IN THE SUPREME COURT OF OHIO IAN R. SEGEDY, Individually and as Administrator of the Estate of Christina Marie Segedy, Deceased, et al CASE NO. 09-1261 Appellee. vs. DR. ROBERT NETZLEY and CARDIOTHORACIC AND VASCULAR SURGERY OF AKRON, INC. Appellants SU!'R[ME _.^,-_r C")^,^^. ' 01110 On Appeal from the Court of Appeals for Summit County, Ohio Ninth Appellate District Case No. 24219 MEMORANDUM OF APPELLEE IAN R. SEGEDY IN OPPOSITION TO JURISDICTION Stephen P. Griffin (#0039655) COUNSEL OF RECORD Justin S. Greenfelder (#0077924 Buckingham, Doolittle & Burroughs 4518 Fulton Drive N.W. P.O. Box 35548 Canton, OH 44735-5548 Phone : (330) 492-8717 Fax: (330) 492-9625 E-mail: sgriffmca0dblaw.com COUNSEL FOR APPELLANTS NETZLEY AND CARDIOTHORACIC AND VASCULAR SUGERY OF AKRON, INC. Michael E. Edminister (#0037741) OF COUNSEL Hill, Hardman & Oldfield One Cascade Plaza 2000 Akron OH 44308 Phone (330) 253-4000 Fax: (330) 253-3840 E-mail: mike(a)edministerlaw.com COUNSEL FOR APPELLEE IAN R. SEGEDY IR I l.. LrI CLERK OF COURT SUPREME COURT OF OHIO
TABLE OF CONTENTS Page EXPLANATION OF WHY THIS CASE IS NOT ONE OF PUBLIC OR GREAT GENERAL INEREST AND DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION... I STATEMENT OF THE CASE AND FACTS.... 8 ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW... 13 Appellants' Proposition of Law No. I If an expert witness on liability in a medical negligence case opines on direct examination as to an essential element of the plaintiff s case but then concedes on cross-examination that he or she is unable to offer that opinion, the concession negates the expert's prior testimony whether or not the expert formally recants that testimony... 13 Appellants' Proposition of Law No. II Under R.C. 2315.35 and R.C. 2307.23, a defendant who proves that tortious conduct of a plaintiff proximately caused the plaintiffs wrongful death is entitled to have the total amount of compensatory datnages that would otherwise have been recoverable diminished by an amount proportionately equal to the plaintiffs tortious conduct, and there is no requirement that the plaintiffs negligence be concurrent with the defendant's negligence as was required under the common-law rule of contributory negligence that predated the statutory law of comparative negligence.... 14 CONCLUSION..... 15 CERTIFICATE OF SERVICE...... 16 ii
WHY THIS CASE IS NOT ONE OF PUBLIC OR GREAT GENERAL INEREST AND DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION This a medical malpractice case for wrongful death. The plaintiffs medical expert, a surgeon, testified on direct that the defendant's breach of duty caused the decedent's death. He did not hesitate. At the end of his cross-examination on this subject, however, he concluded that he "could not say what percentage of time" the decedent would have survived. Q. What I'm asking is, you cannot say to a reasonable degree of probability that she would have survived if Dr. Netzley had done what you've espoused he should have done. A. I can't tell you what percentage of the time she would have survived if he had done that. The Court of course will look in vain for any requirement that an expert specify "what percentage of time" a person would have survived absent an act of negligence. Probability of survival is one thing, length another. One goes to proximate cause, the other to damages. In a cause of action for wrongfully accelerating the death of a person with end-stage disease -- which Christina Segedy was not -- it is up to the defendant, in order to mitigate damages, to show how long the victim would have survived. Larrissey v. Norwalk Truck Lines, Inc. (1951), 155 Ohio St. 207, paragraph one of the syllabus. When ruling on a motion for directed verdict, a trial court must construe the evidence most strongly in favor of the party against whom the motion is directed. Civ.R. 50(A)(4). When ruling on a motion for judgment notwithstanding the verdict, under Civ.R. 50(B) the court must do the same. Posin v. A. B. C. Motor Court Hotel (1976), 45 Ohio St.2d 271, 276. And the trial court's action in both instances is reviewed under the same standard of review. Schafer v. RMS Realty (2000), 138 Ohio App.3d 244, 257-258. 1
