[Cite as Geesaman v. St. Rita's Med. Ctr., 183 Ohio App.3d 555, 2009-Ohio-3931.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




GEESAMAN ET AL.,

        APPELLANTS,                                                CASE NO. 1-08-65

        v.

ST. RITA'S MEDICAL CENTER ET AL.,                                  OPINION

        APPELLEES.




                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CV2006 0914

      Judgment Affirmed in Part, Reversed in Part, and Cause Remanded

                           Date of Decision: August 10, 2009




APPEARANCES:

        Dennis P. Mulvihill, for appellants.

        James F. Nooney, for appellee Ali Almudallal, M.D.

        Patrick K. Adkinson, for appellees John Cox, M.D. and Lima
Radiology.
Case No. 1-08-65


        SHAW, Judge.

        {¶1} Plaintiffs-appellants, Jeffrey and Lori Geesaman, appeal the October

1, 2008 judgment of the Common Pleas Court of Allen County, Ohio, entering a

judgment for the defendants-appellees, Dr. John Cox, Lima Radiology Associates,

and Dr. Ali Almudallal, and dismissing the Gessamans’ complaint following a

jury verdict in favor of the appellees.

        {¶2} The facts relevant to this appeal are as follows. On March 31, 2005,

Jeffrey Geesaman went to the emergency room at St. Rita’s Medical Center, where

he saw Dr. Gary Beasley. Mr. Geesaman reported that he was experiencing

dizziness, balance issues, slurred speech, and problems with his vision and had

vomited three times throughout the day. His blood pressure was taken at the time,

and it was 171/111 and later reached 184/117.      His weight was 280 pounds, and

he was 6’ 1” tall. Mr. Geesaman also provided a history to medical personnel,

which    included    poorly   controlled    hypertension,   smoking,   and   alcohol

consumption.       Mr. Geesaman further stated that he had quit smoking and

consuming alcohol a number of years prior. In addition, he reported that his

mother had had a stroke at age 45.

        {¶3} Dr. Beasley conducted a physical exam of Mr. Geesaman in order to

determine the cause of his symptoms and found no signs of trauma to his head.

Dr. Beasley did not have Mr. Geesaman stand up or walk because of his size and

complaints of dizziness and balance problems. Mr. Geesaman was placed on a

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heart monitor, and a chest x-ray and CT scan of his head were taken, as well as

other tests. The chest x-ray and physical examination were negative for any

cardiac problems. The CT scan did not show any kind of bleed or tumor that

could explain the symptoms. However, Mr. Geesaman’s sugar level was elevated

at 224.

          {¶4} After reviewing the various tests and conducting his own

examination, Dr. Beasley was concerned that Mr. Geesaman might have had a

stroke or was experiencing a transient ischemic attack (“TIA”). As a result, Dr.

Beasley, who is an emergency-medicine physician, contacted neurologist, Dr. Ali

Almudallal, to discuss the case and his concerns. After discussing the case, the

decision was made to have Mr. Geesaman admitted to internal medicine, and Dr.

Almudallal would provide a neurological consult.

          {¶5} That evening, Mr. Geesaman was admitted to the hospital and placed

on a number of different medications, including aspirin. The following day, Dr.

Almudallal ordered several tests for Mr. Geesaman, including magnetic resonance

imaging (“MRI”) of his brain, in order to determine whether he had had a stroke.

An MRI of the brain involves the taking of hundreds of images in various

sequences, including diffusion-weighted images. The MRI was reviewed by Dr.

John Cox, a neuroradiologist. Dr. Cox concluded that the MRI was normal and

wrote that conclusion in his report. After reading the conclusion of Dr. Cox, as

well as the results of the other tests, Dr. Almudallal ruled out a stroke.

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       {¶6} Mr. Geesaman’s condition seemed to improve, and Dr. Almudallal

determined that his neurological problems were possibly caused by either a

complicated migraine or labyrinthitis, an inflammation in the inner ear. Therefore,

Dr. Almudallal discharged Mr. Geesaman from his neurological care. Prior to

discharging Mr. Geesaman from neurology, Dr. Almudallal spoke with him and

his wife about his conclusions and decided to see him on an outpatient basis to

provide additional workup for these possible conditions.         In addition, Dr.

Almudallal testified that he told Mr. Geesaman to continue taking aspirin every

day.   However, the Geesamans testified that Dr. Almudallal never gave that

instruction.

       {¶7} Mr. Geesaman remained in the hospital for another day because of

other issues, including his hypertension and his newly discovered diabetes, which

were being treated by the internal-medicine physicians. On April 2, 2005, Mr.

Geesaman was discharged from the hospital. Prior to that discharge, he was given

discharge instructions and five prescriptions, neither of which involved his taking

aspirin. Upon leaving the hospital, Mr. Geesaman did not take any additional

aspirin.

       {¶8} For the next three days, Mr. Geesaman seemed to be improving.

However, on April 5, 2005, Mr. Geesaman returned to St. Rita’s emergency room.

This time he and his wife reported that his slurred speech had increased and he

was off balance, had difficulty walking, was confused, had right-sided weakness,

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and loss of appetite, and was very tired. Once again, Mr. Geesaman was admitted

to the hospital, and another MRI of his brain was ordered in addition to other tests.

Included in the other tests was a magnetic resonance angiogram (“MRA”). An

MRA uses a magnetic field to provide pictures of blood vessels inside the body.

