[Cite as Hayward v. Summa Health Sys., 2012-Ohio-5396.]


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

THERESA HAYWARD                                           C.A. No.   25938

        Appellant

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
SUMMA HEALTH SYSTEM AKRON                                 COURT OF COMMON PLEAS
CITY HOSPITAL, et al.                                     COUNTY OF SUMMIT, OHIO
                                                          CASE No.   CV 2009 03 2529
        Appellees

                               DECISION AND JOURNAL ENTRY

Dated: November 21, 2012



        BELFANCE, Judge.

        {¶1}    Plaintiff-Appellant Theresa Hayward appeals from the judgments of the Summit

County Court of Common Pleas. For the reasons set forth below, we affirm in part, reverse in

part, and remand for a new trial.

                                                   I.

        {¶2}    Following bouts of diverticulitis, Ms. Hayward elected to have a portion of her

sigmoid colon removed in an attempt to remedy the problem. On October 10, 2007, Defendant-

Appellee Dr. Michael Cullado, M.D., and Defendant-Appellee Dr. Steven Wanek, M.D., a fifth-

year surgical resident employed by Defendant-Appellee Summa Health System (“Summa”),

performed the partial colectomy on Ms. Hayward. In the days following the surgery, Ms.

Hayward developed weakness and loss of sensation in her left leg. Following a neurology

consult by Dr. Robert Lada, M.D., Dr. Lada determined that Ms. Hayward suffered a nerve

injury to the left femoral nerve during the surgery. After conducting a differential diagnosis as to
                                                 2


the cause of the nerve injury, Dr. Lada concluded that the injury occurred due to a prolonged

compression of the nerve during surgery. He further concluded that, because there was no other

evidence of the typical causes of femoral neuropathy,1 the nerve injury was likely secondary to a

retractor injury.   The retractor in this case, a Bookwalter retractor, was used so that the

anatomical structures at issue could be accessible and other structures not involved in the surgery

could be held out of the way so as not to be damaged or compromised during the surgery. Ms.

Hayward was discharged from the hospital on October 26, 2007. Four months later, in the

discharge summary dictated by Dr. Wanek and signed by Dr. Cullado, the doctors also indicated

that the neuropathy was likely secondary to a retractor injury.

        {¶3}    Prior to the surgery, Ms. Hayward had no problems with weakness or sensation in

her leg and had no difficulty walking. Upon discharge, Ms. Hayward had to use a wheelchair to

leave the hospital. Over time and many months of physical therapy, Ms. Hayward progressed to

being able to walk with assistance of a walker, and finally with only the assistance of a cane.

Nevertheless, Ms. Hayward continues to have problems with her left leg; she cannot stay in one

position for prolonged periods of time and is most comfortable when lying down. Experts

believe it is statistically unlikely that Ms. Hayward’s condition will dramatically improve, that

her injury is likely permanent, and that she will not be able to find work given her physical

limitations and skill set.

        {¶4}    On March 31, 2009, Ms. Hayward filed a complaint against Summa, Dr. Cullado,

Dr. Spear, Advanced Urology Associates, LLC, Dr. Wanek, Dr. Reedus, and several John and

Jane Doe Defendants alleging that the Defendants were negligent in providing medical care to


        1
          Common causes of femoral nerve injury, also known as femoral neuropathy include
preexisting weakness, diabetes or retroperitoneal hematoma. After conducting tests and
examining Ms. Hayward, Dr. Lada eliminated these possible causes.
                                                3


Ms. Hayward, that they deviated from the standard of care, that as a proximate result of the

negligence they caused injury and pain and suffering to Ms. Hayward, and that as a result Ms.

Hayward has incurred numerous expenses and lost wages and earnings. Subsequently, Ms.

Hayward filed motions pursuant to Civ.R. 41(A)(1) to dismiss Defendants Dr. Spear, Dr.

Reedus, and Advanced Urology Associates, LLC.