That's what the trial court did in the present case, when it denied the defendants' motion for judgment notwithstanding the verdict. The court favorably construed the plaintiffs evidence. The appellants have told this Court there is some conflict between the Ninth District's holding in this case and the holdings of other districts in other cases. The Ninth District didn't see any, when the appellants asked the Court of Appeals to certify a conflict to this Court. As the Court of Appeals concluded, a difference in facts produced different results. The appellants cited to the Ninth District two cases from the Eighth District Court of Appeals. In the first one, Shapiro v. Burkons (1978), 62 Ohio App.3d 73, proximate cause was at issue. The plaintiffs' experts could not say, either on direct or on cross, that the failure to timely biopsy a mass in the plaintiffs breast was a cause of her decreased life expectancy, when cancer in another section of the breast metastasized. The patient and her doctor had been suspicious of a mass in the patient's breast, near the areola. No biopsy was done. Later, a biopsy was done on a smaller mass in another section of the breast. And this, not the one near the areola, turned out to be cancerous. The plaintiffs' experts testified that the doctor fell below the standard of care in failing to biopsy the first, larger mass near the areola. But they could not say--either on direct or cross--that a biopsy of this section near the areola would have uncovered cancer in the other section of the breast. The defense was granted judgment as a matter of law. In the second case, Condello v. Raiffe, 2004-Ohio-2554, standard of care was the issue. The plaintiff was granted judgment as a matter of law because the defendants' experts admitted that what the defendant had done fell below the standard of care. 2
The appellants seek to set up some conflict here between courts that require a "formal recantation" of a previously-expressed expert opinion and courts who are satisfied with something less. Actually the term "recantation" was imported into this case by the appellants, who cited a concurring opinion using the word in Galletti v. Burns Int'l. (1991), 74 Ohio App.3d 680, 684. Galletti held that a defendant was not entitled to judgment notwithstanding the verdict, though an expert witness, who had testified on direct as to the cause of injury, could not say on cross-examination whether or not the injury would have occurred anyway. The court said the question asked on cross-examination did not conflict with the question that had been asked on direct. It didn't track it. And it invited speculation. The question posed does not ask if the work was a direct and proximate cause of the injury. Instead, the question asks the doctor to surmise whether the injury would have occurred without the work. Intuitively, this seems correct; however, medicine is not an exact science from which the converse, or a corollary proposition, can easily be deduced. As a result, this cross-examination of appellant's medical expert did not probe causation but "merely aroused speculation." Galletti, supra, at 683-684, citing Westerville v. Lennox Industries, Inc, (Apr. 15, 1986), Franklin App. No. 85AP- 377, unreported, 1986 WL 4651. In the present case plaintiffs expert, Dr. Shears, testified on direct that the deviation from the standard of care caused Christina's death. He said so plainly and simply and without qualification. On cross-examination he did say he could not state the probability of survival had Dr. Netzley done what he should have done. He immediately added to this answer, however, that "no one could." 3
Then, when this same probabilities question came to him once more, he elaborated: He could not state "what percentage of time" she would have survived. If there had been some other plausible or even possible cause of death in this case, such as Christina's underlying condition, it would have been up to the defendants to establish that by probabilities. Stinson v. England (1994), 69 Ohio St.3d 451, paragraph one of the syllabus. That was not done here. It is true Christina Segedy was a "lifetime smoker," but it tumed out to be a short life after all. She was not in dire need of the mitral valve surgery. According to plaintiffs expert, she could have survived another two to three years without the surgery. She was not diabetic. Her lungs were "fine," Dr. Shears said. And her cholesterol panel evoked. the envy of this doctor. Of even greater importance is the fact that a heart catheterization done just shortly before the surgery showed her arteries in excellent condition. As Shears testified, the arteries were "clean, totally clean." The defense pointed to the autopsy report, however, which indicated that Christina died of a post-operative heart attack due to severe coronary artery disease. The report said she died of "[a]cute myocardial failure" due to "[c]oronary artery insufficiency" due to "[a]therosclerotic coronary artery disease." This report indicated that Mrs. Segedy's heart failed because of significant blockage of a coronary artery. Dr. Shears, however, disagreed with the coroner's conclusion. He pointed to the results of the recent heart catheterization. She may have had some coronary artery disease, but it was not obstructing the flow of blood. Shears testified that coronary artery disease does not progress rapidly enough to have blocked the vessel and caused her death just a short time after a heart catheterization test revealed normal coronary arteries. 4
