       [Cite as Schultz v. Mayfield Neurological Inst., 2013-Ohio-4146.]

                             IN THE COURT OF APPEALS
                    FIRST APPELLATE DISTRICT OF OHIO
                              HAMILTON COUNTY, OHIO



   JAMES W. SCHULTZ                                  :          APPEAL NO. C-120764
                                                                TRIAL NO. A-0510837
      and                                            :

   JULIE ANN SCHULTZ,                                :
                                                                       O P I N I O N.
            Plaintiffs-Appellants,                   :

      vs.                                            :

   MAYFIELD NEUROLOGICAL                             :
   INSTITUTE
                                                     :
      and
                                                     :
   MAYFIELD SPINE INSTITUTE,
                                                     :
         Defendants-Appellees.




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 25, 2013



John H. Metz, for Plaintiffs-Appellants,

The Triona Firm, James P. Triona and Paul Vollman, for Defendants-Appellees.
                         OHIO FIRST DISTRICT COURT OF APPEALS



S YLVIA S IEVE H ENDON , Presiding Judge.

       {¶1}   James W. Schultz and his wife Julie Ann Schultz appeal the trial court’s

judgment in favor of Mayfield Neurological Institute and Mayfield Spine Institute

(hereinafter collectively referred to as “Mayfield”) in their action for medical malpractice

and lack of informed consent. We affirm the trial court’s judgment.


                                            Background


       {¶2}   In 1998, the Schultzes initiated an action against Mayfield and one of its

practitioners, Stewart Dunsker, M.D. They alleged that as a result of a 1997 cervical-spine

surgery performed by Dr. Dunsker, Mr. Schultz had suffered injury to his recurrent

laryngeal nerve which permanently affected his ability to speak in a normal tone of voice.

       {¶3}   The Schultzes later voluntarily dismissed and refiled the action two more

times. The most recent complaint was filed in 2005.

       {¶4}   In 2007, Dr. Dunsker asserted that he was entitled to immunity as a state

employee, so the matter was stayed pending a determination by the Court of Claims.

       {¶5}   In 2009, the Court of Claims determined that Dr. Dunsker was entitled to

immunity, pursuant to R.C. 9.86 and 2743.02(F), because he was a state employee acting

within the scope of his employment with the University of Cincinnati when the alleged

negligence occurred.

       {¶6}   In 2011, the Schultzes asked the trial court to find that Dr. Dunsker had

waived the immunity defense. The trial court denied the motion.

       {¶7}   In 2011, the trial judge denied the Schultzes’ motion for recusal.            The

Schultzes then filed with the Ohio Supreme Court an affidavit of bias and prejudice under

R.C. 2701.03 to disqualify the trial judge. The affidavit of disqualification was denied.




                                                   2
                          OHIO FIRST DISTRICT COURT OF APPEALS



       {¶8}    Following a bench trial, the court entered judgment in favor of Mayfield. The

Schultzes now appeal, raising eleven assignments of error. None of their assignments of

error challenged the weight or sufficiency of the evidence supporting the judgment.


                                            Motion for a Mistrial


       {¶9}    In their first assignment of error, the Schultzes argue that the trial court erred

by denying their motion for a mistrial. They contend that the court improperly considered

“evidence outside of the record and [made] determinations before all the evidence [was]

presented.”

       {¶10} Generally, a motion for a mistrial in a civil case is treated as a motion for a
new trial pursuant to Civ.R. 59(A). See Gugliotta v. Morano, 161 Ohio App.3d 152, 2005-

Ohio-2570, 829 N.E.2d 757, ¶ 10 (9th Dist.). The rule allows a trial court to grant a new trial

if an irregularity in the trial proceedings can be shown to have prevented the moving party

from having a fair trial. Civ.R. 59(A)(1). We review a trial court’s decision to grant or deny a

motion for a mistrial or a new trial for an abuse of discretion. See Savage v. Correlated

Health Servs. Ltd., 64 Ohio St.3d 42, 591 N.E.2d 1216 (1992); Jacobs v. McAllister, 6th Dist.

Lucas No. L-06-1172, 2007-Ohio-2032, ¶ 19.

