      [Cite as Cummins v. Broderick, 2012-Ohio-1508.]
              IN THE COURT OF APPEALS
          FIRST APPELLATE DISTRICT OF OHIO
               HAMILTON COUNTY, OHIO



SUE CUMMINS, Executor of the Estate :                   APPEAL NO. C-110399
of Terry Cummins, Deceased,                             TRIAL NO. A-1000416
                                    :
      Plaintiff-Appellant,                                 O P I N I O N.
                                    :
  vs.
                                    :
THOMAS M. BRODERICK, M.D.,
                                    :
      and
                                    :
OHIO HEART AND VASCULAR
CENTER, INC.,                       :

    Defendants-Appellees.                     :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: April 4, 2012


Elk & Elk Co., Ltd., James M. Kelly, III, Kimberly C. Young, The Lyon Firm and
Joseph M. Lyon, for Plaintiff-Appellant,

Calderhead, Lockemeyer & Peschke Law Office, David C. Calderhead and Joel L.
Peschke, for Defendants-Appellees.




Please note: This case has been removed from the accelerated calendar.
                       OHIO FIRST DISTRICT COURT OF APPEALS




S UNDERMANN , Judge.

         {¶1}   Sue Cummins appeals the trial court’s judgment entered against her

on her medical-malpractice claim against Thomas Broderick, M.D., and Ohio Heart

and Vascular Center, Inc. We conclude that Cummins’s sole assignment of error

does not have merit, so we affirm the judgment of the trial court.

         {¶2}   In January 2005, an electrocardiogram indicated that Cummins’s

husband Terry had blockage in his right coronary artery. Terry was admitted to The

Christ    Hospital,   where   Broderick   performed    an   angiogram   and   cardiac

catheterization to treat the blockage. After treating a blockage in the right coronary

artery with a stent, Broderick performed an angiogram of the left anterior

descending artery (“LAD”). Broderick determined that there were blockages ranging

from a 40 percent obstruction in the proximal portion of the LAD to a 90 percent

obstruction in the apex of the LAD. Broderick sought to insert a stent to relieve a

blockage of a 60 percent obstruction in the mid portion of the LAD. It was later

determined that Broderick did not treat the targeted blockage that he had noted in

Terry’s chart. Rather, he put a stent in a blockage that was above the 60 percent

obstruction.    Terry’s chart indicated that the procedure had been done with no

complications, and he was released from the hospital the next day.

         {¶3}   Two days later, Terry began to experience chest pain. He was taken

by ambulance to the Clermont County Hospital, where he later died. The cause of

death was determined to have been acute myocardial infarction that had been caused

by stent thrombosis.

         {¶4}   Cummins filed a medical-malpractice lawsuit against Broderick and

Ohio Heart and Vascular Center, Inc., in which she alleged that Broderick had failed




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                       OHIO FIRST DISTRICT COURT OF APPEALS



to meet the standard of care when he made the decision to treat a blockage in the

LAD and when, after having decided to intervene in the LAD, he did not treat the

blockage that he had targeted. The case was tried before a jury.

       {¶5}      During the trial, Cummins presented the expert testimony of Jeffery

Breall, M.D., who opined that Broderick’s decision to intervene in the LAD and

subsequent action in placing the stent in the LAD was beneath the requisite standard

of care. Broderick countered with his own testimony and that of his expert, Barry

George, M.D., that Broderick’s actions were within the standard of care. At the

conclusion of the trial, the jury found in favor of Broderick and Ohio Heart and

Vascular Center.

       {¶6}      In her sole assignment of error, Cummins asserts that the trial court

erred by failing to cure misleading statements regarding the standard of care in a

medical-malpractice action. Cummins contends that Broderick’s counsel repeatedly

and improperly suggested to the jury that a doctor using reasonable judgment could

not be found negligent of medical malpractice. Cummins further contends that the

trial court erred when it refused to give a requested jury instruction that would have

clarified that the standard of care was an objective standard.

       {¶7}      “To prove a malpractice case, it is by now axiomatic that a plaintiff

must put on expert testimony to show that the doctor who the plaintiff believes

committed malpractice fell below the standard of care of like practitioners under the

same or similar circumstances.” Kurzner v. Sanders, 89 Ohio App.3d 674, 679, 627

N.E.2d 634 (1st Dist.1993). See also Bruni v. Tatsumi, 46 Ohio St.2d 127, 364

N.E.2d 673 (1976). The standard, as acknowledged by both parties in this case, is an

objective one.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶8}   Cummins first contends that Broderick improperly referenced

“reasonable judgment” or “clinical judgment” throughout the trial. According to

Cummins, such references created confusion and misled the jury. She likens this

case to Thamann v. Bartish, in which we concluded that defense counsel’s improper

and inflammatory remarks were so pervasive that there was a substantial likelihood

that the jury had been misled. 167 Ohio App.3d 620, 2006-Ohio-3346, 629, 856

N.E.2d 301 (1st Dist.). We note that only once during closing arguments did

Cummins object to defense counsel’s discussion of “judgment.” And on several

occasions, Cummins’s counsel brought up the issue of whether Broderick had used

bad judgment. We conclude that in this case the statements about judgment were

not so pervasive as to mislead the jury.

       {¶9}   Cummins also contends that the trial court erred when it did not give

the jury a requested instruction that clarified the objective standard to be applied in

medical-malpractice cases. Cummins requested that the trial court add the following

to the jury instructions: “A physician can be exercising his best clinical judgment

and still be negligent. The standard of care is an objective standard not a subjective

standard.” The trial court refused to give the additional instruction, concluding that

the requested instruction was unnecessary and would confuse the jury.

       {¶10} The trial court correctly charged the jury on the proper standard of

care as set forth in Bruni v. Tatsumi. It was within the court’s discretion whether to

give instructions that were redundant or immaterial. Bostic v. Connor, 37 Ohio St.3d

144, 524 N.E.2d 881 (1988), paragraph two of the syllabus. In this case, given that

the trial court properly instructed the jury on the standard of care, the instruction

requested by Cummins was redundant. We conclude that the trial court did not




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                      OHIO FIRST DISTRICT COURT OF APPEALS



abuse its discretion when it concluded that the additional instruction would confuse

the jury.

        {¶11} Nor was the additional instruction necessary after the statements

made by Broderick’s counsel in closing arguments. Cummins’s counsel objected and

requested that defense counsel’s comment about judgment be struck. The trial court

first indicated that it would strike the statement.          But after further side-bar

discussion during which Broderick’s counsel stated that he would not mention

judgment again, the trial court told counsel, “All I’m going to do is, I’m going to

instruct the jury they will have to refer to the instructions [as to standard of care.]”

Counsel for both parties replied, “That’s fine.” The court then stated to the jury,

        Ladies and gentlemen, as I said earlier, this is closing arguments, and

        that’s what it is. It’s closing arguments from both sides. It is not

        evidence. I will just caution you, you listen to the arguments and

        evaluate them, but when it comes to the instructions of law as given by

        the Court as to such things as standard of care and whatnot, those

        instructions, the jury instructions are what’s controlling, all right.

We conclude that the trial court’s statements and the jury instructions were sufficient

to properly instruct the jury on the standard of care. The trial court did not abuse its

discretion when it refused to strike the defense counsel’s statements.           The sole

assignment of error is without merit, and we therefore affirm the judgment of the

trial court.

                                                                      Judgment affirmed.

H ILDEBRANDT , P.J., and H ENDON , J., concur.


Please note:
        The court has recorded its own entry this date.



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