COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59086 MARCIA GOLDEN : : : JOURNAL ENTRY Plaintiff-Appellee : : : and -vs- : : OPINION MARK R. LEVINE, M.D., ET AL. : : : Defendant-Appellants : : DATE OF ANNOUNCEMENT OCTOBER 3, 1991 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 144221 JUDGMENT: Jury verdict for plaintiff- appellee affirmed; pre- judgment interest award vacated. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANTS: Charles M. Delbaum Anthony P. Dapore Stege, Delbaum & Hickman Craig A. Grimes Co., L.P.A. Jacobson, Maynard, Tuschman Standard Building & Kalur Suite 1620 1301 East Ninth Street 1370 Ontario Street Suite 1400 Cleveland, Ohio 44113-1701 Cleveland, Ohio 44113-1824 - 1 - ANN McMANAMON, J.: Dr. Mark Levine and EENT Associates, Inc. timely appeal a jury verdict for Marcia Golden on her medical malpractice claim. In three assignments of error,/1\ the physician and his medical group contest the denial of their directed verdict motion, the manifest weight of the evidence and the award of prejudgment interest. Upon review of the record, we affirm the decision of the jury but reverse the award of prejudgment interest by the court. On June 24, 1987, Dr. Levine surgically removed fatty tissues under Marcia Golden's eyes in a procedure known as a cosmetic blepharoplasty. The surgery entailed an incision below Golden's lower lid after which the doctor freed the skin from the underlying tissue and removed the fatty areas. Golden testified that, while in the recovery room, she put her glasses on and felt a bump under her left eye. She was discharged that same day but did not look in a mirror until the following day. At that time, she observed both eyes were swollen but the area under her left eye was "very large" and "more protruding" than the right eye. She averred the swelling extended from beneath the lid to below her cheekbone and the area was "black and blue." Golden telephoned Dr. Levine's office about the swelling and the physician told her "chances are it's fine." Two days later, Golden went to the doctor's office where a nurse removed the /1\ See Appendix - 2 - stitches under each eye. According to Golden, she experienced little discomfort from her right eye during the procedure but the nurse used a topical anesthetic under the left eye because of the pain. Golden stated Dr. Levine briefly opened the door to the examining room as the nurse worked and asked, "Is everything After the June 27 office visit, Golden's right eye healed but her left eyelid began to turn inside out. Golden telephoned Levine's office during that week but was told to wait to come in until after the July 4 holiday weekend. She went to the office on Monday morning, at which time a nurse examined her eye and made an appointment for her to see Dr. Levine the next day. At that appointment, the physician told the patient she had a blood clot and an ectropic eyelid. Levine instructed her to push the eyelid upward repeatedly and to apply hot compresses. A week later, Golden returned to Levine's office and received an injection under the left eyelid to dissolve the blood clot. On July 21, the patient returned to the office for another injection and agreed to undergo a second surgery to address the hematoma and ectropic eyelid. During one of these appointments, the physician photographed Golden's face. That exhibit depicts the swelling and discoloration under the left eye. On July 22, Dr. Levine performed the repair surgery and seven days later removed the stitches, a procedure Golden described as painful. According to Golden, Levine told her that the scar tissue was the "worst" he had seen in fourteen years. Golden averred the - 3 - physician also stated "I botched this job and I will fix it." Golden attended post-operative visits with Levine during August and September 1987. She complained of pain and her drooping left eyelid, and Levine encouraged her to be patient. In September 1987, Golden scheduled an appointment with Dr. H. Moon, a plastic surgeon at the Cleveland Clinic. According to Golden, Moon thought she was still experiencing surgical pain and instructed her to allow more time for healing. He indicated the black and blue discoloration under the eye was permanent but that the droopiness could be corrected surgically. Golden returned to Levine in October 1987 and complained of "sharp needlepoint pain" under her left eye and a sensation that her nose was being "pulled, ripped across my skin." She also told Levine her lip always felt swollen, her tongue "tingled" and she