Even two of Dr. Netzley's experts openly admitted they could not reconcile the recent heart catheterization results with the coroner's conclusion. In addition, as Dr. Shears explained, the medical examiner's findings were based on assessment of a dead vessel with no blood flowing through it. According to him, the live vessel looked much different, as the recent heart catheterization images revealed. Dr. Shears did agree with the defense experts on one thing: the risk of postoperative pneumonia was elevated for smokers. But he stated that the risk of mortality from the surgery was elevated only for those with end-stage lung disease. Thirty-year-old Christina was not such a person. And she didn't live to get pneumonia. As to the appellants' second argument in support of jurisdiction, one must first grasp it in order to refute it. That's not easy. It seems appellants are saying the comparative negligence statute changed the law of proximate cause -- in a way no one knew until just about now, some 30 years after its enactment.^ Appellants focus on the word "concurring" as indicating some common-law rule, purportedly abolished by statute, that a plaintiffs negligence must be "contemporaneous" with the defendant's. Actually, however, when the common law used the word "concurring" in this context, it simply meant that the plaintiffs negligence and the defendant's negligence must concur, must come together, to produce the injury. That was true before the statute. It is true now. The comparative negligence statute did not abrogate any rule that the negligence of the plaintiff and the defendant must be contemporaneous. There was no such rule. 1 Former R.C. 2315.19, enacted in 1980. 5
Under the common law failure to avoid a known or visible danger could be contributory negligence. Coal Co. v. Estievenard,(1895), 53 Ohio St. 43, paragraph four of the syllabus. That is true also under the comparative negligence statute. Lang v. Holly Hill Motel, Inc. (2009), 122 Ohio St.3d 120, syllabus ("open and obvious doctrine"). In such cases the negligence of the defendant and the negligence of the plaintiff concur to produce the injury. But they are not contemporaneous. The negligence of the defendant precedes that of the plaintiff. If one party has been negligent, and the other party has knowledge thereof, or is chargeable with such knowledge, he must thereafter act with reference to such negligence, and cannot shut his eyes and claim that he relied upon a proper performance of duty by the other party. Coal Co. v. Estievenard,supra, paragraph five of the syllabus. There was also the common-law doctrine of last clear chance. That rule "presupposes antecedent fault or negligence" on the part of the plaintiff. Cleveland Ry. Co. v. Wendt (1929), 120 Ohio St. 197, 204. Every slip-and-fall case -- indeed probably every premises liability case -- involves acts that may concur to cause the injury but which are not contemporaneous. That was true before the statute. It is true after. What the Court of Appeals held in this case is simply that the physician takes the patient as he finds her. This is not a new concept. Appellant would perhaps like an exception carved out for smokers. That would be difficult to do here, given the state of the record. The appellants presented three experts in support of their theory of the defense. Not one of them testified that anything Christina Segedy did was a cause of her death. 6
The experts testified there was a greater risk of post-operative pneumonia for a smoker. But Christina Segedy didn't get pneumonia. She died. She was taken from the operating room before her condition was stabilized. Her cardiac distress was noted within 15 minutes of leaving the operating room. She wasn't returned to the operating room for over three hours after that. It was too late. The Supreme Court does not generally consider arguments that were not raised in the courts below. State v. 1981 Dodge Ram Van (1988), 36 Ohio St.3d 168, 170. And this one wasn't, this notion that the law of proximate cause has been changed. But even if it would make an interesting point of debate, the fact is, there was no evidence of a causal connection between her death and anything Christina did or didn't do -- either before or after she met Dr. Netzley. The issue presented by this case is not one of contemporaneousness. It is one of simple causation. On the issue of proximate cause, the defense was not entitled to judgment n.o.v. On that issue and contributory negligence, the plaintiff was. 7
