[Cite as Stewart v. Vivian, 2016-Ohio-2892.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                          CLERMONT COUNTY




DENNIS STEWART, Individually and as              :
The Administrator of the Estate of
Michelle Stewart, Deceased,                      :       CASE NO. CA2015-05-039

        Plaintiff-Appellant,                     :              OPINION
                                                                 5/9/2016
                                                 :
    - vs -
                                                 :

RODNEY E. VIVIAN, M.D.,                          :

        Defendant-Appellee.                      :



        CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                           Case No. 2011 CVA 00318



Stagnaro, Saba & Patterson Co., L.P.A., Peter A. Saba, 2623 Erie Avenue, Cincinnati, Ohio
45208, for plaintiff-appellant

Arnzen, Storm & Turner, P.S.C., Aaron A. VanderLaan, 600 Greenup Street, Covington, KY
41011, for defendant-appellee



        HENDRICKSON, J.

        {¶ 1} Plaintiff-appellant, Dennis Stewart, Individually and as the Administrator of the

Estate of Michelle Stewart, Deceased (collectively, "Stewart"), appeals from a judgment

entered on a jury verdict in the Clermont County Court of Common Pleas in favor of

defendant-appellee, Rodney E. Vivian, M.D., on Stewart's medical malpractice and wrongful
                                                                  Clermont CA2015-05-039

death claims. Stewart also appeals the trial court's denial of his motion for judgment

notwithstanding the verdict, or alternatively, motion for a new trial, arguing that Dr. Vivian

should have been found liable for his negligence in assessing, treating, and caring for

Stewart's wife, Michelle, while she was hospitalized at Mercy Clermont Hospital ("Mercy") on

a 72-hour psychiatric hold. Michelle died at Mercy a few days after she was found hanging

from the bathroom door of her hospital room. For the reasons set forth below, we affirm.

                                           I. FACTS

       {¶ 2} On February 19, 2010, Michelle attempted suicide by overdosing on drugs.

She was treated for the overdose at Mercy Mt. Orab Hospital ("Mt. Orab"). The treating

physician at Mt. Orab determined Michelle should be placed on a 72-hour psychiatric hold as

Michelle was upset she had survived her suicide attempt and she indicated a continued

desire to kill herself. Because Mt. Orab does not have a psychiatric unit, Michelle was

transferred to Mercy.

       {¶ 3} Michelle was admitted to Mercy just after midnight on February 20, 2010.

Although Dr. Vivian was the admitting and treating physician, he was not present at the

hospital when Michelle arrived. Leslie Wiggs, a registered nurse, performed the initial

assessment on Michelle, which included interviewing Michelle and filling out a

"Comprehensive Clinical Assessment and Evaluation Tool" and "Lethality Assessment" form.

Wiggs found Michelle cooperative with the assessment, observing that Michelle was only

"mildly agitated" upon her arrival at Mercy. While conducting the assessment, Wiggs noted

Michelle admitted to being suicidal since age nine, felt like a burden on her family, and had

"lots of plans." In notes made about her interaction with Michelle, Wiggs documented that

Michelle "continue[d] to state she [was] suicidal," was upset she was found breathing, and

had been researching suicide for 25 years. However, Wiggs recalled Michelle stating she

would never hang herself because she did not want to "piss and shit" herself.
                                             -2-
                                                                                Clermont CA2015-05-039

        {¶ 4} The Lethality Assessment form Wiggs completed showed Michelle met more

than four risk factors indicating a high level of lethality. According to this form, "[a]ny patient

meeting High Lethality should be assigned a 'Safety Proofed Room.'" Wiggs explained,

however, that this specific form was not supposed to be used at Mercy and Mercy did not

have the referenced "Safety Proofed Rooms." According to Wiggs, the form just "showed up

in the admissions packet one day."1

        {¶ 5} Following her assessment of Michelle, Wiggs spoke with Dr. Vivian via

telephone to discuss Michelle's condition. During this conversation, Dr. Vivian ordered that

Michelle be placed on "15-minute checks," a level of observation that required a hospital staff

member to visually check on Michelle every 15 minutes. According to Wiggs, 15-minute

checks were regularly implemented in the psychiatric unit, although there were other types of

observation Michelle could have been placed under, including arm's-length observation, one-

to-one observation, and constant observation.2 As a psychiatric nurse, Wiggs had the ability

to go to the treating physician and ask that the level of observation for a patient be increased

if she felt the patient posed a danger to the patient's self or to others. Wiggs never requested

Michelle's level of observation be elevated from 15-minute checks as Michelle had never

indicated an intent to harm herself while at Mercy.

        {¶ 6} After being placed on 15-minute checks, Michelle interacted and was observed

by a number of Mercy's staff. Richard Todd Tudor, a registered nurse on the day shift, spoke

with Michelle multiple times throughout the day on February 20, 2010. Tudor indicated

Michelle was unhappy about being admitted to Mercy and was seeking a transfer to another


1. There was some testimony at trial indicating that the form had been created by and used at a neighboring
sister hospital. The "Safety Proofed Room[s]" referenced in the form correlated to the sister hospital's rooms.

2. When a patient is placed on arm's-length observation, a hospital staff member is assigned to stay within an
arm's length of the patient at all times. Under one-to-one observation, a staff member is assigned to stay with
the patient at all times. If a patient is placed on constant observation, a staff member is assigned to constantly
observe the patient via video or in an open area.
                                                       -3-
                                                                              Clermont CA2015-05-039

facility. Tudor noticed Michelle became irritable and agitated as the day wore on, and he

made verbal attempts to deescalate her irritability. Tudor did not, however, administer

medication to calm Michelle as he had concerns about the additional drugs "cloud[ing] her

mentation following [her] medication overdose." Tudor discussed Michelle's irritability with

Dr. Vivian, who determined Michelle should not be prescribed medication for her irritability

and agitation.

        {¶ 7} Based on his interactions with Michelle, Tudor determined Michelle was

passively, rather than actively, suicidal.3            Michelle had not made any direct suicide

statements to Tudor nor had he been approached by another nurse or staff member

regarding any concerns about Michelle's conduct or behavior. Tudor believed the 15-minute

checks were an appropriate level of observation for Michelle, and he did not request that Dr.

Vivian increase Michelle's level of observation.

        {¶ 8} Jamie Christian, a mental health technician at Mercy, also performed 15-minute

checks on Michelle. During Christian's interactions with Michelle, Michelle never made any

statements that she intended to harm herself. Christian did observe that Michelle had

become very upset and agitated after receiving a visit from her mother and sister. According

to Christian, Michelle began yelling, cursing, and saying she wanted to leave Mercy. In

addition to noticing Michelle's increased agitation, Christian caught Michelle standing on her

bed on a couple of occasions. When asked what she was doing, Michelle told Christian she

was just anxious because she wanted to leave Mercy and she was not allowed to smoke.

Christian reported this behavior to Debbie Drennan, a nurse in the psychiatric unit, but

neither Christian nor Drennan reported Michelle's unusual behavior to Dr. Vivian.




3. Tudor explained a person is actively suicidal when that person is "thinking of suicide at that moment."
Conversely, a person is passively suicidal when the act of suicide is in the back of the person's mind and the
person does not intend to act upon it.
                                                     -4-
                                                                                 Clermont CA2015-05-039

        {¶ 9} Christian did, however, communicate Michelle's agitation and her desire to be

transferred to another facility to Dr. Vivian. According to Christian, Dr. Vivian stated he "was

aware of that" and that "she [Michelle] scared him and to keep a very good eye on her."

        {¶ 10} Dr. Vivian and Jeanne Toebbe, a clinical psychiatric social worker, both met

with and assessed Michelle on February 20, 2010. Dr. Vivian met with Michelle in the early

afternoon. Dr. Vivian's interview with Michelle was limited as Michelle refused to cooperate

or talk with him. Michelle would not respond to Dr. Vivian's questions, choosing to look away

from him or put her head down on a table. When Michelle did talk to Dr. Vivian, she spent

the majority of her time discussing how angry she was with her husband. Based on

Michelle's refusal to cooperate during the interview, Dr. Vivian was unable to develop a firm

idea as to whether Michelle's attempted overdose was a true suicide attempt or merely a cry

for help. Dr. Vivian did observe, however, that even though Michelle was sad, preoccupied,

and irritable during this assessment, she was alert and oriented to her surroundings.

        {¶ 11} As part of his assessment, Dr. Vivian reviewed Michelle's medical records,

including Mt. Orab's emergency room report, the admission forms completed by Wiggs, and

records pertaining to Michelle's prior 2006 admission to Mercy's psychiatric unit.4 The report

from Mt. Orab stated Michelle expressed suicidal ideation, had definite suicidal thoughts, and

had a plan. Wiggs' comments on the admission forms also informed Dr. Vivian of Michelle's

history of suicidal thoughts. Considering the information contained in these forms, as well as

information he gleaned from various Mercy staff members who had observed Michelle's

conduct and behavior since her admission to the hospital, Dr. Vivian concluded that 15-

minute checks were the appropriate level of observation. He therefore ordered that the

checks be continued.


4. In 2006, Michelle voluntarily entered a 72-hour hold at Mercy after admitting to suicidal thoughts. Michelle did
not stay the full 72 hours, but rather checked herself out of the hospital a day after being admitted.
                                                       -5-
                                                                    Clermont CA2015-05-039

       {¶ 12} Dr. Vivian made a written record of his assessment of Michelle, in which he

noted that Michelle was a "poor disorganized historian" who had "mood problems for many

years" before deciding to "just g[i]ve up." Dr. Vivian found Michelle had "grossly impaired

judgment and insight," and he acknowledged that Michelle had continued to state that she

"want[s] to be dead."

       {¶ 13} Following Dr. Vivian's assessment, Michelle met Toebbe, the hospital's

psychiatric social worker. Michelle discussed a variety of issues with Toebbe, including

difficulties from her childhood, her daily use of alcohol and marijuana, her interest in seeking

treatment for her mental health problems, her potential support systems, and the events

leading up to her admittance in Mercy's psychiatric unit. With respect to the latter, Michelle

explained to Toebbe that she and Stewart had gotten into an argument and she became very

upset. She went to a hotel, contacted some friends to tell them that she planned to kill

herself, and then proceeded to attempt to overdose on a combination of alcohol and

prescription and nonprescription drugs, including klonopin, zanaflex, and extra strength

Tylenol. Michelle expressed disappointment that she had "woken up alive," but indicated to

Toebbe that she "wasn't sure" if she was still suicidal. Michelle never told Toebbe that she

intended to harm herself, and in fact, indicated her desire to get her mood stabilized while at

Mercy. Based on her interaction with Michelle, Toebbe had no concerns about Michelle's

treatment, level of observation, or safety at Mercy. Toebbe, therefore, did not speak with Dr.

Vivian or any of his nursing staff about Michelle.

       {¶ 14} Around 6:00 p.m. on February 20, 2010, Stewart arrived at Mercy to visit with

Michelle. Upon entering Michelle's room, Stewart found an unconscious and discolored

Michelle hanging from a ligature attached to the bathroom door. The ligature had been

fashioned out of bedsheets. Stewart called for help, and Christian and Drennan came to his

assistance.
                                              -6-
                                                                    Clermont CA2015-05-039

       {¶ 15} An unresponsive Michelle was transferred to Mercy's intensive care unit

("ICU") for treatment. There, she was visited by family, friends, and Dr. Vivian. Medical tests

revealed that Michelle was brain dead. She survived on life support for a few days before

eventually passing away on February 24, 2010.

                                 II. PROCEDURAL HISTORY

       {¶ 16} On February 17, 2011, Stewart, on his own behalf and on behalf of Michelle's

estate, filed suit against Mercy and Dr. Vivian. With respect to Mercy, Stewart asserted

claims of medical malpractice, res ipsa loquitor, negligence per se, loss of consortium, loss of

chance, wrongful death, and respondeat superior. Stewart claimed Mercy's employees failed

to act within the accepted standard of medical practice in assessing and identifying Michelle's

imminent risk of suicide, in providing a safe environment of care, in providing and performing

patient observations, and in training, instructing, or supervising its employees. With respect

to Dr. Vivian, Stewart also asserted claims of medical malpractice, loss of consortium, loss of

chance, and wrongful death. Stewart alleged that Dr. Vivian failed to act within the accepted

standard of medical practice among members of the profession with similar training and

experience by failing to appropriately assess, test, diagnose, and treat Michelle's condition.

