COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61112 CHERYL OLA, ET AL., : : Plaintiffs-Appellants : : JOURNAL ENTRY vs. : and : OPINION MICHAEL MACFEE, M.D., ET AL., : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 25, 1992 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 152,815 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiffs-appellants: Don C. Iler DON C. ILER CO., L.P.A. 1640 Standard Building Cleveland, Ohio 44113 For defendants-appellees: Steven J. Hupp Susan Reinker JACOBSON, MAYNARD, TUSCHMAN & KALUR 1001 Lakeside Avenue Suite 1600 Cleveland, Ohio 44114 - 2 - NAHRA, P.J.: Cheryl and Ken Ola, plaintiffs-appellants, appeal from the trial court's order directing a verdict in favor of Michael Macfee, M.D., et al., defendants-appellees, in an action alleging 1 medical malpractice. On November 17, 1986, Cheryl Ola underwent a vaginal hysterectomy at University Hospital in Cleveland, Ohio. Such elective surgery was performed by Dr. Michael MacFee, an obstetrician/gynecologist and required the removal of the uterus and cervix. Dr. MacFee was assisted during the surgery by Dr. Tonya Heyman, a fourth year resident in obstetric/gynecology. In order to perform the vaginal hysterectomy, Ola's legs were placed in a lithotomy position -- she was lying on her back with her legs spread apart and positioned upright in stirrups. Ola was administered a general anesthetic for this procedure. Dr. MacFee testified that during the operation both he and his assistant, Dr. Heyman, were positioned between Ola's legs. Dr. MacFee stated that he was seated on a short stool between her legs while Dr. Heyman stood sideways to him but also between Ola's legs. Dr. MacFee performed the hysterectomy without any apparent complications. However, the next day, Ola experienced weakness and numbness in both legs. Dr. MacFee ordered a neurological consultation with Dr. Ramone Espillante, a neurologist. Dr. 1 Ken Ola's claim was for loss of services. -3- Espillante diagnosed Ola as having bilateral femoral neuropathy and ordered physical therapy. On November 21, 1986, three days after such consultation, Ola was discharged from University Hospitals. Ola's left leg returned to normal. However, she continued to experience pain, weakness, and a loss of sensation in her right leg. In December, 1986, Dr. MacFee referred Ola to Dr. Samuel Harik, a neurologist, who diagnosed her with persistent femoral neuropathy. Dr. Harik ordered a CT scan on Ola to rule out the possibility that her problems could have been caused by a pinch in her back. The CT scan was normal and indicated that her condition was unrelated to any back problem. Ola continued to have numbness and pain in her right leg. On August 19, 1988, she went to Dr. Gerald McIntosh, a neurologist, who examined her and concluded that she suffered from permanent femoral neuropathy resulting from the abnormal positioning of Ola's legs at the time of the vaginal hysterectomy. Dr. McIntosh testified that in order for a surgical patient in the lithotomy position to develop femoral neuropathy, a compression to the femoral nerve at the inguinal ligament must take place. Such compression could only be caused by an extreme spreading of the patient's legs which would constitute a surgical malpositioning. Dr. McIntosh indicated in his testimony at trial that he did not find any other cause for Ola's femoral neuropathy. However, he did admit that her medical -4- records do not reveal that she was actually malpositioned during the vaginal hysterectomy. At trial, Ola also presented the testimony of Dr. Samuel Portman, an obstetrician/gynecologist, by way of videotape. Dr. Portman testified that Dr. MacFee, as the attending physician, had the responsibility to see that his assistant neither leaned nor pressed against Ola's thighs during the operation. Dr. Portman further testified that, after his review of the hospital records and relevant depositions, it was his opinion, based upon a reasonable degree of medical certainty, that Dr. MacFee breached the required standard of care when he allowed himself or his assistant to lean against Ola's legs during the hysterectomy and that such leaning caused Ola's bilateral femoral neuropathy. Dr. Portman further testified that he ruled out other possible causes of Ola's injuries. He admitted on cross-examination that he had assumed that someone leaned on Ola's thighs during the surgery since Ola's medical records do not reveal any such leaning. On July 11, 1988 Cheryl and Ken Ola filed a complaint against Michael MacFee, M.D., MacDonald Hospital Associates Inc., Tonya Heyman, M.D., and University Hospitals alleging medical malpractice. On November 26, 1990, Dr. Heyman and University Hospitals were granted summary judgment and thus dismissed from the case. On December 3, 1990, trial commenced and the Olas presented their case. After the conclusion of the plaintiffs' case, the -5- defendants moved for a directed verdict on the ground that Dr. Portman based his opinion on inferences from facts not in evidence and impermissibly stacked a second inference on the first. In directing a verdict for defendants, the trial court stated: So I did spend significant time on this and I took a look at what we have before us, as a matter of law, which is really what I am required to do, and also even construing the evidence most strongly in favor of the plaintiff as I am required to do. Here we have a situation where the plaintiff's expert, a doctor, as I started to say, Dr. Portman, P-o-r-t-m- a-n, who spoke to the standard of care and so on and is a gynecologist, rendered his opinion of failure to meet the standard of care of negligence based upon a condition which apparently existed after surgery and for the purpose of this, I guess I have to assume that it did exist. Therefore, he indicates it must have been caused by the surgery and there must have been negligence in the surgery, is what he says, and then that the negligence must