[Cite as Dyer v. Dalton, 2019-Ohio-602.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

MELODY DYER                                          C.A. No.     28892

        Appellant

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
ARTHUR DALTON, M.D., et al.                          COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellees                                    CASE No.   CV-2016-07-3010

                                 DECISION AND JOURNAL ENTRY

Dated: February 20, 2019



        CARR, Presiding Judge.

        {¶1}     Plaintiff-Appellant Melody Dyer appeals from the judgment of the Summit

County Court of Common Pleas. This Court affirms.

                                                I.

        {¶2}     During late 2012 and early 2013, Ms. Dyer experienced abdominal pain, the

characteristics of which raised concerns of gallbladder disease. Ms. Dyer underwent testing

which indicated abnormal functioning of her gallbladder. She was referred to general surgeon,

Defendant-Appellee Arthur Dalton, M.D., whom she saw on January 31, 2013 for a possible

cholecystectomy, or gallbladder removal.      Dr. Dalton took a history from Ms. Dyer and

examined her. Dr. Dalton discussed the risks and benefits of a cholecystectomy with Ms. Dyer.

        {¶3}     The next day, Dr. Dalton performed a laparoscopic cholecystectomy on Ms. Dyer.

Dr. Dalton described it as “seemingly a very routine-type of case.” Ms. Dyer was released that

same day. However, Ms. Dyer was readmitted to the hospital the next day complaining of left-
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sided chest pain, nausea, and vomiting. Ms. Dyer was released a few days later. Nonetheless

she continued to experience intermittent pain and other problems. Ms. Dyer returned to the

hospital several times over the next few months and had multiple procedures performed to

determine the source of the complications. Ultimately, a bile leak, caused by a bile duct injury,

was discovered. Several months after her original surgery, Ms. Dyer underwent another surgery

during which a loop of bowel was used as a conduit to drain the bile from the area of the leak to

the intestinal tract. Notwithstanding the repair, Ms. Dyer has continued to suffer complications

and has endured numerous other procedures.

       {¶4}    In 2014, Ms. Dyer filed a medical malpractice complaint naming Dr. Dalton and

Defendant-Appellee Dalton and Van Fossen Surgeons, Inc. as defendants.                  Ms. Dyer

subsequently voluntarily dismissed the action without prejudice. In July 2016, Ms. Dyer re-filed

her complaint and added Ramakrishna Bandi, M.D. as a Defendant.

       {¶5}    The matter proceeded to a jury trial, at the conclusion of which, the jury found for

Dr. Dalton and Dalton and Van Fossen Surgeons, Inc. The jury specifically found that Ms. Dyer

had failed to prove that Dr. Dalton was negligent. The trial court entered judgment for the

Defendants. Ms. Dyer filed a motion for a new trial, which was ultimately denied. Ms. Dyer has

appealed, raising a single assignment of error for our review.

                                                II.

                                  ASSIGNMENT OF ERROR

       THE JURY’S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE.

       {¶6}    In her sole assignment of error, Ms. Dyer argues that the jury’s verdict is against

the manifest weight of the evidence. Specifically, she argues that the jury’s conclusion that Dr.
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Dalton was not negligent in performing the laparoscopic cholecystectomy is against the weight

of the evidence. Ms. Dyer has not challenged the ruling on her motion for a new trial.

       {¶7}     In reviewing a manifest weight challenge, “[t]he [reviewing] court * * * weighs

the evidence and all reasonable inferences, considers the credibility of witnesses and determines

whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created

such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial

ordered.” (Internal quotations and citations omitted.) Eastley v. Volkman, 132 Ohio St.3d 328,

2012-Ohio-2179, ¶ 20. In so doing, “the court of appeals must always be mindful of the

presumption in favor of the finder of fact.” Id. at ¶ 21.

       {¶8}    “In order to prove medical malpractice, the plaintiff has the burden to prove, by a

preponderance of the evidence, that the defendant breached the standard of care owed to the

plaintiff and that the breach proximately caused an injury.”         Segedy v. Cardiothoracic &

Vascular Surgery of Akron, Inc., 182 Ohio App.3d 768, 2009-Ohio-2460, ¶ 11 (9th Dist.).

“[M]edical negligence cases require expert testimony regarding the standard of care and

proximate cause.” Callahan v. Akron Gen. Med. Ctr., 9th Dist. Summit No. 22387, 2005-Ohio-

5103, ¶ 11.