experienced a "burning" sensation on her cheek. Dr. Levine prescribed pain medication. Golden again contacted Dr. Moon and described these symptoms. He referred her to a neurosurgeon, Dr. Virgilio Salanga, who ordered a number of tests and eventually prescribed the drug Tegretol. Golden testified the drug "takes the edge off the symptoms" but the pain is always present. Golden told the jury she must avoid the cold and that "animating" her face -- for example, laughing, chewing or sneezing -- results in pain. Howard Golden testified he was with his wife in the recovery room at approximately 11:30 a.m. after the first surgery and that, initially, her eyes looked much the same -- swollen and red. He observed, however, in the course of twenty to twenty- - 4 - five minutes, his wife's left eyelid swelled to one third the size of a golf ball in height, and the diameter of a golf ball in width, and turned black and blue. A nurse summoned Dr. Levine at the husband's request and the physician indicated the swelling was normal. Howard Golden testified the swelling decreased in the two week period before the second surgery but the discoloration across her check remained. Golden averred that, at the time Dr. Levine removed the stitches from the second surgery, he stated, "You'd be amazed how many botch-ups I have fixed of other doctors. I can certainly repair my own botched-up job." According to the husband, two weeks after the second surgery his wife began to describe different pains such as "needlepoint pricking" under the left eyelid, pulling across her check, a "scalded" feeling on the left side of her tongue and a swollen lip. Finally, Golden testified his wife had never complained about facial pain before the initial surgery. Dr. Virgilio Salanga began treating Golden in October 1987. He testified that Golden complained of neuropathic pain in her face including burning, tingling and brief spasms of intense pain. He observed a dark pigmentation below both eyes with a more pronounced area beneath the left eye from blood seeping under the skin in her face. Golden's corneal reflex of the left eye was slow and there was weakness in her orbicularis oculi muscle. Salanga concluded there was something wrong with her left trigeminal nerve and ordered a CAT scan and angiogram. The - 5 - results of these tests were normal and, thus, he ruled out a tumor or an aneuryism as the cause of her symptoms. Salanga opined that Golden's symptoms resulted from scar tissue enmeshing the V-2 division of the trigeminal nerve following the cosmetic surgery. The physician explained that the trigeminal nerve consists of three branches: V-1 which controls sensations to the forehead and tear duct, V-2 which controls the cheek, side of the nose and the upper lip, and the V-3 which governs the chewing muscles, sensations to the tongue and lower lip. The V-2, which exits the skull through a hole just below the eye socket, also is known as the infraorbital nerve. Salanga told the jury that Golden's V-3 pain could be the result of anatomical abnormalities, whereby the V-2 branch controls the sensations to her tongue, and refers pain to other areas of her face. Salanga also explained that blood may seep through the operative field. According to the physician, scar tissue formation could develop in four to eight weeks but that a three month development period is possible. Finally, Salanga testified Golden was taking an anti-epileptic medication, Tegretol, to relieve the intense pain from the spasms, and that she would need the medication indefinitely. On cross-examination, Salanga indicated he had never "seen somebody with trigeminal pain following this kind of surgery." Dr. John Gaisford, a plastic and reconstructive surgeon, explained that hematomas are a recognized complication of a blepharoplasty, and if a hematoma is large and expanding, it is - 6 - appropriate "to do something about it." Gaisford explained that, assuming Howard Golden's description of the swelling under his wife's left eye after the first surgery was accurate, it would have been appropriate to re-operate and drain the hematoma. According to Gaisford, unevacuated hematomas eventually result in scar tissue formation and cause the eyelid to pull away from the eye. He further indicated it would be unusual for a hematoma to form as late as three days after the surgery and that blood from such a clot seeps downward. Gaisford opined that Marcia Golden's ectropic eyelid probably would not have occurred if the hematomas had been evacuated promptly. Gaisford also told