[Cite as Lowder v. Kantak, 2018-Ohio-3470.]


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

JANET LOWDER, ESQ., et al.                           C.A. No.       28690

        Appellants

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
ANAND D. KANTAK, M.D. et al.                         COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellees                                    CASE No.   CV-2014-07-3505

                                DECISION AND JOURNAL ENTRY

Dated: August 29, 2018



        CALLAHAN, Judge.

        {¶1}    Appellants, Janet L. Lowder, Esq., as guardian of the minor child A.W., and

Latonya McGhee appeal the trial court’s judgment in favor of appellees. This Court affirms.

                                                I.

        {¶2}    Ms. Lowder and Ms. McGhee filed an action against Akron Children’s Hospital,

Dr. Anand D. Kantak, Dr. John R. Ahmann, Marilyn Hoffman, RN, NNP, and Akron

Neonatology, Inc., alleging medical malpractice in connection with their treatment of A.W.

during her hospitalization at Akron Children’s Hospital. The case against Dr. Kantak, Dr.

Ahmann, and Akron Neonatology proceeded to a jury trial. After the presentation of evidence

concluded, the trial court instructed the jury regarding the foreseeability of A.W.’s injuries over

partial objections by Ms. Lowder and Ms. McGhee:

               A person is not responsible for injury to another if the negligence is a
        remote cause and not a proximate cause.

                The cause is remote when the result could not be reasonably foreseen or
        anticipated as being the likely cause of any injury.
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                  In deciding * * * whether reasonable care was used, you will consider
           whether the Defendant ought to have foreseen under the circumstances the natural
           and probable result of an act or failure to act that world cause Plaintiff’s injuries.

                   The test for foreseeability is not whether a person should have foreseen the
           injury exactly as it happened to that specific person. The test is whether under all
           the circumstances a reasonably careful person would have anticipated that an act
           or failure to act would likely cause some injury.

           {¶3}   The jury returned a verdict in favor of the defendants. Ms. Lowder and Ms.

McGhee appealed, challenging the trial court’s decision to instruct the jury regarding

foreseeability.

                                                    II.

           THE TRIAL COURT ERRED AS A MATTER OF LAW, AND OTHERWISE
           COMMITTED AN ABUSE OF DISCRETION, BY FURNISHING IMPROPER
           AND UNWARRANTED JURY INSTRUCTIONS.

           {¶4}   Ms. Lowder and Ms. McGhee’s assignment of error argues that the trial court

erred by providing incorrect jury instructions and jury instructions that were not warranted by the

evidence in this case. This Court disagrees.

           {¶5}   A trial court is obligated to provide a jury with instructions that reflect a correct,

complete statement of the law and that are warranted by the evidence. Cromer v. Children’s

Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 257, 2015-Ohio-229, ¶ 22, citing Sharp v. Norfolk &

W. Ry. Co., 72 Ohio St.3d 307, 312 (1995) and Estate of Hall v. Akron Gen. Med. Ctr., 125 Ohio

St.3d 300, 2010-Ohio-1041, ¶ 26. This Court applies a de novo standard of review to determine

whether jury instructions accurately reflect the law and are warranted by the evidence. Cromer

at ¶ 22.

           {¶6}   Ms. Lowder and Ms. McGhee’s first argument appears to be that the trial court

erred by instructing the jury about foreseeability because foreseeability instructions are
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inapplicable in medical malpractice cases. The Ohio Supreme Court considered and rejected this

argument in Cromer:

        Although the standard of care for a medical professional is heightened, it does not
        necessarily supplant all consideration of foreseeability. As part of their standard
        of care, medical professionals are expected to be able to recognize certain
        symptoms of illness and injury, and they are expected to be aware of the
        associated risk of harm. In other words, they are expected to foresee a risk of
        harm that a medical professional of ordinary skill, care, and diligence would
        foresee under similar circumstances. And just as with the general negligence
        standard, it necessarily follows that we would not expect medical professionals to
        guard against a risk of harm that a medical professional of ordinary skill, care, and
        diligence would not foresee. Accordingly, foreseeability of harm is relevant to a
        physician’s standard of care, and a correct, general statement of the law regarding
        the standard of care or the breach of that standard includes the element of
        foreseeability.

(Internal citations omitted.) Id. at ¶ 28.

        {¶7}    Ms. Lowder and Ms. McGhee’s second argument is that even if a foreseeability

instruction is permissible in a medical malpractice case, such an instruction was not warranted on

the facts of this case. See Cromer at ¶ 22. Their third argument is that the trial court misled the

jury by including a reasonable person standard within the instruction. Their fourth argument is

that a remote cause instruction was not warranted by the evidence.

