[Cite as Ratliff v. Mikol, 2011-Ohio-2147.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 94930




                            STACY RATLIFF, ET AL.
                                                       PLAINTIFFS-APPELLANTS

                                                 vs.

                      SHARON MIKOL, M.D., ET AL.
                                                       DEFENDANTS-APPELLEES




                                              JUDGMENT:
                                               AFFIRMED



                                   Civil Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CV-666457

        BEFORE:            S. Gallagher, J., Stewart, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED: May 5, 2011
ATTORNEYS FOR APPELLANTS

For Amanda Buzo

Michael F. Becker
David A. Kulwicki
The Becker Law Firm Co., LPA
134 Middle Avenue
Elyria, Ohio 44035

For Stacy Ratliff, et al.

Paul W. Flowers
Paul W. Flowers Co., LPA
Terminal Tower, 35th Floor
50 Public Square
Cleveland, OH 44113

ATTORNEYS FOR APPELLEES

Joseph A. Farchione
Christina J. Marshall
Sutter, O’Connell & Farchione Co., LPA
3600 Erieview Tower
1301 East Ninth Street
Cleveland, OH 44114




SEAN C. GALLAGHER, J.:

     {¶ 1} Plaintiffs-appellants Stacy Ratliff and Robert Ratliff Baker, Jr.

(“Baker”) appeal the judgment of the Cuyahoga County Court of Common

Pleas following a jury verdict after a two-week-long trial.1 The jury rendered

     1
         Stacy Ratliff dismissed her claims against Dr. Mikol prior to trial.
a verdict in favor of defendant-appellee Sharon Mikol, M.D. (“Dr. Mikol”) and

against Baker. Baker argues that the trial court erred by furnishing the jury

with a legally inaccurate “foreseeability” instruction over his objection. Dr.

Mikol claims the instruction correctly stated Ohio law.        For the following

reasons, we affirm the judgment of the trial court.

      {¶ 2} On May 29, 1987, Dr. Mikol handled Baker’s delivery and birth.

Unfortunately, Baker was born with severe brain damage.            Baker alleges

that Dr. Mikol failed to order an emergency Caesarean section delivery

despite the presence of a number of indications that the fetus was under

distress. The distress allegedly caused Baker to suffer oxygen deprivation,

which led to the brain damage.

      {¶ 3} At trial, both parties presented contradicting expert testimony

regarding Dr. Mikol’s standard of care in handling the delivery. Dr. Mikol

proposed the “foreseeability” jury instruction to which Baker objected.

Specifically at trial, Baker opposed the use of the word “likely” in the last line

of the instruction. The trial court overruled the objection and included the

instruction with those read to the jury. It is from that decision that Baker

appeals, raising a single assignment of error:        “The trial judge erred to

plaintiff-appellant’s substantial detriment by furnishing the jurors with a

legally erroneous foreseeability instruction.”
      {¶ 4} In reviewing jury instructions, if the instruction incorrectly states

the law, the standard of review we apply is to “consider the jury charge as a

whole in determining ‘whether the jury charge probably misled the jury in a

matter materially affecting the complaining party’s substantial rights.’”

Kokitka v. Ford Motor Co., 73 Ohio St.3d 89, 93, 1995-Ohio-84, 652 N.E.2d

671, quoting Becker v. Lake Cty. Mem. Hosp. W. (1990), 53 Ohio St.3d 202,

208, 560 N.E.2d 165. “An inadequate jury instruction that misleads the jury

constitutes reversible error.”    (Citations omitted.)   Groob v. KeyBank, 108

Ohio St.3d 348, 355, 2006-Ohio-1189, 843 N.E.2d 1170.

      {¶ 5} We review whether the trial court’s decision to give or omit

instructions constituted an abuse of discretion under the facts and

circumstances of the case. Berardi’s Fresh Roast, Inc. v. PMD Ents., Inc.,

Cuyahoga App. No. 93920, 2010-Ohio-5124, ¶ 12.             “[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.”      (Citations and quotations omitted.) Renfro v.

Black (1990), 52 Ohio St.3d 27, 30, 556 N.E.2d 150.

      {¶ 6} In the current case, the instruction challenged involves the

foreseeability of the injury as it relates to the standard of care Dr. Mikol owed
to Baker. Under Ohio law, in order to present a prima facie claim of medical

malpractice, a 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 (1976),

46 Ohio St.2d 127, 346 N.E.2d 673. The existence of a duty, or standard of

care, depends on the foreseeability of the injury. Menifee v. Ohio Welding

Products, Inc. (1984), 15 Ohio St.3d 75, 77, 472 N.E.2d 707.                      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.” (Emphasis added.) Id.

at 77.

         {¶ 7} The trial court instructed the jury on the general rule of law using similar

language and entirely based on the pattern instructions from the Ohio Jury Instructions

(“OJI”).    The instruction read at trial is as follows:

         “In determining whether reasonable care was used you must consider whether the
         defendant should have foreseen under the attendant circumstances that the natural
         and probable result of an act or omission on [Dr. Mikol’s] part would cause some
         injury to [Baker].