the jury that Golden's infraorbital nerve probably was damaged by the late evacuation of the hematoma. He opined that scar tissue formed adjacent to this nerve and could cause abnormal sensations. Gaisford testified that it can take "a number of weeks, several months" for scar tissue to form and cause problems, and that the pain may extend some distance from the area actually injured. Dr. Levine described for the jury the details of blepharo- plastic surgery and stated there were no complications or abnormal bleeding during Golden's surgery. Levine testified he saw Golden in the recovery room and observed no marked swelling. The physician denied he was called back to the recovery room for "golf ball size" swelling under Golden's left eye. The nursing notes indicate that as of 11:00 a.m. there was "scant drainage" and no "marked swelling." - 7 - Levine stated that he noted in Golden's records on June 27 when the stitches were removed that she was "dong well." The physician testified, however, that on July 7, Golden's left eyelid was ectropic and she had a small hematoma in the muscle of the lower left eyelid. He suggested she massage the eyelid and use warm compresses. When Golden was no better on July 14, the second surgery was scheduled. Levine averred that during this surgery, he observed significant amounts of scarring only along the eyelid, but that this scar tissue was a sufficient distance from the infraorbital nerve to preclude entrapment of the nerve by the scar tissue. Levine told the jury Golden did not complain about numbness or tingling during the next two months although he admitted she mentioned pain and a pressure sensation in the inner corner of her eye. In October 1987, Levine prescribed Tylenol for Golden's pain and instructed her to wait for the area to heal. In Levine's opinion, Golden's complaints are unrelated to the surgery. Dr. Janet Blanchard, a plastic and reconstructive surgeon, testified that, if a hematoma develops, a physician may let it resolve on its own or evacuate it immediately. She opined that Golden's nerve complaints were unrelated to the cosmetic surgery and that the first symptom would have been immediate numbness. She further stated that it was highly unlikely that scar tissue caused Golden's problems since the nerve pain did not appear in the first three to four weeks. On cross-examination, Blanchard did admit, however, that if a patient has excessive swelling in - 8 - the recovery room from a hematoma, it should be evacuated immediately. Dr. Peter Jannetta, a neurosurgeon, testified on behalf of Dr. Levine that an injury to the infraorbital nerve would not produce symptoms in the V-1, V-2 and V-3 branches. He opined Golden's complaints were not related to the surgery but that she suffered from trigeminal neuralgia. Jannetta had never seen a case of primary injury to the infraorbital nerve cause symptoms in all three divisions of the trigeminal nerve. On cross- examination, he stated scarring near the infraorbital nerve could cause a neuropathy but not with V-1, V-2, and V-3 symptoms. In their first assignment, Dr. Levine and EENT Associates assert the trial judge erroneously denied their motion for a directed verdict. In ruling on Civ.R. 50 motion for a directed verdict, the trial court must construe the evidence in favor of the party against whom the motion is directed and determine whether reasonable minds could come to but one conclusion. "The 'reasonable minds' test *** calls upon the court only to determine whether there exists any evidence of substantial probative value in support of that party's claim." Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St. 2d 66, 69. The court's role is not to weigh the evidence but to determine its legal sufficiency. Id. at 68. See, also, Helmick v. Republic-Franklin - 9 - Ins. Co (1988), 39 Ohio St. 3d 71, 74-75; Eldridge v. Firestone Fire & Rubber Co. (1985), 24 Ohio App. 3d 94. To establish her claim for medical malpractice, Golden had the burden of proving: "*** 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 result of such doing or failing to do some one or more of such particular things." Bruni v. Tatsumi (1976), 46 Ohio St. 2d 127, paragraph one of the syllabus. See, also, Wright v. Univ. Hosp. of Cleveland (1989), 55 Ohio App. 3d 227, 229-230. Dr. Levine and EENT Associates contend Golden failed to introduce sufficient evidence that the defendants' actions proximately caused her injury. They specifically argue that Drs. Gaisford and Salanga based their opinions on facts outside the record