STATEMENT OF THE CASE AND FACTS Christina Segedy, thirty years old, died following heart surgery, mitral valve replacement surgery. The surgery was performed by Appellant Dr. Netzley. Mitral valve replacement is an open heart procedure performed by cardiothoracic surgeons to treat stenosis (narrowing) or regurgitation (leakage) of the mitral valve. The mitral valve is the "inflow valve" for the left side of the heart. It has two flaps, or leaflets. Blood flows from the lungs, where it picks up oxygen, and into the left atrium. When it opens, the mitral valve allows blood to flow from the left atrium to the heart's main pumping chamber called the left ventricle. It then closes.to keep blood from leaking back into the lungs when the ventricle contracts (squeezes) to push blood out to the body. During the surgery the patient's heart is clamped off, and the bypass machine performs the function of the heart. Christina Segedy was on the machine for quite a long time, one hour and forty minutes.z Within fifteen minutes of leaving the operating room, Christina was showing signs of acute cardiac distress. In fact, according to Dr. Shears, plaintiffs medical expert, she was at that point very close to cardiac arrest. Dr. Netzley, the surgeon, was immediately called to the intensive care unit and he came. He waited more than three hours, however, before returning her to the operating room for surgical intervention with mechanical support for the heart. 2 In a defense discovery deposition, Dr. Shears said that 101 minutes was a "pretty long time." Defense counsel then asked the doctor a question with two heads to it: "But still within the standard? It's not unheard of?" The doctor answered: "Not unheard of" 8
Appellee Ian Segedy, as personal representative for his deceased wife brought a medical claim for wrongful death against Dr. Netzley and his corporation. The case was tried to a jury. The jury returned a verdict for the plaintiff. The jury also found that the decedent had been negligent for having smoked and for failure to follow doctors' orders. The jury assessed 22% of the fault to plaintiffs decedent. Dr. Netzley moved for a new trial or, alternatively, for judgment notwithstanding the verdict. Ian Segedy moved for judgment n.o.v. on the comparative negligence finding. The trial court overruled all the motions and entered judgment on the verdict. Several weeks later the court changed its mind and granted the medical defendants a new trial, for reasons unrelated to the present appeal. Both sides took their appeals to the Ninth District. Ian Segedy, for his part, asked the appellate court to reinstate the jury verdict, but without any deduction for comparative negligence. The medical cross-appellants, on the other hand, insisted they were entitled to more than just a new trial. They were entitled to judgment n.o.v. on proximate cause. The plaintiffs medical expert at trial was Dr. Larry Shears, a board-certified cardiothoracic surgeon. It was his opinion that Christina should never have been taken from the operating room before her condition was stabilized. That, together with the three-hour delay in getting her back into the operating room, was the cause of her death. A: Despite the fact that her chest was [re]opened at 2:35, she didn't go back to the operating room for mechanical support until 5:00 in the afternoon. Q: So it's your opinion she should have been returned to the OR for a ventricular assist device? A: It's still my opinion she should never have left. 9
Q: Do you have an opinion to a reasonable degree of medical certainty that that delay caused any decrease in her likelihood of survival? A: It's my opinion that was the cause of her failure to survive. Q: That was the cause of her death? A: That's correct. Q: That delay? A: That's correct. On cross-examination, counsel for the defense asked Dr. Shears the question and got the answer that is supposed to have negated this testimony on direct. Q. Can you state to a reasonable degree of medical probability that she would have survived. That's what I'm asking. A. No. Q. You can't, can you? You're engaging A. Nobody can say for sure. Q. -- in speculation and conjecture. After this accusation that he was engaging in speculation and conjecture, Dr. Shears started talking again about what Dr: Netzley should have done. Defense counsel stopped him and returned the doctor to the subject at hand, asking the very same question he had asked at the outset. Q. That's not what I'm asking. Sorry A. -- or put her back on the cardiopulmonary bypass machine. Q. What I'm asking is, you cannot say to a reasonable degree of probability that she would have survived if Dr. Netzley had done what you've espoused he should have done. 10