       {¶11} In moving for a mistrial, the Schultzes’ attorney argued that he was concerned
by off-the-record remarks made by the trial court. Because any such remarks are not part of

the record, we have no basis to conclude that the trial court abused its discretion in refusing

to grant a mistrial. Consequently, we overrule the first assignment of error.


                                      Commonality of Insurance


       {¶12} In their second assignment of error, the Schultzes argue that the trial court
erred by precluding them from cross-examining defense expert, Patrick McCormick, M.D.,

about his professional liability carrier.



                                                     3
                         OHIO FIRST DISTRICT COURT OF APPEALS



       {¶13} In an action for medical malpractice, an expert witness having the same
malpractice insurer as another defendant is subject to inquiry concerning bias if the witness

testifies favorably for that defendant.   Ede v. Atrium South OB-GYN, Inc., 71 Ohio St.3d

124, 642 N.E.2d 365 (1994); Davis v. Immediate Med. Servs., 80 Ohio St.3d 10, 16, 684

N.E.2d 292 (1997); Fehrenbach v. O’Malley, 164 Ohio App.3d 80, 2005-Ohio-5554, 841

N.E.2d 350, ¶ 37 (1st Dist.). We review the trial court’s ruling pursuant to an abuse-of-

discretion standard. Calderon v. Sharkey, 70 Ohio St.2d 218, 436 N.E.2d 1008 (1982),

syllabus.

       {¶14} In Ede, the Ohio Supreme Court held that the trial court had erred by finding
that the potential for prejudice outweighed the probative value of testimony that a defense

expert and a defendant physician were insured by the same carrier. Ede at 127. The

Supreme Court cited two reasons supporting its conclusion: (1) the trial court had failed to

consider the potential for the expert’s personal bias resulting from the expert’s having the

same insurance carrier as the party for whom he testified; and (2) the trial court had grossly

overestimated the effect of testimony that the defendant was insured would have on the

jury. The Supreme Court stated:

       [T]estimony regarding insurance is not always prejudicial.        However, too

       often courts have a Pavlovian response to insurance testimony -- immediately

       assuming prejudice. It is naive to believe that today’s jurors, bombarded for

       years with information about health care insurance, do not already assume in

       a malpractice case that the defendant doctor is covered by insurance. The

       legal charade protecting juries from information they already know keeps

       hidden from them relevant information that could assist them in making their

       determinations. Our Rules of Evidence are designed with truth and fairness

       in mind; they do not require that courts should be blind to reality.

Id.




                                                  4
                         OHIO FIRST DISTRICT COURT OF APPEALS



       {¶15} In this case, Dr. McCormick, an expert witness for the defense, was cross-
examined about his fees for case reviews and for testimony as an expert, the number of

malpractice cases he had reviewed or testified in as an expert, the number of times he had

testified for the defense in a malpractice case, and the number of times he had worked with

trial counsel for Mayfield. He was also cross-examined with respect to his having written an

article about the escalation of costs of malpractice policies in Ohio and the fact that fewer

insurers were willing to offer them. He was further cross-examined about his participation

in medical organizations that promoted tort-reform legislation. However, when counsel for

the Schultzes asked Dr. McCormick the identity of his medical liability insurance carrier, the

trial court sustained a defense objection to the question.

       {¶16} Following Dr. McCormick’s testimony, counsel and the court had a discussion
on the question of the commonality of insurance with respect to Mayfield and Dr.

McCormick. Defense counsel indicated that Mayfield’s insurance carrier for the case had

been out of business for at least five years and that it had been liquidated. So, he argued,

Dr. McCormick could not have been insured “by a company that is out of business.”

Counsel for the Schultzes, however, maintained that he should have been able to question

the doctor on the subject.

       {¶17} On appeal, the Schultzes argue that the court’s refusal to allow cross-
examination on the question of the commonality of insurance was plain error requiring

reversal. Mayfield counters that in 2008, it had filed in this case a motion for stay on the

grounds that its liability carrier had entered bankruptcy. So, Mayfield argues, there existed

no reasonable likelihood that Dr. McCormick had the same insurance carrier as Mayfield, or

that he would have been motivated by any common pecuniary interest in the viability of a

bankrupt insurance carrier.

       {¶18} On the facts of this case, even if the trial court erred by excluding the
testimony, we cannot say that the Schultzes’ substantial rights were prejudiced as a result.