and impermissibly stacked inferences. We disagree. Evid. R. 703 provides: "The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by him or admitted in evidence at the hearing." Further, it is generally impermissible to base one inference solely on another inference. Hurt v. Charles J. Rogers Transportation Co. (1955), 164 Ohio St. 323, paragraph one of the syllabus. The supreme court, however, recently cautioned against rigid application of this rule and stated: - 10 - "*** we take the opportunity to remark that the rule forbidding the stacking of an inference upon an inference is disfavored by scholars and many courts. If such a rule were uniformly enforced, *** hardly a single trial could be adequately prosecuted. 1A Wigmore, Evidence (Tillers Rev. 1983) 1106, 1111, Section 41. See, also, United States v. Eustace (C.A. 2, 1970), 423 F. 2d 569, 571. Today most students of the problem of inference recognize that any single vision about the world or conclusion of fact rests on a multitude of inferences, premises, and beliefs, on a large complex of assumptions, and on a body of implicit or explicit principles by which the human organism perceives, organizes, structures, and understands experience; thus it is generally conceded that it is meaningless to denounce multistage or cascaded inferences. (Emphasis sic). Wigmore, supra, at 1112, fn. 3, Section 41." Motorists Mut. Ins. Co v. Hamilton Twp. (1986), 28 Ohio St. 3d 13, 17. The court concluded that a verdict is not the result of the impermissible stacking of inferences if it is based upon reasonable inferences drawn from facts in evidence and "partly on an inference drawn both from those same facts and from common human experience." Id., syllabus. Dr. Levine and EENT Associates initially argue Dr. Gaisford's opinion is based upon a series of inferences: (1) blood from a hematoma under Golden's left eye seeped down to the infraorbital nerve and (2) formed scar tissue that (3) entrapped the nerve (4) resulting in referred pain to the other branches of the trigeminal nerve. We do not find that this expert's opinion is the result of impermissible stacking of inferences. Rather, his conclusions are based partly on inferences drawn from the facts in evidence and common human experience. Id. Howard Golden testified that, while in the recovery room, his wife's left lower eyelid swelled to one-third the size of a - 11 - golf ball in height and the diameter of a golf ball in width. Thus, there exists direct evidence that a hematoma formed under Golden's left eyelid shortly after surgery. Based upon photographs taken in mid-July by Dr. Levine and common medical knowledge, Gaisford concluded blood from the hematoma seeped downward to the area of the infraorbital nerve. We note defendants' expert, Dr. Blanchard, also acknowledged that prompt evacuation of a hematoma can minimize the downward drift of blood, and that the photograph of Golden demonstrated she could have had some swelling in the area of the infraorbital nerve. Gaisford, as well as the defense experts, testified that blood from a hematoma can cause scarring and that pressure from the scarring can cause neurological symptoms. This testimony was based upon the experts' knowledge of common medical facts. We reject the defendants' argument that, because Dr. Levine testified he observed scarring only along the eyelid, Gaisford's opinion as to scarring around the infraorbital nerve is baseless. The jury was free to disbelieve Dr. Levine, who did not look at the area of infraorbital nerve during the second surgery, and embrace Gaisford's opinion. Finally, Gaisford's conclusion that Golden experienced "referred pain" is likewise based upon his knowledge of this medical phenomenon. Thus, we find Gaisford's opinion was not based upon the impermissible stacking of inferences. His inferences as to the cause of Golden's symptoms were drawn from facts in evidence, including the husband's description of the - 12 - post-surgical hematoma, photographs of Golden in mid-July 1987, and his knowledge of common medical facts. Dr. Levine and EENT Associates also argue Dr. Salanga's testimony was based upon the stacking of inferences and mere speculation. Again, they contend there was no evidence of scarring from a hematoma and, thus, Salanga's conclusions constitute an impermissible series of inferences. As we previously discussed, Golden presented evidence she developed a hematoma under her left eyelid after the surgery and the July 1987 photos depict the black and blue discoloration under the eye which