In this case, the MRA was utilized to determine whether any abnormalities in Mr.

Geesaman’s vessels, such as a blood clot, existed that could explain his symptoms.

       {¶9} This second MRI revealed that Mr. Geesaman had suffered a stroke.

In addition, the doctors treating Mr. Geesaman realized that his first MRI had

shown that he had a stroke. In fact, two to three infarcts, dead tissue caused by a

stroke, were visible in the April 1, 2005 MRI. Those infarcts went unnoticed,

however, because Dr. Cox failed to view the diffusion-weighted images of the

MRI. Diffusion-weighted images are helpful to identify an area of acute ischemia

in the brain—i.e., a restriction in blood supply, which would indicate a recent

stroke. In this case, these images showed damage to the portions of the brain

located in the back of the head, known as the pons and the cerebellum. Problems

in these parts of the brain were consistent with the symptoms Mr. Geesaman was

experiencing when he came to the hospital the first time.

       {¶10} Mr. Geesaman remained in the hospital until April 13, 2005, when

he was transferred to the rehabilitation facility at St. Rita’s. He remained in

rehabilitation until he was discharged to his home on May 11, 2005. As a result of




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the strokes, he suffered brain damage, leaving him permanently disabled and

unable to care for himself.

        {¶11} On September 13, 2006, the Geesamans filed a complaint for

medical malpractice and loss of consortium against Dr. Almudallal, Dr. Cox, and

several others. The case proceeded through the discovery phase with the parties

deposing several doctors on behalf of each, and various parties being dismissed.

Among those deposed was Dr. Charles Lanzieri, a neuroradiologist. Dr. Lanzieri

was listed as an expert witness for the Geesamans.

        {¶12} During discovery, Dr. Cox admitted that he breached the standard of

care by failing to review the diffusion-weighted images of the MRI.1 Ultimately,

the case proceeded to trial against Dr. Almudallal, Dr. Cox, and Lima Radiology

Associates.2 Prior to the trial, the Geesamans filed a motion in limine, asking the

court to exclude any evidence of Mr. Geesaman’s prior drug and alcohol usage.

1
  The parties dispute the reason for Dr. Cox’s breach of duty. Dr. Cox maintained that the images did not
appear when he accessed Mr. Geesaman’s MRI in the computer due to some problem with the system.
However, witnesses for the plaintiffs testified that the system was working properly, and the images were
available for review when Dr. Cox accessed Mr. Geesaman’s MRI. In any event, Dr. Cox admitted that he
should have reviewed these images and that his failure to recognize that the images were not available and
to examine them prior to determining the MRI was normal was a breach of the standard of care.
2
 The complaint names Lima Radiology Associates (“LRA”) under the doctrine of respondeat superior as
the employer of Dr. Cox or that Dr. Cox was the owner of LRA. However, LRA’s liability under the
doctrine of respondeat superior was not a question before the jury because LRA admitted in its answer to
the plaintiffs’ complaint that Dr. Cox was its employee at the time of Mr. Geesaman’s injury and was
acting within the scope of that employment when he examined Mr. Geesaman’s MRI and concluded that
the MRI was normal. LRA denied, however, that Dr. Cox was negligent and/or that he caused the
plaintiffs’ injuries. Given these admissions and denials, LRA’s liability was dependent upon the jury’s
verdict as to Dr. Cox. In accordance with the jury’s verdict as to Dr. Cox, the judgment entry on the jury’s
verdict indicates that both Dr. Cox and LRA were dismissed pursuant to the verdict. Because LRA’s
liability is dependent solely upon the liability of Dr. Cox, throughout this opinion our rulings on the
assignments of error as to Dr. Cox also apply to LRA.



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The court overruled this motion. Additionally, Dr. Cox filed a motion in limine,

requesting that the Geesamans not be permitted to introduce any evidence or make

any argument to the jury as to loss of a less-than-even chance of recovery. The

trial court granted this request and ordered that the Geesamans were “foreclosed

from bringing forth any evidence with a focus on Loss of Chance.”

          {¶13} On September 15, 2008, the trial in this matter began. Over the next

several days, the parties presented their respective cases. One of the experts

utilized by the Geesamans was Dr. David Thaler, a neurologist. He testified, inter

alia, that had the stroke that Mr. Geesaman suffered on March 31, 2005, been

recognized, the condition that caused that stroke identified, and Mr. Geesaman

properly treated, he more likely than not would not have suffered the second

stroke on April 5, 2005, which left him disabled. Counsel for the Geesamans also

called Dr. Almudallal to testify as upon cross-examination. During this testimony,

Dr. Almudallal opined that with proper care during Mr. Geesaman’s first

admission, he would have had a 25 to 33 percent chance of avoiding the second

stroke.

          {¶14} Dr. Cox’s expert in neurology, Dr. Howard Kirshner, testified that

even if the first stroke had been detected, the condition that caused the stroke

identified, and Mr. Geesaman properly treated, he more likely than not would have

suffered the second stroke. However, he also testified that there are studies that




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have shown that with proper treatment, particularly utilizing aspirin, there is a 13

to 20 percent chance of avoiding a second stroke.