A. I can't tell you what percentage of the time she would have survived if he had done that. "I can't tell you what percentage of the time she would have survived." This was the doctor's last answer to the probability question. This witness just wasn't on the same page with counsel for the defense. The jury also found that the decedent had been negligent for having smoked and for failure to follow doctors' orders. There was no proximate cause established with respect to these things, no expert testimony. As for the smoking, the claim for relief here was not for the cardiac arrest but for Christina's death, for the doctor's negligence when faced with the cardiac arrest. There was no testimony that smoking caused the death. The failure to follow doctor's orders consisted of two things. First, the defendants claimed Christina's should have been more aggressive in seeking treatment for her mitral valve condition, before she came to Dr. Netzley. The second was Christina's leaving the hospital over the weekend before her surgery, to be with her children. But the mitral valve condition didn't cause her death. No one claimed, or no one proved that it did. And the mitral valve condition was what the surgeon was employed to deal with. Plaintiffs expert felt that the excessive clamp time, 101 minutes, was the cause of Christina's cardiac arrest, but that the cause of her death was taking her from the operating room before her condition was stabilized and not getting her back soon enough. The claim in this case was for the death, not for the cardiac arrest, for what was done or not done after the cardiac arrest. 11
As for leaving the hospital, there was no certain testimony that anything would have been done over the weekend, and no testimony that, if done, it would have made any difference in the outcome. Dr. Netzley's own causation expert, Dr. Magorien, listed the medical factors which caused Christina's death. They did not include smoking or failure to follow advice. Dr. Phillip Buescher, an expert who testified on behalf of Dr. Netzley's codefendant, Dr. Ibrahim, stated he did not believe Christine caused or contributed to her own death. Defendant-Appellant Dr. Netzley himself said her not staying in the hospital over the week-end was "important" but "not critical." Why important? "If she'd have stayed she would have had some breathing test. We might have been able io get her in a little bit better shape." Q And is that something that you would have done? Is that something you would have ordered had she stayed? A. That or one of my partners possibly. Possibly? Might? How much "better shape" would she have been in with a breathing test? The doctor doesn't say. Good enough to withstand a cardiac arrest? According to Dr. Shears, there was no real benefit to her staying in the hospital over the weekend. And her lungs were, in his words, "fine." A plaintiff isn't the only one that has to show proximate cause. So must a defendant who is asserting contributory negligence. 12
LAW AND ARGUMENT Aynellants' Proposition of Law No. I If an expert witness on liability in a medical negligence case opines on direct examination as to an essential element of the plaintiffs case but then concedes on cross-examination that he or she is unable to offer that opinion, the concession negates the expert's prior testimony whether or not the expert formally recants that testimony. When a witness testifies on direct as Dr. Shears did, in a case where no other cause of death is plausibly supported by the evidence, cause is established. When a qualified medical expert in the defendant's specialty testifies as here, that the defendant's departure from the accepted standard of care of that medical specialty caused the death of a patient, the establishment of the sole cause of death necessarily imports that the individual would have survived absent the departure from the standard of care. No more is required of plaintiff to establish proximate cause and a prima facie case of medical malpractice. Ulmer