COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59881 : DORA V. LEWIS : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : PORTAGE SURGICAL ASSOCIATES, ET AL.: : Defendants-Appellants : : DATE OF ANNOUNCEMENT APRIL 23, 1992 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 134603 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: MICHAEL J. MONTELEONE JOHN V. JACKSON, II 1650 Midland Building JACOBSON, MAYNARD, TUSCHMAN Cleveland, Ohio 44115 & KALUR COMPANY, SUITE 1600 1001 Lakeside Avenue Cleveland, Ohio 44114-1192 -2- PATRICIA A. BLACKMON, J.: This appeal arises out of a jury verdict in the Cuyahoga County Court of Common Pleas against Badr K. Ghumrawi, M.D., and Badr K. Ghumrawi, M.D., Inc., Defendants-Appellants ("Appellants") and in favor of Dora Lewis and Executrix of the estate of Melvin H. Lewis, Plaintiffs-Appellees ("Appellees"). The jury awarded a total Six Hundred and Seven Thousand Nine Hundred and Twenty-one Dollars and Eighty-one Cents ($607, 921.81) in damages. The original medical malpractice action included Portage Surgical Associates, Inc. and several others who were voluntarily dismissed by Appellees prior to the jury trial. For the reasons set forth. below, we affirm. In summary, the facts are as follows: In June, 1986, Melvin H. Lewis suffered a fractured rib while pruning a tree in his yard. Mr. Lewis went to his family physician, Dr. Chen, who confirmed the rib fracture with an x- ray. Dr. Chen found Mr. Lewis to be in good health with the exception of the fracture. However, in late August of 1986, Mr. Lewis began to cough up blood. Mr. Lewis returned to Dr. Chen who had another x-ray taken of Mr. Lewis' chest. This x-ray revealed an abnormality which was a mass located on the lower portion of Mr. Lewis' left lung. Dr. Chen reviewed this x-ray with Appellant Dr. Badr K. Ghumrawi a board certified thoracic surgeon and on August 29, -3- 1986, Appellant Dr. Ghumrawi performed a procedure known as a Bronchoscopy. Bronchoscopy is a procedure where a fiber optic tube is inserted into the lungs to visualize them. On September 7, 1986, Appellee Dora Lewis had to take her husband to the emergency room at Robinson Memorial Hospital. Dr. Driehorst was the emergency room physician who examined Mr. Lewis. The emergency room examination revealed that Mr. Lewis had a fever, an elevated white blood count, lung and chest pain, occasional spitting up of blood, weakness, decreased appetite, substantial weight loss, headaches, and an abnormal chest x-ray. Dr. Driehorst phoned Appellant Dr. Ghumrawi and advised him of Mr. Lewis' condition and symptomology. It was decided between the two physicians that Mr. Lewis would not be admitted. Instead, Appellant Dr. Ghumrawi prescribed an antibiotic and requested that Mr. Lewis visit his office on the following day. Mr. and Mrs. Lewis went to Appellant Dr. Ghumrawi's office the next day, September 8, 1986. The record reflects that Melvin Lewis was in pretty bad shape and was virtually unable to get around. Appellant Dr. Ghumrawi examined Mr. Lewis and reviewed the pathology report with both he and Mrs. Lewis. Appellant Dr. Ghumrawi explained to them that no cancer cells were found, only cells categorized as atypical and that Mr. Lewis was not acutely ill. Instead, Dr. Ghumrawi explained that Melvin Lewis had pneumonia. Appellant Dr. Ghumrawi prescribed Tetracycline and -4- scheduled Mr. Lewis for a CT Scan and some pulmonary function tests to be conducted on September 12, 1986. However, due to Melvin Lewis' condition becoming progres- sively worse, Appellee Dora Lewis took her husband to the emergency room of Hillcrest Hospital on September 11, 1986. Melvin Lewis was immediately admitted to Hillcrest Hospital and came under the care of Dr. Tuthill and Dr. Dudzinski. After being admitted, two important tests were performed on Mr. Lewis, a gram stain and a sputum culture. These tests permit the physicians to isolate and identify bacteria that could be the cause of an infection in the body. It was Appellant Dr. Ghumrawi's failure to hospitalize Mr. Lewis on September 7, 1986 and conduct the gram stain and sputum culture tests that were the essence of the allegation of medical malpractice and deviation from acceptable standards of medical care. On the day after admission into Hillcrest, additional tests were conducted. Based upon these tests and medical