       {¶9}    At trial, Ms. Dyer presented the testimony of two experts, Irvin Modlin, M.D., a

surgeon who also taught at Yale University, and Garth Hadden Ballantyne, M.D., a board

certified general and colorectal surgeon who also taught.          Dr. Dalton presented his own

testimony and that of Daniel Borreson, M.D., a board certified general surgeon. There was no

debate that Dr. Dalton injured a hepatic duct; instead, the issue was whether Dr. Dalton violated

the standard of care in doing so.
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        {¶10} We begin by noting that our review of this matter is somewhat limited in that the

parties’ experts and Dr. Dalton frequently pointed certain things out on diagrams and images

without marking them or verbally describing what they were doing. Accordingly, while that

testimony was likely clear to the jury, it is less so to this Court.

        {¶11} Much of Ms. Dyer’s argument centers on the concept known as the “Critical View

of Safety” and whether Dr. Dalton followed it. Dr. Modlin discussed that the Critical View of

Safety was developed to avoid the duct injuries that were occurring during the time period that

laparoscopic surgery developed. Dr. Modlin explained that, during open procedures, which

involve larger incisions, doctors could more easily see and touch the various structures, whereas

with laparoscopic surgery, multiple smaller incisions are used, and the doctors view the surgical

field through a telescope. Dr. Modlin opined that, now, every surgeon knows the Critical View

of Safety and “everybody performs it before or during a laparoscopic operation.”

        {¶12} In achieving a Critical View of Safety, an area known as Calot’s Triangle is

dissected. According to Dr. Dalton, the borders of the triangle are made up of the cystic duct, the

bottom of the liver where the gallbladder is attached, and the common bile duct. The cystic

artery runs through the area of the triangle. The area of the triangle contains fatty tissue that

must be cleared away so that the surgeon can locate the cystic duct and the cystic artery, which

are the two structures that enter the gallbladder and are clipped and then ligated during a

cholecystectomy. The goal is to clearly define the cystic duct and cystic artery so that no other

structures are clipped or cut during the surgery. Dr. Modlin asserted that this area around the

neck of the gallbladder, the cystic duct, and the cystic artery, must be “totally cleaned out”

because “there’s lots of other components here, bile ducts, right and left; common hepatic,

common bile ducts; and other vessels” which could be cut “if [the surgeon does not] have a clear
                                                  5


view.” Dr. Modlin opined that the Critical View of Safety can be obtained irrespective of any

aberrations in a patient’s ductal anatomy as it involves identifying the two structures entering the

gallbladder: the cystic duct and the cystic artery.

       {¶13} If a structure in addition to the cystic duct and artery is seen, it is not safe to

proceed. If that happens, Dr. Dalton testified that he would do a cholangiogram to better discern

the anatomy or convert to an open procedure.

       {¶14} In the instant matter, from reviewing the records, Dr. Modlin averred that “[i]n

removing the gallbladder, instead of just cutting the cystic duct, which drains the gallbladder,

one of the other very large ducts was clipped, obstructed, and probably cut. As a result of that,

there was a bile leakage.” Specifically, Dr. Modlin opined that Ms. Dyer’s right hepatic duct

was clipped. Dr. Modlin concluded that Ms. Dyer’s case was “about damaging a duct that

shouldn’t have been damaged[.]” Ultimately, Dr. Modlin’s opinion was that Dr. Dalton violated

the standard of care by clipping the right hepatic duct and that that breach caused Ms. Dyer’s

complications. Dr. Modlin stated that if the Critical View of Safety had been undertaken, “[t]he

right hepatic duct or anything else would never have been damaged.” He opined that this was

true even if Ms. Dyer had an aberrant ductal anatomy, as alleged by Dr. Dalton and his expert,

Dr. Borreson. Under Dr. Modlin’s view, absent some unspecified mitigating circumstances,

none of which were documented in this case, any bile duct injury during a laparoscopic

cholecystectomy would be the result of surgeon negligence.              Nonetheless, Dr. Modlin

acknowledged on cross-examination that patients scheduled to undergo a laparoscopic

cholecystectomy should be informed that the surgery carries a small risk of a bile duct injury.