       {¶15} Dr. Almudallal also presented the expert testimony of Dr. David

Preston, a neurologist.    In respect to causation, Dr. Preston testified that no

treatment option would have prevented Mr. Geesaman’s second stroke to a

reasonable degree of medical certainty. This testimony was based, in part, upon a

meta-analysis of 13 clinical trials involving stroke treatment utilizing aspirin. That

analysis found that patients who were treated with aspirin had an 8.3 percent

chance of having another stroke, whereas patients who were not treated had a 10

percent chance of having another stroke. These numbers correlated to a 17 percent

relative risk reduction for a second stroke in patients who were treated with aspirin

and an absolute risk reduction of 1.7 percent.

       {¶16} At the conclusion of all the evidence, the trial court provided the jury

with instructions, interrogatories, and verdict forms. Included in the instructions

was an instruction about comparative negligence. After deliberations, the jury

answered the necessary interrogatories and returned verdicts in favor of Dr.

Almudallal and Dr. Cox. Specifically, the jury found that Dr. Almudallal was not

negligent. It also found that Dr. Cox’s negligence, which was conceded at trial,

did not proximately cause injury to Mr. Geesaman. In accordance with these

verdicts, the trial court rendered judgment in favor of the doctors and dismissed

the Geesamans’ complaint.

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       {¶17} The Geesamans now appeal, asserting six assignments of error.

                            Assignment of Error No. 1

       The trial court erred when it excluded appellants’ loss-of-chance
       theory of recovery from trial.

                            Assignment of Error No. 2

       The trial court erred when it refused to charge the jury on the loss-
       of-chance theory of recovery.

                            Assignment of Error No. 3

       The trial court erred when it charged the jury on appellant Jeffrey
       Geesaman’s comparative negligence.

                            Assignment of Error No. 4

       The trial court erred when it admitted evidence of appellant Jeffrey
       Geesaman’s prior drug use.

                            Assignment of Error No. 5

       The trial court erred when it admitted Dr. Lanzieri’s deposition into
       evidence at trial.

                            Assignment of Error No. 6

       The trial court erred when it admitted testimony from Dr. Preston in
       contravention of its own order regarding two MRIs taken of Jeffrey
       Geesaman’s brain.

       {¶18} For ease of discussion, we elect to address the assignments of error

out of order.

                           Second Assignment of Error




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       {¶19} In their second assignment of error, the Geesamans maintain that the

trial court erred when it failed to instruct the jury on the issue of loss of chance.

Initially, we note that this assignment or error involves the causation element of a

medical malpractice action, not issues of duty and a breach thereof—i.e.,

negligence.    The jury found that Dr. Almudallal was not negligent, and

accordingly, never proceeded to the causation inquiry. Therefore, this assignment

of error does not apply to the verdict rendered in favor of Dr. Almudallal, and we

address this issue only as it applies to Dr. Cox.

       {¶20} In general, requested instructions should be given if they are correct

statements of the law applicable to the facts in the case and reasonable minds

might reach the conclusion sought by the instruction. Murphy v. Carrollton Mfg.

Co. (1991), 61 Ohio St.3d 585, 591, 575 N.E. 2d 828. “In reviewing a record to

ascertain the presence of sufficient evidence to support the giving of a[n] * * *

instruction, an appellate court should determine whether the record contains

evidence from which reasonable minds might reach the conclusion sought by the

instruction.” Id., citing Feterle v. Huettner (1971), 28 Ohio St.2d 54, 275 N.E.2d

340, at syllabus. In reviewing the sufficiency of jury instructions given by a trial

court, the proper standard of review for an appellate court is whether the trial

court’s refusal to give a requested jury instruction constituted an abuse of

discretion under the facts and circumstances of the case. State v. Wolons (1989),

44 Ohio St.3d 64, 68, 541 N.E.2d 443. The term “abuse of discretion” implies that

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the court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

       {¶21} Here, the issue is whether the evidence warranted an instruction on

loss of chance. The loss-of-chance theory, more appropriately referred to as “loss

of a less-than-even chance,” was first recognized as a method of recovery in a

medical malpractice action in Ohio in 1996. See Roberts v. Ohio Permanente

Med. Group, Inc. (1996), 76 Ohio St.3d 483, 668 N.E.2d 480. The plaintiff in

Roberts was the executor of the estate of a patient who had died from lung cancer.

Id. at 484. The defendants failed to diagnose and properly treat the patient’s lung

cancer for 17 months. Id. The plaintiff presented evidence that the decedent

would have had a 28 percent chance of survival had proper and timely care been

rendered but that the defendants’ negligence had decreased that chance of survival

to zero. Id. After reviewing the loss-of-chance theory and Ohio’s prior treatment

of this theory, the court held:

       In order to maintain an action for loss of a less-than-even chance of
       recovery or survival, the plaintiff must present expert medical
       testimony showing that the health care provider’s negligent act or
       omission increased the risk of harm to the plaintiff. It then becomes
       a jury question as to whether the defendant’s negligence was a cause
       of the plaintiff’s injury or death. Once that burden is met, the trier of
       fact may then assess the degree to which the plaintiff’s chances of
       recovery or survival have been decreased and calculate the
       appropriate measure of damages. The plaintiff is not required to
       establish the lost chance of recovery or survival in an exact
       percentage in order for the matter to be submitted to the jury.




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Id. at 488, 668 N.E.2d at 484. In so holding, the Ohio Supreme Court expressly

overruled its prior holding in Cooper v. Sisters of Charity of Cincinnati, Inc.