       {¶5}    The matter proceeded to a jury trial. The jury concluded that Dr. Cullado and

Summa were not liable, that Dr. Cullado and Summa by and through Dr. Wanek were not

negligent in the care and treatment of Ms. Hayward, and that they did not cause injury to Ms.

Hayward. Ms. Hayward filed a motion for judgment notwithstanding the verdict (“JNOV”) and

a motion for a new trial. Both were subsequently denied by the trial court. Ms. Hayward has

appealed, raising five assignments of error for our review. Her assignments of error will be

addressed out of sequence to facilitate our review.

                                                II.

                                 ASSIGNMENT OF ERROR III

       THE COURT SHOULD HAVE GRANTED APPELLANT’S MOTION FOR
       JUDGMENT NOTWITHSTANDING THE VERDICT.

       {¶6}    Ms. Hayward asserts in her third assignment of error that the trial court erred in

denying her motion for JNOV because the evidence was insufficient to support a defense verdict.

We do not agree.

       {¶7}    “[M]otions for directed verdict and for JNOV present questions based on the

sufficiency of the evidence * * * .” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶

28. A JNOV motion pursuant to Civ.R. 50(B) presents questions of law. Id. at ¶ 25.

       [Thus,] [a]s with an appeal from a court’s ruling on a directed verdict, this Court
       reviews a trial court’s grant or denial of a JNOV de novo. JNOV is proper if upon
       viewing the evidence in a light most favorable to the non-moving party and
                                                 4


       presuming any doubt to favor the nonmoving party reasonable minds could come
       to but one conclusion, that being in favor of the moving party. If reasonable
       minds could reach different conclusions, the motion must be denied.

(Internal quotations and citations omitted.) Schottenstein Zox & Dunn Co., L.P.A. v. Reineke, 9th

Dist. No. 10CA0138-M, 2011-Ohio-6201, ¶ 8.

       {¶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.). “A

medical-malpractice claim requires the plaintiff to prove causation through medical expert

testimony in terms of probability to establish that the injury was, more likely than not, caused by

the defendant’s negligence.” (Internal quotations and citations omitted.) Id.

       {¶9}    In the instant matter, Ms. Hayward’s expert, Dr. William Irvin, M.D., testified

that Drs. Cullado and Wanek fell “below the accepted standards of care * * * []” and that doing

so resulted in Ms. Hayward’s neuropathy. He testified that he believed that “the cause of [Ms.

Hayward’s] injury came from compression of the femoral nerve with a lateral retractor blade[]”

that was inappropriately placed. He also stated that it was impossible to suffer an injury to the

femoral nerve as Ms. Hayward had suffered without improper placement of the retractor.

However, the Defendants’ expert, Dr. Peter Muscarella II, M.D., testified that he did not believe

the surgeons “deviated from the standard of care.” In addition, although there were no medical

records pertaining to the use or placement of the retractor, he testified that he was “confident that

this surgeon * * * carefully placed the retractor when he did the operation because everything

else that he did during the operation was careful and thoughtful with the aim of minimizing

complications for the patient.” We acknowledge that Dr. Lada opined that the injury was due to
                                                  5


prolonged nerve compression and Dr. Cullado and Wanek indicated that the injury was likely

caused by the use of the retractor in their discharge summary. Dr. Cullado also acknowledged at

trial that the injury most likely correlated to the use of the retractor. In addition, the bulk of Dr.

Muscarella’s opinions were made when he was unaware at trial that Dr. Cullado and Dr. Wanek

had indicated that the injury was likely caused due to the retractor. Nonetheless, Dr. Muscarella

continued to maintain that the doctors were not negligent even though he did not address or

explain how Ms. Hayward could suffer a retractor injury absent a breach in the standard of care.

However, these issues pertain to the weight of the evidence and not its sufficiency. The record is

clear that at no point does Dr. Muscarella acknowledge or state that he believed that the surgeons

were negligent or failed to meet the standard of care.