evaluation, Mr. Lewis was diagnosed as having Pseudomonas Aeruginosa, an extremely infec- tious and rapidly spreading disease that is often fatal. On or about September 15, 1986, Dr. Dudzinski, an infectious disease specialist, became involved in the care of Mr. Lewis. She treated Mr. Lewis with a number of antibiotics without success. On October 15, 1986, Dr. James Engel, a thoracic surgeon, operated on Mr. Lewis to either remove a portion of his left lung or the entire lung. However, upon opening Mr. Lewis' chest, Dr. -5- Engel was unable to remove the lung because of the extensive infection. On October 31, 1986, Mr. Lewis died. The medical cause of his death was that he bled to death when a pulmonary artery hemorrhaged. The hemorrhage was the result of the Pseudomonas Aeruginosa's destruction of Mr. Lewis' lung. Appellees filed a lawsuit against Appellants for their alleged deviation from acceptable standards of medical care which resulted in the death of her husband. At the conclusion of the jury trial, a verdict was returned in favor of Appellees. Appellants' first assignment of error states: THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANTS WHEN IT REFUSED TO REINSTRUCT THE JURY ON THE LAW THEY REQUESTED AND WHEN IT RESPONDED TO THE JURY'S REQUEST WITH AN INSTRUCTION THAT FAILED TO CLARIFY THE JURY'S ADMITTED CONFUSION. This assigned error raises the issue of whether the trial court's answer to the jury's question regarding the sequence of negligence is a proper answer as a matter of law. The trial court during the initial instructions to the jury gave a thorough instruction on superseding/intervening cause. However, during their deliberations, the jury sent the following written question to the trial court: YOUR HONOR: We would like a copy of the law that states the sequence of negligence. The laws that you read to us before charging us. Thank you. /s/ Leon R. Torgerson -6- We are confused about the secondary party and their responsibility regarding care of Mr. Lewis, i.e. Hillcrest Hospital. After discussing the question with counsel for the parties, the trial court instructed the jury as follows: JURY: A Party seeking recovery must not only prove the other party negligent, but must also prove that such negligence was a proximate cause of injury. Proximate cause is defined as an act or omission which directly causes or fails to prevent an injury. It is not necessarily the immediate cause in point of time but nearest in causal connection. It may be defined as that which in a natural and continual sequence of events produced the result and without which it would not have happened. Appellants argue that this response by the trial court unduly prejudiced their case. The rationale for this claim is that the trial court's instruction lacked any guidance to the jury which would have enabled them to evaluate the negligent acts and omissions that occurred at Hillcrest Hospital when balanced against Appellant Dr. Ghumrawi's liability. Appellants believe that the consequence of this alleged error by the trial court made it virtually impossible for the jury to find that the negligence of the physicians at Hillcrest Hospital broke any causal connection between Dr. Ghumrawi's alleged negligence and Mr. Lewis' death. This court has set forth the guidelines to be used in instructing a jury. Yousseff v. Pair, Inc. (August 23, 1990), -7- Cuyahoga App. No. 56821, unreported. This court stated at p. 13, citing State v. Scott (1987), 41 Ohio App. 3d 313, the following: The trial court need not give a proposed instruction in the precise language requested by its proponent, even if it properly states an applicable rule of law. The court retains discretion to use its own language to communicate the same legal principles. Further, where a special instruction given by the court correctly states the law pertinent to one or more issues of the case, the giving of it does not constitute error, even though it is not a full and comprehensive statement of the law. Id. at 14. Additionally, the existence of a proposed jury instruction which correctly states the issues or law in question does not mandate that the court use the proposed jury instruction verbatim. The court need only include the substance of the proposed instruction. Id. Thus, this court will not reverse unless an instruction is so prejudicial that it may induce an erroneous