[Cite as Wargo v. Susan White Anesthesia, Inc., 2011-Ohio-6271.]




             Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                           JOURNAL ENTRY AND OPINION
                                    No. 96410




                                   LAUREN WARGO
                                                          PLAINTIFF-APPELLEE/
                                                          CROSS-APPELLANT

                                                    vs.

       SUSAN WHITE ANESTHESIA, INC., ET AL.
                                                          DEFENDANTS-APPELLANTS/
                                                          CROSS-APPELLEES




                                JUDGMENT:
                          REVERSED AND REMANDED


                                  Civil Appeal from the
                           Cuyahoga County Common Pleas Court
                             Case No. CV-653779

          BEFORE:        Blackmon, P.J., Stewart, J., and Cooney, J.

      RELEASED AND JOURNALIZED:                        December 8, 2011
ATTORNEYS FOR APPELLANTS

Douglas G. Leak
Roetzel & Andress, LPA
1375 East Ninth Street
Suite 900
Cleveland, Ohio 44114

Stephen D. Jones
Roetzel & Andress, LPA
155 East Broad Street
12th Floor
Columbus, Ohio 43215

Murray K. Lenson
Ulmer & Berne LLP
Skylight Office Tower
1660 West 2nd Street, Suite 1100
Cleveland, Ohio 44113-1448


ATTORNEYS FOR APPELLEE

Peter H. Weinberger
Melissa Z. Kelly
Spangenberg, Shibley & Liber LLP
1001 Lakeside Avenue East
Suite 1700
Cleveland, Ohio 44114
PATRICIA ANN BLACKMON, P.J.:

      {¶ 1} Appellants Bryan Michelow, M.D. and Contemporary Cosmetic

Surgery, Inc. (collectively referred to as “Dr. Michelow”) appeal the jury

award and various court rulings in favor of appellee Lauren Wargo (“Wargo”).

 Dr. Michelow    assigns eight errors for our review; Wargo cross-appeals

assigning two errors for our review.1

      {¶ 2} Having reviewed the record and pertinent law, we reverse the

trial court’s denial of Dr. Michelow’s motion for summary judgment regarding

Wargo’s claims for fraudulent concealment and punitive damages and

remand for the trial court to conduct a new trial on Wargo’s medical

malpractice claim. The apposite facts follow.

                                    Facts

      {¶ 3} On December 18, 2006, Wargo underwent surgery to remove

moles from her back and left eyebrow. Dr. Michelow was the plastic surgeon

who performed the procedure. Because Wargo was nervous, the decision was

made to put her under light anesthesia to sedate her.        Nurse Lucinda

Timberlake-Kwit was the assistant anesthesiologist for the surgery.

      {¶ 4} The surgery required the use of an instrument to cauterize the

area where the moles were located called a Bovie cautery (“Bovie”). Dr.

Michelow successfully removed the mole from Wargo’s back and then

proceeded to remove the mole from her eyebrow. As soon as the Bovie was
activated, it set off a spark, which caused a flash fire. The oxygen remained

on, which caused the fire. The surgical team reacted immediately and put

out the fire within seconds.       Despite this response, Wargo suffered

second-degree burns to the left side of her face, neck, ear, and eyelid.

Wargo’s skin pigment healed, but there was some occasional blotchiness.

She continues to have problems with her left eye.

      {¶ 5} Wargo filed a medical malpractice claim against Drs. Bryan

Michelow and Susan White,2 and Nurse Lucinda Timberlake-Kwit. Wargo

later amended her complaint to include a claim against Dr. Michelow for

fraudulent concealment based on his failure to fully disclose the cause of the

fire and the extent of her injuries. Dr. Michelow filed a motion for summary

judgment on Wargo’s claims for fraudulent concealment and punitive

damages, which the trial court denied.

      {¶ 6} The matter proceeded to a jury trial where the jury found Dr.

Michelow had committed malpractice and had engaged in fraudulent

concealment. Wargo was awarded $871,359 in compensatory damages and

$425,000 in punitive damages.

      {¶ 7} After the verdict, the parties filed numerous post-trial motions.