v. Ackerman (1993), 87 Ohio App.3d 137, 144. This was not a loss-of-a-chance case. It was a traditional malpractice case. Christina's underlying condition was a defective mitral valve. But this was not emergency surgery. She was not going to die any time soon from the defective valve. When an expert testifies that a defendant "did not merely make it uncertain whether the decedent would have survived, but made it certain [that the decedent] would not survive," any inquiry into probabilities is unnecessary as it is improper. In the present case, the negligence of hospital personnel did not merely combine with a preexisting condition to create the ultimate harm, it directly caused the ultimate harm. Their actions in this case did not merely make it uncertain whether the decedent would have survived, they made it certain that she would not survive. Appellee's personnel not only failed in their duty to protect decedent from harm, they set in motion another, independent force that directly 13
caused her death. This is not a situation where negligence merely hastened or aggravated the effects of a preexisting condition or allowed it to progress untreated. Once the trial court determined that actions by hospital personnel were inconsistent with decedent's life, it became wholly unnecessary to inquire as to whether their negligence also increased the risk of physical harm to decedent. Having determined that negligence caused the death, the trial court should not have proceeded to consider what probably would have happened in the absence of negligence. The former finding should have subsumed the latter. McMullen v. Ohio State Univ. Hosp. (2000), 88 Ohio St.3d 332, 341. In the final analysis, however, that is not the real issue here. Even if an expert who speaks in absolutes on direct must also speculate in "what-ifs" on cross, the real issue in this case is the test for granting judgment n.o.v.. In ruling on such a motion, the courts construe the evidence in favor of the nonmoving party. The trial court did that. The Court of Appeals correctly affirmed the trial court's decision to deny the motion. Appellants' Proposition of Law No. II Under R.C. 2315.35 and R.C. 2307.23, a defendant who proves that tortious conduct of a plaintiff proximately caused the plaintiffs wrongful death is entitled to have the total amount of compensatory damages that would otherwise have been recoverable diminished by an amount proportionately equal to the plaintiffs tortious conduct, and there is no requirement that the plaintiffs negligence be concurrent with the defendant's negligence as was required under the connnon-law rule of contributory negligence that predated the statutory law of comparative negligence. Appellants' characterization of the common law is creative but wrong. Under the conuuon law a patient's negligeince could concur to cause the injury even though it occurred after the physician's negligence, as for instance in failing to keep a second appointment, or in failing to go for follow-up care after surgery. 14
As for the patient's pre-existing physical condition, if the law is to be changed, and a defendant will no longer take the plaintiff as he or she is, then sick people should be wary of seeing doctors. There is hardly a physical condition known to man that is not in some part due to choices made over a lifetime. We could all be healthier. Besides, this really is not the case to change that law. There was no testimony establishing a causal link between Christina Segedy's death and either her smoking or any failure to comply with medical instructions and advice. Plaintiff s expert, Dr. Shears, gave his opinion on standard of care solelv with respect to what Dr. Netzley did after the cardiac arrest. "The clamp time was what ultimately caused her heart to fail. It's not what caused her -- in my opinion, her death. Her death was the inaction in response to the failure that occurred," he said. In the present case, after the cardiac arrest, Christina Segedy did nothing, and could have done nothing, except struggle for life, CONCLUSION The Supreme Court should not take jurisdiction of this appeal. Michael E. Edminister (#0037741) COUNSEL FOR APPELLEE IAN R. SEGEDY Ob'3o 3R1-15
Certificate of Service I certify that a copy of this Memorandum in Opposition to Jurisdiction was sent by ordinary U.S. mail to counsel for appellants, Stephen P. Griffin and Justin S. Greenfelder, 4518 Fulton Drive N.W., P.O. Box 35548, Canton OH 44735-5548, this lo'o,' day of August 2009. ^.tcj.ra ^l^c9l^la'v`i^^`t^l l W Michael E. Edminister (#0037741) t '^^ COUNSEL FOR APPELLEE 16