       {¶10} Viewing the evidence in a light most favorable to the Defendants, and without

evaluating credibility, there was evidence by which a jury could have concluded that the

Defendants were not liable, given that there was expert testimony that there was no deviation

from the standard of care and that the injury was not caused by the surgeons’ negligence. See

Segedy, 2009-Ohio-2460, at ¶ 11. Accordingly, Ms. Hayward’s JNOV motion was properly

overruled. In light of the foregoing, we overrule her third assignment of error.

                                  ASSIGNMENT OF ERROR V

       THE COURT ERRED IN INSTRUCTING THE JURY ON REMOTE CAUSE.

       {¶11} Ms. Hayward asserts in her fifth assignment of error that the trial court erred in

instructing the jury on remote cause. We agree.

       {¶12} “A trial court must give jury instructions that correctly and completely state the

law.” Groob v. KeyBank, 108 Ohio St.3d 348, 2006-Ohio-1189, ¶ 32. However, “[i]t is well

established that the trial court may not instruct the jury if there is no evidence to support an
                                                 6


issue.” Pesek v. Univ. Neurologists Assn., Inc., 87 Ohio St.3d 495, 498 (2000). “A jury charge

must be considered as a whole and a reviewing court must determine whether the jury charge

probably misled the jury in a matter materially affecting the complaining party’s substantial

rights.” Becker v. Lake Cty. Mem. Hosp. West, 53 Ohio St.3d 202, 208 (1990).

       {¶13} The trial court gave the following causation instruction:

       Now, to recover, the plaintiff must not only prove negligence, which has been
       defined for you, but the plaintiff must also prove that the negligent act was the
       proximate cause of plaintiff’s injuries.

       Proximate cause is an act or failure to act which in the natural and continuous
       sequence directly produces the injury and without which it would not have
       occurred.

       Proximate cause occurs when the injury is the natural and foreseeable result of the
       act or failure to act.

       A person is not responsible for damages to another if his negligence is a remote
       cause and not a proximate cause. A cause is remote when the result could not
       have been reasonably foreseen or anticipated as being a natural or probable cause
       of any damage.

       {¶14} Ms. Hayward does not complain that the above is an inaccurate statement of the

law; instead, she claims that the facts of the instant case did not warrant a remote cause

instruction. We note that Ms. Hayward brought her concern about the instruction to the trial

court’s attention before the instructions were presented to the jury.

       {¶15} In light of the testimony at trial, we agree with Ms. Hayward that an instruction

on remote causation was not appropriate in the instant matter. Assuming that the Defendants

breached the standard of care, there was substantial evidence to support the conclusion that the

injury was a foreseeable result of the Defendants’ negligence.          There was overwhelming

evidence that Ms. Hayward’s injury was connected to the use of the retractor. Further, the

testimony as a whole indicated that the type of injury Ms. Hayward sustained tends to occur

when a surgeon improperly places the retractor. While the Appellees provided ample testimony
                                                 7


that the standard of care was not breached, they did not provide much, if any, testimony on an

alternate theory of causation, let alone evidence that Appellees’ negligence would have been a

remote cause of Ms. Hayward’s injury. See Pesek v. Univ. Neurologists Assn., 87 Ohio St.3d at

499 (“The trial court’s instruction would have been appropriate had there been testimony that

acceptable alternative methods existed for treatment of Caitlin’s condition. There were, however,

no acceptable alternative methods of treatment.”)

       {¶16} The discharge summary, which was dictated by Dr. Wanek and signed by Dr.