verdict. Id. In the instant case, the application of these rules regarding proposed or special jury instructions necessitates the conclusion that the trial court did not abuse its discretion in the manner that the jury was reinstructed. The trial court's paraphrased response to the jury question did not vitiate the initial instruction on superseding/inter- vening cause. Appellants assert throughout their argument that the jury somehow strongly contemplated the possibility of negligence on the part of Drs. Tuthill and Dudzinski. Appellants suggest that the jury's answer to Interrogatory No. 2 strongly -8- supports the conclusion that the jury found Mr. Lewis' death to be the result of the inadequate medical care he received at Hillcrest Hospital. Specifically, Jury Interrogatory No. 2 stated: [s]tate in what way you find Dr. Badr Ghumrawi deviated from accepted standards of care of a thoracic surgeon. ANSWER: Based on the evidence presented we feel that Dr. Ghumrawi deviated from accepted standards of care by: (1) Failure to perform a gram stain test. (2) Failure to perform a sputum culture. We further feel that as a result of Dr. Ghumrawi's negligence, Mr. Lewis did not receive adequate subsequent treatment, i.e. hospitalization; proper antibiotic therapy. (Emphasis added.) This court does not find Appellants' argument persuasive. The answer of the jury, in response to Jury Interrogatory No. 2, makes it clear that the jury understood causation as it relates to negligence. The first conclusion reached by the jury was that Appellant Dr. Ghumrawi deviated from accepted standards of care as a thoracic surgeon in two different ways. The first was his failure to perform a gram stain test; the second was his failure to obtain a sputum culture. Additionally, the jury expressly stated that the inadequate subsequent treatment (i.e. hospitalization; proper antibiotic therapy) was the direct result of Dr. Ghumrawi's negligence and not Drs. Tuthill and Dudzinski. Having reviewed the record of this case, it cannot be reasonably assumed that the conclusion reached by the jury was based on some error in the subsequent instruction by the trial court on the sequence of negligence. -9- The record does not contain testimony from any of the indepen- dent expert witnesses presented by Appellants that Drs. Tuthill or Dudzinski were in any way negligent. Dr. Dudzinski's statement that the surgical consultation was obtained too late was not tantamount to an admission of negligence. Dr. David Shlaes, Appellants' expert, testified that the physicians at Hillcrest did not deviate from acceptable standards of medical care nor were they negligent. Dr. James Ellis, Appellants' other expert, never expressed an opinion that the physicians at Hillcrest deviated from acceptable standards of medical care or were negligent. There was no abuse of discretion on the part of the trial court in the manner in which he responded to the jury's question. Furthermore, there can be no presumption of prejudice to Appellant because of the clear manner in which the jury responded to Interrogatory No. 2 and the overwhelming lack of evidence in the record that Drs. Tuthill and Dudzinski deviated from acceptable standards of medical care or were negligent. Therefore, assignment of error one is overruled. Appellants' assignment of error two states: THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANTS' MOTION TO CONFIRM THE VERDICT AND MODIFY THE JURY'S AWARD PURSUANT TO R.C. 2307.43. Because of the precedent established in Morris v. Savoy (1991), 61 Ohio St. 3d 684 and the stipulation between the parties to waive argument on this issue, we hold that R.C. -10- 2307.43 is unconstitutional and therefore overrule Appellants' second assignment of error. Appellants' third and final assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT AWARDED PLAINTIFF PREJUDGMENT INTEREST. R.C. 1343.03(C) States: (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. The case of Kalain v. Smith (1986), 25 Ohio St. 3d 157 construes R.C. 1343.03(C) and holds: A party has not failed to make a good faith effort to settle" under R.C. 1343.03(C) if he has (1) fully cooperated in discovery proceedings, (2) rationally evaluated his risks and potential liability, (3) not attempted to unnecessarily delay any of the proceedings, and (4) made a good faith monetary settlement offer or responded