        {¶8}    “On appeal, a party may not assign as error the giving or the failure to give any

instruction unless the party objects before the jury retires to consider its verdict, stating

specifically the matter objected to and the grounds of the objection.” Civ.R. 51(A). When a

party fails to object to alleged error in a jury instruction, the error is forfeited for purposes of

appeal. See Goldfuss v. Davidson, 79 Ohio St.3d 116, 121 (1997). Similarly, when a party

objects to a jury instruction on different grounds than are asserted in a subsequent appeal, the

appellate arguments are forfeited. See Leber v. Smith, 70 Ohio St.3d 548, 552 (1994), citing

Schade v. Carnegie Body Co., 70 Ohio St.2d 207 (1982), paragraph one of the syllabus.
                                                 4


       {¶9}    Ms. Lowder and Ms. McGhee objected to the jury instructions on three grounds:

that a foreseeability instruction is inapplicable in medical malpractice cases, that inclusion of the

word “likely” in the jury instructions was legally incorrect, and that a remote cause instruction

was “inapplicable.” The objections at issue in this appeal read as follows:

       We object on Page 11 to remote cause as inapplicable here.

       ***

       We object to foreseeability charge in total as inapplicable to a [medical
       malpractice] case, as there is no duty unless potential harm to the patient is
       foreseeable.

       And then I specifically and strongly object to the use of the word “likely” in the
       last line of that foreseeability charge, which is on the top of Page 12. And I
       broached that with the Court before.

       It should be may. If you give it, it shouldn’t be likely. This is essentially telling
       the jury that unless injury is likely, there’s no duty, there’s no foreseeability; and
       that’s wrong.

       So we’d ask the Court to use - - if you’re going to give it - - to insert the word
       may, M-A-Y, for it, the word likely.

       {¶10} The record on appeal does not demonstrate that Ms. Lowder and Ms. McGhee

objected on the ground that a foreseeability instruction was unwarranted on the facts of this case

or to the inclusion of a reasonable person standard. Ms. Lowder and Ms. McGhee, however,

urge this Court to conclude that the trial court’s general reference to off-the-record conversations

with a magistrate satisfies their obligation under Civ.R. 51(A) to object with specificity, directing

this Court’s attention to Beavercreek Local Schools v. Basic, Inc., 71 Ohio App.3d 669, 692-693

(2d. Dist.1991).

       {¶11} This Court has not adopted the reasoning espoused by the Second District Court

of Appeals in Beavercreek Local, and we decline to do so now. Even if we were to do so,

however, this case is distinguishable: In Beavercreek, the record mentioned an off-the-record
                                                 5


discussion between the parties and the trial court judge. The Court of Appeals noted that,

“[f]rom the record, it appears the trial court was fully aware of [the] objection to the charge given

and had adequate opportunity to reconsider the charge.” Id. In this case, the record only

indicates that the trial court judge “[knew] there were conversations yesterday with [the

magistrate]” that led to “another current version of the jury instructions[.]” This off-the-record

discussion, outside the presence of the trial court judge and pertaining to a prior draft of the jury

instructions, would be insufficient to preserve error even if this Court were to adopt the standard

set forth in Beavercreek Local.

       {¶12} Ms. Lowder and Ms. McGhee have, therefore, forfeited these arguments for

purposes of appeal with the exception of plain error. Goldfuss, 79 Ohio St.3d at 121. They have

not argued plain error, however, and this Court will not construct a plain error argument on their

behalf. See Wiegand v. Fabrizi Trucking & Paving Co., 9th Dist. Medina No. 16CA0015-M,

2017-Ohio-363, ¶ 12.

       {¶13} Ms. Lowder and Ms. McGhee did object in general terms to a remote cause

instruction as “inapplicable here.” This Court has reservations about whether an objection

framed in such general terms satisfies a party’s obligation to “stat[e] specifically the matter

objected to and the grounds of the objection.” Civ.R. 51(A). Assuming, without deciding, that

this objection preserved the alleged error for purposes of appeal and that the remote cause

instruction was, in fact, erroneous, Ms. Lowder and Ms. McGhee’s argument fails because

prejudice did not result.

       {¶14} An erroneous jury instruction does not justify reversal unless the appellate court

concludes, after a thorough review of the record, that the charge misled the jury and resulted in

an erroneous verdict. Hayward v. Summa Health Sys., 139 Ohio St.3d 238, 2014-Ohio-1913, ¶
                                                6


25. To warrant reversal, an erroneous jury instruction “must be ‘so prejudicial * * * that a new

trial is warranted.’”    (Alternation in original.)   Id. at ¶ 26, quoting Wagner v. Roche

Laboratories, 85 Ohio St.3d 457, 461 (1999).