       {¶15} Dr. Ballantyne also opined about Dr. Dalton’s care of Ms. Dyer. Dr. Ballantyne

concluded that Dr. Dalton failed to meet the standard of care in performing the laparoscopic
                                                6


cholecystectomy on Ms. Dyer. Dr. Ballantyne expressed concern that Dr. Dalton failed to

discuss obtaining a Critical View of Safety in his operative report. In addition, Dr. Ballantyne

stated that the presence of the duct injury further suggested to Dr. Ballantyne that the Critical

View of Safety was not obtained. Dr. Ballantyne was also adamant that Dr. Dalton violated the

standard of care even if he clipped the duct due to an aberrant variation of the duct anatomy. In

Dr. Ballantyne’s opinion, “part of obtaining the critical view is opening that [area] up so that

there’s separation and that a clip on one doesn’t inadvertently clip the other.” Dr. Ballantyne

averred that whenever there is an injury to a bile duct in the performance of a laparoscopic

cholecystectomy it speaks to negligence on the part of the surgeon. Dr. Ballantyne believed that

if there is an injury to a bile duct then inherently the surgeon did not obtain a critical view. On

cross-examination, Dr. Ballantyne also agreed that patients should be informed of the known risk

of bile duct injury in the performance of a laparoscopic cholecystectomy.

       {¶16} Dr. Dalton averred at trial that he met the standard of care in performing the

surgery. When Dr. Dalton was asked if he was “confident that [he] followed [his training] and

kept to the experience that [he had] in performing this surgery and getting the critical view and

did the surgery according to the standard of care[,]” he responded in the affirmative. He

acknowledged that informing the patient of the risks of the surgery, including a possible bile duct

injury, does not absolve him of following the standard of care. He maintained that he had done

“everything right” and it was “seemingly a very routine-type of case.” Dr. Dalton explained that

the hospital where the surgery was performed was a teaching hospital and he is responsible for

teaching residents and medical students. He testified that a resident was helping in the surgery.

Accordingly, the surgery was even more deliberate. Because it was a teaching hospital, Dr.

Dalton indicated that “this is the opportunity that we have to explain the steps of the procedure
                                                 7


that we’re doing. And so we very carefully go through the anatomy. We very carefully go

through the dissection.” Dr. Dalton testified that, during surgery:

       [W]e talk about this Critical View of Safety. We’re * * * teasing [the] tissue off
       the lower part of the gallbladder and the cystic duct, as has been mentioned. We
       tease the tissue away from the artery, as has been mentioned. We look at the
       front. We look at the back. We look at the side. And then, and only then, we put
       the clips; and then we cut. We take the gallbladder out, pull it through one of
       those little holes. That, typically, takes about an hour, which hers did.

       {¶17} He stated that he often receives high-risk gallbladder cases from other hospitals,

and, as far as he knew, Ms. Dyer’s duct injury was the only time he had a duct injury in his

surgical career. In reviewing the surgery, Dr. Dalton believed that Ms. Dyer had an aberrant

branch of the right hepatic duct that was very close to the cystic artery and that when he clipped

the cystic artery, the branch of the right hepatic duct was hidden behind it and was inadvertently

clipped as well. He thought that the duct was somehow close to, behind, or stuck to the cystic

artery. Dr. Dalton maintained that, if that was what had happened, he was not negligent.

       {¶18} In addressing his failure to mention the Critical View of Safety in the operative

report, Dr. Dalton nonetheless believed his report met the standard of care. He noted that Ms.

Dyer’s report was very typical of his other reports and that the Critical View of Safety was

“standard” and so including it would just be “extra wordage[.]”

       {¶19} Dr. Dalton’s expert, Dr. Borreson also opined that Dr. Dalton met the standard of

care in performing Ms. Dyer’s laparoscopic cholecystectomy. Dr. Borreson noted that the

operative report from the surgery read “like a standard cholecystectomy.” He did not fault Dr.

Dalton for not mentioning the Critical View of Safety in the report as he described the operative

report as a summary which does not require going into all of the details. Dr. Borreson testified

that following the technique of the Critical View of Safety does not guarantee that there will not

be a bile duct injury during a laparoscopic cholecystectomy. He indicated that, even if the
                                                  8


surgeon does everything properly, there can still be a bile duct injury. Dr. Borreson explained

that the real surgical field is not like the diagrams where one can see all of the structures very

clearly. He stated that the amount of fat in the area varies from person to person and that the

surgeon has to dissect through the fat to find the relevant structures. Thus, according to Dr.