in good faith to an offer from the other party. If a party has a good faith, objectively reasonable belief that he has no liability, he need not make a monetary settlement offer. Applying these legal guidelines to the instant case, there was no abuse of discretion by the trial court in the awarding of prejudgment interest. In support of Appellants' proposition that no prejudgment interest should have been awarded, they argued that since they presented expert testimony that Drs. Tuthill and Dudzinski could -11- have and should have prevented Mr. Lewis' death by rendering proper medical treatment, a jury could have easily returned a defense verdict for Appellant Dr. Ghumrawi. This court has thoroughly reviewed the entire record in this case. The assertion that Appellants "present expert testimony" of Drs. Tuthill and Dudzinski's negligence is simply unsubstantiated by the record. Appellants presented two experts in their defense. Dr. David Shlaes testified that he was not saying that any of the doctors (i.e. Dr. Tuthill and Dr. Dudzinski) at Hillcrest Hospital were negligent in their treatment of Mr. Lewis or did either of these doctors deviate from acceptable standards of medical care. The only other expert that testified for Appellants never mentioned that Dr. Tuthill or Dr. Dudzinski's treatment of Mr. Lewis was negligent, or a deviation from the acceptable standard of care. Furthermore, as mentioned previously, this court is not persuaded by the proposition that Dr. Dudzinski's testimony that earlier surgical intervention is tantamount to an admission of negligence. Because this expert testimony referred to by Appellants is not in the record, we cannot conclude that the trial court abused its discretion in the awarding of pre-judgment interest. If the evidence is not there to create a good faith, objective and reasonable belief that there is no liability, a reasonable offer of settlement is required. This is true especially since Dr. Shlaes and Dr. Ellis offered no expert opinion that Dr. Tuthill or Dr. Dudzinski deviated from acceptable standards of medical care. Assignment of error three is overruled. -12- Judgment affirmed. It is ordered that Appellee recover of Appellant her 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. Exceptions. ANN MCMANAMON, P.J., CONCUR. KRUPANSKY, J., DISSENTS, (SEE ATTACHED DISSENTING OPINION) PATRICIA A. BLACKMON JUDGE 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59881 : DORA V. LEWIS : : : D I S S E N T I N G Plaintiff-Appellee : : O P I N I O N vs. : : PORTAGE SURGICAL ASSOCIATES, : ET AL. : : : Defendant-Appellants : : DATE: APRIL 23, 1992 KRUPANSKY, J., DISSENTING: I respectfully dissent. I would reverse the judgment of the trial court and remand for a new trial. The Ohio Supreme Court has recognized in this context that a properly instructed jury is a fundamental component of a fair trial. Reversal of a judgment is warranted as in the case sub judice when based upon a jury verdict rendered after a trial court fails to provide proper instructions to eliminate jury confusion in response to a jury question. Gallagher v. Cooper (1984), 14 Ohio St. 3d 41. The majority's reliance on Youssef v. Parr, Inc. (Aug. 23, 1990), Cuyahoga App. No. 56821, unreported, is misplaced since the case does not involve a trial court's response to a jury question. - 15 - In Gallagher, supra, the Ohio Supreme Court reversed a judgment on a jury verdict when the trial court failed to clarify the jury's confusion concerning evidence relating to the defendant's liability, stating as follows: [T]he trial court chose to ignore appellant's suggestion in favor of its own answer. A close examination of the court's answer reveals that it is subject to more than one interpretation, namely, the jury could have interpreted the answer to mean [something erroneous] .... The [matter was] ... sufficiently important to appellant's case to warrant a new trial to insure the jury's consideration of it. A trial court's instructions and responses to the jury should be so explicit as to not be misconstrued or misunderstood. (Emphasis added, citations omitted). Id. at 43-44. The jury's confusion concerning the instructions in the case sub judice was understandable since the instructions were complex and presented in a disjointed manner. The trial court read the standard medical malpractice instructions to the