followed. Salanga was aware of this evidence in addition to his examinations of Golden in reaching his conclusions. We also reject the argument that Salanga's characterization of his opinions as "basically theories" renders his conclusions mere speculation. Read in context, Salanga was explaining that he could not prove his opinion through the use of X-rays or other demonstrative evidence. The record demonstrates Salanga testified that, to a reasonable degree of medical certainty, Golden's symptoms probably were related to the Levine surgeries. This assignment of error is overruled. In their second assignment of error Dr. Levine and EENT Associates challenge the manifest weight of the evidence. - 13 - A reviewing court will not reverse a judgment as against the manifest weight of the evidence where there is some competent, credible evidence going to all the essential elements of the case. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77. The elements of a medical malpractice claim are set forth in our discussion of the first assignment. The defendants argue that Golden failed to present competent, credible evidence that Dr. Levine deviated from the recognized standard of care or that his actions were the proximate cause of Golden's injury. Dr. Gaisford testified that, assuming Marcia Golden developed a post-operative hematoma as described by her husband, Dr. Levine should have re-operated and evaluated that hematoma promptly. The defendants assert Gaisford then contradicted himself in the following exchange with defense counsel: "Q. Based on these records that we've seen, isn't it reasonable to conclude that there was no unusual or marked swelling when Dr. Levine saw this patient post- operatively? "A. There wasn't any when he saw her obviously because he would note that." Golden contends Gaisford's answer was delivered with sarcasm. From the transcript, we cannot determine the tone of Gaisford's response to defense counsel. Further, it was well within the jury's province to evaluate his demeanor and resolve any contradictions in his testimony. - 14 - Dr. Levine and EENT next offer the same arguments concerning proximate cause as advanced in their first assignment of error. As previously discussed, we do not find the expert's testimony to be speculative or the result of the impermissible stacking of inferences. The record demonstrates that Gaisford and Salanga testified that, to a reasonable degree of medical certainty, Golden's injuries were proximately caused by scar tissue affecting the infraorbital nerve as a result of the cosmetic surgery. Gaisford, specifically, attributed the injuries to the late evacuation of the hematoma. Thus, we find the record contains competent, credible evidence to support the jury's verdict. This assignment of error is overruled. In their third assignment of error, Dr. Levine and EENT Associates dispute the award of prejudgment interest. R.C. 1343.03(C) provides, in pertinent part: "(C) Interest on a judgment, decree, or order for the payment of money rendered in a civil action based on tortious conduct and not settled by agreement of the parties, shall be computed from the date the cause of action accrued to the date on which the money is paid, if, upon motion of any party to the action, the court determines at a hearing held subsequent to the verdict or decision in the action that the party required to pay the money failed to make a good faith effort to settle the case and that the party to whom the money is to be paid did not fail to make a good faith effort to settle the case." - 15 - A party has not failed to make a "good faith effort to settle" if the party (1) fully cooperated with discovery, (2) rationally evaluated his or her risks and potential liability, (3) not unnecessarily delayed the proceedings, and (4) made a good faith monetary settlement offer or responded in good faith to the opposing party's offer. Kalain v. Smith (1986), 25 Ohio St. 3d 157, paragraph one of the syllabus; Villella v. Waiken Motors, Inc. (1989), 45 Ohio St. 3d 36. If a party has an "objectively, reasonable belief that he has no liability, 'he need not make a monetary settlement offer.'" Villella, supra, at 42 citing Kalain, supra, at 159. A lack of good faith connotes more than poor judgment or negligence, "[r]ather, it imports a dishonest purpose, conscious wrongdoing or ill will in the nature of fraud. Villella, supra. Finally, an award of prejudgment interest rests within the sound discretion of the trial court and, absent an abuse of discretion, we will not