Wargo filed a motion for prejudgment interest, which was granted, but her


      See appendix.
      1


      2
       White was voluntarily dismissed from the case with prejudice and
Timberlake-Kwit received a defense verdict.
motion for attorney fees was denied.        Dr. Michelow filed motions for

enforcing the cap on noneconomic damages, to vacate the jury verdict, and for

judgment notwithstanding the verdict (“JNOV”) regarding the punitive

damages, and for a new trial. The trial court denied all of Dr. Michelow’s

motions.

           Summary Judgment as to Fraudulent Concealment
                      and Punitive Damages

      {¶ 8} In his first assigned error, Dr. Michelow argues the trial court

erred by denying his motion for summary judgment as to Wargo’s claims for

fraudulent concealment and punitive damages.

      {¶ 9} Generally, “any error by a trial court in denying a motion for

summary judgment is rendered moot or harmless if a subsequent trial on the

same issues raised in the motion demonstrates that there were genuine

issues of material fact supporting a judgment in favor of the party against

whom the motion was made.” Continental Ins. Co. v. Whittington (1994), 71

Ohio St.3d 150, 156, 642 N.E.2d 615.

      {¶ 10} However, error in the denial of a summary judgment motion that

presents a purely legal question is not rendered harmless by a subsequent

trial on the merits. Id. at 158; Capella III, L.L.C. v. Wilcox, 190 Ohio App.3d

133, 139, 2010-Ohio-4746, 940 N.E.2d 1026.        Consequently, an appellate

court may review a denial of a motion seeking summary judgment on a pure

question of law regardless of the movant’s lack of success at trial.
Sicklesmith v. Chester Hoist, 169 Ohio App.3d 470, 2006-Ohio-6137, 863

N.E.2d     677,    ¶183;    Kelley    v.    Ferraro,   Cuyahoga       App.     No.    92446,

2010-Ohio-4179.       Here, Dr. Michelow argued he was entitled to summary

judgment as a matter of law because Wargo failed to present the evidence

necessary to prove her fraudulent concealment claim or evidence that she was

entitled to punitive damages.              Thus, a subsequent trial did not render

harmless the asserted error in the denial of the summary judgment motion.

       {¶ 11} We review an appeal from summary judgment under a de novo

standard of review. Baiko v. Mays (2000), 140 Ohio App.3d 1, 746 N.E.2d

618, citing Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 506

N.E.2d 212; N.E. Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs. (1997),

121 Ohio App.3d 188, 699 N.E.2d 534. Accordingly, we afford no deference to

the trial court’s decision and independently review the record to determine

whether summary judgment is appropriate.                   Under Civ.R. 56, summary

judgment is appropriate when: (1) no genuine issue as to any material fact

exists, (2) the party moving for summary judgment is entitled to judgment as

a matter of law, and (3) viewing the evidence most strongly in favor of the

nonmoving party, reasonable minds can reach only one conclusion that is

adverse to the nonmoving party.

       {¶ 12} In Gaines v. Preterm-Cleveland, Inc. (1987), 33 Ohio St.3d 54, 55, 514 N.E.2d

709, the Ohio Supreme Court set forth the elements for a cause of action of fraud in a medical

malpractice action as follows:
          “The elements of an action in actual fraud are: (a) a representation or, where

          there is a duty to disclose, concealment of a fact, (b) which is material to the

          transaction at hand, (c) made falsely, with knowledge of its falsity, or with

          such utter disregard and recklessness as to whether it was true or false that

          knowledge may be inferred, (d) with the intent of misleading another into

          relying upon it, (e) justifiable reliance upon the representation or concealment,

          and (f) a resulting injury proximately caused by the reliance.”

          {¶ 13} Thus, “[a] physician’s knowing misrepresentation of a material fact concerning

a patient’s condition, on which the patient justifiably relies to his detriment, may give rise to a

cause of action in fraud independent from an action in medical malpractice.”            Id. citing,

Annotation (1973), 49 A.L.R.3d 501, 506; Leach v. Shapiro (1984), 13 Ohio App.3d 393, 397,

469 N.E.2d 1047.

          {¶ 14} In Gaines, the doctor allegedly told his patient that he had removed an

intrauterine device as she had requested when, in fact, he had not done so.      Over three years

later, the patient discovered that the IUD had not been removed and that it had perforated her

uterus.    Under these circumstances, the supreme court concluded that a doctor’s knowing

misrepresentation of a material fact concerning a patient’s condition, on which the patient

justifiably relied to her detriment, could give rise to a cause of action in fraud independent

from an action in medical malpractice.
      {¶ 15} In the instant case, there was no evidence that Wargo justifiably relied upon

any representation made by Dr. Michelow. Wargo was well aware that she

suffered burns that were not an intended part of the treatment, and Dr.