jury before the jury retired for deliberations and subsequently recalled the jury to provide instructions relating to defendants' intervening/ superseding cause defense. The record demonstrates plaintiff failed to object at any time or dispute the accuracy of these supplemental instructions. The majority's misapplication of Youseff to the case sub judice overlooks the jury's confusion which prompted the request for additional instructions. The majority states, in truly astonishing reasoning, "[t]he trial court's paraphrased response - 16 - to the jury question did not vitiate the initial instruction on superseding/intervening cause." Ante at 7. This statement completely ignores the fact the jury did not understand the instruction in the first place. The trial court's failure to provide an instruction clarifying the jury's confusion deprived defendant of a fair opportunity to have the jury weigh and consider the case based upon the sharply conflicting medical testimony. Gallagher, supra; see also Marshall v. Gibson (1985), 19 Ohio St. 3d 10, 12- 13. Defendants presented testimony indicating that decedent's death was caused by the failure of plaintiff's experts Drs. Tuthill and Dudzinski, the subsequent treating physicians at Hillcrest Hospital, to provide (1) proper antibiotic treatment or (2) timely surgical intervention during the fifty days decedent was under their care prior to his death. Plaintiff's expert, Dr. Dudzinski, testified to the contrary that the four-day delay in diagnosing the bacteria resulting from defendants' failure to conduct the gram stain and sputum culture caused decedent's death. The jury's question revealed the central issue in their deliberations was what proximately caused decedent's death: (1) was it the 2 to 4 day delay in discovering decedent's infection attributed to defendants by plaintiff's experts, or (2) the subsequent inadequate antibiotic treatment by plaintiff's experts and failure - 17 - to obtain timely surgical intervention during the remaining 50 days of decedent's life. To aid their deliberation the jury requested a copy of the superseding/intervening cause instructions the trial court read to them prior to the commencement of their deliberations. The jury stated that it was confused about the responsibility for the care decedent received from plaintiff's experts while at Hillcrest Hospital. Instead of granting the jury's request, the trial court gave a confusing and misleading instruction which omitted any reference to superseding/intervening cause. Under the circumstances, the trial court's failure to clarify the jury's confusion concerning the proximate cause instructions improperly relieved plaintiff of the burden of demonstrating proximate cause. This Court has held contrary to the majority that relying upon general proximate cause instructions, such as those rendered by the trial court prior to the supplemental instructions and in response to the jury question sub judice, constitutes reversible error when a party properly requests an intervening/superseding cause instruction warranted by the evidence. Springsteel v. Jones & Laughlin Steel Corp. (1963), 2 Ohio App. 2d 353, 365- 367. The trial court's award of prejudgment interest should likewise be reversed since reversal of the underlying judgment is warranted. However, the prejudgment interest award is improper even if the case is not remanded for a new trial. - 18 - The facts of the case sub judice are like Golden v. Levine (Oct. 3, 1991), Cuyahoga App. No. 59086, unreported, where this Court reversed a trial court's award of prejudgment interest in a medical malpractice case pursuant to R.C. 1340.03(C) despite the fact the defendant made no pretrial counter offer or response to the prevailing plaintiff's settlement offer. Plaintiff's counsel in the case sub judice conceded during the prejudgment interest hearing that defendants had a rational belief they would prevail at trial by stating his belief plaintiff only had "a little better than a 50 percent chance of winning." See, Golden v. Levine, supra at 16. The majority reaches a contrary result by a constricted review of the evidence and ignoring defendants' testimony. Contrary to plaintiff's argument, defendants are not required to develop a numerical assessment of the case. Since the majority has failed to adequately address these issues, I respectfully dissent. .