Both Mercy and Dr. Vivian filed answers denying the allegations set forth in the complaint.

       {¶ 17} In January 2013, Stewart dismissed his claims against Mercy after the parties

reached a settlement. Stewart proceeded with his claims against Dr. Vivian, and the parties

engaged in lengthy discovery. In the midst of discovery, Dr. Vivian filed multiple motions in

limine to exclude certain evidence from being admitted at trial. Specifically, Dr. Vivian sought

to prevent Stewart from introducing evidence of Dr. Vivian's status as medical director at

Mercy hospital and evidence relating to statements Dr. Vivian made to Michelle's family when

visiting Michelle in the ICU.

       {¶ 18} Regarding the motion in limine to exclude evidence of his status as medical
                                              -7-
                                                                     Clermont CA2015-05-039

director, Dr. Vivian argued his position as medical director was irrelevant to Stewart's claim

that he failed to appropriately "assess, test, diagnose, and treat" Michelle's condition. Dr.

Vivian contended Stewart only sought to introduce evidence of his status as medical director

in an effort to elevate in the jury's mind the standard of care he was obligated to operate

under and to try to raise an argument about the "environment of care" at Mercy hospital. Dr.

Vivian claimed that the issues surrounding the duty to provide a safe environment of care for

Michelle had been resolved when Mercy entered into a settlement agreement with Stewart.

Dr. Vivian argued Stewart "should not be permitted to litigate the alleged deficiencies of

Mercy Clermont against Dr. Vivian simply because he was the medical director at the

hospital." The trial court agreed with Dr. Vivian's arguments and granted the motion in limine,

finding that Dr. Vivian's role as medical director did not make it more or less likely that he was

negligent in his care of Michelle. The court did, however, indicate it would allow questioning

as to Dr. Vivian's knowledge of environmental hazards contained at Mercy hospital and in

Michelle's room. If Dr. Vivian denied knowledge about such hazards, the court stated it

would allow Stewart to use the excluded evidence for impeachment purposes.

       {¶ 19} Regarding the motion in limine to exclude statements Dr. Vivian made to

Michelle's family in the ICU, Dr. Vivian argued that any statements he made were

inadmissible pursuant to Ohio's apology statute, R.C. 2317.43. Dr. Vivian contended that

anything he may have said while visiting Michelle in the ICU was inadmissible as evidence of

liability as his statements had been offered to Michelle's family in condolence,

commiseration, and sympathy. Stewart opposed Dr. Vivian's motion, arguing that certain

statements made by Dr. Vivian in the ICU were not designed to comfort Michelle's family, but

rather were statements against interest, or "fault statements," that were admissible under

Ohio law. Specifically, Stewart sought to introduce statements showing that Michelle had told

Dr. Vivian she intended to kill herself at Mercy hospital.

                                               -8-
                                                                  Clermont CA2015-05-039

       {¶ 20} After holding a hearing, in which the trial court obtained testimony from Dr.

Vivian, Stewart, and Michelle's sister, Stacey Sackenheim, about Dr. Vivian's visit to

Michelle's ICU room, the trial court granted the motion in limine. The court determined that

Dr. Vivian's statements were an "ineffective attempt at commiseration" and that such

statements were inadmissible pursuant to the apology statute.

       {¶ 21} A jury trial was held March 10, 2014, through March 25, 2014. At trial, 20

witnesses testified, including friends and family members of Michelle, hospital personnel from

Mercy's psychiatric unit, and experts in the fields of psychiatry and forensic psychiatry.

Among the friends and family members who testified were Stewart, Michelle's mother,

Michelle's sister Billie Kay Elam, and Michelle's employer, Rene Paroz.          All of these

individuals had visited with Michelle on March 20, 2010, in the psychiatric unit, and they all

testified that Michelle was "disturbed" and "upset" about being hospitalized in Mercy's

psychiatric unit. Michelle told her mother, Stewart, and Elam that she did not think she could

get the help she needed at Mercy and she wanted to be transferred to another facility. At the

same time that Michelle indicated she wanted to get help for her problems, she also told her

family and friends she "didn't want to be a part of this world." Michelle's family and friends

described Michelle as "very agitated" in the psychiatric unit, and both Paroz and Stewart

testified that they sought out and spoke with Michelle's nurses out of concern for her well-

being. Stewart told one of the nurses that Michelle was "still very suicidal."

       {¶ 22} Dr. Vivian testified at trial about his assessment and treatment of Michelle. He

explained that when he assessed Michelle and she refused to answer his questions, he

chose not to push her for answers because he did not want to "drill her" or risk pushing her

further away. He also explained that although he was aware Michelle's family and friends

had been visiting her, he did not speak with any them to obtain additional information about

Michelle's state of mind because Michelle never gave him permission to do so and he did not
                                             -9-
                                                                                Clermont CA2015-05-039

want to risk alienating Michelle. Further, Dr. Vivian testified he did not put Michelle on

constant observation or in a seclusion room because he believed it would antagonize her and

make her more resentful. Dr. Vivian stated he weighed all considerations and factors,

including the least restrictive environment to keep Michelle safe and the best way to maintain

a relationship with her, before concluding that 15-minute checks was the proper treatment

and an appropriate level of observation for Michelle. Dr. Vivian denied ever stating that

Michelle "scared" him, but he did recall asking Christian to "watch [Michelle] closely for me."

        {¶ 23} On cross-examination, Dr. Vivian admitted he was aware that the bathroom

doors in the patients' rooms at Mercy had been identified as a hazard following a prior

hanging attempt by another patient. Dr. Vivian acknowledged he knew it was possible to

hang a ligature on the handle of the bathroom door and that the straight-edge top of the door

could work as an anchor point for a ligature. Even with this knowledge, Dr. Vivian believed

15-minute checks were an appropriate level of observation as he "didn't feel that [Michelle]

represented a risk of doing anything."

        {¶ 24} Dr. Vivian was asked on cross-examination whether "it's possible that you

actually did ask Michelle whether she planned on killing herself in the hospital, and that she

said yes, but you just didn't put it in [your] record[s], correct?" Dr. Vivian responded by

saying, "I'm sure that's possible. But I don't think so." When asked again by Stewart's

counsel whether it was possible, Dr. Vivian stated, "It's possible."

        {¶ 25} At trial, Dr. Vivian was also asked about his previously expressed premise that

it is impossible for a person on 15-minute checks to hang themselves.5 Dr. Vivian admitted

this premise was wrong and that it was possible for a patient to commit suicide while on 15-


5. Prior to trial, Dr. Vivian was deposed. At his deposition, Dr. Vivian stated he originally thought that the 15-
minute checks he had ordered for Michelle had not been performed. Dr. Vivian believed it was impossible for
someone to commit suicide by hanging while on 15-minute checks. However, after more information about
Michelle's treatment and observation came to light, Dr. Vivian conceded it was possible for a patient to commit
suicide by hanging while on 15-minute checks.
                                                      - 10 -
                                                                    Clermont CA2015-05-039

minute checks. Dr. Vivian explained he had been treating patients for "nearly 35 years, [and]

this is the first time in my life - - in my career this has ever happened." Even though he had

been operating under a wrong assumption, Dr. Vivian maintained that the 15-minute checks

ordered for Michelle were the appropriate level of observation.

       {¶ 26} In addition to the lay witnesses who testified at trial, the parties both presented

expert testimony in support of their respective positions. Dr. Mace Beckson and Dr. Todd

Palumbo, psychiatrists, testified on behalf of Stewart. Dr. Beckson opined to a reasonable

degree of medical probability that Dr. Vivian fell below the standard of care in his assessment

and treatment of Michelle as Dr. Vivian did not do what a reasonably careful psychiatrist

would do under similar circumstances. With respect to the assessment Dr. Vivian conducted,

Dr. Beckson opined that Dr. Vivian should have questioned Michelle more thoroughly to

obtain information about her thoughts of suicide and any plans she may have made to end

her life. He also believed Dr. Vivian should have obtained collateral information about

Michelle's life and suicidal ideations from her family members in order to effectively treat and

care for Michelle.

       {¶ 27} Dr. Beckson opined that 15-minute checks were not an appropriate level of

observation for Michelle given that she had a prior suicide attempt, had shared she had

different ideas on how to kill herself, and was found to have "grossly impaired judgment and

insight." Beckson stated one "can't be reasonably careful knowing that she's grossly

impaired in her insight and judgment and then put her on 15-minute checks." He also

testified that Dr. Vivian would have known about the environment of care hazards in

Michelle's hospital room, and that "you can't let someone with grossly impaired judgment and

grossly impaired insight * * * go in that room and close the door knowing that the sheets are

in there, the doorknob is the same as with the previous hanging, the straight top of the door

is ready to bear weight."

                                              - 11 -
                                                                     Clermont CA2015-05-039

       {¶ 28} Dr. Palumbo agreed that Dr. Vivian fell below the standard of care in assessing

and treating Michelle. He opined that Dr. Vivian failed to complete a full assessment of

Michelle as Dr. Vivian's assessment lacked collaborative information from Michelle's family

and lacked a risk assessment. With regard to completing a risk assessment, Dr. Palumbo

stated, "one of the things that we ultimately do as psychiatrists when we first meet someone

in our inpatient unit is to formally assess for risk, particularly if someone comes into the

hospital having just attempted suicide. We need to understand where their thoughts are at

that time when they're in the hospital, and that was something I did not see as part of the

initial assessment." Dr. Palumbo also testified that if Michelle had informed Dr. Vivian she

intended to kill herself, then "[a]t [a] minimum," Michelle should have been placed under

constant observation or one-to-one supervision. If Michelle had been placed on constant

observation or one-to-one observation, Dr. Palumbo believed it would have been "near

impossible for her to have completed suicide." In Dr. Palumbo's opinion, Dr. Vivian was also

negligent in his treatment of Michelle for failing to provide pharmacologic intervention and

placing her in an unsafe environment. Dr. Palumbo believed "it would have been significantly

beneficial for [Michelle] to be started on medication, particularly since she was in an agitated

state and to alleviate some of that behavior she was exhibiting."

       {¶ 29} Two expert psychiatrists, Dr. Terry Correll and Dr. Douglas Songer, testified on

behalf of Dr. Vivian. Dr. Correll testified that suicide can occur in a hospital in the absence of

negligence. He explained it is possible for a patient to harm herself in a hospital regardless

of the level of observation the patient has been placed on. In Michelle's case, Dr. Correll

determined to a reasonable degree of medical probability that Dr. Vivian met the standard of

care in his treatment and care of Michelle. In Dr. Correll's opinion, 15-minute checks with

suicide precautions were appropriate as Michelle's behavior did not warrant an increased

level of observation. Dr. Correll spoke about the "protective factors" indicating a patient's

                                              - 12 -
                                                                     Clermont CA2015-05-039

ability to overcome her suicidal thoughts and noted that Michelle had many factors in her

favor, including gainful employment for over 13 years, a recent marriage, a good relationship

with her stepson, and future plans to complete college and become pregnant.

       {¶ 30} Dr. Correll testified a doctor can attempt to obtain collateral information from a

patient's family members, but this can hurt the doctor's relationship with the patient. With

respect to Dr. Vivian's decision not to administer medication to Michelle, even in the face of

her growing agitation, Dr. Correll explained that foregoing medications was appropriate given

her recent overdose.      Dr. Correll believed it was necessary to be "conservative" in

administering medication, especially in light of Michelle's dependency and recent use of

alcohol.

       {¶ 31} Dr. Songer also testified Dr. Vivian met the standard of care required of him in

his treatment and assessment of Michelle. He agreed with Dr. Correll that suicide can occur

in the absence of medical negligence, and he stated patients in his practice that are placed

on 72-hour holds are "almost always" put on 15-minute checks. He opined that Michelle was

not actively suicidal for most of the day on February 20, 2010, and that there was no

imminent risk of suicide for Michelle until it actually happened. He indicated that he would

not have done anything differently than Dr. Vivian had he been the doctor treating Michelle.