       {¶15} There is no evidence apparent from the record that the jury in this case was misled

by the remote cause instruction. The jury found that neither Dr. Kantak nor Dr. Ahmann

deviated from the standard of care and, consistent with the trial court’s instructions, entered a

general verdict in favor of the defendants without completing further interrogatories. “[W]hen a

jury’s answers to interrogatories make it clear that the jurors found that the defendant was not

negligent and the jury’s verdict is consistent with that finding, a remote-cause jury instruction,

even if improper, cannot be found to have misled the jury in a manner materially affecting a

substantial right.” Hayward at ¶ 3. See also Cromer, 142 Ohio St.3d 257, 2015-Ohio-229, at ¶

42. Ms. Lowder and Ms. McGhee have argued, nonetheless, that the remote cause instruction

compounded other errors in jury instructions and that the jury could not have reached the

conclusion that it did had it not been confused. Prejudice, however, must be demonstrated on the

face of the record: it cannot be assumed or proven by speculation. See Hayward at ¶ 26, citing

Wagner at 462.     Even if the remote cause instruction constituted error, there is no prejudice

apparent from the record in this case.

       {¶16} Ms. Lowder and Ms. McGhee’s final argument is that the trial court erred by

instructing the jury that “The test is whether under all the circumstances a reasonably careful

person would have anticipated that an act or failure to act would likely cause some injury.”

(Emphasis added.) Specifically, Ms. Lowder and Ms. McGhee maintain that use of the word

“likely” imposed a probability requirement that is inappropriate in a determination of negligence.
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       {¶17} In Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77 (1984), the Ohio

Supreme Court explained that “The test for foreseeability is whether a reasonably prudent person

would have anticipated that an injury was likely to result from the performance or

nonperformance of an act.”       The Supreme Court has reiterated this language on several

occasions. See, e.g., Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677,

680 (1998); Mussivand v. David, 45 Ohio St.3d 314, 321 (1989). This Court has followed the

same test. See, e.g., Rodgers v. Holland Oil Co., 9th Dist. Summit No. 23718, 2007-Ohio-6049,

¶ 17. Other appellate districts have as well. See, e.g., Cornell v. Mississippi Lime Co., 7th Dist.

Columbiana No. 16 CO 0005, 2017-Ohio-7160, ¶ 51; LaMusga v. Summit Square Rehab, LLC,

2d Dist. Montgomery No. 27186, 2017-Ohio-6907, ¶ 15; Chapa v. Genpak, LLC, 10th Dist.

Franklin No. 12AP-466, 2014-Ohio-897, ¶ 112; Adkins v. RLJ Mgt. Co., 5th Dist. Muskingum

No. CT2011-0012, 2011-Ohio-6609, ¶ 12; Yeater v. Bd. of Edn., 11th Dist. Trumbull No. 2009-

T-0107, 2010-Ohio-3684, ¶ 26; Stepanyan v. Kuperman, 8th Dist. Cuyahoga No. 88927, 2007-

Ohio-4068, 5; Aldridge v. Reckart Equip. Co., 4th Dist. Gallia No. 04CA17, 2006-Ohio-4964, ¶

76; Covucci v. Syroco, Inc., 6th Dist. Lucas No. L-00-1349, 2001 Ohio App. LEXIS 1635, *7.

       {¶18} Ms. Lowder and Ms. McGhee urge this Court to reject the Ohio Supreme Court’s

articulation of the test for foreseeability in favor of recognizing that “any unacceptable risk is

sufficient to establish foreseeability”: in their words, “The time has now come for Ohio’s

judiciary to recognize that no legitimate reason exists to limit compensable damages to just those

that can be foreseen by the tortfeasor as likely or probable.” A court of appeals, however, cannot

disregard the precedent of the Ohio Supreme Court. State v. Darr, 9th Dist. Medina No.

17CA0006-M, 2018-Ohio-2548, ¶ 39, citing Simon v. Zipperstein, 32 Ohio St.3d 74, 77 (1987).
                                                 8


       {¶19} Ms. Lowder and Ms. McGhee forfeited their arguments regarding whether the

evidence warranted a foreseeability instruction and their argument regarding the reasonable

person standard. Their remaining arguments are not well-taken, and their sole assignment of

error is overruled.

                                                III.

       {¶20} Ms. Lowder and Ms. McGhee’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.

       Costs taxed to Appellants.




                                                       LYNNE S. CALLAHAN
                                                       FOR THE COURT
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HENSAL, J.
CONCURS.

CARR, P. J.
DISSENTING.

       {¶21} I respectfully dissent. I do not agree with the majority’s conclusion that the

appellants failed to preserve their challenges to the jury instructions about the standard of care in

this medical malpractice case. I would sustain the assignment of error and reverse the trial

court’s judgment.


APPEARANCES:

MICHAEL R. BECKER and DAVID W. SKALL, Attorneys at Law, for Appellants.

PAUL W. FLOWERS, Attorney at Law, for Appellants.

MARTIN T. GALVIN, WILLIAM A. MEADOWS, and CHRISTINE S. SANTONI, Attorneys
at Law, for Appellees.