         “The test for foreseeability is not whether [Dr. Mikol] should have foreseen the
         injury in its precise form, but whether in light of all the circumstances the reasonable
         prudent person would have anticipated that an injury was likely to result to someone
         from the act or omission.”
(Emphasis added.)

       {¶ 8} In comparison, the foreseeability instruction from OJI Section 401.07 is as follows:

       “In deciding whether (reasonable) (ordinary) care was used, you will consider
       whether the (defendant) (either party) in question should have foreseen under the
       circumstances that the likely result of an act or failure to act would cause some
       (injury) (damage).

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

       {¶ 9} Baker proposed changing the emphasized word “likely to” to “may” as an alternative

to omitting the entire instruction.

       {¶ 10} Baker did not cite to any authority for the proposition that “may”

should have replaced “likely,” arguing that using “likely” instead of “may”

creates a heightened burden for plaintiff to establish duty.                We agree there

may be merit to this argument.              However, the trial court mimicked the

language given by the Supreme Court and used by the pattern jury

instructions. See Menifee, 15 Ohio St.3d at 77; Miller v. Defiance Regional

Med. Ctr., Lucas App. No. L-06-1111, 2007-Ohio-7101, ¶ 52 (finding that the

common pleas court did not abuse its discretion in giving the foreseeability
instruction based on the Ohio Jury Instruction2). The instruction therefore

is a correct statement of Ohio law.

      {¶ 11} Moreover, Baker’s only argument as to whether the trial court

should have omitted the foreseeability instruction altogether is that since

foreseeability is a factor for duty, an issue of law for the court, the jury should

not be charged with foreseeability. The parties presented dueling evidence

on the standard of care.         It was in the province of the trier of fact to

determine whether, based on the evidence presented, the standard of care

owed to Baker included performing an emergency Caesarean section, as

Baker argued.        We therefore cannot say that the trial court erred in

including or with regard to the language of the foreseeability instruction.

We agree with Dr. Mikol that the foreseeability instruction given is a correct

statement of law, is required by the issues of the case, and is clear in setting

out the general rule. We therefore do not need to address whether the jury

was misled by the instruction.

      {¶ 12} For the first time on appeal, Baker challenges the proximate

cause instruction given by the trial court, claiming it erred in reading

foreseeability into the proximate cause instruction.             Baker’s argument is

without merit for the following reasons.

      2
         Miller refers to O.J.I. 7.13. In Carr v. Preferred, Inc. (Aug. 10, 2000), Cuyahoga
App. No. 76476, the court quoted O.J.I. 7.13, and that reference is identical to the
pattern instruction at issue in the current case.
      {¶ 13} In order to preserve the right to appeal the giving or failure to

give an instruction, a party must object to the instruction before the jury

begins deliberating.    Civ.R. 51(A).    We therefore cannot sustain any

assigned error relating to jury instructions unless the party raises the

objection to the trial court.      Baker argues that the proximate cause

instruction was part of the foreseeability instruction, and therefore his

objections to the trial court as to the foreseeability instruction encompassed

the proximate cause one as well.

      {¶ 14} In reviewing the record, both sides proposed a proximate cause

instruction separate from foreseeability.    Dr. Mikol separately submitted

the foreseeability and proximate cause instructions     from the Ohio Jury

Instructions. 1 Ohio Jury Instructions (2004), Sections 401.07 and 405.01.

Dr. Mikol’s proposed jury instruction on proximate cause did not contain any

reference to foreseeability. Baker also submitted a version of the proximate

cause instruction: defendant’s proposed jury instruction number nine. Baker

did not propose any foreseeability instruction, and his proposed proximate

cause instruction omitted any reference to the foreseeability instruction

language.   It also contained, as the definition of “cause,” the specific

language to which he objects.      Neither party proposed one foreseeability

instruction that combined the proximate cause instruction language. They

both were separately presented for review.
       {¶ 15} In reviewing this argument, we agree that by defining “cause” with

reference to foreseeable, the court improperly conflated proximate cause with duty.

However, Baker proposed the language to which he objects. Even if there

was error in defining “cause” with a reference to “foreseeable,” such error was

invited by Baker and cannot be the grounds for sustaining his assignment of

error. Patton v. Cleveland (1994), 95 Ohio App.3d 21, 26, 641 N.E.2d 1126

(finding the trial court did not err in giving the instruction at issue because

defendant invited this error by providing the court with the erroneous jury

instruction and failing to timely object). More importantly for our review,

since Baker did not object to the proximate cause instruction at trial before

the jury retired to deliberate, he waived any objection as to that instruction

on appeal. Baker’s sole assignment of error is overruled.

       {¶ 16} The judgment of the trial court is affirmed.

       It is ordered that appellees recover from appellants costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE

MELODY J. STEWART, P.J., and
KENNETH A. ROCCO, J., CONCUR