       {¶ 32} After hearing testimony from the parties' expert and lay witnesses, the jury

returned a verdict in favor of Dr. Vivian, concluding he was not negligent in his assessment

care, or treatment of Michelle.         Thereafter, Stewart filed a motion for judgment

notwithstanding the verdict, or in the alternative, a motion for new trial. The trial court denied

the motion on April 6, 2015, finding there was sufficient evidence to support the jury verdict

and that the verdict was not against the manifest weight of the evidence.

       {¶ 33} Stewart timely appealed, alleging errors related to the trial and to the denial of

his motion for judgment notwithstanding the verdict or motion for new trial.
                                              - 13 -
                                                                   Clermont CA2015-05-039

                                         III. ANALYSIS

                                  A. Ohio's Apology Statute

       {¶ 34} Assignment of Error No. 1:

       {¶ 35} THE COURT ERRED TO THE PREJUDICE OF [STEWART] IN DENYING

ADMISSION PURSUANT TO ORC § 2317.43 (THE OHIO APOLOGY STATUTE) OF

TESTIMONY FROM DECEDENT'S HUSBAND AND SISTER THAT DR. VIVIAN ADMITTED

THAT MICHELLE TOLD HIM SHE WOULD COMMIT SUICIDE IN THE HOSPITAL,

BECAUSE STATEMENTS OF FAULT AND STATEMENTS AGAINST INTEREST ARE NOT

EXCLUDED FROM EVIDENCE BY THE STATUTE.

       {¶ 36} In his first assignment of error, Stewart argues the trial court erred when it

granted Dr. Vivian's motion in limine to exclude from evidence Stewart's and Sackenheim's

testimony about statements Dr. Vivian made to them in Michelle's ICU room. Stewart

contends the apology statute does not exclude an admission of fault or other statements

against interest made contemporaneously with an expression of sympathy or apology from

being introduced into evidence. Stewart maintains the exclusion of this evidence was

prejudicial as the jury would have reached a different result on his medical malpractice claim

had they heard all of the relevant evidence.

       {¶ 37} At the hearing on Dr. Vivian's motion in limine, the trial court heard testimony

from Stewart and Sackenheim regarding the statements Dr. Vivian made to them in the ICU.

Stewart testified as follows:

              [STEWART]: There was a few family members still in the room.
              I was sitting on the right hand side of her bed up towards her
              head. Dr. Vivian walked in. I kind of tried to ignore him basically.
              Kept my focus mostly on Michelle. I do remember him saying a
              few things. I don't remember him asking me anything about how
              it happened. I just remember him saying that he didn't know how
              it happened; it was a terrible situation, but she had just told him
              that she still wanted to be dead, that she wanted to kill herself,

                                             - 14 -
                                                                   Clermont CA2015-05-039

             and at that point I asked him well, why didn't you keep a closer
             eye on [her].

             And I was immediately frustrated, and I realized that I was going
             to lose my temper, so at that point I just didn't even accept his
             answer. I just asked him to leave. I said, I think it's better if you
             just left. We don't need you here. I'm about ready to lose my
             temper, and I don't think it's a good situation.

             Q: At any point in time, did Dr. Vivian do anything to apologize or
             do anything that you interpreted as some expression of sympathy
             or to try to make the family feel better?

             [STEWART]: I - - I didn't interpret it that way.

(Emphasis added.)

      {¶ 38} Similarly, Sackenheim testified that the following occurred when Dr. Vivian

visited Michelle's ICU room:

             [SACKENHEIM]: We were in the ICU room where Michelle was.
             This was - - I believe it was Monday the - - which would be two
             days after she was placed in ICU, and just myself, Dennis, my
             father, and then an aunt were present in the room - - just
             everybody taking turns visiting her. And Dr. Vivian just walked in
             through the door and walked over to - - towards the end of
             Michelle's bed, and kind of stood for a moment and then just said,
             so what do you think happened here?

             And I believe Dennis responded and ex - - and said, well,
             obviously she tried to kill herself. And he said, yeah, she said
             she was going to do that. She told me she would keep trying.
             And Dennis said, well, why didn't you watch her closer then? And
             Dennis clearly got upset pretty much immediately at - - at the, you
             know, conversation, and then Dr. Vivian stood for another minute
             and then he proceeded to - - you know, standing at the end of her
             bed - - started to say Michelle - - you know, in kind of a raised
             voice - - Michelle.

             And, you know, she was intubated and unconscious, and I just
             got very upset at that moment and said that I felt that he should
             leave. * * *

             Q: At any time, did Dr. Vivian express any apology or any
             sympathy to you or any other family members or Michelle?

             [SACKENHEIM]: No.


                                             - 15 -
                                                                    Clermont CA2015-05-039

(Emphasis added.)

       {¶ 39} Dr. Vivian testified he had gone to the ICU room to "express how deeply sorry I

was." Although he testified at the motion in limine hearing that he remembered telling

Michelle's family he "was sorry," Dr. Vivian's deposition testimony demonstrated that he could

not remember exactly what he said to the family. When deposed, Dr. Vivian admitted, "I

made a statement, but I don't remember what I said. * * * I don't remember. Obviously, I'm

deeply sorry."

       {¶ 40} After hearing the foregoing testimony, the trial court concluded that Dr. Vivian's

statements to the family were an "ineffective attempt at commiseration." The court stated, "I

don't believe that Dr. Vivian remembers that - - whether he said I'm sorry or not. He said in

his deposition I don't remember what was said. That seems to me to be the more credible

version." However, the court nonetheless determined the purpose behind Dr. Vivian's visit

and statements to the family were to apologize and commiserate with the family.

       {¶ 41} With this in mind, the court determined Dr. Vivian's ICU statements were not

admissible under the apology statute. Examining the word "apology," the trial court stated:

              An apology can be made to - - in the process of commiserating,
              but apology can also be made because you're trying to calm a
              situation down. Apology can be made because you're trying to
              take responsibility for your own actions. Apology really is
              something different than these other things. And an apology it
              seems to me can include a statement of fault and - - which is part
              of the statement of apology.

The court determined the legislature did not intend to "parse out" a statement of fault from a

statement intended to give comfort. The court, therefore, held that Stewart could not

introduce evidence of Dr. Vivian's ICU statements at trial.

       {¶ 42} Generally, a trial court's decision to admit or exclude evidence is reviewed

under an abuse-of-discretion standard. Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237,

2005-Ohio-4787, ¶ 20. Similarly, a trial court's decision to grant a motion in limine is
                                             - 16 -
                                                                                  Clermont CA2015-05-039

generally reviewed under an abuse-of-discretion standard. Illinois Controls, Inc. v. Langham,

70 Ohio St.3d 512, 526 (1994). However, when a trial court's evidentiary decision is based

on an interpretation of a statute, a question of law has been presented that requires de novo

review. See, e.g., Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, ¶

13 (recognizing that although discovery orders are generally reviewed under an abuse-of-

discretion standard, review of whether the information sought to be discovered was

confidential and privileged was a question of law that is to be reviewed de novo); State v.

Knecht, 12th Dist. Warren No. CA2015-04-037, 2015-Ohio-4316, ¶ 20 (recognizing that

although evidentiary rulings are generally reviewed under an abuse-of-discretion standard,

the claim that the exclusion of evidence violated a defendant's rights under the Confrontation

Clause required a de-novo standard of review); State v. Depew, 136 Ohio App.3d 129, 132

(4th Dist.1999) (finding that while an abuse-of-discretion standard of review generally applied

to evidentiary rulings, a challenge to "the trial court's construction of an evidentiary rule * * *

presents a question of law that we review de novo").6

        {¶ 43} Ohio's apology statute provides, in relevant part, the following:

                 (A) In any civil action brought by an alleged victim of an
                 unanticipated outcome of medical care or in any arbitration
                 proceeding related to such a civil action, any and all statements,
                 affirmations, gestures, or conduct expressing apology, sympathy,
                 commiseration, condolence, compassion, or a general sense of
                 benevolence that are made by a health care provider or an

6. {¶ a} We recognize that in Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440, 2013-Ohio-
1507, the Ohio Supreme Court applied an abuse-of-discretion standard of review to the determination of whether
a doctor's statement was admissible under the apology statute. Id. at ¶ 22. However, in Johnson, the supreme
court was not asked to interpret the statute to determine what types of statements were encompassed or
excluded under the statute. Rather, the supreme court was asked to determine whether the apology statute
could be applied to a statement of apology made by a healthcare provider before the statute took effect. Id. at ¶
1. After concluding that the statute applies to any cause of action filed after September 13, 2004, the court
upheld the trial court's exclusion of a doctor's statement to a patient that the doctor "took full responsibility for
this. Everything will be okay." Id. at the syllabus and ¶ 22.

     {¶ b} The present case differs from Johnson as this court has been asked to interpret the statute to
determine whether the statute prohibits statements admitting liability or indicating fault from being admitted into
evidence. As this involves a question of law, de novo review is proper. See Hudson v. Petrosurance, Inc., 127
Ohio St.3d 54, 2010-Ohio-4505, ¶ 30.
                                                       - 17 -
                                                                                  Clermont CA2015-05-039

                 employee of a health care provider to the alleged victim, a relative
                 of the alleged victim, or a representative of the alleged victim, and
                 that relate to the discomfort, pain, suffering, injury, or death of the
                 alleged victim as the result of the unanticipated outcome of
                 medical care are inadmissible as evidence of an admission of
                 liability or as evidence of an admission against interest.

(Emphasis added.) R.C. 2317.43(A).

        {¶ 44} In construing this statute, the primary goal "is to ascertain and give effect to the

intent of the legislature as expressed in the statute." Hudson v. Petrosurance, Inc., 127 Ohio

St.3d 54, 2010-Ohio-4505, ¶ 30. See also Henry v. Cent. Natl. Bank, 16 Ohio St.2d 16,

(1968), paragraph two of the syllabus. Legislative intent is determined from the plain

language of the statute. Summerville v. Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, ¶

18. "If the meaning of the statute is unambiguous and definite, it must be applied as written

and no further interpretation is necessary." State ex rel. Savarese v. Buckeye Local School

Dist. Bd. of Edn., 74 Ohio St.3d 543, 545 (1996). However, when a statute is ambiguous, a

court must interpret the statute to determine the General Assembly's intent. Sherwin-

Williams Co. v. Dayton Freight Lines, Inc., 112 Ohio St.3d 52, 2006-Ohio-6498, ¶ 15, citing

State v. Hairston, 101 St.3d 308, 2004-Ohio-969, ¶ 13. "In order to determine that intent, the

court may consider a host of factors, including the object sought to be obtained by the

statute." Family Medicine Found., Inc. v. Bright, 96 Ohio St.3d 183, 2002-Ohio-4034, ¶ 9,

citing R.C. 1.49.7

        {¶ 45} Only one other court has examined the apology statute to determine whether it

prohibits statements of fault or statements admitting liability from being admitted at trial. See

Davis v. Wooster Orthopaedics & Sports Medicine, Inc., 193 Ohio App.3d 581, 2011-Ohio-



7. R.C. 1.49 provides that "[i]f a statute is ambiguous, the court, in determining the intention of the legislature,
may consider among other matters: (A) [t]he object sought to be attained; (B) [t]he circumstances under which
the statute was enacted; (C) [t]he legislative history; (D) [t]he common law or former statutory provisions,
including laws upon the same or similar subjects; (E) [t]he consequences of a particular construction; [and] (F)
[t]he administrative construction of the statute."
                                                       - 18 -
                                                                                Clermont CA2015-05-039

3199 (9th Dist.). In Davis, the Ninth District recognized that Ohio's apology statute, unlike the

majority of other states' apology statutes, does not "make a clear distinction between an

alleged tortfeasor's statement of sympathy and one acknowledging fault." Id. at ¶ 8.8

Looking at the language of the statute, the Ninth District determined that "the appearance of

the term 'apology' in R.C. 2317.43(A) creates some ambiguity." Id. at ¶ 10. The court found

that the term "apology" could include "at least an implication of guilt or fault." Id. On the

other hand, the court noted, "when hearing that someone's relative has died, it is common

etiquette to say, 'I'm sorry,' but no one would take that as a confession of having caused the

death." (Internal quotation marks omitted.) Id., quoting Schaaf v. Kaufman, 850 A.2d 665,

664 (Pa.Super.Ct.2004).