Michelow told her that the Bovie had caught fire. Therefore, there was no

concealment of the fact she was burned. Moreover, according to her

deposition, she knew the next morning when she went to                   MetroHealth’s

burn unit that the exposure to oxygen had caused the Bovie to ignite. She

informed the burn unit “we knew there was a fire and assumed it was from

oxygen and a spark.” Her intake record at the burn unit also indicated that

the fire was caused by oxygen in the operating room. Whether she provided

the information to the burn unit or they provided it to her, less than 24 hours

after the incident, she was aware of what caused the fire.

      {¶ 16} There is no evidence of concealment as to Wargo’s medical

condition. She was well aware she was burned. In Dr. Michelow’s operative

report, he also noted “partial thickness injury” to Wargo’s cheek, ear, and

neck, which is consistent with a second-degree burn. Moreover, the fact he

had a senior plastic surgeon immediately evaluate Wargo’s condition shows it

would have been impossible for Dr. Michelow to have concealed her injuries.

Also, the burn unit diagnosed Wargo the next morning as having

second-degree burns. So, even if she was misled in anyway concerning the

extent of her injuries, by the next morning, she would have definitely been

aware she had second-degree burns.
      {¶ 17} There is also no evidence that the doctor’s failure to tell her the

cause of the fire impacted her post-surgery treatment. There was no delay in

her receiving treatment as the doctor immediately contacted the senior

plastic surgeon and an opthamologist to evaluate Wargo, and she

immediately received treatment.       The next morning at MetroHealth, she

received the same diagnoses of second-degree burns and was prescribed the

same treatment prescribed by Dr. Michelow.

      {¶ 18} There is also no evidence that the doctor’s failure to reveal the

cause of the fire impacted her ability to bring a medical malpractice suit.

According to Wargo’s father, by the next evening, he had consulted with an

attorney regarding the incident. Therefore, the doctor’s alleged failure to

tell her about the oxygen did not result in Wargo’s suffering injuries separate

from her medical malpractice claim.

      {¶ 19} Wargo argued that she was psychologically harmed by the

doctor’s failure to   disclose the cause of the fire, causing her to have a

“rational fear of physical peril.” It is undisputed that Wargo did not suffer

any physical injury as a result of the doctor’s alleged fraudulent concealment

because, after the fire, she received appropriate medical treatment with no

delay; therefore, any additional injury would have been purely emotional, and

no doubt a result of the incident. Any physical injury was caused by the

medical malpractice.      See Prysock v. Bahner, M.D., 10th Dist. No.

03AP-1245, 2004-Ohio-3381 (no compensable injury for fraud due to doctor’s
alleged nondisclosure because the damages were the same for medical

malpractice).

      {¶ 20} In Prysock, the court acknowledged that “a plaintiff claiming

emotional    distress     without   contemporaneous   physical   injuries   must

demonstrate that he or she was in fear of physical consequences to his or her

person.”    Id. at ¶12.    However, “[a] plaintiff cannot recover for emotional

distress ‘where the distress is caused by plaintiff’s fear of a nonexistent

physical peril.’” Id., quoting, Criswell v. Brentwood Hosp. (1989), 49 Ohio

App.3d 163, 165-166, 551 N.E.2d 1315. There is no reason that Wargo would

have a fear of physical peril based on the doctor’s failure to tell her the cause

of the fire because the alleged nondisclosure did not cause her any physical

harm nor was she in danger of physical harm.