Cullado, concludes that Ms. Hayward “most probably suffered a femoral neuropathy likely

secondary to a retractor injury.” Dr. Cullado testified that “[w]hen we went through the whole

process and the entire workup and the data that we had to bear at that point in time, our collective

conclusion was that [the injury] was most likely correlated with the use of the retractor.” In

addition, Dr. Cullado testified that “if you improperly place the retractors you’re increasing the

risks of an injury and the manner in which you improperly place them would relatively increase

or decrease the risk of the injury.” Ms. Hayward’s expert, Dr. Irwin, testified that he believed

that “the cause of [Ms. Hayward’s] injury came from compression of the femoral nerve with a

lateral retractor blade[]” that was inappropriately placed. From the testimony it can also be

inferred that reasonably prudent surgeons are aware that improperly placing the retractor can

cause femoral neuropathy. Further, there was undisputed testimony that the injury was not

caused by diabetes, a hematoma, or cutting or suturing the nerve, all of which could have caused

Ms. Hayward’s neuropathy. From the evidence in the record, we can only conclude that an

ordinarily prudent surgeon should have reasonably anticipated that Ms. Hayward could have

sustained a femoral neuropathy from the improper placement of the retractor. See Jeanne v.
                                                 8


Hawkes Hosp. of Mt. Carmel, 74 Ohio App.3d 246, 252 (10th Dist.1991). Accordingly, a remote

cause instruction was not appropriate. See id. at 252-253; see also Pesek at 499.

         {¶17} Further, in light of the fact that an instruction on remote causation was so clearly

not warranted, Pesek at 499, and because there is evidence that the instructions did confuse the

jury, we conclude that “the jury charge probably misled the jury in a matter materially affecting

the complaining party’s substantial rights.” Becker, 53 Ohio St.3d at 208. Despite the fact that

the jury interrogatories indicated that the jury should only complete interrogatory number three,

which dealt with causation, if the jury concluded that one of the defendants was negligent, the

jury completed interrogatory number three anyway. Thus, the jury considered causation and

could have confused the issue of the breach of the standard of care with remote causation. While

there could be another explanation for this confusion, it nonetheless evidences that the jury was

confused. In light of all of the above, we conclude that the jury instruction was unwarranted and

that a new trial is required. See Pesek at 499 (concluding that, when there was no evidence to

support the instruction, a new trial was required). We sustain Ms. Hayward’s fifth assignment of

error.

                                   ASSIGNMENT OF ERROR I

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

                                  ASSIGNMENT OF ERROR II

         THE COURT ERRED IN ALLOWING THE ADMISSION OF, AND
         ARGUMENT CONCERNING, CONSENT FORMS.

                                  ASSIGNMENT OF ERROR IV

         THE COURT SHOULD HAVE GRANTED APPELLANT’S MOTION FOR A
         NEW TRIAL.
                                                 9


         {¶18} Ms. Hayward argues in her first assignment of error that the verdicts were against

the manifest weight of the evidence. She asserts in her second assignment of error that the trial

court erred in allowing argument and testimony concerning the surgery consent form and in the

admission of the form. Ms. Hayward argues in her fourth assignment of error that the trial court

erred in denying her motion for a new trial. Because we conclude that these assignments of error

are rendered moot by our resolution of Ms. Hayward’s fifth assignment of error, we decline to

address these assignments of error. See App.R. 12(A)(1)(c).

                                                III.

         {¶19} In light of the foregoing, we overrule Ms. Hayward’s third assignment of error,

sustain her fifth assignment of error, and decline to address the remaining assignments of error

because they are moot. Thus, we affirm the Summit County Court of Common Pleas’ ruling on

Ms. Hayward’s motion for a JNOV, reverse the jury verdicts, and remand the matter for a new

trial.

                                                                        Judgment reversed in part,
                                                                                 affirmed in part,
                                                                            and cause remanded.




         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
                                                10


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 equally to both parties.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT



WHITMORE, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

JACK MORRISON, JR., THOMAS R. HOULIHAN and VICKI L. DESANTIS, Attorneys at
Law, for Appellant.

DOUGLAS G. LEAK, Attorney at Law, for Appellee.

MICHAEL J. HUDAK, Attorney at Law, for Appellee.