(1971), 27 Ohio St.2d 242, 251-252, 56 O.O.2d 146, 272 N.E.2d 97. Id.

       {¶22} In Cooper, the decedent, a 16-year-old boy, was struck by a truck

while riding a bicycle and hit his head.        Cooper, 27 Ohio St.2d 242.       The

emergency-room physician failed to conduct a proper examination, thus missing

his skull fracture and welling of the tissues in the back of his head. Id. at 243-245.

The doctor sent him home, and the boy died early the next morning from his

injuries. Id.

       {¶23} The executor of the boy’s estate brought suit and presented two

experts. Id. at 245-248. One doctor, who performed the decedent’s autopsy,

stated that it was difficult to ascertain with any degree of certainty whether the

decedent would have survived or died with proper treatment. Id. at 247. The

other doctor testified that proper diagnosis and surgery would have placed the

boy’s chances for survival around 50 percent. Id. The trial court granted the

defendants a directed verdict, finding that the plaintiff had failed to establish

proximate cause between the defendants’ negligence and the boy’s death. Id. at

248-249. In affirming this decision, the Supreme Court of Ohio rejected the loss-

of-chance theory and permitted recovery in a medical malpractice action only

under a traditional proximate-cause standard—i.e., when the plaintiff could prove




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that the negligence of the tortfeasor was more probably than not the proximate

cause of the death and/or injury of the patient. Id. at syllabus.

       {¶24} In Roberts, the court reexamined the loss-of-chance theory and the

views expressed in Cooper. Roberts, 76 Ohio St.3d at 487. The court then held

that it could “no longer condone this view” and overruled Cooper. Id. at 488. In

explaining its decision, the court stated: “Rarely does the law present so clear an

opportunity to correct an unfair situation as does this case before us. The time has

come to discard the traditionally harsh view we previously followed.” Id. The

court also declared that “[a] patient who seeks medical assistance from a

professional caregiver has the right to expect proper care and should be

compensated for any injury caused by the caregiver’s negligence which has

reduced his or her chance of survival.” Id. The court went on to discuss the

advancements seen in the medical field and the importance of early intervention

and held that “a health care provider should not be insulated from liability where

there is expert medical testimony showing that he or she reduced the patient’s

chances of survival.” Id.

       {¶25} During the trial in this case, the Geesamans presented the testimony

of Dr. David Thaler, who concluded that Mr. Geesaman’s second, more

devastating stroke and its attendant injuries more likely than not could have been

avoided but for the errors made in failing to identify the first stroke and treating

him properly.      Dr. Almudallal testified as upon cross-examination that Mr.

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Geesaman’s chances of avoiding that second stroke were 25 to 33 percent if he

had been properly treated after his first stroke. Dr. Kirshner, in testifying for Dr.

Cox, acknowledged that some studies have shown that with proper treatment, such

as the use of aspirin, there is a 13 to 20 percent chance to avoid a second stroke.

Lastly, Dr. Preston, in testifying for Dr. Almudallal, stated that a meta-analysis of

13 different studies involving stroke treatment with aspirin demonstrated a 17

percent relative risk reduction and 1.7 percent absolute risk reduction for having a

second stroke.

       {¶26} On these facts, the evidence before the jury was sufficient that

reasonable minds might reach the conclusion sought by a loss of less-than-even

chance of recovery instruction. This evidence was introduced initially by the

Geesamans through the use of cross-examination of Dr. Almudallal in their case-

in-chief and was further brought about during the presentation of expert witnesses

for the respective defenses. Although Dr. Thaler provided testimony to establish

proximate causation, witnesses for the two defendant doctors and Dr. Almudallal

himself provided the evidence that warranted a loss of less-than-even chance

instruction.

       {¶27} Nevertheless, Dr. Cox maintains that the loss of less-than-even

chance theory should not be forced upon the defense because the Geesamans

proceeded under a proximate cause theory of their case in their complaint. In

support, Dr. Cox relies upon another Ohio Supreme Court case, McMullen v. Ohio

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State Univ. Hosps. (2000), 88 Ohio St.3d 332, 725 N.E.2d 1117. In McMullen, the

plaintiff’s decedent suffered from cancer, had a bone marrow transplant, and later

returned to the hospital with high fevers and a possible viral infection. Id. at 333.

The decedent’s lungs had fluid buildup, and she experienced shortness of breath,

leading to the placement of an endotracheal (“ET”) tube through her mouth and

throat in order to maintain her oxygenation level. Id. Three days later, on October

14, 1990, her oxygen-saturation level dropped to a critical point, and when other

efforts failed to improve this level, the nurses removed her ET tube. Id. It took

the responding doctors several different attempts in excess of 20 minutes before

the ET tube was successfully reestablished. Id. During this time, the decedent’s

oxygen-saturation level fell below that consistent with life, causing the decedent

irreversible damage to her brain, lungs, and heart. Id. She died seven days later.

Id.

       {¶28} During a trial to the court, the plaintiff presented evidence that this

event was the direct cause of all the underlying causes of the decedent’s death.

McMullen, 88 Ohio St.3d at 334. The defendants presented evidence that prior to

the October 14, 1990 incident, the decedent’s chances of survival were less than

50 percent, given her overall condition and that she would have died within 30

days, notwithstanding the events on October 14th. Id. at 335.

       {¶29} The trial court found that the decedent had a chance of surviving

prior to October 14, 1990, but that the negligent medical treatment decreased her

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chance of survival to zero. Id. The court found in favor of the decedent’s estate

but then conducted a trial on the issue of damages and applied the formula for the

calculation of damages based upon a lost chance of survival rather than a total

amount of damages. Id.

         {¶30} The Supreme Court found that the trial court should never have

proceeded to assess damages under a loss-of-chance theory, given the trial court’s

conclusion that the cause of death was the October 14, 1990 anoxic or hypoxic

event, attributed solely to the defendants’ negligence. Id. at 337. Specifically, the

court held that it “never intended to force this theory on a plaintiff who could

otherwise prove that specific negligent acts of the defendant caused the ultimate

harm.”

         {¶31} Further, the court noted that a review of the many cases on loss of

less-than-even chance revealed a particular factual situation involved:

         [T]he plaintiff or the plaintiff’s decedent [was] already suffering
         from some injury, condition, or disease when a medical provider
         negligently diagnoses the condition, fails to render proper aid, or
         provides treatment that actually aggravates the condition. As a
         result, the underlying condition is allowed to progress, or is
         hastened, to the point where its inevitable consequences become
         manifest.

Id. The court then found that the case before it was different in that the ultimate

harm was directly caused by the defendants’ negligence rather than by their

negligence combining with the decedent’s preexisting condition. Id. at 341. Thus,




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the court concluded that the trial court should not have applied the loss of less-

than-even chance theory.

       {¶32} The situation before us is akin to the cases reviewed by the Supreme

Court in McMullen, wherein a medical provider’s negligence combined with Mr.

Geesaman’s preexisting condition to lead to the injury, rather than to the actual

facts of McMullen. The holding in McMullen was designed to prevent a tortfeasor

from escaping full liability when the person the tortfeasor negligently injured

happened to also suffer from some preexisting condition. However, in this case,

no one alleged that Dr. Cox did something to directly cause Mr. Geesaman to have

a stroke, but instead, that he failed to recognize the first stroke, which led to a lack

of proper treatment to prevent the second stroke.

       {¶33} Once again, the entire premise of the loss of less-than-even chance

of recovery/survival is that doctors and other medical personnel should not be

allowed to benefit from the uncertainty of recovery/survival that their negligence

has created. See Roberts, 76 Ohio St.3d at 486-487. Moreover, “ ‘[w]hen those

preexisting conditions have not absolutely preordained an adverse outcome,

however, the chance of avoiding it should be appropriately compensated even if

that chance is not better than even.’ ” Roberts, 76 Ohio St.3d at 487, quoting

King, Causation, Valuation, and Chance in Personal Injury Torts Involving

Preexisting Conditions and Future Consequences (1981), 90 Yale L.J. 1353, 1354.




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       {¶34} For these reasons, the jury should have been instructed on the loss of

less-than-even chance theory of recovery. Although the Geesamans presented

testimony that Mr. Geesaman’s chance to avoid the second stroke and resultant

injuries was more probable than not with proper diagnosis and treatment, other

evidence could have led a reasonable juror to conclude that Mr. Geesaman had a

less-than-even chance to avoid the second stroke and resultant injuries. Therefore,

if the jury did not find proximate cause, the evidence warranted instructing them to

consider loss of chance, not as a fallback position for the Geesamans, as Dr. Cox

asserts, but based upon the evidence before it. Thus, the trial court abused its

discretion in unreasonably refusing to instruct the jury on this issue when the

evidence clearly supported it. For these reasons, the second assignment of error is

sustained.

                            First Assignment of Error

       {¶35} The Geesamans assert in their first assignment of error that the trial

court erred in excluding the loss of less-than-even chance of recovery during their

case-in-chief. Although we fail to find any legal obstacle in Ohio law for the

Geesamans to have pursued both the traditional notion of proximate causation and

the relaxed causation standard of loss of less-than-even chance, especially in light

of the Supreme Court’s decision in Roberts to expressly overrule Cooper, we need

not decide this issue here, given the actual development of the evidence at trial,

which clearly warranted the requested jury instruction on loss of less-than-even

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chance in any event, as discussed in the determination of the second assignment of

error.    Therefore, the first assignment of error is moot and, consequently,

overruled.

                             Third Assignment of Error

         {¶36} In their third assignment of error, the Geesamans contend that the

trial court abused it discretion when it gave the jury an instruction on comparative

negligence. The jury was given eight interrogatories by the trial court at the

conclusion of its instructions. The fourth and fifth interrogatories addressed the

issue of comparative negligence.       However, the jury was to answer these

interrogatories only if it found Dr. Almudallal negligent and that his negligence

had proximately caused injury to Mr. Geesaman or if it found that Dr. Cox’s

admitted negligence had proximately caused injury to Mr. Geesaman. Because the

jury did not find Dr. Almudallal negligent and did not find that Dr. Cox’s

negligence had proximately caused injury to Mr. Geesaman, the issue of whether

Mr. Geesaman was comparatively negligent was never reached. Therefore, this

assignment of error is moot, and consequently, overruled.

                             Fourth Assignment of Error

         {¶37} The Geesamans next maintain that the trial court erred in permitting

evidence of Mr. Geesaman’s prior drug use to be introduced at trial. In reviewing

this assignment of error, we first note that “[t]he admission of evidence is

generally within the sound discretion of the trial court, and a reviewing court may

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reverse only upon the showing of an abuse of that discretion.” Peters v. Ohio

State Lottery Comm. (1992), 63 Ohio St.3d 296, 299, 587 N.E.2d 290.             As

previously noted, the term “abuse of discretion” connotes a judgment that is

rendered with an unreasonable, arbitrary, or unconscionable attitude. Blakemore,

5 Ohio St.3d at 219, 450 N.E.2d 1140.

       {¶38} In the case sub judice, the medical records of Mr. Geesaman

included a reference to prior drug use. One such reference was included in a letter

to Dr. Stephen Sandy, Mr. Geesaman’s primary physician, from Matthew P.

Ziccardi, Psy.D. Dr. Ziccardi conducted a neuropsychological consult on Mr.

Geesaman on June 7, 2005, and wrote a letter to Dr. Sandy regarding his

examination, impression, and recommendations. Included in this letter was the

following statement: “His medical and psychiatric histories are notable for an

extensive history of polysubstance abuse, including alcohol, barbiturates, injected

drugs, and inhalants.”

       {¶39} Prior to trial, the Geesamans filed a motion in limine to exclude any

reference to prior drug use by Mr. Geesaman. The trial court overruled this

motion, stating:

       It’s common knowledge the effect of these particular items. * * *
       You don’t start with, okay, he had a stroke. It has to do with
       everything; if there is any link or how a person conducted their life.
       It didn’t start at that event. And if a person had taken drugs once or
       twice that’s one thing. But if they’ve taken it for a number of times
       over a number of years the court believes that it does have probative
       value and it is not prejudicial and would allow reference to the same.

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After this ruling, counsel for Dr. Cox commented in opening statement that Mr.

Geesaman had a fairly lengthy history of substance abuse. In response, Lori

Geesaman testified that she had known her husband since 1992, that they were

married in 1996, and that she had never known him to have taken any illegal

drugs.

         {¶40} The trial court admitted the letter from Dr. Ziccardi as a part of Dr.

Almudallal’s Exhibit A.3 During closing statements, counsel for Dr. Almudallal

placed several items on a screen in his discussion of damages to show the jurors

regarding Mr. Geesaman’s failure to follow through with medical advice, the

number of risk factors that he had and ignored, and his overall failure to attend to

his own health. In these images, he included the letter from Dr. Ziccardi. He

directed the jurors’ attention to a portion of the letter, which he highlighted,

involving Mr. Geesaman’s denial of any cognitive or emotional changes related to

his stroke.      However, immediately preceding this sentence was the sentence

concerning Mr. Geesaman’s history of polysubstance abuse, which was also

underlined.

         {¶41} Evidence Rule 402 provides, “All relevant evidence is admissible,

except as otherwise provided.” Relevant evidence is defined as “evidence having

any tendency to make the existence of any fact that is of consequence to the

3
  Although the Geesamans did not object to the admission of this exhibit as a whole, they did object to any
references to prior drug usage, preserving this issue for appeal.


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determination of the action more probable or less probable than it would be

without the evidence.” Evid.R. 401. Relevant evidence is not admissible “if its

probative value is substantially outweighed by the danger of unfair prejudice, of

confusion of the issues, or of misleading the jury.” Evid.R. 403.

       {¶42} Here, there was no evidence that any drug use, if shown, was

relevant to the issues before the jury. There was no testimony showing any causal

connection between Mr. Geesaman’s drug use, his stroke, and the resultant

damages. Thus, this topic did not have any tendency to make the existence of any

fact of consequence more or less probable. Moreover, even assuming arguendo

that there was some relevance to past drug use, its probative value was

substantially outweighed by the danger of unfair prejudice, confusion of the

issues, and misleading the juror. In fact, the trial court’s own statement, noted

above, evidences these problems as it appears to have been misled by the evidence

of prior drug use and confused as to the issue. Thus, the trial court should not

have allowed this evidence and abused its discretion in allowing it.

       {¶43} However, while the trial court erred in admitting evidence of prior

drug use, we cannot find that the trial court’s decision, given the limited nature

and reference to this evidence by the parties, affected the outcome of the trial so as

to rise to the level of reversible error. Therefore, this assignment of error is

overruled.

                             Fifth Assignment of Error

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          {¶44} The Geesamans assert in their fifth assignment of error that the trial

court erred when it admitted the deposition of Dr. Charles Lanzieri, a

neuroradiologist, into evidence during the trial. As an initial matter, we note that

the testimony of Dr. Lanzieri involved the standard of care of radiologists and

causation. Given the jury’s finding that Dr. Almudallal was not negligent, this

assignment of error does not apply to the verdict rendered in favor of him. Thus,

we address this issue only as it applies to Dr. Cox.

          {¶45} During the discovery phase of this case, the Geesamans listed Dr.

Lanzieri as one of their experts. As a result, a deposition of Dr. Lanzieri was

conducted on June 23, 2008, and all counsel present questioned Dr. Lanzieri to

varying degrees.4 At trial, the Geesamans elected not to present Dr. Lanzieri as a

witness in their case-in-chief.            However, counsel for Dr. Cox introduced the

deposition of Dr. Lanzieri during the presentation of Dr. Cox’s case.                                The

Geesamans objected to the use of the deposition for a number of reasons. The trial

court overruled these objections, and the deposition in its entirety was then read

into the record.

          {¶46} The use of depositions at trial is governed by Civ.R. 32. This rule

states:

          At the trial * * * any part or all of a deposition, so far as admissible
          under the rules of evidence applied as though the witness were then

4
  At this point in the litigation, St. Rita’s Medical Center was a defendant. Counsel for the hospital was
present at Dr. Lanzieri’s deposition and also questioned him. The hospital was dismissed prior to trial.


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       present and testifying, may be used against any party who was
       present or represented at the taking of the deposition * * * in
       accordance with any one of the following provisions * * *

       The deposition of a witness, whether or not a party, may be used by
       any party for any purpose if the court finds: * * * (e) that the witness
       is an attending physician or medical expert, although residing within
       the county in which the action is heard * * * or (g) upon application
       and notice, that such exceptional circumstances exist as to make it
       desirable, in the interest of justice and with due regard to the
       importance of presenting the testimony of witnesses orally in open
       court, to allow the deposition to be used.

Civ.R 32(A)(3). In cases involving medical malpractice, a person giving expert

testimony on the issue of liability must be licensed to practice medicine by the

licensing authority of any state and devote at least 50 percent of his/her

professional time to active clinical practice in his/her licensed field or to teaching

it at an accredited school. Evid.R. 601(D).

       {¶47} In this case, Dr. Lanzieri qualified as a medical expert in radiology.

Therefore, Civ.R. 32(A)(3) was satisfied. Further, he was a professor of radiology

and neurosurgery at University Hospitals of Cleveland/Case Western Reserve

University School of Medicine at the time of his deposition in June 2008.

Additionally, when he was deposed, he had recently stepped down as chairman of

the department of radiology and resumed being a full-time radiologist. Thus, he

was competent to testify pursuant to Evid.R. 601(D).

       {¶48} However, our analysis does not end there. Rather, Civ.R. 32 permits

the use of depositions only “so far as admissible under the rules of evidence.”



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Civ.R. 32(A). That rule also provides that “[t]he introduction in evidence of the

deposition or any part thereof for any purpose other than that of contradicting or

impeaching the deponent makes the deponent the witness of the party introducing

the deposition.” Civ.R. 32(C).

       {¶49} Evidence Rule 611 governs the mode and order of interrogation and

presentation of evidence. Included in this rule is that “[l]eading questions should

not be used on the direct examination of a witness except as may be necessary to

develop the witness’ testimony.”        Evid.R. 611(C).      However, despite this

limitation, “ ‘[t]he allowing or refusing of leading questions in the examination of

a witness must very largely be subject to the control of the court, in the exercise of

a sound discretion.’ ” Ramage v. Cent. Ohio Emergency Serv., Inc. (1992), 64

Ohio St.3d 97, 111, 592 N.E.2d 828, quoting Seley v. G.D. Searle & Co. (1981),

67 Ohio St.2d 192, 204, 423 N.E.2d 831. In addition, the Rules of Evidence

provide that “[c]ross-examination shall be permitted on all relevant matters and

matters affecting credibility.” Evid.R. 611(B).

       {¶50} A trial court’s ruling on these issues will stand absent an abuse of

discretion. Lambert v. Shearer (1992), 84 Ohio App.3d 266, 275, 616 N.E.2d 965.

As previously stated, an abuse of discretion “connotes more than an error of law or

judgment; it implies that the court’s attitude is unreasonable, arbitrary, or

unconscionable.” Blakemore, 5 Ohio St.3d at 219, 450 N.E.2d 1140.




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       {¶51} In the case sub judice, the Geesamans assert that Dr. Cox made Dr.

Lanzieri his witness when Dr. Cox introduced the deposition at trial. Thus, they

maintain that leading questions by counsel for Dr. Cox should not have been

permitted at the trial. They further contend that by allowing this deposition to be

introduced, the trial court denied them the right to cross-examine Dr. Lanzieri

pursuant to Evid.R. 611(B).

       {¶52} A review of Dr. Cox’s counsel’s examination of Dr. Lanzieri during

the deposition indicates that he asked many leading questions in attempting to

discover the facts upon which Dr. Lanzieri based his opinions. By doing so, he

was clearly cross-examining Dr. Lanzieri, who at the time of the deposition was

not Dr. Cox’s witness. The problem arose when Dr. Cox subsequently decided to

present the deposition of Dr. Lanzieri in effect as his own witness in Dr. Cox’s

case-in-chief.

       {¶53} In this particular deposition, however, Dr. Lanzieri was repeatedly

allowed to elaborate on his answers, oftentimes providing great detail and in-depth

explanations. In addition, many questions were also asked by counsel for the two

other remaining defendants, Dr. Almudallal and St. Rita’s Medical Center, both of

whom also permitted Dr. Lanzieri to expound upon his responses. Accordingly,

on the record before this court, we cannot conclude that the trial court acted in an

unreasonable, arbitrary, or unconscionable manner in permitting the use of the




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deposition at trial or that any prejudice resulted therefrom based upon the use of

leading questions.

       {¶54} As to the contention that the Geesamans had no opportunity to cross-

examine Dr. Lanzieri, this assertion is without merit. During the deposition of Dr.

Lanzieri, counsel for the Geesamans did ask questions of him. Although we note

that counsel for Dr. Almudallal objected to the Geesamans’ questioning their own

witness at the deposition, counsel for the Geesamans stated:              “I disagree,

obviously.   It’s a witness, and anybody can ask questions.”             Counsel then

proceeded to ask questions of Dr. Lanzieri. Thus, the Geesamans did have an

opportunity to question the witness, including through the use of their own leading

questions. Furthermore, Dr. Lanzieri was a listed witness for the Geesamans. As

such, their counsel had ample opportunity to fully discover the opinion(s) of Dr.

Lanzieri prior to the deposition and to fully question him on those at the deposition

if he so chose. Therefore, the fifth assignment of error is overruled.

                             Sixth Assignment of Error

       {¶55} In their sixth assignment of error, the Geesamans assert that the trial

court erred when it permitted Dr. David Preston, the neurologist who testified on

behalf of Dr. Almudallal, to render an opinion concerning two MRIs taken of Mr.

Geesaman during his rehabilitation on April 15, 2005, and April 25, 2005.

       {¶56} During the presentation of Dr. Almudallal’s defense, counsel for the

doctor called Dr. Preston to the stand. Prior to his testimony, the Geesamans’

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Case No. 1-08-65


attorney made an oral motion in limine, requesting that Dr. Preston not be

permitted to testify about the aforementioned MRIs. These two MRIs showed

additional infarcts in Mr. Geesaman’s brain.

       {¶57} Counsel’s concern was that Dr. Preston would use those images to

show that Mr. Geesaman was suffering additional strokes despite proper medical

intervention since the April 5, 2005 stroke, thus bolstering the defense theory that

nothing would have prevented the second stroke.         They maintained that the

problem with this sort of testimony was that during his deposition, taken a number

of months before trial, Dr. Preston did not recall those images and rendered no

opinions based on those images. Therefore, any testimony concerning those MRIs

in support of Dr. Preston’s opinions on causation was a surprise and would be

unfairly prejudicial.

       {¶58} The trial court agreed with the Geesamans and informed counsel for

Dr. Almudallal that he could not elicit any testimony from Dr. Preston that

involved those two MRIs. Counsel for Dr. Almudallal followed this decision and

did not elicit any such testimony. However, during cross-examination by counsel

for Dr. Cox, counsel proposed hypothetical questions to Dr. Preston using those

two MRIs. Specifically, counsel for Dr. Cox asked him to assume that two other

doctors testified that an MRI on April 15th and on April 25th revealed new

infarcts, both occurring several days after Mr. Geesaman was readmitted to the

hospital and started on aspirin and other medications/treatments. He then asked

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Dr. Preston whether this would indicate that the medication was not working to

defeat Mr. Geesaman’s atherosclerotic disease, which was causing his strokes.

Over the repeated objections by the Geesamans, Dr. Preston was permitted to

answer. He answered that the subsequent strokes did indicate that the medicine

was not working at that point.

      {¶59} The Rules of Civil Procedure allow the discovery of opinions of

experts retained by the opposing party. See Civ.R. 26(B)(5). This court has

previously noted that the purpose of this rule is “to prevent surprise when dealing

with expert witnesses.” Vance v. Marion Gen. Hosp., 165 Ohio App.3d 615, 847

N.E.2d 1229, 2006-Ohio-146, at ¶ 12, citing Vaught v. Cleveland Clinic Found.

(Sept. 6, 2001), 8th Dist. No. 79026, 2001 WL 1034705, at *3. Moreover, “[a]

litigant is not only entitled to know an opposing expert’s opinion on a matter, but

the basis for that opinion as well * * * so that opposing counsel may make

adequate trial preparations.” Vaught, 8th Dist. No. 79026, 2001 WL 1034705, at

*3.

      {¶60} Here, the opinion rendered by Dr. Preston that evidence of new

infarcts in the April 15th and April 25th MRIs would indicate that the medication

was not working to defeat Mr. Geesaman’s atherosclerotic disease, which was

causing his strokes, was an opinion not previously disclosed during his deposition.

Because Dr. Preston did not recall those images and offered no opinion regarding

anything seen on those images, counsel for the Geesamans did not have the

                                       -29-
Case No. 1-08-65


opportunity to adequately prepare for this portion of Dr. Preston’s testimony. This

is true regardless of who asked the questions.

       {¶61} Although this would not be regarded as a direct discovery violation

by counsel for Dr. Cox, who did not call Dr. Preston to the stand, it nonetheless

amounts to unfair surprise and defeats the spirit of the discovery rules, particularly

in light of the fact that counsel for Dr. Cox was present at the taking of the

deposition of Dr. Preston and during the argument and ruling on the motion in

limine. For these reasons, the sixth assignment of error is well taken as to Dr.

Cox.

       {¶62} However, the subject-matter of this assignment of error involves the

issue of causation, not standard of care. As previously noted, given the jury’s

finding that Dr. Almudallal was not negligent, this assignment of error does not

affect the verdict in favor of Dr. Almudallal and is overruled as to him.

       {¶63} Based on all of the foregoing, the judgment of the trial court in favor

of Dr. Almudallal is affirmed, the judgment in favor of Dr. Cox and Lima

Radiological Associates is reversed, and the cause is remanded to the trial court

for further proceedings consistent with this opinion.

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

       ROGERS and BROGAN, JJ., concur.




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      (James Austin Brogan, J., of the Second District Court of Appeals, sitting

by assignment.)




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