Borreson, it is “a judgment call” as to how much of the fat should be dissected out. But, a

surgeon does not dissect out all of the fat because “[t]hat would take hours and hours and would

actually needlessly risk injury to those structures to the patient.” Dr. Borreson opined that “the

critical view is an attempt to identify those structures to the best of our ability.” He noted that

obtaining the Critical View of Safety would not always reveal an aberrant ductal anatomy in a

patient.

           {¶20} Dr. Borreson also believed that Ms. Dyer had an unusual anatomy of her ductal

structures, which he asserted was a contributing factor to the injury of her duct. He testified that

while the main bile duct was probably around a quarter of an inch in size, Ms. Dyer’s aberrant

right posterior hepatic duct was likely only about an eighth of an inch or about three millimeters.

Thus, Dr. Borreson averred that, “even with [the] critical view, [the right posterior hepatic duct]

can be misinterpreted as a cystic artery or a lymphatic or something else.”

           {¶21} On cross-examination, Dr. Borreson agreed that his original report reflected that

the injury was to the right hepatic duct and not the right posterior hepatic duct. He also

acknowledged that he was the only expert to refer to a right anterior hepatic duct and a right

posterior hepatic duct. Dr. Borreson explained this, saying that he generated a report based upon

the prevailing view of the anatomy at the time. However, after he issued his original report, he

continued to study the case and also was provided with additional test results which caused him

to alter his view of the anatomy.
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       {¶22} On appeal, Ms. Dyer argues that Dr. Dalton’s and Dr. Borreson’s explanation of

what occurred supports that Dr. Dalton was negligent because their explanation acknowledges

that three structures were clipped or ligated during the surgery, when only two should have been.

Accordingly, Ms. Dyer argues that Dr. Dalton did not obtain the Critical View of Safety. While

Dr. Ballantyne was of the opinion that, if there was a duct injury, inherently the surgeon must not

have obtained the Critical View of Safety, Dr. Borreson opined that obtaining the Critical View

of Safety did not guarantee that a bile duct would be uninjured. Dr. Borreson instead described

the Critical View of Safety as “an attempt to identify those structures to the best of our ability.”

(Emphasis added.) Dr. Borreson explained that determining how much fat to remove from the

area was a judgment call. He also maintained that all of the fat was not removed from the area.

Dr. Modlin on the other hand asserted that the area had to be “totally cleaned out[.]” While Dr.

Ballantyne was of the opinion that any injury to a bile duct during a laparoscopic surgery was a

result of surgeon negligence, Dr. Borreson clearly did not share that view. Thus, from this

Court’s reading of the transcript, the experts had differing views of what obtaining a Critical

View of Safety even meant. The record is also clear that while Dr. Modlin and Dr. Ballantyne

did not believe that Dr. Dalton met the standard of care in performing the laparoscopic

cholecystectomy, Dr. Borreson opined that Dr. Dalton did.

       {¶23} While this Court is not unsympathetic to Ms. Dyer’s situation or the injuries she

unfortunately suffered, after a thorough and independent review of the record, we cannot say that

the jury lost its way in finding that Dr. Dalton was not negligent in the performance of the

laparoscopic cholecystectomy. While there was evidence from which the jury could have found

in Ms. Dyer’s favor, there was also evidence to support the verdict. We are mindful that during

the testimony, the experts and Dr. Dalton pointed out anatomical structures while testifying
                                                10


which may have influenced the jury’s opinions of credibility. Because of the manner in which

that testimony unfolded (by gesturing and pointing), we are unable to fully evaluate that

testimony and its impact on credibility determinations. In addition, it is well settled that “the

trier of fact is in the best position to determine the credibility of witnesses and evaluate their

testimony accordingly.” (Internal quotations and citations omitted.) Trogdon v. Beltran, 9th

Dist. Lorain No. 15CA010809, 2016-Ohio-5285, ¶ 42. Given all of the foregoing, we can only

conclude that the jury’s verdict was not against the manifest weight of the evidence.

       {¶24} Ms. Dyer’s assignment of error is overruled.

                                                III.

       {¶25} Ms. Dyer’s assignment of error is overruled.          The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
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      Costs taxed to Appellant.




                                            DONNA J. CARR
                                            FOR THE COURT



HENSAL, J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

GARY T. MANTKOWSKI, Attorney at Law, for Appellant.

R. MARK JONES, TAMMI J. LEES, and STEPHEN W. FUNK, Attorneys at Law, for
Appellees.