      {¶ 21} Additionally, the evidence does not support Wargo’s claim that

the doctor attempted to conceal the malpractice.         Immediately after the

incident, he had another plastic surgeon and an opthamologist both examine

Wargo. Also, in his report he had written: “Cautery was applied to the base

of the open operative wound. At this moment, a flash flame was noted. The

mask was immediately removed.            The oxygen was turned off.”         The

anesthesia record written by Timberlake-Kwit, stated: “After the nevus was

excised, Bovie was used to cauterize the skin. I was at the head of the bed

throughout procedure and noticed an immediate spark, O2 immediately

turned off, etc.”   These records were available to Wargo and indicate no
intent to conceal or alter what had occurred. It appears Wargo believes that

Dr. Michelow should have immediately accepted blame for the cause of the

fire, but the cause and responsibility for the fire are matters resolved as part

of Wargo’s medical malpractice claim. See Katz v. Guyuron (July 6, 2000),

Cuyahoga App. No. 76342, the doctor’s failure to fully disclose the patient’s

condition was related to the patient’s malpractice claim; thus, it did not

create an independent claim for fraud.

      {¶ 22} There was also no evidence of actual malice that would have

supported a punitive damages claim.      The Ohio Supreme Court in Preston v.

Murty (1987), 32 Ohio St.3d 334, 512 N.E.2d 1174, defined “actual malice” in

pertinent part as “a conscious disregard for the right and safety of other

persons that has a great probability of causing substantial harm.” There is

no evidence that Dr. Michelow exhibited a conscious disregard for Wargo’s

safety.   Wargo was told a fire occurred.     Immediately following the fire,

Wargo was evaluated by a plastic surgeon and opthamologist and provided

treatment. The fact the doctor failed to tell Wargo the exact cause of the fire

or accept blame for the fire did not cause substantial harm, nor did it even

create a probability of causing substantial harm to Wargo.

      {¶ 23} Accordingly, we conclude that Wargo’s claims for fraudulent

concealment and punitive damages fail as a matter of law; thus, the trial

court erred by not granting summary judgment in favor of Dr. Michelow. As

a result of the trial court’s failure to grant summary judgment and allowing
the fraudulent concealment claim to go to the jury, the trial as to Wargo’s

malpractice claim was prejudicially tainted by the focus on the doctor’s

alleged fraudulent concealment. We, therefore, remand the matter for a new

trial on Wargo’s medical malpractice claim.

      {¶ 24} The remaining assigned errors and Wargo’s cross-appeal are

rendered moot by our disposition of Dr. Michelow’s first assigned error.

Therefore, we need not address them. App.R. 12(A)(1)(c).

      Judgment reversed and case remanded.

      It is ordered that appellants recover from the appellee the costs herein

taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said 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.




PATRICIA ANN BLACKMON, PRESIDING JUDGE

MELODY J. STEWART, J., and
COLLEEN CONWAY COONEY, J., CONCUR


                                 APPENDIX

Assignments of Error
      “I. The trial court erred in denying defendants-appellants’ motion for partial
      summary judgment on plaintiff-appellee’s claims for fraud, concealment, and
      punitive damages.”

      “II. The trial court erred in denying defendants-appellants’ motion to bifurcate trial
      of plaintiff-appellee’s claims for compensatory and punitive damages.”

      “III. The trial court erred in denying defendants-appellants’ motion for directed
      verdict on plaintiff-appellee’s claims for fraud, concealment, and punitive damages.”

      “IV. The trial court erred in its jury charge pertaining to plaintiff-appellee’s claims
      for fraud, concealment, and punitive damages.”

      “V. The trial court erred in failing to properly use general verdict forms pursuant to
      Civ.R. 49.”

      “VI. The trial court erred in granting plaintiff-appellee’s motion for partial
      summary judgment that a permanent and substantial physical deformity was
      sustained and, therefore, erred in applying the $500,000 cap on non-economic
      damages as a matter of law.”

      “VII. The trial court erred in holding that the punitive damages cap in R.C.
      2315.21(D)(2) and the non-economic damages cap in R.C. 2323.43 are
      unconstitutional.”

      “VIII. The trial court abused its discretion in granting plaintiff-appellee’s motion
      for prejudgment interest.”

Cross-Appeal

      “I. The trial court abused its discretion when it denied plaintiff’s motion for fees
      and expenses under Rule 37 of the Civil Rules.”

      “II. The trial court improperly denied plaintiff’s motion for fees based on the jury’s
      award of punitive damages.”