The concerns expressed by the Ede court with respect to jury determinations were not


                                                  5
                         OHIO FIRST DISTRICT COURT OF APPEALS



present here ─ this was a bench trial where both parties had ample opportunity to argue

their positions on the commonality-of-insurance matter directly to the trier of fact. So the

Schultzes cannot demonstrate that the outcome of the trial would have been otherwise had

the testimony not been excluded. Accordingly, we overrule the second assignment of error.


                                       Notice of a Subpoena


       {¶19} In their third assignment of error, the Schultzes argue that the trial court
erred by allowing the defense to use subpoenaed materials in cross-examining their expert,

because the defense had failed to serve a copy of the subpoena on the Schultzes.

       {¶20} Civ.R. 45(A)(3) provides:
       A party on whose behalf a subpoena is issued under division (A)(1)(b)(ii), (iii),

       (iv), (v), or (vi) of this rule shall serve prompt written notice, including a copy

       of the subpoena, on all other parties as provided in Civ.R. 5. If the issuing

       attorney modifies a subpoena issued under division (A)(1)(b)(ii), (iii), (iv), (v),

       or (vi) of this rule in any way, the issuing attorney shall give prompt written

       notice of the modification, including a copy of the subpoena as modified, to all

       parties.

       {¶21} The Staff Notes accompanying the 2005 amendment to the rule state:
       The notice requirement of amended Civ.R. 45(A)(3), like its counterpart in

       Rule 45(B)(1), Federal Rules of Civil Procedure, is intended ‘to afford other

       parties an opportunity to object to the production or inspection, or to serve a

       demand for additional documents or things.’ Advisory Committee’s Note to

       1991 Amendments to the Federal Rules of Civil Procedure; see, e.g., Spencer

       v. Steinman, 179 F.R.D. 484, 488 (E.D.Pa. 1998).

 No penalty is prescribed for a party’s violation of the notice requirement.




                                                   6
                         OHIO FIRST DISTRICT COURT OF APPEALS



       {¶22} In May 2007, Mayfield issued a subpoena to the American Association of
Neurological Surgeons (“AANS”) requesting all documents related to the association’s

proceedings with regard to the Schultzes’ expert witness, Donald Castle Austin, M.D. A copy

of the subpoena was filed with the court but was not served upon the Schultzes.

       {¶23} In July 2012, counsel for Mayfield used the subpoenaed materials during the
cross-examination of Dr. Austin in his deposition, over the Schultzes’ objection. Defense

counsel questioned Dr. Austin about his having been sanctioned by the AANS in 1995 as a

result of his testimony in a lawsuit against another neurosurgeon. Dr. Austin acknowledged

that, following the disciplinary action, he had filed suit against the AANS in federal court.

       {¶24} The trial in this case began in August 2012. After Dr. Austin’s deposition was
introduced and reviewed at trial, the Schultzes reiterated their objection to the use of the

AANS materials on the basis that they had not been notified of the May 2007 subpoena

from Mayfield to AANS. The trial court overruled their objection.

       {¶25} On appeal, the Schultzes argue that they were unfairly surprised by Mayfield’s
use of the AANS materials during the cross-examination of Dr. Austin. They contend that

Mayfield’s failure to notify them of the 2007 AANS subpoena had deprived them of the

opportunity to rehabilitate the witness.

       {¶26} However, the Schultzes’ argument that they were unfairly surprised by the
subpoenaed materials rings hollow for two reasons. They had retained Dr. Austin in this

case ten years before his deposition took place, so they had ample opportunity to learn of

the AANS information before his July 2012 deposition. More importantly, though, the trial

court stated that it would not consider the AANS proceedings or the resulting federal

litigation for any purpose.

       {¶27} Because the Schultzes failed to demonstrate that they were unfairly surprised
by Mayfield’s failure to notify them of the AANS subpoena, we hold that the trial court did

not err by allowing Dr. Austin to be cross-examined with respect to the materials. We

overrule the third assignment of error.


                                                   7
                         OHIO FIRST DISTRICT COURT OF APPEALS



                                              Hearsay


       {¶28} In their fourth assignment of error, the Schultzes argue that the trial court
erred “by considering hearsay, namely ethical consideration [sic] by the [AANS].” They

contend that they were prejudiced by the court’s consideration of factual determinations by

the AANS.