        {¶ 46} After concluding that R.C. 2317.43(A) is ambiguous, the Ninth District looked

to the intent of the statute, stating

                the Ohio General Assembly "enact[ed] section 2317.43 * * * to
                prohibit the use of a defendant's statement of sympathy as
                evidence in a medical liability action." Sub.H.B. No. 215, 150
                Ohio Laws, Part III, 4146 (“H.B. 215”). From the time that H.B.
                215 was first introduced in the 125th General Assembly, the "Bill

8. {¶ a} As the Davis court acknowledged, the majority of states that have adopted apology statutes explicitly
distinguish between statements of sympathy and admissions of fault or liability. Davis at ¶ 6-8. Of these states,
17 have chosen to admit expressions of fault while excluding from evidence any part of a statement that
expresses sympathy. See, e.g., Cal.Evid.Code 1160(a); Del.Code Ann. Title 10, Section 4318; Fla.Stat.Ann.
90.4026; Haw.Rev.Stat. Ann. 626-1, Rule 409.5; Idaho Code Ann. 9-207; Ind.Code Ann. 34-43.5-1-4 and 34-
43.5-1-5; La.Rev.Stat.Ann. 13:3715.5; Me.Rev.Stat.Ann. Title 24, Section 2907; Md.Code Ann., Cts. & Jud. Proc.
Section 10-920; Mass.Gen. Laws Ann. Ch. 233, 23D; Mich.Comp.Laws Ann. 600.2155; Mo.Ann.Stat. 538.229;
Neb.Rev.Stat.Ann. 27-1201; N.H.Rev.Stat.Ann. 507–E:4; Tenn.R.Evid. 409.1; Tex.Civ.Prac. & Rem.Code Ann.
18.061; Va.Code Ann. 8.01-52.1. Seven other states have chosen to explicitly exclude both fault statements and
expressions of sympathy from evidence. See, e.g., Ariz.Rev.Stat.Ann. 12-2605; Colo.Rev.Stat.Ann. 13-25-135;
Conn.Gen.Stat.Ann. 52-184d; Ga.Code Ann. 24-3-37.1; S.C.Code Ann. 19-1-190; Vt.Stat.Ann. Title. 12, 1912;
Wash.Rev.Code Ann. 5.64.010.

   {¶ b}    The remaining states have apology statutes similar to Ohio's statute. These statutes do not make a
clear distinction between a statement of sympathy and a statement acknowledging fault. See, e.g., Mont.Code
Ann. 26-1-814; N.D.Cent.Code 31-04-12; Okla.Stat.Ann. Title 63, 1-1708.1H; Utah Code Ann. 78B-3-422;
W.Va.Code Ann. 55-7-11a; Wyo.Stat.Ann. 1-1-130. Among these states, only Utah has had cause to interpret
its apology statute. See Lawrence v. MountainStar Healthcare, 320 P.3d 1037 (Utah Ct.App.2014). There, the
Utah Court of Appeals determined that use of the term "apology" in the statute created an ambiguity as to
whether statements of fault should or should not be excluded from evidence in a civil trial. Id. at 1050. After
looking at the history or the statute as it passed through Utah's House of Representatives and Senate, the court
concluded that the Utah legislature had not intended to exclude statements of fault under Utah Code Ann. 78B-3-
422. Id. at 1051.
                                                     - 19 -
                                                                     Clermont CA2015-05-039

              Summary" indicated that it would "[p]rohibit the use of a
              defendant's statement of sympathy as evidence in a medical
              liability action." H.B. 215, as reported by H. Insurance (Ohio
              2004). As the bill was passed by both the House and Senate, the
              synopsis explained that it would "prohibit[ ] the use of any
              statement of sympathy offered by a health care provider * * * as
              evidence of an admission of liability or an admission against
              interest[.] * * * For this purpose, a statement of sympathy
              includes any and all statements, affirmations, gestures, or
              conduct expressing apology, sympathy, commiseration,
              condolence, compassion, or a general sense of benevolence[.]"
              H.B. 215.

              This explanation, which never changed as the bill traveled
              through the House and Senate, indicates that the intent was to
              forbid the use at trial of a medical professional's expression of
              "sympathy includ[ing] any and all statements expressing
              apology." 2004 Sub. H.B. No. 215. The General Assembly's
              decision to define "a statement of sympathy" as including a
              "statement[ ] * * * expressing apology" demonstrates an intention
              to use the word "apology" to mean only a statement of
              condolence or sympathy, without including any expression of fault
              or liability. Further, if the General Assembly had intended to
              prohibit the use of all statements of fault uttered by medical
              professionals to injured patients or their families, it could have
              done so by writing that all "admissions of liability" or "statements
              against interest" would be excluded, rather than limiting its
              description of the prohibited statements to those "expressing
              apology, sympathy, commiseration, condolence, compassion, or
              a general sense of benevolence." R.C. 2317.43(A).

Id. at ¶ 11-12. The Ninth District, therefore, concluded "the intent was to protect pure

expressions of apology, sympathy, commiseration, condolence, compassion, or a general

sense of benevolence, but not admissions of fault." Id. at ¶ 13. The court held that a

surgeon's statement to a patient's husband and daughter that he had "nicked an artery and *

* * took full responsibility for it" was admissible evidence at trial. Id. at ¶ 14-15.

       {¶ 47} While we agree with the Ninth District's conclusion that R.C. 2317.43 is

ambiguous, we find that the intent of the statute is to exclude from evidence all statements of

apology—including those statements admitting fault. Although statements of fault are not

explicitly mentioned in the apology statute, "an admission of error is included in some


                                               - 20 -
                                                                   Clermont CA2015-05-039

definitions of apology." Lawrence v. MountainStar Healthcare, 320 P.3d 1037, 1049 (Utah

Ct.App.2014). For instance, Webster's Third New International Dictionary 101 (1993) defines

"apology" as:

                1. something said or written in defense or justification of what
                appears to others to be wrong * * *; 2. an attempt to justify or
                excuse; 3. an acknowledgement intended as an atonement for
                some improper or injurious remark or act: an admission to
                another of a wrong or discourtesy done him accompanied by an
                expression of regret; [or] 4. Something that serves as an excuse
                for the absence of something * * *.

(Emphasis added.) "Apology," therefore, may or may not include an admission of fault. See

Lawrence at 1049; Davis, 2011-Ohio-3199 at ¶ 10. Thus, looking to the rules of grammar

and common usage, we agree with the Davis court that the term "apology" in R.C.

2317.43(A) is ambiguous. See id.

       {¶ 48} As R.C. 2317.43(A) is ambiguous and capable of more than one reasonable

interpretation, we must interpret the statute to determine the General Assembly's intent. See

Sherwin-Williams Co., 2006-Ohio-6498 at ¶ 15. In looking at the object sought to be

obtained by the statute, the Ohio Supreme Court has recognized that the purpose behind the

apology statute is to provide "opportunities for healthcare providers to apologize and console

victims of unanticipated outcomes of medical care without fear that their statements will be

used against them in a malpractice suit, by making the statements inadmissible as evidence

of admission of liability or a statement against interest." Estate of Johnson v. Randall Smith,

Inc., 135 Ohio St.3d 440, 2013-Ohio-1507, ¶ 1. Further, the statute's legislative history

indicates that the statute was enacted to "[p]rohibit the use of a defendant's statement of

sympathy as evidence in a medical liability action." Sub.H.B. No. 215, 150 Ohio Laws, Part

III, 4146.

       {¶ 49} The legislature chose to include the word "apology" in the statute with

knowledge of its general usage. Included within the word's general usage is that an apology
                                             - 21 -
                                                                  Clermont CA2015-05-039

includes "an admission to another of a wrong or discourtesy done him accompanied by an

expression of regret." Webster's at 101. As R.C. 2317.43(A) specifically provides that "any

and all" statements of apology are inadmissible as evidence of admission of liability or as

evidence of an admission of guilty, we conclude that the legislature intended to exclude

statements of fault from evidence under the apology statute. Had the General Assembly

intended to exclude statements of fault from being encompassed in the statute, it could have

done so by expressly stating so in the statute. See, e.g., La.Rev.State.Ann. 13:3715.5 ("Any

communication * * * expressing * * * apology, regret, grief, sympathy, commiseration,

condolence, compassion, or a general sense of benevolence * * * shall not be admissible[.] *

* * A statement of fault, however, which is part of, or in addition to, any such communication

shall not be made inadmissible pursuant to this Section"); Neb.Rev.Stat.Ann. 27-1201(1) ("In

any civil action brought by an alleged victim of an unanticipated outcome of medical care, * *

* any and all statements * * * expressing apology, sympathy, commiseration, condolence,

compassion, or a general sense of benevolence * * * shall be inadmissible as evidence of an

admission of liability or as evidence of an admission against interest. A statement of fault

which is otherwise admissible and is part of or in addition to any such communication shall be

admissible").

       {¶ 50} Therefore, given the language and stated intent of the apology statute, we

conclude that statements of fault are inadmissible under the apology statute. Dr. Vivian's

ICU statements that "he didn't know how it happened; it was a terrible situation, but she had

just told him that she still wanted to be dead, that she wanted to kill herself" were properly

excluded from evidence pursuant to Ohio's apology statute.

       {¶ 51} Stewart's first assignment of error is overruled.

                                B. Medical Director Evidence

       {¶ 52} Assignment of Error No. 2:
                                            - 22 -
                                                                    Clermont CA2015-05-039

       {¶ 53} THE COURT ERRED IN EXCLUDING TESTIMONY AND EXHIBITS

REGARDING DR. VIVIAN'S ROLE AS MEDICAL DIRECTOR OF THE PSYCHIATRIC UNIT

WHERE MICHELLE STEWART COMMITTED SUICIDE.

       {¶ 54} In his second assignment of error, Stewart argues the trial court erred when it

granted Dr. Vivian's motion in limine to exclude evidence of his status as Mercy's medical

director. Stewart contends exclusion of this evidence was improper and prejudicial to his

malpractice claim and should result in a new trial being ordered.

       {¶ 55} It was uncontroverted that Dr. Vivian was the medical director of Mercy's

behavioral health department at the time Michelle was admitted to the hospital in February

2010. The parties disputed, however, whether his role as medical director was relevant to

Stewart's malpractice claim against Dr. Vivian. Dr. Vivian filed a motion in limine to exclude

this evidence from being admitted at trial. After considering the merits of Dr. Vivian's motion,

the trial court concluded testimony regarding Dr. Vivian's duties as medical director and

exhibits related to his role as medical director were inadmissible except for impeachment

purposes. The exhibits and testimony that were excluded from evidence, over Stewart's

objections at trial, related to (1) Dr. Vivian's independent contractor status with the hospital,

(2) his duties as medical director, including his responsibilities to review, assess, modify,

implement, educate, and train on policies, procedures, and forms used in the psychiatric unit,

(3) licensure and accreditation of the psychiatric unit, which included addressing

departmental deficiencies with the hospital environment and corrective actions taken to

address prior suicide attempts on the unit, (4) patient observation methods and policies, (5)

identification of safety hazards in patients' rooms, (6) the hospital's response to Michelle's

suicide, and (7) the termination of Dr. Vivian's relationship with the hospital.

       {¶ 56} The trial court excluded evidence of Dr. Vivian's medical director status after

finding that the evidence did not make it "more or less likely that he was negligent in his care
                                              - 23 -
                                                                     Clermont CA2015-05-039

of Michelle." The court also concluded that because Mercy was not a party at trial, the

medical director evidence was not relevant to Stewart's claim that the hospital was vicariously

liable for Dr. Vivian's actions. Further, the trial court found that although Dr. Vivian had a

right to control other hospital employees providing care to Michelle, he could not be found

vicariously liable as these individuals were not his employees. The trial court stated that

"[t]he mere 'right to control' is not sufficient to establish vicarious liability on the part of a

borrowing employer under the loaned-servant doctrine."

       {¶ 57} Stewart argues the trial court's decision to exclude the medical director

evidence was erroneous as (1) Dr. Vivian's personal liability for the "substandard care" he

provided to Michelle arose "out of both his role as her treating physician and his role as * * *

[m]edical [d]irector;" (2) Mercy's settlement and Dr. Vivian's election to receive a setoff of the

settlement rather than an apportionment by the jury supported the admission of the medical

director evidence; (3) exclusion of the evidence allowed Mercy's staff members to offer

improper lay testimony regarding Dr. Vivian's standard of care; and (4) Dr. Vivian's liability as

medical director was not released by the settlement agreement Stewart reached with Mercy

hospital.

