RCDVEU E MAR CLERK OF COURT

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1 r%, mr r+mi 10T s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s IN THE SUPREME COURT OF OHIO S-S-s-s-s-s-s-s-s-S-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s Mary Johnson, individually, and as Administrator of the Estate of Eugene Johnson, deceased, and Personal Representative of His Next of Kin, Supreme Court Case No On Appeal from the Lucas County Court of Appeals V. Appellee, Court of Appeals Case No. L Emergency Physicians of Northwest Ohio at Toledo, Inc., Jaron S. Goldberg, M.D., Carlos A. Sotelo, D.O., Genito- Urinary Surgeons, Inc., Gregor K. Emmert, Jr., M.D. and Richard I. Tapper, M.D., MAR ^ 5? O'l rj' CLERK OF COURT Appellants. SUPREME COURT OF OHIO s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s Todd E. Gurney, Esq. ( ) Brian N. Eisen, Esq. ( ) William M. Greene, Esq. ( ) Romney Cullers, Esq. ( ) GREENE & EiSE:\: CO., L.P.A East Ninth Street 1801 Penton Media Building, Cleveland, OH Phone: (216) FAX: (216) beisen@malpracticeohio.com Attorneys for Appellee Mary Johnson, Individually and as Administrator of the Estate of Eugene Johnson, deceased, and Personal Representative of His Next of Kin RCDVEU E MAR Jeffrey M. Stopar ( ) (Counsel of Record) Peter R. Casey, III ( ) William P. Bingle ( ) EASTMAN & SMITH LTD. One SeaGate, 24th Floor P.O. Box Toledo, OH Telephone: (419) Fax: (419) JMStopar@eastmansmith.com PRCasey@eastmansmith.com VvPBingle@eastmansmith.com Attorneys for Appellants Genito-Urinary Surgeons, Inc., Gregor K. Emmert, Jy:,1V1.D., and Richard I. Tapper,lV1.D.

2 John C. Barron, Esq. ( ) Katherine S. Decker, Esq. SHUMAKER, LOOP & KENDRICK, LLP 1000 Jackson Street Toledo, OH Phone: (419) FAX: (419) Attorney for Appellants Emergency Physicians of Northwest Ohio at Toledo, Inc., Jaron S. Goldberg, M.D., and Carlos A. Sotelo, D.O. s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s

3 TABLE OF CONTENTS Pa e s II. STATEMENT OF THE CASE AND FACTS... 2 A. General B ackground B. Adversity Between Urology Defendants and Emergency Medicine Defendants... 4 C. Examination of Defense Experts D. Standard of Care Testimony Against the Urology Defendants E. The Jury's Verdict... 8 F. The Sixth District's Decision... 9 III. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW... 9 PROPOSITION OF LAW NO. 1: Ohio does not recognize a right of further crossexamination in the absence of re-direct cross-examination PROPOSITION OF LAW NO. 2: A trial court does not abuse its discretion concerning its regulation of the mode and order of the examination of a witness when each party has had an opportunity to fully examine a witness PROPOSITION OF LAW NO. 3: A trial court does not abuse its discretion in regulating the method of interrogation of a witness in the absence of any legal authority recognizing the right to further cross-examination... 9 PROPOSITION OF LAW NO. 4: Ohio's two-issue rule applies to medical malpractice claims PROPOSITION OF LAW NO. 5: Ohio's two-issue rule requires upholding a jury verdict when jury interrogatories do not distinguish between negligence and issues of causation and the testimony at issue addresses only causation PROPOSITION OF LAW NO. 6: Under Evid.R. 702(B), a physician is not qualified to give a standard of care opinion regarding a physician of a different specialty when that physician has not demonstrated familiarity with the standard of care of the different specialty IV. CONCLUSION PROOF OF SERVICE i

4 TABLE OF AUTHORITIES Pa e s ) Cases Alexander v. Mt. Carmel Med. Ctr., 56 Ohio St.2d 155, 383 N.E.2d 564 (1978)... 1, 11 Nead v. Brown Cty. Gen. Hosp., 12th Dist. No. CA , 2007-Ohio , ,12 Taulbee v. Dunsky, 12th Dist. No. CA , 2003-Ohio-5988, , 12 Trevena v. Primehealth, 171 Ohio App.3d 501, 2006-Ohio-6535, 871 N.E.2d 1217, 28 (l lth Dist.) ii

5 I. REA IS The propositions of law presented in this case go to the essence of both trial and appellate litigation and therefore raise issues of public and great general interest. One issue raised by the Urology Defendants involves the proper foundation of expert testimony in medical malpractice litigation. The decision of the Sixth District eliminates the requirement that a physician have knowledge of a different specialty in order to give standard of care opinions regarding that specialty. Under the Sixth District's ruling, a critical care doctor does not need to have any knowledge of urology to give a standard of care opinion against a urologist. This holding will prospectively permit a plaintiff to file a new malpractice lawsuit by attaching an affidavit of merit prepared by a physician with no knowledge whatsoever of the specialty at issue, undermining the affidavit of merit requirement of Civ.R. 10(D)(2) and potentially increasing the medical malpractice dockets in Ohio's trial and appellate courts. The seminal case from this Court regarding the requirements for a physician to testify regarding the standard of care of a different specialty is Alexander v. Mt. Carmel Med. Ctr., 56 Ohio St.2d 155, 383 N.E.2d 564 (1978). This Court has not cited Alexander regarding this issue since 1978, the year it was decided, but Alexander has been cited by Ohio's appellate courts at least 29 times in analyzing this issue, including 14 times since Obviously, this issue arises far more often in trial courts in motions in.limine and related objections to expert testimony. As such, Ohio's trial and appellate courts, as well as the practicing bar, would benefit from further guidance and clarification on this often-litigated issue. In addition, the Sixth District's decision, if allowed to stand, would undercut the broad discretion of trial courts to regulate the examination of witnesses. Despite no reported case supporting its decision, the Sixth District concluded that the trial court abused its discretion by