disturb the court's ruling. Kalain, supra, at 161. It is undisputed that Golden offered to settle her claim for ninety thousand dollars before trial. Dr. Levine and EENT Associates made no counteroffer. Golden asserts that the defendants' failure to make any settlement offer necessarily precludes a finding of good faith. She explicitly asks this court to ignore the Kalain holding that, if a party has an objectively reasonable belief that he or she has no liability, a settlement offer is not required. Golden argues this holding is not consistent with the language of R.C. 1343.03(C). We are bound by - 16 - decisions of the Ohio Supreme Court and reject Golden's invitation to disregard Kalain. We note that plaintiff advanced this same argument during the prejudgment interest hearing. Dr. Levine and EENT Associates assert they had an objective, reasonable belief vis a vis their position on liability. In their brief opposing the prejudgment interest motion, they attached the affidavit of defense counsel indicating that a review of the medical literature revealed no reported cases of blepharoplastic surgery resulting in injuries similar to Golden's. The defense also obtained the expert opinion of Dr. Jannetta that Golden's injuries were unrelated to the surgery. We note that even Dr. Salanga, a witness for Golden, testified he had never "seen somebody with trigeminal pain following this kind of surgery." Finally, at the prejudgment interest hearing, Golden's counsel told the court "*** plaintiff does not contend that the defendants did not have rational belief that they could prevail at trial. I will admit the defendant had sufficient evidence from his own experts to have a rational belief that they might prevail at trial." In light of the record, we find the defendants had an objective, reasonable belief in their position and, thus, the court abused its discretion in awarding prejudgment interest. This assignment of error is sustained, and the judgment of the trial court is affirmed in part and reversed in part. - 17 - Jury verdict for plaintiff-appellee affirmed; prejudgment interest award vacated. - 18 - It is ordered that the parties share equally the costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. KRUPANSKY, C.J., DISSENTS WITHOUT OPINION AS TO THE FIRST AND SECOND ASSIGNMENTS OF ERROR; CONCURS WITH THE THIRD ASSIGNMENT OF ERROR. FRANCIS E. SWEENEY, J., CONCURS IN PART AND DISSENTS IN PART PER ATTACHED OPINION. JUDGE ANN McMANAMON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. - 19 - APPENDIX Appellants' assignments of error are: "A. The trial court committed prejudicial error when it denied defendants-appellants' motions for directed verdict because appellee failed to prove a prima facie case of medical negligence." "B. The jury verdict should be reversed as it was against the manifest weight of the evidence." "C. The trial court erred when it granted plaintiff-appellee's motion for prejudgment interest." COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59086 MARCIA GOLDEN : : Plaintiff-appellee : : vs. : CONCURRING AND : DISSENTING OPINION MARK R. LEVINE, M.D., et al : : Defendant-appellants : : : DATE OF ANNOUNCEMENT OF DECISION : _____OCTOBER 3, 1991____ FRANCIS E. SWEENEY, J., CONCURRING IN PART; DISSENTING IN PART: I concur with the majority's disposition of appellants' first and second assignments of error. I write separately be- cause I would affirm the trial court's judgment awarding prejudg- ment interest. A reviewing court should not overturn a trial court's deter- mination on the issue of prejudgment interest unless it connotes an abuse of discretion. Kalain v. Smith (1986), 25 Ohio St. 3d 157. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is - 2 - unreasonable, arbitrary or unconscionable." Blakemore v. Blake- more (1983), 5 Ohio St. 3d 217, 219. The trial court held an oral hearing on plaintiff's motion for prejudgment interest. At that hearing, plaintiff-appellee argued that the appellants' belief that this was a "no-pay" case, despite discovery depositions showing plaintiff had a substantial probability of success, demonstrated that appellants failed to rationally evaluate their risks and potential liability. See, Kalain, supra. Based upon a review of the record, the trial court concluded that appellants failed to rationally evaluate their potential liability and failed to make a good faith effort to settle the case. See, R.C. 1343.03(C). Accordingly, I believe the trial court did not abuse its discretion in awarding prejudgment interest. .