert to cite medical literature without providing

specific citation or source and preventing effective cross-examination and finding the trial

court properly allowed the expert to make general references to professional literature in

support of opinions).

       {¶45} The trial court permitted counsel for appellant to cross-examine both

Surmitis and Silver about the statements they made regarding medical literature. Counsel

for appellant specifically cross-examined Silver about his testimony on medical literature.

Further, it was counsel for appellant’s choice to limit cross-examination to the Colombo

article “in the interest of judicial economy,” as the trial court stated it would permit counsel

for appellant to cross-examine Silver and/or Surmitis in similar fashion as was done with

the Colombo article. It was additionally counsel for appellant’s choice not to produce these

articles in discovery such that the jury was excused for a period of time while the expert

read each article and confirmed the text was authoritative. Evidence Rule 803(18) states

a party may use a medical journal article to cross-examine an expert witness, but it does

not prohibit a trial court from allowing the expert witness to read the article prior to cross-

examination.

       {¶46} Additionally, appellant has not demonstrated the admission of the testimony

at issue affected his substantial rights.      To determine if a ruling affects appellant’s

substantial rights, we must find that “if those errors had not occurred, the jury * * * would

probably have made the same decision.” Beard v. Meridia Huron Hospital, 106 Ohio

St.3d 237, 834 N.E.2d 323 (2005). In this case, because appellant only provided a partial
Stark County, Case No. 2018CA00100                                                         18


transcript of a multiple day trial, we must presume the regularity of the proceedings.

Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 300 N.E.2d 384 (1980).

       {¶47} Based on the foregoing, we find appellant cannot show that a deviation from

a legal rule occurred, that the alleged error was an “obvious” defect in the trial proceedings

and that this error affected the outcome of the trial. Accordingly, the plain error doctrine

does not apply. Appellant’s first and second assignment of error are overruled.

                                                 III.

       {¶48} In his third assignment of error, appellant contends the trial court erred in

directing a verdict on his claim against Affinity.

       {¶49} Our standard of review for the grant or denial of a motion for a directed

verdict is whether there is probative evidence which, if believed, would permit reasonable

minds to come to different conclusions as to the essential elements of the case,

construing the evidence most strongly in favor of the non-movant. Sanek v. Duracote

Corp., 43 Ohio St.3d 169, 539 N.E.2d 1114 (1989). A motion for a directed verdict

therefore presents a question of law, and an appellate court conducts a de novo review

of the lower court’s judgment. Shadle v. Morris, 5th Dist. Stark No. 2012CA00073, 2013-

Ohio-906.

       {¶50} Appellant contends the trial court failed to properly apply the law in Clark v.

Southview. In Clark, the Ohio Supreme Court held that a hospital may be held liable

under the doctrine of agency by estoppel for the negligence of independent medical

practitioners practicing in the hospital where: (1) it holds itself out to the public as a

provider of medical services; and (2) in the absence of notice or knowledge to the

contrary, the patient looks to the hospital, as opposed to the individual practitioner, to
Stark County, Case No. 2018CA00100                                                          19


provide competent medical care. 68 Ohio St.3d 435, 628 N.E.2d 46 (1994). With regard

to notice to the patient that care is being provided by independent medical practitioners,

“such notice, to be effective, must come at a meaningful time.” Id.

       {¶51} Appellant argues the trial court’s ruling ignored evidence in the record

establishing a prima facie case for the jury to decide whether Mrs. Brahm looked to Affinity

to provide her care. Specifically, appellant alleges Mrs. Brahm expressly requested

Affinity when she was transported by EMS and cites to an exhibit in his supplemental brief

in opposition to Affinity’s motion in limine to support his argument. However, the excerpt

of the transcript provided to this Court does not demonstrate that appellant presented this

evidence at trial, as the only portion of the trial transcript presented to this Court prior to

the directed verdict is the excerpt containing the oral arguments of the parties regarding

the directed verdict and motions in limine regarding the testimony of Surmitis and Silver.

Accordingly, we must presume the regularity of the proceedings. Knapp v. Edwards

Laboratories, 61 Ohio St.2d 197, 300 N.E.2d 384 (1980).

       {¶52} Appellant also argues the trial court failed to properly apply the second

portion of Clark because the release signed by appellant did not constitute notice at a

“meaningful time.” In the portion of the transcript submitted to this Court, during oral

argument on Affinity’s motion for directed verdict, Affinity argued the release signed by

appellant was sufficient to constitute meaningful notice, whereas appellant argued the

notice was not meaningful because it was given after Mrs. Brahm arrived at Affinity.

       {¶53} While the Ohio Supreme Court stated in Clark that notice after a patient

arrives at a hospital “rarely” provides the patient with the ability to choose at a meaningful

time, without the portion of the trial transcript containing the testimony about the release
Stark County, Case No. 2018CA00100                                                       20


or evidence and testimony concerning the language contained in the release, we must

presume the regularity of the proceedings. Knapp v. Edwards Laboratories, 61 Ohio

St.2d 197, 300 N.E.2d 384 (1980).

       {¶54} Moreover, we find the rule in Clark inapplicable in this case because, due

to the verdict of favor of Surmitis, the jury would not have considered appellant’s agency-

by-estoppel claim against Affinity. Germanoff v. Aultman Hosp., 5th Dist. Stark No.