6 not allowing re-cross examination when there was no re-direct examination. If this holding is permitted to stand, parties will use this decision to "sandbag" on cross-examination material and later argue that further cross-examination is needed. Courts may never know when to conclude the examination of witnesses without risking reversal. Public policy and judicial economy require parties to use all cross-examination material at the first opportunity, or risk being barred from further cross-examination. Finally, the decision of the Sixth District undermines the two-issue rule, the wellestablished principle that avoids reversals when a dispositive issue has been tried free of error. Ohio Jury Instruction CV includes a jury interrogatory for medical malpractice cases that suggests combining standard of care and causation into one interrogatory. Plaintiff vigorously argued below that the O.J.I. interrogatory precluded application of the two-issue rule. As this Court is well aware, trial courts follow O.J.I. with great reverence, expecting that there can be no reversal if it is followed. If this issue is not resolved, trial courts will incorrectly continue to refuse to allow separate interrogatories for standard of care and causation. That cannot be what the Editorial Board of Ohio Jury Instructions intended and this Court should clarify Ohio law on this issue by holding that separate interrogatories for standard and causation are proper under Civ.R. 49(B) and that the two-issue rule remains viable in medical malpractice cases. II. STATEMENT OF THE CASE AND FACTS A. General Background. This is a medical malpractice wrongful death action brought by Plaintiff Mary Johnson, Administrator of the Estate of Eugene Johnson, deceased, against Dr. Gregor K. Emmert, Jr., Dr. Richard I. Tapper, and their group, Genito-Urinary Surgeons, Inc. ("GUSI") (the "Urology Defendants") and Dr. Jaron S. Goldberg, Dr. Carlos A. Sotolo, and their group, Emergency Physicians of Northwest Ohio at Toledo, Inc. ("Emergency Medicine Defendants"). After a

7 lengthy trial, the jury found for all Defendants, but the appellate court reversed, reasoning that the trial court erred in prohibiting re-cross examination of an expert witness, although there was no re-direct examination. On February 15, 2007, Dr. Eric Pizza, a member of GUSI, performed a radical retropubic prostatectomy and bilateral pelvic lymphadenectomy on Eugene Johnson, age 69. Mr. Johnson did well during and following the procedure and was discharged in good condition on February 20, One week later, Mr. Johnson was admitted to The Toledo Hospital Emergency Department complaining of swelling in both of his legs. Mr. Johnson denied calf pain, chest pain or shortness of breath, and his vital signs were stable. Dr. Goldberg, an emergency department physician, contacted Dr. Emmert, who was on call for the urology group, informed him of Mr. Johnson's status, and indicated that he felt that an ultrasound would be appropriate. Dr. Emmert agreed and asked to be notified of the result. The ultrasound of the lower extremities was negative and Dr. Sotolo notified Dr. Emmert (or, according to Dr. Sotolo, Dr. Tapper)1 of that fact and of the fact that Mr. Johnson was to be discharged, to which Dr. Emmert (or, arguably, Dr. Tapper) expressed no objection as the patient was, by that point, improving. Mr. Johnson collapsed at home the following morning and was pronounced dead upon his arrival at the hospital. The cause of death was found to be an acute pulmonary embolism. Plaintiff sued the Urology Defendants and the Emergency Medicine Defendants claiming that, at the time of Mr. Johnson's care in the Emergency Department, he must have had pelvic vein thrombosis which ultimately caused his death. Plaintiff claimed that the lower extremity 1 Dr. Tapper was named in this suit because Dr. Sotolo testified that he spoke to Dr. Tapper, rather than Dr. Emmert, in the second call. This was an issue of contention between the Defendants throughout the trial

8 ultrasound study that was performed would not normally discover pelvic vein thrombi and that Mr. Johnson should not have been discharged without a diagnosis of what had caused his lower extremity edema. Plaintiff argued that Dr. Emmert/Dr. Tapper, as urologists, had knowledge superior to that of the Emergency Medicine Defendants and should have known that the prostate procedure Mr. Johnson had previously undergone could cause pelvic vein thrombosis which, in turn, could cause bilateral lower extremity swelling. Drs. Emmert and Tapper vigorously disputed these contentions. B. The Urology Defendants and the Emergency Medicine Defendants disagreed on some significant issues. Plaintiff's primary theory of liability against the Urology Defendants was that they did not communicate properly with the Emergency Medicine Defendants. This was based, in part, on the fact that_ although Dr. Emmert testified that he participated in both of the telephone calls from the Emergency Medicine Defendants, Dr. Sotolo, one of the Emergency Medicine Defendants, testified both at deposition and at trial, that during the second, and most critical call, he spoke with Dr. Tapper. Dr. Tapper testified that he has no recollection of such a call and that it was unlikely that he received the second call. That testimony was enough to keep Dr. Tapper in the case, although his testimony, and that of Dr. Emmert, stressed that he had nothing to do with the care of Mr. Johnson

9 C. Examination of Defense Experts. Before trial, Plaintiff argued that each Defendant should be prohibited from crossexamining each other's experts during the Defendants' case-in-chief. Upon considering the memoranda filed by all parties and the arguments of counsel, the Court overruled Plaintiff's motions and held that the Urology Defendants and the Emergency Medicine Defendants were adverse to each other, and that Defendants were entitled to cross-examine each other's expert witnesses during the Defendants' case-in-chief. As the defense case progressed during a three-week trial, Plaintiff s counsel was made well aware that he would be prohibited from re-cross examining defense witnesses if there was no re-direct examination, as this issue arose and was addressed by the parties and the Court during the testimony of various defense experts. First, during the examination of Dr. Norman Schneiderman, an expert for the Emergency Medicine Defendants, Plaintiff argued that she should be permitted re-cross examination despite the absence of re-direct examination, and the trial court denied the request. Second, during the examination of Dr. Robert Kose, a pulmonary and critical care expert for the Emergency Medicine Defendants, there was no re-direct examination and Plaintiff again requested re-cross examination which was denied. Thereafter, when the Urology Defendants called Dr. David Janiak, an emergency physician, as an expert, there was a re-direct examination, but Plaintiff did not take advantage of the opportunity for recross examination. The Emergency Medicine Defendants next called Dr. Creighton Wright, a cardiovascular and thoracic surgeon. There was no re-direct examination, and Plaintiff did not request re-cross examination. The Urology Defendants then called Dr. Arnold Melman, their expert urologist. There was no re-direct examination and Plaintiff did not request re-cross examination

10 Next, the Urology Defendants called Dr. Anthony Comerota. The direct examination of Dr. Comerota began with a discussion of his credentials and Mr. Johnson's clinical presentation in the emergency department. He then criticized the opinions of Dr. Avery, one of Plaintiff's experts, regarding the cause of the swelling in Mr. Johnson's legs. In great detail, Dr. Comerota then demonstrated that the results from testing on Mr. Johnson's legs in search of any blood clots was normal, which, in Dr. Comerota's opinion, meant that Plaintiff's causation theory, as stated by Dr. Avery, had no merit. The basic conclusion of the direct examination of Dr. Comerota was that if he had been contacted by a physician in the emergency department, he, as a vascular surgeon, would not have suggested any additional tests for Mr. Johnson and would have agreed with the decision to discharge him. Dr. Comerota, however, never gave any standard of care opinion regarding a urologist or an emergency department physician. After that direct examination, Plaintiff conducted a lengthy and broad-based crossexamination of Dr. Comerota, encompassing 72 pages of transcript, which was longer than the direct examination. Plaintiff s counsel chose, however, not to ask any questions regarding a key causation issue: whether anticoagulation therapy (i.e. heparin) or an inferior vena cava filter ("IVC filter") would have made a difference in Mr. Johnson's outcome if the pelvic clot had been diagnosed in the emergency department. Next, counsel for the Emergency Medicine Defendants asked those very questions (as he had during Dr. Comerota's discovery deposition) and obtained testimony indicating that heparin would not have saved Mr. Johnson's life and that Mr. Johnson would not have been a candidate for an IVC filter. There was no re-direct examination by the Urology Defendants. At that point, Plaintiff's counsel objected to the general trial procedure: "He [counsel for the Emergency Medicine Defendants] didn't ask a single question of proper cross- examination. All he did was point out everything that [counsel for the

11 Urology Defendants] pointed out to attempt to undermine my examination. And I have no ability to come back." Plaintiff's counsel, however, did not state, as the basis of his objection, the inability to cross-examine regarding heparin and the IVC filter, or any allegedly "new" matter raised on cross-examination of the Emergency Medicine Defendants. Yet, the court of appeals reversed on this very issue. D. Standard of Care Testimony Against the Urology Defendants. The only witness introduced by Plaintiff to offer standard of care testimony against the Urology Defendants was Dr. Edward Panacek, who practiced emergency medicine, internal medicine and critical care medicine, but not urology. At trial, the Urology Defendants objected to Dr. Panacek's standard of care testimony against them, arguing that no foundation had been laid establishing knowledge and understanding of the urology standard of care. Dr. Panacek never stated that he was even familiar with the standard of care applicable to urologists. Instead, Dr. Panacek merely claimed that he was familiar with the manner in which an unidentified "specialist" should communicate with emergency department physicians. On cross-examination by the Urology Defendants, Dr. Panacek conceded: He is not a urologist; Other than a brief rotation in urology nearly 30 years ago, he has no training in urology; He never performed a radical retro-pubic prostatectomy; He never primarily cared for a patient post radical retro-pubic prostatectomy; He did not know how often a Board-certified urologist would need to address bilateral edema in the lower extremities; and He did not know whether urologists would even know what test to order for pelvic vein thrombosis

12 At the conclusion of Plaintiff's case, the Urology Defendants moved for a directed verdict for lack of competent expert standard of care testimony against the Urology Defendants. The trial court overruled the motion. At the conclusion of all evidence, the Urology Defendants again moved for a directed verdict, arguing that there was no testimony from a urologist, or any physician familiar with the standard of care applicable to urologists, indicating that the Urology Defendants had breached the standard of care. After taking a recess, the trial court denied the motion. E. The Jury's Verdict. The Emergency Department Defendants submitted jury interrogatories separating the jury's findings regarding the standard of care and causation for each of the individually named physicians. At that time, the jury interrogatories were discussed outside the jury's presence and the Emergency Medicine Defendants asserted that interrogatories should be separate for each Defendant for negligence and causation, stating, "If these two [negligence and causation] are compressed it - it doubles the risk that at the appellate level there will be the opportunity to argue for instance errors regarding the admission of causation testimony, when in fact the jury may well have decided this case solely on the issue of negligence." The Urology Defendants joined the request for separate interrogatories. Plaintiff nevertheless argued that the combined interrogatories should be submitted and that course was ultimately adopted by the trial court. Specifically, for each Defendant, there was an interrogatory inquiring whether the individual physician was "negligent and did that negligence directly and proximately cause the death of Eugene Johnson?" The jury ultimately found for each Defendant, answering each compound interrogatory in the negative

13 F. The Sixth District's Decision. The primary issue on appeal was whether "the trial court committed a reversible error when it denied Mrs. Johnson the right to examine defendants' expert witness on opinions that were elicited after her initial cross-examination." On February 1, 2013, the Sixth District reversed the defense verdict, concluding that the trial court's denial of Plaintiff's request to conduct further cross-examination of Dr. Comerota on matters raised during the crossexamination conducted by the Emergency Medicine Defendants constituted an abuse of discretion. On February 6, 2013, the Sixth District Court of Appeals issued a decision correcting errors in its prior opinion, but did not change the outcome. III. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW PROPOSITION OF LAW NO. 1: Ohio does not recognize a right of further cross-examination in the absence of re-direct cross-examination. The Urology Defendants join the argument of the Emergency Department Defendants regarding the Proposition of Law No. 1. PROPOSITION OF LAW NO. 2: A trial court does not abuse its discretion concerning its regulation of the mode and order of the examination of a witness when each party has had an opportunity to fully examine a witness. The Urology Defendants join the argument of the Emergency Department Defendants regarding the Proposition of Law No. 2. PROPOSITION OF LAW NO. 3: A trial court does not abuse its discretion in regulating the method of interrogation of a witness in the absence of any legal authority recognizing the right to further cross-examination. The Urology Defendants join the argument of the Emergency Department Defendants regarding the Proposition of Law No

14 PROPOSITION OF LAW NO. 4: Ohio's two-issue rule applies to medical malpractice claims. The Urology Defendants join the argument of the Emergency Department Defendants regarding the Proposition of Law No. 4. PROPOSITION OF LAW NO. 5: Ohio's two-issue rule requires upholding a jury verdict when jury interrogatories do not distinguish between negligence and issues of causation and the testimony at issue addresses only causation. The Urology Defendants join the argument of the Emergency Department Defendants regarding the Proposition of Law No. 5. PROPOSITION OF LAW NO. 6: Under Evid.R. 702(B), a physician is not qualified to give a standard of care opinion regarding a physician of a different specialty when that physician has not demonstrated familiarity with the standard of care of the different specialty. Plaintiff did not present any testimony from a urologist, or a physician familiar with the standard of care applicable to a urologist, to establish the urology standard of care. As such, the court of appeals and trial court erred in allowing Plaintiff s claim against the Urology Defendants to go to the jury. An expert may testify at trial only if he "is qualified as an expert by specialized knowledge, skill, experience, training or education." Evid.R. 702(B). The standard for admissibility of standard of care opinions by a physician of a different specialty than the defendant has been stated as follows: In a medical-malpractice case, it is not required that the witness practice in the same specialty as the defendant-physician. `Where * * * fields of medicine overlap and more than one type of specialist may perform the treatment, a witness may qualify as an expert even though he does not practice the same specialty as the defendant.' The witness must demonstrate, however, that he is familiar with the standard of care applicable to the defendant's school or specialty and that his familiarity is `sufficient to enable him to give an expert opinion as to the conformity of the defendant's conduct to those particular standards and not to the

15 standards of the witness' school and, or, specialty if it differs from that of the defendant.' `It is the scope of the witness' knowledge and not the artificial classification by title that should govern the threshold question of his qualifications.' (Emphasis added.) Trevena v. Primehealth, 171 Ohio App.3d 501, 2006-Ohio-6535, 871 N.E.2d 1217, 28 (1 ith Dist.), quoting Alexander, 56 Ohio St.2d at 160. An analysis of Alexander and two more recent cases reveals the error in the Sixth District's decision. In Alexander, a podiatrist testified as an expert regarding the application and removal of a cast, a practice which he applied on patients in his own practice. Alexander at 158. The podiatrist testified "that the principles used in applying plaintiffs cast were the same as he had been taught." Id. at 160. Because he was familiar with the applicable standard of care of application and removal of casts, the court allowed the podiatrist to testify as an expert regarding an orthopedic surgeon's application of a cast. Id, at 162. In Taulbee v. Dunsky, 12th Dist. No. CA , 2003-Ohio-5988, 24, even though a board certified cardiothoracic surgeon worked with emergency department and family physicians on a daily basis, he was deemed not an expert on the standard of care of those specialties in diagnosing initial complaints of chest pain because his involvement with patients comes long after the initial diagnosis. In Nead v. Brown Cty. Gen. Hosp., 12th Dist. No. CA , 2007-Ohio , 56, an emergencv department physician who taught residents how to evaluate and explore puncture wounds testified as an expert regarding a surgeon's treatment, several days after the injury, of an infected foot wound. The court ruled that the emergency department physician failed to demonstrate a sufficient knowledge to enable him to give an expert opinion on the surgeon's conduct due to both his "lack of training and practice in the field of surgery" and the fact that he did not have experience following up with patients days after an injury. Id

16 In this case, Dr. Panacek's testimony fails to meet the requirements of Alexander, Taulbee, and Nead. Indeed, there was no testimony from Dr. Panacek, a critical care physician, that he is familiar with the standard of care applicable to urologists. He merely testified that he was familiar with the manner in which a generic specialist should communicate with an emergency department physician. Urology Defendants do not argue, as the appellate court stated, that evidence of the standard of care was lacking because Plaintiff failed to call a urologist to testify. (See Decision and Judgment, at 36.) Instead, the Urology Defendants assert that evidence of the standard of care was lacking because there was no demonstration that Dr. Panacek's knowledge of urology was sufficient to enable him to give an expert opinion on a urologist's standard of care in communication. This is not sufficient to establish that Dr. Panacek was familiar enough with the standards of urology to enable him to express to the trier of fact how a urologist should communicate to an emergency department physician, given a specific clinical situation. Unlike the podiatrist in Alexander, who practiced and was trained in the application and removal of casts, Dr. Panacek does not practice and has not been trained in urology. Furthermore, although Dr. Panacek interacts and communicates with "specialists" every day, he does not have the practice or training in urology necessary to assist the trier of fact in understanding everything that a urologist must communicate to an emergency department physician. Dr. Panacek did not demonstrate that he is familiar with the standard of care applicable to urology and could not provide a standard of care opinion from the perspective of a urologist under the facts of this case. In other words, although the stated criticism was "poor communication," that communication was from the perspective of a urologist after prostate cancer surgery. Dr. Panacek was plainly not qualified to address that standard and was therefore

17 not qualified to testify as to the standard of care for communications between urologists and emergency department physicians. Based on Dr. Panacek's complete lack of knowledge of urology, his testimony should not have been permitted regarding the standard of care relating to the Urology Defendants. Accordingly, the trial court and the appellate court erred in permitting the case against the Urology Defendants to go to the jury. IV. CONCLUSION For the foregoing reasons, this case involves matters of great public and general interest. The Urology Defendants request that this Court accept jurisdiction to clarify Ohio law regarding: (1) the discretion of trial court to regulate re-cross examination, especially where there is no redirect examination; (2) the scope and application of the two-issue rule in medical malpractice cases, given the confusion created by the proposed jury interrogatories in Ohio Jury Instructions; and (3) the required knowledge of a physician when testifying on the standard of care of a different specialty. Respectfully submitted, EASTMAN & SMITH LTD. J Peter R. Casey;`III ( ) William P. Bingle ( ) One SeaGate, 24th Floor, P.O. Box Toledo, OH Attorneys for Appellants Genito-Urinary Surgeons, Inc., Gregor K. Emmert, Jr., M.D., and Richard I. Tapper, M.D

18 PROOF OF SERVICE A copy of the foregoing Memorandum in Support of Jurisdiction of Appellants Genito-Urinary Surgeons, Inc., Gregor K. Emmert, Jr., M.D. and Richard I. Tapper, M.D. has been mailed this ^ day of March, 2013 to: Todd E. Gurney, Esq., Brian N. Eisen, Esq., William M. Greene, Esq., and Romney Cullers, Esq., Greene & Eisen Co., L.P.A., 1300 East Ninth Street, 1801 Penton Media Building, Cleveland, Ohio 44114, attorneys for Plaintiff; and to John C. Barron, Esq., Shumaker, Loop & Kendrick, LLP, 1000 Jackson Street, Toledo, Ohio , attorney for Defendants Emergency Physicians of Northwest Ohio at Toledo, Inc., Jaron S. Goldberg, M.D., and Carlos A. Sotelo, D.O. UrirW Sur oe, nc., Gregor K. t, Jr., M. d Richard I. Tapper, M.D

19 r ^RT OF PPEAI-S 1013EE8-1 Aa. 03 COMmONPLEUIS cr y^1 O^^t^l^ 0 COU^TS C^ K Of IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCASCOUNTY Mary Johnson, etc. Appellant/Cross-Appellee Court of Appeals No. L-11-I290 Trial Court No. C V. Emergency Physicians of Northwest Ohio at Toledo, Inc., et al. Appellees/Cross-Appellants Decided: DECISION AND JUDGMENT FEB Todd E. Gurney, Brian N. Eisen, William M. Greene and Romney Cullers, for appellant/cross-appellee. John C. Barron and Stefanie E. Deller, for appellees Emergency Physicians of Northwest Ohio at Toledo, Inc., Jaron Goldberg, M.D. and Carlos Sotelo, D.O. Peter R. Casey, III and Jeffrey M. Stopar, for appellees/cross-appellants. PIETRYKOWSKI, J. { 1} This appeal arises in a medical malpractice/wrongful death action brought by appellant, Mary Johnson, individually and as administrator of the estate of her 1. E-JOURNAIIZED FEB -! 2013

20 husband, Eugene Johnson, and as personal representative of his next of kin. Mr. Johnson died on February 28, { 2} Appellees are the defendants in the case and include urologists, emergency room physicians, and their employers. The urology appellees are Gregor K. Emmert, Jr., M.D., Richard I. Tapper, M.D., and Genito-Urinary Surgeons, Inc. The emergency room appellees are Jaron S. Goldberg, M.D., Carlos A. Sotelo, D.O. and Emergency Physicians of Northwest Ohio at Toledo, Inc. { 31 The case proceeded to trial before a jury in the Lucas County Court of Common Pleas in January The jury returned a verdict in favor of all defendants, and, pursuant to the verdict, the trial court entered judgment in favor of appellees and against appellant on February 1, Appellant appeals the February 1, 2011 judgment. The urology appellees also have cross-appealed. { 4) A series of medical experts testified at trial. Together they presented a basic framework to understand medical issues and testimony presented at trial. A deep vein thrombosis (DVT) is a blood clot that has formed in a vein located deep in the body. When a clot breaks off and moves through the bloodstream, it is an embolism. A pulmonary embolism is a blood clot that has moved from some other place in the body and into the lungs. The parties do not dispute that the cause of Mr. Johnson's death was an acute pulmonary embolism. { 5) Eugene Johnson suffered from prostate cancer and underwent prostate cancer surgery by Dr. Eric A. Pizza, M.D. in February Dr. Pizza is a urologist and 2.

21 together with Drs. Emmert and Tapper has been employed by appellee Genito-Urinary Surgeons, Inc. { 6} At 12:54 a.m. on February 27, 2007 (twelve days after the prostate surgery), Mr. Johnson went to the emergency room department at Toledo Hospital because both his legs were swollen and tight. Dr. Jaron S. Goldberg, M.D. was the initial emergency room physician who treated Mr. Johnson at the emergency room. That night Dr. Emmert was the physician on call for the urology practice group. (417) After examining Mr. Johnson, Dr. Goldberg ordered a D-dimer blood test to look for blood clots located anywhere in the body. (D-dimer is a substance released by the body in an effort to breakdown blood clots.) After receiving the D-dimer test results, Dr. Goldberg ordered a Venous Duplex Doppler ultrasound of the lower extremities to rule out possible blood clots. Dr. Goldberg requested emergency room staff to contact the physician on call for the urology practice group. { 8} Dr. Emmert and Dr. Goldberg spoke concerning Mr. Johnson's situation and Goldberg's evaluation and plan to secure the Venous Duplex Doppler ultrasound. Dr. Emmert has acknowledged that he agreed with the plan of care and that he requested that Dr. Goldberg advise him of the results of the ultrasound study. { 9} Dr. Goldberg's shift in the emergency room department ended before the Duplex Doppler ultrasound study was conducted. Dr. Sotelo took over for Dr. Goldberg and performed his own evaluation of Mr. Johnson. The study was reported negative for 3.

22 blood clots in the legs. Dr. Sotelo contacted the urology practice group to provide the test results. During the course of the night, the swelling in Mr. Johnson's legs lessened. { 10} Dr. Sotelo reviewed Mr. Johnson's course while in the emergency room department including Duplex Doppler ultrasound test results with either Dr. Emmert or Dr. Tapper of the urology group. Dr. Sotelo also advised the urologist of his plan to discharge Mr. Johnson home with instructions. { 11} At approximately 9:38 a.m. on February 27, 2007, Mr. Johnson was discharged from the hospital to home with instructions. The instructions were that he was to follow up with his urologist, Dr. Pizza, at a scheduled appointment (scheduled for February 28, 2007) and to keep his legs elevated when at rest. 1112) Mr. Johnson collapsed at home on the morning of February 28, 2007, and was pronounced dead upon arrival at the hospital. An autopsy determined that the cause of death was an acute pulmonary embolism. { 13} Appellant asserts two assignments of error in her appeal: Assignments of Error 1. The trial court committed reversible error when it refused to excuse a juror for cause where there was doubt as to the juror's being entirely unbiased; and 2. The trial court committed reversible error when it denied Mrs. Johnson the right to examine defendants' expert witness on opinions that were elicited after her initial cross-examination. 4.

23 { 14} We consider Assignment of Error No. 2 first. Denial of Recross-Examination of Expert Witness 11115) Appellant argued at trial that appellees breached the standard of care owed Mr. Johnson by failing to secure additional testing to directly examine Mr. Johnson's pelvis for blood clots and upon discovery of a blood clot to treat the condition by either instituting heparin anticoagulant drug therapy or by placement of an IVC (inferior vena cava) filter. Appellant has contended that the additional testing would have disclosed the existence of a blood clot in veins of Mr. Johnson's pelvis and that the available treatment, if pursued, would have prevented Mr. Johnson's death. These contentions were highly disputed at trial ) Appellant argues under Assignment of Error No. 2 that the trial court erred by denying appellant an opportunity to cross-examine Dr. Anthony J. Comerota, M.D., at trial, after the witness was questioned by the emergency room appellees. Dr. Comerota testified as an expert witness at trial on behalf of the urology appellees. Dr. Comerota is a vascular surgeon. { 171 The urology and emergency room appellees were co-defendants and the trial court permitted them to cross-examine each other's witnesses at trial. The order of evidence was that Dr. Comerota testified first on direct examination by the urology appellees, followed by appellant on cross-examination, and then by the emergency room appellees, also on cross-examination. 5.

24 { 18} On direct, the emergency room appellees limited their questioning of Dr. Comerota to liability issues concerning the care received by Mr. Johnson at The Toledo Hospital and expert opinion testimony with respect to compliance with the standard of care. The emergency room appellees did not question Dr. Comerota on direct about appellant's theory that if Mr. Johnson had been treated with heparin or with an IVC filter, he would have survived. Appellant limited her questioning to issues raised on direct. (1119) The emergency room appellees explored new matter and secured expert opinion testimony of the witness on issues not raised in prior questioning by either the urology appellees or appellant. In examination by the emergency room appellees, Dr. Comerota testified to his opinions that administration of the drug heparin would not have saved Mr. Johnson's life and that Mr. Johnson was not a candidate for treatment through placement of an IVC filter: Mr. Barron: And if anti-coagulation therapy had been administered for a 24-hour period do you have an opinion to a reasonable degree of medical probability whether or not that heparin therapy over a 24-hour period would have prevented the death? Do you have such an opinion? Dr. Comerota: It probably would not have. Mr. Barron: Okay. Now, there has been some testimony in this case to this jury by other medical witnesses about the potential lifesaving 6.

25 promise or ability or effect of an inferior vena cava filter. And I want to ask you some specific questions about that device. Based upon again a hypothetical situation where this internal iliac venin clot was somehow diagnosed on February 27th, 2007 in Mr. Johnson, would Mr. Johnson have been an appropriate candidate for the placement of inferior vena cava filter? First, do you have an opinion to a reasonable medical probability on that issue? Dr. Comerota: The proper treatment of Mr. Johnson - if the internal iliac vein thrombosis was diagnosed the proper treatment would have been anti-coagulation not an IVC filter. Q. And - An IVC filter has complications in and of itself. It will go on to thrombose the vena cava in varying percentages of patients. And some of them as much as four to five percent over the next six months in some reports. Additionally what has been unquestionably established is that there is a higher risk of deep vein thrombosis in patients who have an IVC filter placed. So I'm in favor of the proper use of IVC filters, but I'm not in favor of the improper use of these filters. 7.

26 Q. And again, just to come back, based upon your knowledge, training, and expertise, if hypothetically this internal iliac clot had been diagnosed on February 27th, would Mr. Johnson have been a proper candidate for the placement of such a filter on that date? A. No ) After the emergency room appellees concluded questioning of Dr. Comerota, the urology appellees advised the court that they had no re-direct. Appellant requested an opportunity to recross-examine the witness, limited to new matters that were not raised on direct. The trial court denied the request on the basis that there had been no re-direct. { 21) Trial courts have broad discretion to admit or exclude evidence and a ruling on evidence will not be reversed on appeal absent a showing of an abuse of discretion that affects the substantial rights of a party or is inconsistent with substantial justice. Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237, 2005-Ohio-4787, 834 N.E.2d 323, 20; O'Brien v. Angley, 63 Ohio St.2d 159, 163, 407 N.E.2d 490 (1980). Although generally the opportunity to recross-examine a witness comes within a trial court's discretion, where new areas are inquired into on redirect, the trial court is to allow the opportunity to recross-examine. State v. Faulkner, 56 Ohio St.2d 42, 46, 381 N.E.2d 934 (1978). { 22) The Ohio Supreme Court defined new matter in Faulkner for purposes of the right to recross-examine a witness to concern whether the issue for which recross- 8.

27 examination is sought had been raised in earlier questioning of the witness at trial. Id. We do not consider the fact of whether the issue had been addressed during a pretrial discovery deposition of the witness, as argued by appellees, to be relevant to the inquiry. { 23) In Bernal v. Lindholm, 133 Ohio App.3d 163, 727 N.E.2d 145 (6th Dist. 1999), we considered objections to trial procedure in a medical malpractice action that permitted co-defendants to question each other's witnesses at trial. There and here, the plaintiffs-appellants argued that the procedure created tactical advantages for the codefendants at trial. Id. at 177. In Bernal, we recognized that such a procedure requires a trial court to permit the plaintiff "a full opportunity for meaningful cross-examination of the witnesses." Id. { 24) The opinion testimony on new matter by Dr. Comerota, elicited through questioning by the emergency room appellees, presented key evidence in defense of claims against all defendants. The trial court's ruling acted to deny appellant any crossexamination of the witness on these opinions as against any defendant. We conclude that the trial court abused its discretion by denying cross-examination of Dr. Comerota on the new matter. We also conclude that the ruling was highly prejudicial in the case, involving key defense testimony on the issues of negligence and proximate cause at trial. Two Issue Rule { 25) Appellees argue that the two issue rule bars consideration of Assignment of Error No. 1. In H.E. Culbertson Co. v. Warden, 123 Ohio St. 297, 303, 175 N.E. 205 (1931), the Ohio Supreme Court defined the rule: 9.

28 This rule as generally applied is that, where there are two causes of action, or two defenses, thereby raising separate and distinct issues, and a general verdict has been returned, and the mental processes of the jury have not been tested by special interrogatories to indicate which of the issues was resolved in favor of the successful party, it will be presumed that all issues were so determined; and that, where a single determinative issue has been tried free from error, error in presenting another issue will be disregarded. { 26} Appellees argue that the two issue rule applies because the defense verdict was supported by the evidence on two independent grounds, negligence and proximate cause. No special interrogatory was employed at trial to disclose on which issue the jury rendered its verdict. Appellees contend that the opinion testimony by Dr. Comerota upon questioning by the emergency room appellees was relevant to the issue of proximate cause alone. They contend that the issue of negligence was tried free of claimed error and that the jury could have reached its verdict based upon resolution of the negligence issue alone. { 27} Appellees cite a decision of the Seventh District Court of Appeals in Parm v. Ramsey, 7th Dist. No. 04 MA 258, 2005-Ohio-4505 in support of their argument. The Parm decision involved an action for personal injuries allegedly sustained in an automobile accident. The case was defended on claims that the defendant was not negligent and that the plaintiff was not injured in the accident. On appeal, the plaintiff 10.

29 asserted trial court errors concerning the negligence alone. Id. at Under the two issue rule, the court of appeals upheld the defense verdict because no special interrogatory at trial demonstrated whether the jury based its verdict on a finding of no negligence or a finding of no injury. Id. at ) We agree with appellant that the Parm decision is distinguishable and that the two issue rule does not apply in this appeal. This case concerns an action for medical malpractice. In our view, the evidence of whether placement of an IVC filter or administration of heparin drug therapy were available effective treatments for Mr. Johnson's blood clot was relevant evidence with respect to both negligence and proximate cause. It was relevant on whether appellees were negligent in failing to pursue further testing for a blood clot in veins of the pelvis. It was also relevant on the issue of whether failure to pursue further testing proximately caused Mr. Johnson's death. 1129) We conclude that this case does not present an independent ground supporting the general verdict that was tried free from the claimed trial court error. Dr. Comerota's testimony concerning heparin and IVC filters related to both negligence and proximate cause. The two issue rule does not apply. Proffer and Evid.R. 103(A)(2) { 30) The emergency room appellees also argue that appellant was required to make a proffer of expected testimony she intended to elicit from Dr. Comerota on recross-examination in order to preserve the issue for appeal. Under Evid.R. 103(A)(2), 11.

30 however, a proffer is not required to preserve a claim that the trial court erred by excluding evidence sought through cross-examination. State v. Scott, 6th Dist. No. S-83-6, 1983 WL 6932, *1 (Aug. 26, 1983); State v. Pierce, 2011-Ohio-4873, 968 N.E.2d 1019, 3(2d Dist.); State v. Jackson, 9th Dist. Nos and 22394, 2005-Ohio-5184, 12. { 311 We find appellant's Assignment of Error No. 1 well-taken. { 32) Under Assignment of Error No. 2, appellant asserts that the trial court erred in overruling appellant's motion to excuse Juror 5 for cause. Juror 5 was subsequently excused from jury service through appellant's exercise of a peremptory challenge to the juror. { 33) In view of decision on the merits on Assignment of Error No. 1, we find Assignment of Error No. 2 is moot. See App.R. 12(A)(1)(c). Cross-Appeal (1134) The urology appellees assert one assignment of error on cross-appeal: Assignment of Error on Cross-Appeal: The trial court erred by overruling the motion for directed verdict of the Urology Defendants because there was no competent, credible evidence indicating that the Urology Defendants breached the standard of care. { 351 The Ohio Supreme Court identified the elements of an action for medical malpractice in Bruni v. Tatsumi, 46 Ohio St.2d 127, 346 N.E.2d 673 (1976), paragraph one of the syllabus: 12.

31 In order to establish medical malpractice, it must be shown by a preponderance of evidence that the injury complained of was caused by the doing of some particular thing or things that a physician or surgeon of ordinary skill, care and diligence would not have done under like or similar conditions or circumstances, or by the failure or omission to do some particular thing or things that such a physician or surgeon would have done under like or similar conditions and circumstances, and that the injury complained of was the direct and proximate result of such doing or failing to do some one or more of such particular things. { 36} The applicable standard of care and proximate cause of injury in medical malpractice actions are ordinarily established through use of expert opinion testimony. Rogoffv. King, 91 Ohio App.3d 438, 445, 632 N.E.2d 977 (8th Dist.1993); Mielke v. Baibak, 6th Dist. No. L , 2009-Ohio-2598,^ 25. In their cross-appeal, the urology appellees contend that competent, credible evidence was lacking at trial to support a claim that they breached the standard of care owed by them to the decedent and that the trial court erred in failing to grant their motion for a directed verdict on that ground. The urology appellees argue evidence of the applicable standard of care was lacking at trial because appellant did not call a urologist to testify. { 37} Ohio courts have recognized that there can be a standard of care with respect to communication between physicians. See Fowerbaugh v. Univ. Hosps.,

32 Ohio App.3d 402, , 692 N.E.2d 1091 (8th Dist.1997). The urology defendants do not dispute the existence of a standard with respect to communication between physicians. They dispute that Dr. Panacek is qualified to testify to establish the standard for urologists. { 38} Dr. Edward Allen Panacek, M.D., testified that in his practice he interacts with specialists every day in circumstances involving emergency room care and critical care. He testified that his education, training and experience made him knowledgeable about the quality of communications between specialists and emergency medicine physicians and the importance of clear and effective communication in both directions in arriving at a reasonable plan to safely evaluate and treat patients. Dr. Panacek is a physician and professor at the University of California Davis. He is board certified in emergency medicine, internal medicine, and critical care medicine. { 39} Over objection, Dr. Panacek testified at trial to the standard of care owed by specialists generally in their communications with emergency room physicians and that Dr. Emmert, in his communications with Dr. Goldberg, and the urologist who subsequently communicated with Dr. Sotelo (either Dr. Emmert or Dr. Tapper) both violated that standard of care to the injury of Mr. Johnson. { 40}- Urology appellees argue that Dr. Panacek is not qualified to testify as to a urological standard of care. They argue that Dr. Panacek did not testify to any familiarity with the standard of care applicable to urologists and admittedly lacked a urologist's understanding of pelvic vein thrombosis. Appellant argues that under the Ohio Supreme 14.