       {¶29} As we have noted, the trial court indicated that it would not consider the
AANS proceedings or the resulting federal litigation. Moreover, we are guided by the

presumption that, in a bench trial, the court is presumed to have considered only the

“relevant, material, and competent evidence.” See State ex rel. BDFM Co. v. Ohio Dept. of

Transp., 10th Dist. Franklin No. 11AP-1094, 2013-Ohio-107, ¶ 45; State v. Robbins, 1st Dist.

Hamilton No. C-120107, 2013-Ohio-612, ¶ 14.

       {¶30} Because the record does not demonstrate that the trial court improperly
considered any evidence of proceedings by the AANS with respect to Dr. Austin, we overrule

the fourth assignment of error.


                                     Immunity of Dr. Dunsker


       {¶31} In their fifth assignment of error, the Schultzes argue that the trial court erred
by failing to determine whether Dr. Dunsker had waived his defense of immunity. However,

the immunity issue is irrelevant given the uncontested finding of no liability. We overrule

the fifth assignment of error.


                                      Professional Literature


       {¶32} In their sixth assignment of error, the Schultzes argue that the trial court
erred by permitting Mayfield’s expert witnesses to cite medical literature without providing

a specific citation or source, thereby preventing effective cross-examination.




                                                  8
                           OHIO FIRST DISTRICT COURT OF APPEALS



         {¶33} In Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237, 2005-Ohio-4787, 834
N.E.2d 323, the Ohio Supreme Court held that expert witnesses are allowed to testify that

their opinions are based, in part, on their review of professional literature. In this case, the

trial court properly allowed the defense experts to make general references to the

professional literature in support of their opinions. Neither expert impermissibly acted “as

a conduit for the out-of-court statements of others,” and both were subject to cross-

examination to test their opinions. See id. at ¶ 33. Moreover, we presume that the court, as

the trier of fact, considered only competent evidence. We overrule the sixth assignment of

error.


                                          Nickell v. Gonzalez


         {¶34} In their seventh assignment of error, the Schultzes argue that the trial court
erred by “applying the Nickell v. Gonzalez ‘reasonable person’ and ‘material’ risk standards

and allowing expert testimony on the ultimate issue.” They contend that the reasonable

person test “turns the doctrine [of informed consent] upon its head and renders it

meaningless.”

         {¶35} In Nickell, the Ohio Supreme Court held that the tort of lack of informed
consent is established when:

         (a) the physician fails to disclose to the patient and discuss the material risks

         and dangers inherently and potentially involved with respect to the proposed

         therapy, if any; (b) the unrevealed risks and dangers which should have been

         disclosed by the physician actually materialize and are the proximate cause of

         the injury to the patient; and (c) a reasonable person in the position of the

         patient would have decided against the therapy had the material risks and

         dangers inherent and incidental to treatment been disclosed to him or her

         prior to the therapy.



                                                    9
                           OHIO FIRST DISTRICT COURT OF APPEALS



17 Ohio St.3d 136, 477 N.E.2d 1145 (1985).

         {¶36} In White v. Leimbach, the Ohio Supreme Court held that expert medical
testimony is required to establish the first and second elements set forth in Nickell. 131

Ohio St.3d 21, 2011-Ohio-6238, 959 N.E.2d 1033 (2011), syllabus. In other words, expert

testimony is required to:      (a) establish the material risks and dangers inherently and

potentially involved with a medical procedure; and (b) establish that an undisclosed risk

actually materialized and caused injury to the patient. Id. at ¶ 34-38. However, expert

medical testimony is not required to establish whether a reasonable person in the plaintiff’s

position would have decided against the procedure had the material risks been disclosed.

Id. at ¶ 40. What a reasonable patient would have done in light of the disclosed risks is

determined by the trier of fact. Id. at ¶ 37 and 41.

         {¶37} In this case, the trial court properly applied the law as set forth in Nickell and
White.    With respect to the first Nickell element, the court concluded that the expert

testimony of Drs. Dunsker and McCormick, who opined that injury to the larnyngeal nerve

was not a significant or material risk, was more credible than that of the Schultzes’ expert.

With respect to the third Nickell element, the court, as the trier of fact, found it

“inconceivable that a reasonable person in plaintiff’s condition” would have decided against

the anterior cervical discectomy surgery if the specific injury to the vocal cord had been

disclosed.

         {¶38} Because the trial court properly applied the law with respect to the Schultzes’
claim of lack of informed consent, we overrule the seventh assignment of error.


                                        Untimely Jury Demand


         {¶39} In their eighth assignment of error, the Schultzes argue that the trial court
erred by denying their request to have their case heard by a jury.




                                                   10
                         OHIO FIRST DISTRICT COURT OF APPEALS



       {¶40} On May 18, 2006, the Schultzes filed a jury demand pursuant to Civ.R. 38 and
39. Upon the defendants’ motion, the trial court struck the jury demand as being untimely.

       {¶41} A jury demand may be filed “not later than fourteen days after the service of
the last pleading directed to such issue.” Civ.R. 38(B). The failure of a party to timely serve

a demand for a jury trial constitutes a waiver of a trial by jury. Civ.R. 38(D).

       {¶42} In this case, the trial court found that the Schultzes’ jury demand had been
filed four months late and that they had failed to respond to Mayfield’s motion to strike the

untimely demand. Consequently, we hold that the trial court did not abuse its discretion by

striking the Schultzes’ jury demand. We overrule the eighth assignment of error.


                                        Fairness of the Trial


       {¶43} In their ninth assignment of error, the Schultzes argue that the trial court
erred by failing to provide a fair and impartial trial. They contend that the trial court had a

“negative opinion” of Dr. Austin and “wanted to disqualify” him as an expert witness. This

assertion is belied by the record; the trial court specifically stated that it accepted Dr.

Austin’s testimony as an expert witness. We overrule the ninth assignment of error.


                                    Applicable Legal Standards


       {¶44} In their tenth assignment of error, the Schultzes argue that the trial court
erred by applying the wrong legal standards to their claims of medical negligence and lack of

informed consent.

       {¶45} The Ohio Supreme Court set forth the requirements for proving a medical
malpractice claim:

       In order to establish medical malpractice, it must be shown by a

       preponderance of evidence that the injury complained of was caused by the

       doing of some particular thing or things that a physician or surgeon of



                                                   11
                          OHIO FIRST DISTRICT COURT OF APPEALS



       ordinary skill, care and diligence would not have done under like or similar

       conditions or circumstances, or by the failure or omission to do some

       particular thing or things that such a physician or surgeon would have done

       under like or similar conditions and circumstances, and that the injury

       complained of was the direct and proximate result of such doing or failing to

       do some one or more of such particular things.

Bruni v. Tatsumi, 46 Ohio St.2d 127, 346 N.E.2d 673 (1976).

       {¶46} The Supreme Court explained, “Proof of malpractice, in effect, requires two
evidentiary steps: evidence as to the recognized standard of the medical community in the

particular kind of case, and a showing that the physician in question negligently departed

from this standard in his treatment of plaintiff.” Id. at 131.

       {¶47} In this case, the trial court determined that the Schultzes failed to prove that
Dr. Dunsker’s conduct fell below the standard of care for a neurosurgeon performing that

type of surgery. The court properly applied the Bruni standard and found in favor of

Mayfield.

       {¶48} Moreover, as we discussed in our resolution of the seventh assignment of
error, the trial court properly applied the Nickell standard in evaluating the Schultzes’ lack-

of-informed-consent claim. We overrule the tenth assignment of error.


                                  Constitutionality of R.C. 2701.03


       {¶49} In their eleventh assignment of error, the Schultzes argue that the procedure
in R.C. 2701.03 for the disqualification of a common pleas judge violates the Ohio and

United States Constitutions. However, the failure to raise this issue in the trial court waives

the issue on appeal. See State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986), syllabus.

Moreover, we find no constitutional infirmity in the statute. See Bland v. Graves, 99 Ohio




                                                   12
                          OHIO FIRST DISTRICT COURT OF APPEALS



App.3d 123, 650 N.E.2d 117 (9th Dist.1994). We overrule the eleventh assignment of error

and affirm the trial court’s judgment.

                                                                              Judgment affirmed.



HILDEBRANDT and FISCHER, JJ., concur.



Please note:

       The court has recorded its own entry on the date of the release of this opinion.




                                                    13