       {¶ 58} Prior to addressing Stewart's arguments, we note that a trial court's decision to

admit or exclude evidence at trial is reviewed under an abuse-of-discretion standard. Beard,

2005-Ohio-4787 at ¶ 20; Ohmer v. Renn-Ohmer, 12th Dist. Butler No. CA2012-02-020, 2013-

Ohio-330, ¶ 17. "[A] reviewing court [will] not disturb evidentiary decisions in the absence of

an abuse of discretion that created a material prejudice." Schneble v. Stark, 12th District

Warren Nos. CA2011-06-063 and CA2011-06-064, 2012-Ohio-3130, ¶ 30. An abuse of

discretion is more than an error of law or judgment; it requires a finding that the trial court's

attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219 (1983).
                                              - 24 -
                                                                    Clermont CA2015-05-039

             1. Dr. Vivian's Dual Role as Treating Physician and Medical Director

       {¶ 59} Stewart contends exclusion of the medical director evidence prevented him

from "establish[ing] that Dr. Vivian himself violated the standard of care with respect to his

own contractual responsibilities as [m]edical [d]irector." According to Stewart, as medical

director, Dr. Vivian was responsible for correcting and implementing measures to ensure a

safe environment for psychiatric patients, for evaluating, understanding, and educating

Mercy's staff regarding the use of suicide risk assessment forms, and for reviewing,

modifying, and implementing policies regarding the different levels of observation and

monitoring for patients. In support of his argument that Dr. Vivian could be held liable to

Michelle and her family for failing to meet his contractual responsibilities as medical director,

Stewart relies on Lownsbury v. VanBuren, 94 Ohio St.3d 231 (2002).

       {¶ 60} In Lownsbury, the Supreme Court held that "[a] physician-patient relationship

can be established between a physician who contracts, agrees, undertakes, or otherwise

assumes the obligation to provide resident supervision at a teaching hospital and a hospital

patient with whom the physician had no direct or indirect contact." Id. at syllabus. There, a

physician, Dr. Stover, entered into an agreement with Akron City Hospital to supervise

treating obstetric residents. Id. at ¶ 233-234. Lownsbury, a pregnant patient, was admitted

to the hospital's labor and delivery unit for an induction of labor. Id. at 232. However, rather

than inducing labor, the residents administered a contraction stress test and discharged

Lownsbury after improperly determining that her baby was not under distress. Id. The baby

was born with permanent brain damage five days later. Id. at 233. The child's adoptive

parents brought suit against Dr. Stover, arguing that he had assumed the duty to provide

Lownsbury with supervisory care by contracting to serve as the on-premises attending and

supervising obstetrician. Id.

       {¶ 61} Dr. Stover moved for summary judgment on the ground that he owned no legal
                                              - 25 -
                                                                      Clermont CA2015-05-039

duty of supervision to Lownsbury or her baby because he and Lownsbury never had a

physician-patient relationship. Id. The trial court granted Dr. Stover's motion, and the Ninth

District Court of Appeals affirmed the trial court's decision. The Supreme Court reversed,

concluding that a genuine issue of material fact existed as to whether a physician-patient

relationship existed between Dr. Stover and Lownsbury. Id. at 243. In reversing, the

Supreme Court stated the following:

              The basic underlying concept in these cases is that a physician-
              patient relationship, and thus a duty of care, may arise from
              whatever circumstances evince the physician's consent to act for
              the patient's medical benefit. The physician-patient relationship
              being consensual in nature, these courts recognize that
              physicians who practice in the institutional environment may be
              found to have voluntarily assumed a duty of supervisory care
              pursuant to their contractual and employment arrangements with
              the hospital. Unlike the traditional personalized delivery of health
              care, where the patient seeks out and obtains the services of a
              particular physician, the institutional environment of large
              teaching hospitals incorporates a myriad of complex and
              attenuated relationships. Here, the presenting patient enters a
              realm of full-service coordinated care in which technical
              agreements and affiliations proliferate the specialized functions
              and designated obligations of various allied health professionals.
              In this reality, the responsibility for resident supervision that rests
              generally with the hospital is often delegated to or assumed by an
              individual physician or group of physicians. It is their level of skill
              and competence that ensures adequate patient care. When a
              patient enters this setting, he or she has every right to expect that
              the hospital and adjunct physicians will exercise reasonable care
              in fulfilling their respective assignments. So it is a logical and
              reasonable application of the principles set forth in Tracey [v.
              Merrell Dow Pharmaceuticals, Inc.], 58 Ohio St.3d 147 * * *
              [1991], to find that a physician may agree in advance to the
              creation of a physician-patient relationship with the hospital's
              patients.

Id. at 238-239.

       {¶ 62} Although Stewart urges this court to extend the rationale of Lownsbury to the

facts of the present case, we decline to do so for two reasons. First, under the facts of the

present case, there is no dispute as to whether Dr. Vivian was in a physician-patient


                                               - 26 -
                                                                    Clermont CA2015-05-039

relationship with Michelle. Dr. Vivian was Michelle's treating physician, and he had direct

contact with her in this capacity.

       {¶ 63} Second, we find that the holding in Lownsbury is limited to those

circumstances involving a supervisory physician who is responsible for residents providing

care in an institutional environment or who undertakes specific duties to supervise residents

in a teaching hospital. See e.g., Everhart v. Coshocton Cty. Mem. Hosp., 10th Dist. Franklin

No. 12AP-75, 2013-Ohio-2210, ¶ 43-57 (finding Lownsbury is limited to circumstances

involving teaching hospitals); Bergenstein v. Sawhny, N.D.Ohio No. 1:04 CV 1373, 2006 WL

5249728, *2 (July 19, 2006) (holding that "there is no suggestion * * * that Lownsbury

extends beyond teaching hospitals"). In the present case, there is no suggestion that Mercy

is a teaching hospital or that Dr. Vivian was responsible for supervising the work of residents.

Lownsbury, therefore, has no application to the present case.

       {¶ 64} Further, although Stewart maintains that Dr. Vivian should be held liable for

failing to meet his contractual responsibilities as medical director, we note that Stewart's

complaint does not set forth such a claim. The preamble of the complaint notes that Dr.

Vivian is in charge of Mercy's psychiatric unit, but nowhere in the complaint is Dr. Vivian

identified as the "medical director." Additionally, the complaint does not set forth Dr. Vivian's

contractual duties as medical director or allege that Dr. Vivian breached these duties in his

care of Michelle. Rather, Stewart's complaint sets forth a medical malpractice claim alleging

Dr. Vivian failed to observe the applicable standard of care in assessing, diagnosing, and

treating Michelle. The issue raised by Stewart, therefore, was whether Dr. Vivian's treatment,

assessment, and care of Michelle satisfied the standard of care. The medical director

evidence did not have any bearing on this issue. As the jury determined the standard of care

was satisfied, the lack of proper policies, training of staff, or assessment tools could not

provide separate liability on Dr. Vivian. On the other hand, if the jury had determined the
                                              - 27 -
                                                                                  Clermont CA2015-05-039

standard of care was not satisfied, the existence of proper policies, training of staff, and

assessment tools would not have negated Dr. Vivian's liability for malpractice. For this

reason, we find no error in the exclusion of the medical director evidence.

                             2. Dr. Vivian's Election to Receive a Setoff

       {¶ 65} Stewart also contends that exclusion of the medical director evidence was

improper as it resulted in a "double setoff." Essentially, Stewart argues that by excluding the

medical director evidence, Dr. Vivian received the benefit of prohibiting the jury from finding

him liable for failing to meet his contractual duties as medical director and the benefit of a

setoff under R.C. 2307.28 for the amount of the hospital's settlement.9 Stewart argues, "[t]he

[m]edical [d]irector evidence is relevant to both the claim against the hospital and the claim

against Dr. Vivian. * * * [T]he fact that the hospital may be liable based on its responsibility

for Dr. Vivian's actions as [m]edical [d]irector, does not negate the fact that Dr. Vivian is also

liable in his own right."

       {¶ 66} We find no merit to Stewart's argument. The fact that Dr. Vivian may have



9. {¶ a} R.C. 2307.28 provides:

               {¶ b}   When a release or a covenant not to sue or not to enforce judgment is
                       given in good faith to one of two or more persons for the same injury or
                       loss to person or property or the same wrongful death, both of the
                       following apply:

               {¶ c}   (A) The release or covenant does not discharge any of the other
                       tortfeasors from liability for the injury, loss, or wrongful death unless its
                       terms otherwise provide, but it reduces the claim against the other
                       tortfeasors to the extent of the greater of any amount stipulated by the
                       release or the covenant or the amount of the consideration paid for it,
                       except that the reduction of the claim against the other tortfeasors shall
                       not apply in any case in which the reduction results in the plaintiff
                       recovering less than the total amount of the plaintiff's compensatory
                       damages awarded by the trier of fact and except that in any case in
                       which the reduction does not apply the plaintiff shall not recover more
                       than the total amount of the plaintiff's compensatory damages awarded
                       by the trier of fact.

               {¶ d}   (B) The release or covenant discharges the person to whom it is given
                       from all liability for contribution to any other tortfeasor.


                                                     - 28 -
                                                                                      Clermont CA2015-05-039

been permitted a setoff is of no consequence to the trial court's decision to exclude evidence

of Dr. Vivian's role as medical director.10 Again, the issue raised by Stewart was whether Dr.

Vivian was negligent in his treatment, assessment, and care of Michelle. In attempting to

prove his claim, Stewart was permitted to present evidence that Dr. Vivian had knowledge of

the environmental hazards in Michelle's room. The trial court allowed Stewart to question Dr.

Vivian about the environmental hazards and whether Dr. Vivian took the hazards into account

in his treatment of Michelle. Although Stewart was prohibited from demonstrating Dr. Vivian's

knowledge of the hazards developed out of his role as medical director, the fact that Dr.

Vivian was aware of the hazards was an issue properly presented to the jury. Exclusion of

the medical director evidence was, therefore, proper.

                                           3. Improper Lay Testimony

        {¶ 67} Stewart also argues that exclusion of the medical director evidence was

improper as it "distorted Dr. Vivian's relationship with the staff" and allowed the staff to offer



10. {¶ a} We note that given the jury verdict in favor of Dr. Vivian, the trial court did not reach a determination
as to whether there would be a setoff under R.C. 2307.28. Prior to the verdict being rendered, the trial court
issued a preliminary ruling stating that it did not intend to rule on whether Dr. Vivian was entitled to a setoff until
after trial. Specifically, the court stated:

                 {¶ b}    [I]t seems to me the issue of a set off [sic] is not really ripe until there is
                          a judgment and then it becomes a post-trial matter. And if there is a
                          disagreement as to whether Mercy is a tortfeasor it seems to me that
                          essentially we have a motion hearing and - - because I assume that
                          their [Mercy's] release may say something along the lines that - - I don't
                          know if either of you have seen their settlement agreement, but I
                          assume it may say something along the lines that we're agreeing to
                          pay so much money, but we're not agreeing that we were in any way
                          responsible. * * *

                 {¶ c}    ***

                 {¶ d}    So then if you're not admitting that they were a tortfeasor then it seems
                          to me there has to be some way for the Court to determine at that point
                          whether they're a tortfeasor or they're not a party to this action. Party
                          to the action in terms of trial. * * *

                 {¶ e}    ***

                 {¶ f}    Okay. * * * We'll - - we'll cross that when we get to it.
                                                         - 29 -
                                                                                Clermont CA2015-05-039

"lay testimony regarding Dr. Vivian's standard of care." Stewart contends that "[t]he excluded

evidence clearly would have established that Dr. Vivian was not a member of the [t]eam—he

was the head of it, and as such had the responsibility for reviewing and establishing all of the

procedures and policies regarding patient care and observation." According to Stewart, "the

exclusion of the medical director evidence prevented the jury from understanding that the

whole team got it wrong because the director and head of the team, Dr. Vivian failed in his

duty."

         {¶ 68} The record reveals Dr. Vivian's status as the "head" of the team was an issue

flushed out at trial. On numerous occasions, Stewart elicited responses from Mercy's staff

that Dr. Vivian was in charge, or the head, of the medical team. Mercy's staff members all

testified that Dr. Vivian, as the treating physician, had the final say about the level of

observation under which Michelle should be placed and whether she should receive

pharmaceutical treatment for her agitation. The fact that Dr. Vivian was in control of

Michelle's treatment and care was apparent and did not require reference to Dr. Vivian's

status as medical director.

         {¶ 69} Further, there is no merit to Stewart's argument that exclusion of the medical

director evidence prevented him from proving the "whole team got it wrong" in their treatment

of Michelle. Stewart did not proceed on claims against the "whole team" at trial as his claims

alleging negligence on behalf of Mercy and its staff had been settled. Stewart also never set

forth a cause of action seeking to hold any specific "team" member personally liable for his or

her treatment of Michelle, and he did not proceed at trial on a claim that Dr. Vivian negligently

supervised Mercy's staff.11 Exclusion of the medical director testimony was not, therefore, an

abuse of the trial court's discretion.



11. See our resolution of Stewart's third assignment of error for further discussion about a negligent supervision
claim.
                                                      - 30 -
                                                                     Clermont CA2015-05-039

                              4. Settlement Agreement with Mercy

       {¶ 70} In his final argument under the second assignment of error, Stewart contends

exclusion of the medical director evidence was improper as "Dr. Vivian's liability as medical

director was not released by the settlement agreement with the hospital." Essentially,

Stewart contends the settlement agreement did not release his claims against Dr. Vivian

because Dr. Vivian was not an "officer, director, employee, agent, or shareholder" of Mercy

hospital at the time the agreement was entered.

       {¶ 71} We begin our analysis by noting that the trial court had not been provided with

a copy of the settlement agreement prior to ruling on Dr. Vivian's motion in limine to exclude

evidence of his status as medical director. Although the court was aware of the existence of

the agreement, the terms of the agreement had not been disclosed. The court, therefore, did

not rely on the express terms of the settlement agreement in holding the medical director

evidence inadmissible at trial.

       {¶ 72} The first time the court viewed the settlement agreement was after the trial

concluded and after Stewart filed his motion for judgment notwithstanding the verdict or

motion for new trial. The court conducted a post-trial in camera review of the settlement

agreement before denying Stewart's motion, stating that the settlement agreement "gives

further support to the finding that the medical director evidence and testimony was properly

excluded." (Emphasis added.)

       {¶ 73} As the settlement agreement was not available to the trial court at the time it

ruled the medical director evidence inadmissible, we find that the court's later interpretation of

the agreement—erroneous or not—is of no consequence to our determination of whether the

evidence was properly excluded at trial. Looking at the arguments and evidence presented

to the trial court at the time the court ruled the evidence inadmissible, we find no error in the

court's decision to exclude the evidence on the basis that Dr. Vivian's status as medical
                                              - 31 -
                                                                                    Clermont CA2015-05-039

director did not make it more or less likely that he was negligent in his care of Michelle. The

trial court, therefore, did not abuse its discretion in excluding the evidence from trial.

        {¶ 74} The trial court's interpretation of the settlement agreement is of relevance,

however, to the denial of Stewart's motion for new trial. The court concluded that the

exclusion of the medical director evidence did not provide grounds for a new trial under

Civ.R. 59(A).12 After examining the settlement agreement, the court concluded that the

agreement "manifests an intention to release the claims against anyone in their capacity as

director or employee of Mercy Hospital. The only claim that remained for trial was the

medical malpractice claim against Dr. Vivian in his individual capacity."

        {¶ 75} "It is axiomatic that a settlement agreement is a contract designed to terminate

a claim by preventing or ending litigation and that such agreements are valid and enforceable

by either party." Continental W. Condominium Unit Owners Assn. v. Howard E. Ferguson,

Inc., 74 Ohio St.3d 501, 502 (1996). The construction of a written contract is a question of

law, which we review de novo. In re All Kelly & Ferraro Asbestos Cases, 104 Ohio St.3d 605,

2004-Ohio-7104, ¶ 28. "In construing the terms of a written contract, the primary objective is

to give effect to the intent of the parties, which we presume rests in the language that they

have chosen to employ." Id. at ¶ 29. Where the terms of the contract are clear and

unambiguous, a court need not go beyond the plain language of the agreement to determine


12. {¶ a} Civ.R. 59(A) provides that a court may grant a new trial for "good cause shown." Further, "[a] new trial
may be granted * * * on all or part of the issues upon any of the following grounds:

                 {¶ b}     (1) Irregularity in the proceedings of the court, jury, magistrate, or
                           prevailing party, or any order of the court or magistrate, or abuse of
                           discretion, by which an aggrieved party was prevented from having a
                           fair trial;

                 {¶ c}     ***

                 {¶ d}     (9) Error of law occurring at the trial and brought to the attention of the
                           trial court by the party making the application.

Civ.R. 59(A)(1) and (9).
                                                         - 32 -
                                                                    Clermont CA2015-05-039

the rights and obligations of the parties. Aultman Hosp. Assn. v. Community Mut. Ins. Co.,

46 Ohio St.3d 51, 53 (1989). Additionally, "[w]here possible, a court must construe the

agreement to give effect to every provision in the agreement." In re All Kelly & Ferraro

Asbestos Cases at ¶ 29.

       {¶ 76} Having reviewed the settlement agreement entered into by Stewart and Mercy

hospital, we find that the agreement did not release any of Stewart's claims against Dr.

Vivian. The agreement released Mercy hospital and "its respective officers, directors,

employees, agents, and shareholders * * * of and from any and all claims* * * related to all

claims, for personal injury, wrongful death or otherwise, as more fully described and set forth

in the matter of Stewart v. Vivian et al., Clermont County Court of Common Pleas, Case

Number 2011 CVA 00318." As Dr. Vivian was not an officer, director, employee, agent, or

shareholder of Mercy at the time the agreement was entered into, the claims against him

were not released. See, e.g., Aztec Internatl. Foods, Inc. v. Duenas, 12th Dist. Clermont No.

CA2012-01-002, 2013-Ohio-450, ¶ 61-67 (finding that claims against a former shareholder

and officer of a company were not released by a settlement agreement as the former

shareholder and officer had terminated his relationship prior to the settlement agreement

being reached). Furthermore, the release specifically provided that "Stewart v. Vivian et al.,

Clermont County Court of Common Pleas, Case Number 2011 CVA 00318, shall remain

pending against Rodney Vivian, M.D. as he is not a released party under this release."

(Emphasis added).

       {¶ 77} However, even though the settlement agreement did not release Stewart's

claims against Dr. Vivian, we find no error in the trial court's decision to deny a new trial on

the basis that the medical director evidence had been excluded from trial. The trial court did

not rely solely on its interpretation of the settlement agreement in determining that the

medical director evidence had been properly excluded from evidence. Rather the court
                                             - 33 -
                                                                    Clermont CA2015-05-039

stated that the agreement gave "further support to the finding that the medical director

evidence and testimony was properly excluded." (Emphasis added.) The primary reason the

trial court did not admit evidence of Dr. Vivian's status as medical director was because this

evidence did not make it more or less likely that Dr. Vivian was negligent in his care of

Michelle. As discussed above, Stewart's complaint did not set forth Dr. Vivian's contractual

duties as medical director or allege that Dr. Vivian breached these duties in his treatment of

Michelle.   Rather, Stewart's complaint raised issues pertaining to whether Dr. Vivian

observed the applicable standard of care in his assessment, treatment, and care of Michelle.

To the extent that there were environmental concerns or hazards affecting Dr. Vivian's

treatment and care of Michelle, the court properly permitted questioning about these

concerns without reference being made to Dr. Vivian's role as medical director. We,

therefore, conclude that the trial court's interpretation of the settlement agreement, although

erroneous, was harmless.

       {¶ 78} Accordingly, for the reasons set forth above, we conclude that the trial court

did not abuse its discretion in excluding testimony and evidence of Dr. Vivian's role as

medical director. Stewart's second assignment of error is overruled.

                                      C. Jury Instruction

       {¶ 79} Assignment of Error No. 3:

       {¶ 80} THE COURT ERRED IN INSTRUCTING THE JURY THAT DR. VIVIAN WAS

"NOT LEGALLY RESPONSIBLE FOR THE ACTIONS OF CLERMONT MERCY HOSPITAL

OR ANY OF ITS EMPLOYEES."

       {¶ 81} In his third assignment of error, Stewart argues the trial court erred in advising

the jury as follows:

              There is no claim before you that Clermont Mercy Hospital or any
              of its employees or agents were negligent or that any negligence
              on the part of Clermont Mercy Hospital or any of its agents or
                                             - 34 -
                                                                     Clermont CA2015-05-039

              employees caused the injury or death of Michelle Stewart. You
              may not consider or speculate as to such matters which are not
              before you for consideration.

              Additionally, Dr. Vivian is not legally responsible for the actions of
              Clermont Mercy Hospital or any of its employees or agents
              including but not limited to nurses, medical technicians, and
              social workers. If you find that the Defendant, Dr. Vivian, was
              negligent and that his negligence proximately caused Michelle
              Stewart's injury and death, then your verdict must be for the
              Plaintiff on both the survival claim and on the wrongful death
              claim.

(Emphasis added.)

       {¶ 82} At trial, Stewart objected to the foregoing instruction, arguing that the italicized

sentence invited the jury to speculate about the hospital's actions. Stewart contended

inclusion of this sentence would confuse the jury. The trial court disagreed and gave the

instruction after stating the following:

              What it is, is saying - - we're - - we're not going to make any
              finding here as to what percentage of liability the hospital might
              have. That's not your job, you're not - - no - - there's no claim in
              this trial for negligence by the hospital. And when you're
              assessing Dr. Vivian's negligence, you can't look to what that - -
              what the employees of the hospital did, which is I think are [sic]
              saying two different things. * * *

       {¶ 83} Stewart now argues that the instruction "conflicted with * * * prior language [in

the instruction], such that the jury was prejudicially confused." He also argues that the

instruction is an inaccurate statement of the law as "Dr. Vivian could be held legally

responsible for the actions of * * * Mercy staff or employees, when those actions are a result

of his negligent supervision or direction."

       {¶ 84} "When considering the appropriateness of a jury instruction, or when a specific

jury instruction is in dispute, a reviewing court must examine the instructions as a whole."

A.N. Bros. Corp. v. Total Quality Logistics, L.L.C., 12th Dist. Clermont No. CA2015-02-021,

2016-Ohio-549, ¶ 59, citing Enderle v. Zettler, 12th Dist. Butler No. CA2005-11-484, 2006-


                                              - 35 -
                                                                      Clermont CA2015-05-039

Ohio-4326, ¶ 36. See also Sech v. Rogers, 6 Ohio St.3d 462, 464 (1983) ("A jury instruction

must be considered in its entirety and, ordinarily, reversible error does not consist of

misstatements or ambiguity in a part of the instruction"). The court "must determine whether

the jury charge probably mislead the jury in a matter materially affecting the complaining

party's substantial rights." Becker v. Lake Cty. Mem. Hosp. W., 53 Ohio St.3d 202, 208

(1990). "If, taken in their entirety, the instructions fairly and correctly state the law applicable

to the evidence presented at trial, reversible error will not be found merely on the possibility

that the jury may have been misled." Withers v. Mercy Hosp. of Fairfield, 12th Dist. Butler

No. CA2010-02-033, 2010-Ohio-6431, ¶ 17. Further, unnecessary, ambiguous, or even

affirmatively erroneous portions of a jury charge do not inevitably constitute reversible error.

Cromer v. Children's Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 257, 2015-Ohio-229, ¶ 35.

       {¶ 85} Looking at the jury instructions as a whole, we find no error in the trial court's

decision to include the statement that "Dr. Vivian is not legally responsible for the actions of

Clermont Mercy Hospital or any of its employees or agents including but not limited to

nurses, medical technicians, and social workers." The jury was properly instructed that it

could not consider Mercy's negligence. Including further instruction that Dr. Vivian could not

be liable for Mercy's employees' actions was appropriate and did not create the danger of

misleading the jury. As Stewart acknowledged in his appellate brief, he "is not claiming, and

has NEVER claimed, that Dr. Vivian is vicariously responsible for the independent negligence

of the hospital staff." The court's instruction merely reiterated that Dr. Vivian could only be

found liable for his own acts or omissions, and not the acts or omissions of Mercy's staff.

       {¶ 86} Further, with respect to Stewart's claim that the instruction was improper given

that Dr. Vivian could have been found liable for his negligent supervision of Mercy's staff, we

note that Stewart never requested such an instruction. Stewart also never objected to the

following instruction given by the trial court:
                                               - 36 -
                                                                   Clermont CA2015-05-039

              The Plaintiff's claims are that the Defendant, as the Plaintiff's
              treating psychiatrist, failed to reasonably protect Michelle Stewart
              from self-harm, by failing to comply with the applicable standard
              of care with respect to the following: 1) His assessment of
              Michelle Stewart's depression and other mood disorders; 2) His
              assessment of Michelle's [sic] Stewart's risk for self-harm; 3) The
              level of observation of Michelle Stewart ordered by him; and 4)
              His treatment of Michelle Stewart.

       {¶ 87} Accordingly, as Stewart admitted that Dr. Vivian could not be held vicariously

liable for the hospital staff's independent negligence and he never requested an instruction

regarding Dr. Vivian's alleged negligent supervision of Mercy's staff, we find no error in the

trial court's jury instruction. Stewart has failed to demonstrate that the trial court gave an

erroneous jury instruction materially affecting his rights. See, e.g., Hayward v. Summa

Health Sys./Akron City Hosp., 139 Ohio St.3d 238, 2014-Ohio-1913.

       {¶ 88} Stewart's third assignment of error is, therefore, overruled.

                             D. Manifest Weight of the Evidence

       {¶ 89} Assignment of Error No. 4:

       {¶ 90} THE COURT ERRED IN FINDING THAT THE MANIFEST WEIGHT OF THE

EVIDENCE FAVORED DEFENDANT.

       {¶ 91} In his fourth assignment of error, Stewart argues the jury's decision in favor of

Dr. Vivian on the malpractice claim was against the manifest weight of the evidence. Stewart

contends the evidence presented at trial overwhelmingly demonstrated that Dr. Vivian should

have elevated the level of observation Michelle was placed under and he should have taken

further precautions to ensure Michelle's safety.

       {¶ 92} When evaluating whether a judgment is against the manifest weight of the

evidence in a civil case, the standard of review is the same as in the criminal context.

Duenas, 2013-Ohio-450 at ¶ 35, citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-

2179, ¶ 17. "[W]e weigh the evidence and all reasonable inferences, consider the credibility

                                             - 37 -
                                                                     Clermont CA2015-05-039

of witnesses, and determine whether in resolving conflicts in the evidence, the finder of fact

'clearly lost its way and created such a manifest miscarriage of justice that the [judgment]

must be reversed and a new trial ordered.'" Marinich v. Lumpkin, 12th Dist. Warren No.

CA2011-11-124, 2012-Ohio-4526, ¶ 20, quoting Eastley at ¶ 20. In weighing the evidence,

we are mindful of the presumption in favor of the finder of fact. Eastley at ¶ 21. "A reviewing

court should not reverse a decision simply because it holds a different opinion concerning the

credibility of the witnesses and evidence submitted before the trial court." Seasons Coal Co.,

Inc. v. Cleveland, 10 Ohio St.3d 77, 81 (1984). After all, the jury, as the trier of fact, is best

able to view the witnesses and observe their demeanor, gestures and voice inflections, and

use these observations in weighing the credibility of the proffered testimony. Cropper v.

Jewell, 12th Dist. Clermont No. CA2008-09-088, 2009-Ohio-3683, ¶ 16, citing Seasons Coal

at 80. In order to reverse a jury verdict on the weight of the evidence, a court of appeals

panel must act unanimously. Purcell v. Schaefer, 12th Dist. Preble No. CA2013-09-007,

2014-Ohio-4894, ¶ 8, citing Eastley at ¶ 7.

       {¶ 93} To establish a claim of medical malpractice, a plaintiff must prove by a

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

some particular thing or things that a physician of ordinary skill, care, and diligence would not

have done under like or similar conditions, or was caused by the failure or omission to do

some particular thing or things that such a physician would have done under like or similar

conditions, and that the injury complained of was the direct and proximate result of the

physician's doing or failing to do such particular thing or things. Bruni v. Tatsumi, 46 Ohio

St.2d 127 (1976), paragraph one of the syllabus; Taylor v. McCullough-Hyde Mem. Hosp.,

116 Ohio App.3d 595, 599 (12th Dist.).

       {¶ 94} Stewart argues the majority of evidence presented at trial demonstrates Dr.

Vivian fell below the standard of care in his assessment, care, and treatment of Michelle.
                                              - 38 -
                                                                    Clermont CA2015-05-039

Stewart relies on his experts' testimony to establish that Dr. Vivian did not act as other

psychiatrists would have under similar circumstances in conducting an assessment of

Michelle or in placing her on 15-minute checks. Stewart contends the evidence presented at

trial demonstrates Dr. Vivian did not obtain an accurate assessment of Michelle's suicidality,

and that by choosing not to obtain collateral information about Michelle's history and behavior

from her family members, Dr. Vivian fell below the standard of care. However, while the jury

heard testimony from Stewart's experts that Dr. Vivian should have obtained collateral

information from Michelle's family and friends, the jury also heard testimony from defense

experts that Dr. Vivian's assessment met the standard of care. Dr. Correll testified that

attempting to obtain collateral information from a patient's family members can hurt the

physician-patient relationship. Dr. Songer agreed and testified that he might not have spoken

with Michelle's family either. The jury was entitled to find Dr. Vivian's experts' testimony more

credible, especially in light of Dr. Vivian's testimony that he did not speak with Michelle's

family members because she did not give him permission and he did not want to risk

alienating Michelle.

       {¶ 95} The jury also heard conflicting expert testimony regarding the level of

observation placed on Michelle. Dr. Beckson and Dr. Palumbo both felt Michelle should have

been placed on a higher level of observation, consisting of either one-to-one observation or

constant supervision, given her agitation, her statement to the Mt. Orab physician that she

had a continued desire to kill herself, and her statements to Wiggs that she was suicidal, was

upset to be found breathing, had been researching suicide for 25 years, and had "lots of

plans." However, Dr. Vivian was aware of these factors and nonetheless believed Michelle

was not actively suicidal and that 15-minute checks were an appropriate level of observation.

Dr. Correll and Dr. Songer both agreed, opining that they saw no reason to believe Michelle

posed an imminent, active risk of suicide until she actually committed the act of hanging

                                              - 39 -
                                                                  Clermont CA2015-05-039

herself. Dr. Correll discussed the existence of numerous protective factors indicating that

Michelle would be able to overcome her suicidal thoughts, including her long-term

employment, her recent marriage, and her future plans to complete college and become

pregnant. Given the evidence presented, the jury was entitled to find that 15-minute checks

were an appropriate level of observation. The jury was in the best position to judge the

credibility of this contradictory evidence, and we will not reverse a jury's decision merely

because there was some contrary evidence presented. See Underwood v. Boeppler, 12th

Dist. Butler No. CA2014-02-055, 2015-Ohio-156, ¶ 23.

       {¶ 96} Stewart also argues the weight of the evidence demonstrates Dr. Vivian's

treatment of Michelle fell below the applicable standard of care when he placed her in an

environment that provided the opportunity for suicide.         Evidence presented at trial

demonstrated Dr. Vivian placed Michelle in her hospital room on 15-minute checks with

knowledge that a prior patient had attempted to hang himself in one of the psychiatric unit's

rooms. Evidence was also presented that Dr. Vivian was aware of the environmental

dangers that existed in Mercy's psychiatric unit rooms, including the hazards posed by the

weight-bearing door handles and the straight-edge tops of the bathroom doors. Although

one of Stewart's experts believed putting Michelle in her hospital room on 15-minute checks

was akin to putting her "in a closed-door room with a loaded gun," there was evidence from

Dr. Vivian's experts that placing Michelle in her own room on 15-minute checks was

appropriate. Dr. Songer testified a psychiatrist should view any known risks or hazards in the

larger context of treatment and that questions regarding environmental risks are moot if the

treating physician has concluded the patient does not pose an active risk of suicide. Dr.

Vivian testified he did not believe Michelle was actively suicidal. He also testified he had

weighed the safety concerns as well as the need to provide care to Michelle within the least-

restrictive environment before determining that 15-minute checks were appropriate. The jury

                                            - 40 -
                                                                      Clermont CA2015-05-039

was entitled to give more weight to the evidence and testimony presented by the defense and

conclude that 15-minute checks on Michelle in her hospital room were appropriate.

       {¶ 97} Stewart further contends the weight of the evidence demonstrates Dr. Vivian

knew Michelle had plans to kill herself on the unit, and yet he neglected to raise the level of

observation to ensure her safety. Dr. Vivian's testimony at trial, however, was that it was

"possible" that Michelle told him she planned to kill herself in the hospital and that he did not

put it in his written records. Dr. Vivian did not think this had occurred, but was willing to agree

with Stewart's counsel that "it's possible." The jury was entitled to give as little or as much

weight to this testimony as it chose. See Boeppler, 2015-Ohio-156 at ¶ 19 ("the jury is free to

believe, all, part, or none of the testimony of the witnesses which appeared before it"). The

jury could have determined from Dr. Vivian's testimony that it was more likely than not that

Michelle never made any statement to Dr. Vivian that she intended to kill herself in the

hospital. Dr. Vivian's alleged "actual knowledge," therefore, does not support a finding that

the verdict was against the manifest weight of the evidence.

       {¶ 98} Finally, Stewart argues that judgment in favor of Dr. Vivian was improper as

"Dr. Vivian made his treatment decisions based upon [the] blatantly wrong perception of the

efficacy of 15-minute checks, which falls below the standard of care." At trial, all the experts

testified Dr. Vivian's original premise that patients cannot kill themselves while on 15-minute

checks was incorrect. Stewart's experts believed that treating patients under this mistaken

premise was further evidence that Dr. Vivian's treatment of Michelle fell below the applicable

standard of care. Dr. Vivian's experts, however, did not agree.

       {¶ 99} While Dr. Correll explained that a reasonable psychiatrist would not believe Dr.

Vivian's mistaken premise because "[p]atients have killed themselves on every level of

observation in the history of psychiatry," he never opined that Dr. Vivian's treatment fell below

the standard of care. In fact, after considering Dr. Vivian's mistaken premise about 15-
                                               - 41 -
                                                                    Clermont CA2015-05-039

minute checks, Dr. Correll stated he believed that "with the information at hand [Dr. Vivian]

acted according to what most psychiatrists would have done and per the standard of care on

that day." Similarly, Dr. Songer agreed that the assumption that a patient could not commit

suicide while on 15-minute checks was incorrect, but he never testified that Dr. Vivian or his

treatment of Michelle fell below the standard of care. Therefore, the fact that Dr. Vivian had

been operating under a mistaken premise about a patient's ability to kill herself while on 15-

minute checks did not alter Dr. Songer's or Dr. Correll's opinion that Dr. Vivian had met the

required standard of care in his treatment of Michelle.

       {¶ 100} We find that it was within the province of the jury to consider the testimony

regarding Dr. Vivian's mistaken premise and determine what weight, if any, the mistaken

premise had on the level of care provided to Michelle by Dr. Vivian. The jury had before it

contrary opinions by the experts, and it was up to the jury to determine what evidence it

found more credible on the issue. See Silver v. Jewish Home of Cincinnati, 190 Ohio App.3d

549, 2010-Ohio-5314, ¶ 34 (12th Dist.). We will not reverse a jury verdict simply because the

jury decided to assign more weight to the evidence presented by Dr. Vivian's experts than it

did to the evidence presented by Stewart's experts. See id.; Boeppler, 2015-Ohio-156 at ¶

23.

       {¶ 101} Accordingly, based upon our review of the record, we conclude that the jury

did not clearly lose its way in rendering judgment in favor of Dr. Vivian. The jury's verdict in

favor of Dr. Vivian did not create a manifest miscarriage of justice as there was competent,

credible evidence to support the verdict. Judgment in favor of Dr. Vivian was not against the

manifest weight of the evidence. Stewart's fourth assignment of error is, therefore, overruled.

                   E. Motion for Judgment Notwithstanding the Verdict

       {¶ 102} Assignment of Error No. 5:

       {¶ 103} THE COURT ERRED IN FAILING TO GRANT JNOV TO [STEWART]
                                             - 42 -
                                                                    Clermont CA2015-05-039

WHERE ALL EXPERTS AGREED DR. VIVIAN ANALYZED THE FACTS OF DECEDENT'S

SUICIDE THROUGH THE MISPERCEPTION THAT A PATIENT COULD NOT COMMIT

SUICIDE ON A LEVEL OF OBSERVATION PROVIDING FOR 15 MINUTE CHECKS.

       {¶ 104} In his fifth assignment of error, Stewart argues the trial court erred in denying

his motion for judgment notwithstanding the verdict.

       {¶ 105} We review a trial court's decision on a motion for judgment notwithstanding

the verdict de novo. Briggs v. Franklin Pre-Release Ctr., 12th Dist. Madison No. CA2013-10-

035, 2014-Ohio-2477, ¶ 8. A favorable ruling on such a motion is not easily obtained. Orren

v. BWF Corp., 12th Dist. Warren CA2013-11-112, 2015-Ohio-62, ¶ 13. "The standard for

granting a motion for judgment notwithstanding the verdict is the same as that for granting a

motion for directed verdict." Id.

       {¶ 106} "That is, when considering either motion, the evidence adduced at trial and

the facts established by the admissions in the pleadings and in the record must be construed

most strongly in favor of the party against whom the motion is made." Shell v. Durrani, 12th

Dist. Butler No. CA2014-11-232, 2015-Ohio-4140, ¶ 13, citing Phipps v. Internatl. Paper Co.,

12th Dist. Clinton No. CA2013-02-003, 2013-Ohio-3994, ¶ 11. If the court finds that

reasonable minds could not differ as to any determinative issue, then the court must sustain

the motion. Id. On the other hand, if there is substantial competent evidence to support the

nonmoving party, upon which reasonable minds might reach different conclusions, the

motion must be denied. Id. Neither the weight of the evidence nor the credibility of the

witnesses is for the court's determination in ruling on a motion for judgment notwithstanding

the verdict. Id., citing Nickell v. Gonzales, 17 Ohio St.3d 136, 137 (1985).

       {¶ 107} Stewart argues that based on the evidence presented at trial, the jury could

have only drawn the conclusion that Dr. Vivian's assessment, treatment, and care of Michelle

departed from the standard of care. He asserts that "Dr. Vivian's misperception that a patient
                                             - 43 -
                                                                  Clermont CA2015-05-039

could not commit suicide while on * * * 15-minute check[s] fell below the standard of care,

and rendered him liable for decedent's death." However, as discussed in our resolution of

Stewart's fourth assignment of error, there was testimony presented at trial that Dr. Vivian's

assessment, treatment, and care was appropriate and within the acceptable standard of care

for psychiatrists. The fact that Michelle was able to hang herself at Mercy does not

necessarily equate to a breach of Dr. Vivian's duty of care. As one of Stewart's expert's

acknowledged on cross-examination, it is possible for a patient to hang herself while on 15-

minute checks and for there to be an absence of negligence. Further, although Dr. Vivian

mistakenly believed that a patient could not commit suicide while on 15-minute checks, this

does not change the fact that there was testimony from Dr. Vivian and two medical experts

that under the circumstances presented by Michelle's case, ordering 15-minute checks met

the standard of care.

       {¶ 108} Stewart also argues that he is entitled to judgment notwithstanding the verdict

because the evidence at trial demonstrated that "[i]f the level of observation had been

increased it is probable that Michelle would have survived." In support of his argument, he

relies on the fact that all of the experts agreed that it is "more probable than not" that

elevating the level of observation would have prevented Michelle's suicide. Stewart then

cites to the legal principle that "[i]n a medical malpractice action premised on a failure to

properly diagnose or treat a medical condition which results in a patient's death, the proper

standard of proof on the issue of causation is whether with proper diagnosis and treatment,

the patient probably would have survived." Jeffrey v. Marietta Mem. Hosp., 10th Dist.

Franklin Nos. 11AP-492 and 11AP-502, 2013-Ohio-1055, ¶ 47.

       {¶ 109} We note that even though the experts agreed that a higher level of

observation could have prevented Michelle's death, this does not mean that the experts

believed Dr. Vivian's treatment of fell below the standard of care. There was conflicting
                                            - 44 -
                                                                      Clermont CA2015-05-039

testimony on this issue, with Stewart's experts opining that constant observation or one-to-

one observation should have ordered for Michelle. Dr. Vivian's experts disagreed and

testified that 15-minute checks were an appropriate level of observation meeting the standard

of care. The testimony of Dr. Correll and Dr. Songer provided substantial competent

evidence to sustain the verdict in Dr. Vivian's favor, and we cannot second guess the jury's

determination of this issue.

       {¶ 110} Accordingly, after viewing the entire record and construing the evidenced

adduced at trial in favor of Dr. Vivian, as the nonmoving party, we find that the trial court

properly denied Stewart's motion for judgment notwithstanding the verdict. Stewart's fifth

assignment of error is, therefore, overruled.

                                       F. Dismissal of Juror

       {¶ 111} Near the end of his appellate brief, Stewart attempts to set forth an

assignment of error in a footnote. Stewart's footnote 23 states the following:

               Due to page limitations imposed by the Court, Appellant was
               unable to fully address the Sixth Assignment of Error, that the
               Trial Court erred in failing to excuse Juror Meadows. Juror
               Meadows should have been dismissed. His articulated prejudice
               against Appellant's claims was capable of and did infect the jury's
               deliberations.

However, neither the table of contents nor the body of Stewart's brief set forth a sixth

assignment of error. Further, Stewart has not provided any specific argument or citation to

authority or the record in support of his "sixth" assignment of error.

       {¶ 112} App.R. 12(A)(2) provides that an appellate court "may disregard an

assignment of error presented for review if the party raising it fails to identify in the record the

error on which the assignment of error is based or fails to argue the assignment separately in

the brief, as required under App.R. 16(A)." In turn, App.R. 16(A)(7), requires an appellant's

brief to include an argument containing the appellant's contentions with respect to each


                                               - 45 -
                                                                   Clermont CA2015-05-039

assignment of error presented for review and "the reasons in support of the contentions, with

citations to the authorities, statutes, and parts of the record on which appellant relies."

       {¶ 113} As Stewart failed to present any specific argument with respect to his

contention that juror Meadows should have been dismissed and failed to cite to any portion

of the record or to any legal authority in support of his claim, we disregard his "sixth"

assignment of error for failure to comply with App.R. 12(A)(2) and 16(A)(7). See Buckner v.

Washington Mut. Bank, 12th Dist. Butler No. CA2014-01-012, 2014-Ohio-5189, ¶ 47-48;

Ossai-Charles v. Charles, 12th Dist. Warren Nos. CA2010-12-129 and CA2011-01-007,

2011-Ohio-3766, ¶ 21.

                                       IV. CONCLUSION

       {¶ 114} Having found no merit to Stewart's assigned errors, we conclude that

judgment in favor of Dr. Vivian was appropriate. The trial court did not err in denying

Stewart's motion for judgment notwithstanding the verdict or his motion for a new trial.

       {¶ 115} Judgment affirmed.


       PIPER, J., concurs.


       M. POWELL, P.J., concurs separately.


       M. POWELL, P.J., concurring separately.

       {¶ 116} I concur with the majority's judgment and its analysis of the issues but

disagree with the majority's determination that the trial court's application of the apology

statute is subject to a de novo review because the statute is ambiguous. Rather, the trial

court's application of the statute and its determination that Dr. Vivian's statements should be

excluded under the statute are subject to an abuse-of-discretion standard of review.

       {¶ 117} The apology statute unambiguously provides that statements expressing

                                             - 46 -
                                                                      Clermont CA2015-05-039

"apology, sympathy, commiseration, condolence, compassion or a general sense of

benevolence" are excluded. See R.C. 2317.43(A). The General Assembly did not otherwise

qualify the exclusion of such statements, by excepting statements that may also be construed

as admitting fault from the scope of the statute. The determination of whether a statement is

an expression of apology, etc., requires a trial court to examine what was said, the purpose

of what was said, and the surrounding circumstances. This is a factual finding and is subject

to an abuse-of-discretion standard of review.

       {¶ 118} This case is much like Estate of Johnson v. Randall Smith, Inc., 135 Ohio

St.3d 440, 2013-Ohio-1507. In Johnson, the Ohio Supreme Court considered whether the

apology statute applied to exclude a physician’s statement to a distressed patient that "I take

full responsibility for this. Everything will be okay." In finding that the trial court had properly

excluded the statement pursuant to the apology statute, and reversing the court of appeals'

decision, the supreme court reiterated the well-recognized rule that "[d]ecisions involving the

admissibility of evidence are reviewed under an abuse-of-discretion standard of review.

Similarly, decisions granting or denying a motion in limine are reviewed under an abuse-of-

discretion standard of review." (Internal citation omitted.) Johnson at ¶ 22. The supreme

court continued by observing that "[t]he trial court had determined that [the physician] was

faced with a distressed patient who was upset and made a statement that was designed to

comfort his patient. This is precisely the type of evidence that R.C. 2317.43 was designed to

exclude as evidence of liability in a medical-malpractice case." Id. at ¶ 23. Clearly, in finding

that the trial court had properly excluded the statement, the supreme court deferred to the

trial court's determination that the statement was an expression of "apology, sympathy,

commiseration, condolence, compassion or a general sense of benevolence."

       {¶ 119} The supreme court in Johnson did not address the issue of whether the

apology statute applies only to pure expressions of apology or whether the statute is
                                               - 47 -
                                                                    Clermont CA2015-05-039

ambiguous. However, contrary to the prior Ninth Appellate District's opinion in Davis v.

Wooster Orthopaedics & Sports Medicine, Inc., 193 Ohio App.3d 581, 2011-Ohio-3199 (9th

Dist.), the supreme court affirmed the exclusion of a physician's statement that was not a

pure expression of apology and which included an admission of fault (i.e., "I take full

responsibility for this"). Johnson at ¶ 23-24. Thus, the supreme court's ruling does not

suggest that the statute is ambiguous with regard to whether it excludes only pure

expressions of apology. Furthermore, the supreme court's ruling supports the proposition

that a trial court's determination that a physician's admission of fault constitutes an

expression of apology under the apology statute, is reviewed under an abuse-of-discretion

standard.

       {¶ 120} Whenever a trial court makes an evidentiary ruling pursuant to a statute or

rule, the trial court necessarily construes the statute or rule as to what is permitted. This use

of legal judgment does not convert such evidentiary rulings into an exercise in statutory

construction subject to a de novo review. Otherwise, most rulings on the admission or

exclusion of evidence, contrary to well-established precedent, would be subject to a de novo

review.

       {¶ 121} The trial court here made the factual determination that Dr. Vivian's

statements were "an ineffective attempt at commiseration" and therefore ruled the

statements inadmissible. This was not an abuse of discretion. Therefore, I agree with the

majority's ultimate conclusion that the trial court's exclusion of Dr. Vivian's statements

pursuant to the apology statue was proper.

       {¶ 122} Stewart asserts that the supreme court only applied the abuse-of-discretion

standard of review in Johnson after it had resolved issues of statutory interpretation, and that

the discussion involving the abuse-of-discretion standard is merely dicta. The only issue of

statutory interpretation concerned the application of the apology statute, as the accrual and
                                              - 48 -
                                                                    Clermont CA2015-05-039

filing of the claim in Johnson straddled the effective date of the apology statute. Upon finding

that the statute applied to the case before it, the supreme court held that the trial court's

determination as to whether a statement was admissible under the statute is subject to an

abuse-of-discretion standard of review, and chided the court of appeals for failing to "analyze

under an abuse-of-discretion standard whether the trial court had acted unreasonably,

arbitrarily, or unconscionably in reaching its conclusion" to exclude the statement.

       {¶ 123} Based upon the foregoing, abuse of discretion is the proper standard of

review. Determining the admissibility of evidence under R.C. 2317.43(A) is no different than

determining the admissibility of evidence pursuant to any other evidentiary rule or statute.

Doing so necessarily requires the trial court to exercise some degree of legal judgment of

what the rule or statute provides.




                                             - 49 -