2001CA00306, 2002-Ohio-5054; Waikem v. Cleveland Clinic Found. 5th Dist. Stark No.

2011CA00234, 2012-Ohio-5620.           The jury found no underlying “negligence of

independent medical practitioners” for which Affinity could be vicariously liable.      Our

disposition of appellant’s first, second, and fifth assignments of error affirms the jury’s

verdict with respect to Surmitis and thus Clark is inapplicable.

       {¶55} Appellant’s third assignment of error is overruled.

                                                IV.

       {¶56} In his fourth assignment of error, appellant argues the trial court erred in

failing to conduct a hearing on his motion to enforce settlement agreement with Affinity.

Appellant cites Rulli v. Fan Company in support of his argument.

       {¶57} In Rulli, the trial court refused to consider additional evidence plaintiff

attempted to admit at the oral argument on the motion to enforce settlement. Rulli v. Fan

Co., 79 Ohio St.3d 374, 683 N.E.2d 337 (1997). The Ohio Supreme Court held the trial

court erred by enforcing a purported settlement agreement between the parties without

first conducting an evidentiary hearing where there was a legitimate dispute between the

parties as to the existence of a settlement agreement because a court may not force an

agreement upon the parties. Id. In this case, unlike the situation in Rulli, the trial court
Stark County, Case No. 2018CA00100                                                        21


refused to enforce what appellant purported to be an enforceable agreement, finding the

parties never actually reached an agreement. See FirstMerit Bank, N.A. v. Ashland

Lakes, LLC, 5th Dist. Ashland No. 11-COA-017. Unlike in Rulli, the appellant in this case

submitted the evidence, via an affidavit and authenticated exhibits, that he alleged

demonstrated a settlement agreement and averred in his motion that “all supportive

exhibits and an affidavit are attached.” Appellant’s affidavit and exhibits do not establish

the parties reached a meeting of the minds as to all the terms. In the absence of a

legitimate factual dispute, the trial court was not required to conduct an evidentiary

hearing. Id.

       {¶58} Further, appellant did not request a hearing on his motion to enforce

settlement. As this Court has previously stated, the failure of a party to request a hearing

constitutes waiver of the right to an evidentiary hearing on a motion to enforce settlement.

M&G Automotive Services, Inc. v. Bouscher, 5th Dist. Tuscarawas No. 2014 AP 03 009,

2014-Ohio-5370; Brown v. Spitzer Chevrolet Co., 5th Dist. Stark No. 2012 CA 00105,

2012-Ohio-5623; Monea v. Campisi, 5th Dist. Stark No. 2004CA00381, 2005-Ohio-5212.

An appellate court need not consider any error which counsel could have, but did not, call

to the trial court’s attention when the error could have been avoided or corrected. Id.

Appellant waived his right to an evidentiary hearing by failing to request such a hearing.

Id.

       {¶59} Appelllant’s fourth assignment of error is overruled.

                                                V.

       {¶60} In his fifth assignment of error, appellant contends the cumulative effect of

the trial court’s errors denied him a fair trial. Appellant cites the following as cumulative
Stark County, Case No. 2018CA00100                                                         22


error in this case: allowing the hearsay statements of Surmitis and Silver regarding

medical literature; appellant could not properly and effectively cross-examine Surmitis

and Silver on their assertions regarding medical literature; and the jury was left to wonder

mid-trial why Affinity was no longer at the trial table.

       {¶61} Pursuant to the cumulative error doctrine, which is usually presented in

criminal cases, a conviction will be reversed where the cumulative effect of errors in a trial

deprives the defendant of the constitutional right to a fair trial even though each individual

error by itself does not constitute cause for reversal. State v. Garner, 74 Ohio St.3d 49,

656 N.E.2d 623 (1995). Ohio courts have found “the extension of the cumulative error

doctrine to civil cases is warranted where the court is confronted with several errors, which

either are harmless individually or have marginally prejudicial effects, but combine to

require a new trial.” Edge v. Fairview Hospital, 8th Dist. Cuyahoga No. 95215, 2011-

Ohio-2148.

       {¶62} In this case, as detailed above, we do not find any error in the testimony

and/or cross-examination of Surmitis or Silver. Further, as to Affinity’s dismissal during

the trial, the trial court issued a curative instruction as soon as he dismissed Affinity,

stating, “Ladies and gentleman, as you will note, Affinity Medical Center is no longer

involved in this case. You are not to speculate as to the reason why or draw any inference

therefrom as a result of their absence in the courtroom.” Accordingly, we do not find the

cumulative error doctrine applicable here where there have not been multiple errors. See

Snell v. Snell, 5th Dist. Richland No. 13CA80, 2014-Ohio-3285. Additionally, without a full

transcript of the trial, we cannot say that any alleged errors were so prejudicial that
Stark County, Case No. 2018CA00100                                                    23


appellant was deprived of a fair trial, as we must presume the regularity of the

proceedings. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 300 N.E.2d 384 (1980).

      {¶63} Appellant’s fifth assignment of error is overruled.

      {¶64} Based on the foregoing, appellant’s assignments of error are overruled.

      {¶65} The judgments in favor of appellees by the Stark County Court of Common

Pleas are affirmed.

By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur
