Supreme Court of Ohio Clerk of Court - Filed July 29, 2015 - Case No. 2015-1244 IN THE SUPREME COURT OF OHIO JENNIFER BAKER, Individually and as Executrix of the Estate of JANET COLSTON, Deceased, v. Appellant, ANTHONY DERISO, II, M.D. -and- LAKESIDE HEART AND LUNG CENTER, INC. Appellees. On Appeal from the Erie County Court of Appeals, Sixth Appellate District Court of Appeals No. E-14-0137 MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT JENNIFER BAKER WILLIAM J. NOVAK (0014029 SCOTT D. PERLMUTER (0082856 CHELSEA M. SHENTON (0092438 Novak Pavlik Deliberato, L.L.P. Tower City Center Skylight Office Tower 1660 West Second Street, Suite 950 Cleveland, Ohio 44113-1498 Phone: (216 781-8700 Fax: (216 781-9227 WNovak@NPDcleveland.com Scott@NPDcleveland.com CShenton@npdcleveland.com Counsel for Appellant, Jennifer Baker DONALD J. MORACZ, ESQ. (0055369 TAYLOR C. KNIGHT, ESQ. (0089531 Reminger Co., L.P.A. 237 West Washington Row, 2 nd Floor Sandusky, Ohio 44870 Phone: 419-609-1311 Fax: 419-626-4805 dmoracz@reminger.com MARTIN T. GALVIN, ESQ. (0063624 Reminger Co., L.P.A. 101 West Prospect Avenue, Suite 1400 Cleveland, Ohio 44115 Phone: 216-687-1311 Fax: 216-687-1841 mgalvin@reminger.com Counsel of Appellees, Anthony DeRiso, II, M.D. & Lakeside Heart and Lung Center
Table of Contents Page EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST..... 1 STATEMENT OF THE CASE AND FACTS... 2 ARGUMENT IN SUPPORT OF PROPOSITION OF LAW.. 4-8 Proposition of Law No. I: In a medical malpractice case the specialist standard of care jury instruction is proper when the defendant-physician s specialty is at issue in the plaintiff s claim, however, it is not proper and should not be used every time a defendant-physician is a specialist because they are a specialist. CONCLUSION.... 8 CERTIFICATE OF SERVICE 10 APPENDIX Appx. Page Decision and Judgment Entry of the Erie County Court of Appeals (June 16, 2015......... 1
EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST In a medical malpractice case, the most material issue for a jury to properly understand... is the standard of care. Kurzner v. Sanders, 89 Ohio App.3d 674, 680, 627 N.E.2d 564 (1st Dist. 1993. Bruni v. Tatsumi, 46 Ohio St.2d 127, 346 N.E.2d 673 (1976, this Court s seminal medical malpractice case, contains two standards of care - a general standard of care and a specialist standard of care. This case presents a critical issue for the future of medical malpractice plaintiffs in Ohio: whether Bruni s specialist jury instruction is appropriate merely because the defendant-physician is a specialist as opposed to the specialist jury instruction being appropriate only when the defendant-physician s specialty impinges on the standard of care. In this case, the court of appeals ruled the specialist jury instruction was in accordance with the law merely because defendant-physician Dr. DeRiso - a cardiothoracic surgeon - is in fact a specialist. This decision fails entirely to account for the actual treatment at issue. By taking the easy road and pinning the standard of care jury instruction to defendant-physician s specialty, the court of appeals failed to relate the standard of care jury instruction to the actual standard of care issue the case presented, setting a dangerous precedent. This decision would permit instructions on the most critical aspect in medical malpractice cases to mislead the jury. This Court urgently needs to correct this decision. The implications of the decision of the court of appeals are dire for medical malpractice plaintiffs, requiring them, in essence, to select their expert witness based not on their qualifications and competency but rather on artificial specialist designations, in no way tailored to the specific issue(s the case presents. If allowed to stand, the court of appeals decision would impose yet another unnecessary burden for plaintiffs in medical malpractice actions, further narrowing their ever constricting window of opportunity. In short, using the specialist jury instruction based solely on the defendant-physician s specialty 1
is another way of closing the courthouse door to medical malpractice plaintiffs with otherwise meritorious claims, merely because they chose a medical expert who despite being competent and qualified to testify as to the standard of care (and any breach by defendant-physician of the same, does not share the same specialty as the defendant-physician. Judges should hear the medical testimony relative to standard of care before determining the jury instruction that most appropriately reflects that standard, they should not select a jury instruction that misleads the jury on the main issue the jury is there to determine based on an individual s title alone. To assure fairness and avoid placing unfair and unnecessary burdens on medical malpractice plaintiffs, this court must grant jurisdiction to hear this case and review the court of appeals erroneous and dangerous decision. STATEMENT OF THE CASE AND FACTS This case arises from Appellant Jennifer Baker s medical malpractice and wrongful death claims filed after the death of her mother, Janet Colston (hereinafter Ms. Colston. See Plaintiff Jennifer Baker s Complaint. A trial of these claims in the Erie County Court of Common Pleas resulted in a jury verdict for the defendants, Anthony DeRiso, II, M.D. (hereinafter Dr. DeRiso and Lakeside Heart and Lung Center, Inc. (hereinafter collectively Appellees. Thereafter, the trial judge entered a November 25, 2014 Judgment Entry in Appellees favor, Appellant appealed therefrom. In October of 2009 Ms. Colston came under Dr. DeRiso s care following a finding of a potential lung cancer. Following a biopsy to diagnose the lung cancer, Ms. Colston was scheduled to undergo a lobectomy for removal. However, prior to that, Ms. Colston developed a deep vein thrombosis (hereinafter DVT and was placed on Lovenox, an anticoagulant. Since 2
anticoagulants increase bleeding risks and a lobectomy is a major surgery, Ms. Colston s anticoagulation would need to be stopped preoperatively and resumed postoperatively. Ms. Colston s lobectomy went without complication but on December 12, 2009, while ambulating in the hospital, Ms. Colston collapsed and, despite resuscitative measures, expired. Appellant contended Dr. DeRiso was negligent in his care of Ms. Colston and breached the standard of care by not properly managing and treating Ms. Colston s DVT preoperatively: by not completing a full course of anticoagulation therapy or by failing to place an inferior vena cava (IVC filter. Appellees disputed Appellant s contentions. At trial Appellant presented the testimony of Paul E. Collier, M.D. (hereinafter Dr. Collier, a general and vascular surgeon. Dr. Collier testified that the standard of care in the preoperative treatment and prophylaxis of DVTs is the same for vascular and cardiovascular surgeons. Appellees did not dispute that contention, nor did they contest Dr. Collier s competence. Dr. Collier further testified that Dr. DeRiso breached that standard of care. Following the presentation of evidence, the trial court instructed the jury. Over Appellant s objection, the trial court instructed the jury that the applicable standard of care is that of a specialist, cardiothoracic surgeon (found at 1 CV OJI 417.01(3, rather than that of a nonspecialist (found at 1 CV OJI 417.01(2. Thereafter, Appellant appealed from the trial court s judgment entry, challenging the trial court s use of the specialist jury instruction. The court of appeals affirmed, holding that if the parties do not dispute that the defendant-physician is a specialist, then the trial court is correct in giving the specialist standard of care jury instruction. Appellant now appeals from the court of appeals decision. 3
ARGUMENT IN SUPPORT OF PROPOSITION OF LAW Proposition of Law No. 1: In a medical malpractice case the specialist standard of care jury instruction is proper when the defendant-physician s specialty is at issue in the plaintiff s claim, however, it is not proper and should not be used every time a defendant-physician is a specialist because they are a specialist. In Bruni v. Tatsumi, this court outlined two separate standards of care to apply in medical malpractice cases. 46 Ohio St. 127, 346 N.E. 2d 673 (1976. Bruni s first syllabus contains a non-specialist standard of care and its second syllabus contains a specialist standard of care. Id. At 1 CV OJI 417.01 the Ohio Jury Instructions track Bruni s separate standards of care. In pertinent part 1 CV OJI 417.01 reads: 1. INTRODUCTION. This is a medical negligence claim brought by the plaintiff to recover compensation for injuries claimed to have been caused by the defendant s negligence. The plaintiff must prove by the greater weight of the evidence that the defendant was negligent and that the defendant s negligence was a proximate cause of injury to the plaintiff. A (physician (surgeon is negligent if the (physician (surgeon fails to meet the required standard of care. 2. NONSPECIALIST. The existence of a (physician-patient (surgeon-patient relationship places on the (physician (surgeon the duty to act as a (physician (surgeon of reasonable skill, care, and diligence under like or similar conditions or circumstances. This is known as the standard of care. The standard of care is to do those things which a reasonably careful (physician (surgeon would do and to refrain from doing those things which a reasonably careful (physician (surgeon would not do. The required standard of care is the same throughout the United States. If you find by the greater weight of the evidence that the defendant failed to meet this standard of care, then you shall find that he/she was negligent. 3. SPECIALIST. A specialist is a (physician (surgeon who holds himself/herself out as specially trained, skilled, and qualified in a particular branch of (medicine (surgery. The standard of care for a (physician (surgeon in the practice of a specialty is that of a reasonable specialist practicing (medicine (surgery exercising reasonable skill, care, and diligence under like and similar circumstances, regardless of where he/she practices. A specialist in any branch has the same standard of care as all other specialists in that branch. If you find by the greater weight of the evidence that defendant failed to meet this standard of care, then you shall find that he/she was negligent. 4
Two years after Bruni, this Court ruled that there is no same specialist requirement for expert witnesses in medical malpractice cases. Alexander v. Mt. Carmel Medical Center, 56 Ohio St.2d 155, 158, 383 N.E.2d 564 (1978. In Alexander, this Court wrote a witness may qualify as an expert even though he does not practice the same specialty as the defendant.... Id.; see also Trevena v. Primehealth, 171 Ohio App. 3d 501, 505, 2006-Ohio-6535, 871 N.E.2d 1217 (11th Dist. ( In a medical-malpractice case, it is not required that the witness practice in the same specialty as the defendant-physician (quoting Schutte v. Mooney, 165 Ohio App.3d 56, 62, 2006-Ohio-44, 844 N.E.2d 899 (2nd Dist.. The Alexander court explained that the test to determine if an expert witness is qualified is whether that witness will aid the trier of fact in the search for the truth. 56 Ohio St.2d at 159 (citing Faukner v. Pezeshki, 44 Ohio App.2d 186, 193, 337 N.E.2d 158 (4th Dist.1975. Finally Alexander held it is the scope of the witness knowledge and not the artificial classification by title that should govern the threshold question of his qualifications. 56 Ohio St.2d at 160 (emphasis added. All physicians who perform a medical or surgical procedure are subject to the same standard of care.... [and t]hat standard is not dependent upon a practitioner's specialty.... Differences in areas of specialization go to the weight evidence is to be given by a fact finder. Berlinger v. Mt. Sinai Med. Ctr., 68 Ohio App.3d 830, 835, 589 N.E.2d 1378 (8th Dist. 1990 (citing King v. LaKamp, 50 Ohio App.3d 84, 553 N.E.2d 701 (1st Dist. 1988 (emphasis added. Again, courts have emphasized that when different specialties of medicine overlap, more than one type of specialist may perform [a] treatment, [and] a witness may qualify as an expert even though he does not practice the same specialty as the defendant.... [T]he word "treatment" [is emphasized] because that is the focal point of the analysis.... King, 50 Ohio App.3d at 85. 5
The fact that Dr. DeRiso bears the title cardiothoracic surgeon, alone should not justify the specialist standard of care jury instruction. Again, it is important to emphasize, Appellant s criticism of Dr. DeRiso went to his preoperative treatment of Ms. Colston, specifically the management and treatment of her DVT. This type of treatment is in no way limited to cardiothoracic surgeons and decisions made in rendering that care are not impacted by a treating physician being a cardiothoracic surgeon or not; cardiothoracic surgery does not impinge on the standard of care for that treatment. Here, this point was further emphasized by the early involvement of other physicians in the early stages of treating Ms. Colston s DVT. In Schutte v. Mooney, the trial court excluded plaintiff s expert, a vascular surgeon, from testifying against emergency-room physician defendants regarding diagnosis of a DVT. 165 Ohio App.3d 56, 2006-Ohio-44, 844 N.E.2d 899. In overruling the trial court s decision, the appellate court held: Id. at 35. [Plaintiff s expert] presented significant evidence that the standard of care for the diagnosis of DVT does not vary based on whether the patient presents herself to a family practitioner, an emergency-room physician, or a specialist in vascular disease. Accordingly, the trial court erred in concluding that [plaintiff s expert s] lack of recent experience in emergency medicine rendered him unqualified to testify as to the standard of care required of [the emergencyroom physician defendants]. Appellees did not object to Dr. Collier s competency to testify as to the standard of care in this case, as such, this is not a same specialty question in the normal sense, i.e. competency of an expert witness. However, this case still presents a same specialty issue because the legal standards used to determine whether a medical expert is competent, and as such that their testimony admissible, should inform the standard of care the jury applies to the defendantphysician. 6
Here, when the jury was instructed to review, by a cardiothoracic surgeon specialist standard of care, Dr. DeRiso s treatment of Ms. Colston s DVT they were given the undue impression that the standard of care expected of Dr. DeRiso relative Appellant s criticism of him derived from his specialty cardiothoracic surgery. This however was entirely incorrect as Dr. DeRiso s specialty does not dictate the appropriate standard for the treatment at issue. If a specialist jury instruction is given, despite the treatment at issue not relating to defendant s specialty, it is confusing to a jury and results in imposition of a same specialty requirement for plaintiffs hoping to successfully prosecute their medical malpractice case. If the court of appeals decision stands, future plaintiffs in medical malpractice cases whose claims resemble Appellant s (i.e. the defendant-physician s specialty does not dictate the applicable standard of care will be forced to choose a medical expert from within the same-specialty as the defendant-physician, for no reason other than to have an expert with the same title as the defendant-physician. For if plaintiffs choose not to do so they will face the unfair, confusing, and illogical use of a standard of care jury instruction pinned to and chose solely because of a medical specialty not at issue. In cases such as this one, the specialist instruction gives the impression that defendant s specialty is critical to decision making on the treatment at issue and, as such, testimony from an expert witness not within that same specialty is automatically prejudiced for the jury and given disparate treatment for no logical reason. This is prejudicial and illogical given that, in this case for example, a cardiothoracic surgeon specialty is not critical to the preoperative management and treatment of a DVT, as evidenced by Dr. Collier s testimony. Typewritten Videotaped Deposition of Paul E. Collier, M. D., p. 7:18-22. 7
If Appellant criticized Dr. DeRiso s performance of the December 7, 2009 lobectomy, the specialist jury instruction would be applicable (and Appellant would not have a colorable appeal given Dr. DeRiso s specialty clearly informs that procedure. However, this was is not the case. Dr. DeRiso was not managing and treating Ms. Colston s DVT solely as a cardiothoracic surgeon, but rather as a physician; the same as would other treating physicians from different specialties, such as Dr. Collier. The specialist jury instruction imposed a same specialty requirement by instructing the jury that the law is that the standard of care was how reasonable cardiothoracic surgeons manage and treat DVTs, but that is not accurate as DVTs can, and routinely are, managed and treated by non-cardiothoracic surgeon physicians, including vascular surgeons, and the standard of care for the treatment of DVTs is identical for all of those physicians. See Typewritten Videotaped Deposition of Paul E. Collier, M. D., p. 7:18-22. Here, the sole treatment at issue was the management and treatment of Ms. Colston s DVT. While Dr. DeRiso is a specialist, a cardiothoracic surgeon, and was treating Ms. Colston because at some point after her DVT she needed separate treatment from a cardiothoracic surgeon, Appellant s expert testified that Dr. DeRiso s specialty did not dictate the standard of care and as such, the specialist jury instruction was inappropriate and a misrepresentation of the law. The specialist instruction improperly instructed and confused the jury regarding the appropriate standard of care, the most critical issue in a medical malpractice case. CONCLUSION Given the foregoing, this case involves matters of public and great general interest. Appellant respectfully requests that this Court accept jurisdiction in this case so that the important issue presented herein will be reviewed on the merits. 8
Respectfully submitted, William J. Novak, Counsel of Record /s William J. Novak William J. Novak COUNSEL FOR APPELLANT, JENNIFER BAKER 9
Certificate of Service I certify that a copy of this Memorandum in Support of Jurisdiction of Appellant Jennifer Baker was sent by ordinary U.S. mail to counsel for appellees, Donald J. Moracz, Esq. and Taylor C. Knight, Esq. at 237 West Washington Row, 2 nd Floor Sandusky, Ohio 44870 and Martin T. Galvin, Esq. 101 West Prospect Ave., Suite 1400 Cleveland, Ohio 44115 on this 29th day of July, 2015. /s William J. Novak William J. Novak COUNSEL FOR APPELLANT, JENNIFER BAKER 10