have been from a leaning on the left leg and then a leaning on the right leg and that must have been by the chief resident because the surgeon is seated and then further that the surgeon should have known of this and corrected this. It's basically what he says. It seems to be a very thin connection. This Court reviewed this at great length and that opinion assumes a fact that is not anywhere in the evidence, the leaning. It bases inferences upon inferences. This expert admits there can be and there are other nonsurgical causes of femoral neuropathy and there are other surgical causes of femoral neuropathy. (Tr. 440-441.) The Olas' timely appeal follows. -6- I. Appellant's first assignment of error states: THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT- APPELLEES' MOTION FOR DIRECTED VERDICT BY ERRONEOUSLY CONCLUDING THAT PLAINTIFF-APPELLANTS EXPERT'S OPINION WAS BASED ON AN IMPERMISSIBLE "INFERENCE ON AN INFERENCE". When ruling on a directed verdict motion, the trial court must construe the evidence most strongly in favor of the party against whom the motion is asserted and if reasonable minds could come to but one conclusion, the ruling should be in favor of the moving party. Civ. R. 50(A)(4). The court should not consider the weight of the evidence or the credibility of the witnesses. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 483 N.E.2d 467. "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, 430 N.E.2d 935; see also Handen Lodge v. Ohio Fuel Gas Co.(1934), 127 Ohio St.469, 189 N.E.2d 246. In order to establish their claim for medical malpractice, the Olas 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 -7- doing or failing to do some one or more of such particular things. Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 346 N.E.2d 673, paragraph one of the syllabus; see also Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77, 472 N.E.2d 707. The Olas assert that the trial court erred when it directed a verdict for MacFee, et al. since the plaintiffs introduced sufficient evidence that Dr. MacFee's actions proximately caused Ola's injury. They argue specifically that the testimony of Dr. Portman established that Dr. MacFee or his assistant leaned on Mrs. Ola during the hysterectomy and that such improper leaning constituted the acts which brought about her injury. The Olas contest the trial court's finding that Dr. Portman's expert opinion was based on facts outside the record and constituted an inference stacked upon another inference. Evid. R. 703 states: 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. Under such rule, facts or data upon which an expert bases an opinion must be those perceived by him or admitted into evidence at the hearing. State v. Jones(1984), 9 Ohio St.3d 123, 459 N.E.2d 526, syllabus. Furthermore, it is impermissible to base one inference solely on another inference. Hurt v. Charles J. Rogers Transportation Co. (1955), 164 Ohio St. 323, 130 N.E.2d 820, paragraph one of the syllabus. -8- While there was no evidence that Dr. MacFee or Dr. Heyman applied any pressure to Mrs. Ola's legs during the operation, Dr. Portman reviewed Ola's medical records and inferred that one of the doctors leaned on her legs. He further opined that such leaning caused the femoral neuropathy. We do not find that Dr. Portman's opinion is the result of the impermissible stacking of inferences. Rather, his conclusions were based on inferences drawn from facts in evidence and his knowledge of common medical facts. See Motorists Mut. Ins. Co. v. Hamilton Twp. Trustees (1986), 28 Ohio St.3d 13, 502 N.E.2d 204, syllabus; see also Golden v. Levine (Oct. 3, 1991), Cuyahoga App. No. 59086, unreported. Dr. Portman's inference was based on the following facts which were in evidence: Ola did not suffer from femoral neuropathy or any related nerve ailment prior to the surgery; Dr. MacFee and Dr. Heyman were positioned between Ola's legs during the surgery; the surgery was performed without any surgical complications and Ola was diagnosed afterwards with bilateral femoral neuropathy. Such facts, coupled with Dr. Portman's knowledge as an expert, and his ruling out of the other possible causes of this injury, provided the basis for his inference that a leaning occurred. We find that Portman's opinion did not contravene Evid. R. 703. See State v. Minor (1988), 47 Ohio App.3d 22, 546; N.E.2d 1343. We also note that Dr. Portman's inference that the leaning constituted the proximate cause of Ola's injury did not amount to an impermissible stacking of inferences. The only fact inferred -9- was that of leaning since there was clear evidence of the positioning of the patient and the doctors and of the injury. Based on the foregoing, we find that the trial court erred by excluding Dr. Portman's testimony and directing a verdict on behalf of MacFee, et al. Appellant's assignment of error is sustained. II. Appellant's second assignment of error states: TRIAL COURT ERRED IN DIRECTING A VERDICT FOR THE APPELLEES WHEN THE APPELLANT HAD PRESENTED EXPERT TESTIMONY TO SUPPORT A RES IPSA LOQUITUR CASE. When Dr. MacFee, et al. moved for a directed verdict at the close of the Olas' evidence, the Olas argued that their case should go to the jury under res ipsa loquitur. In granting the defendant's motion for a directed verdict, the trial court stated: I do not find that this is a res ipsa loquitur case. The plaintiff has not produced substantial evidence that the injury was caused by an instrumentality or agency under exclusive control or management of the defendants and produced no substantial evidence that the occurrence was such that the ordinary course of things would not happen if reasonable care had been used. (Tr. 444.) The doctrine of res ipsa loquitur is not a rule of substantive law but is a rule of evidence wich allows the trier- of-fact to draw an inference of negligence from the facts presented. Morgan v. Children's Hospital (1985), 18 Ohio St.3d 185, 480 N.E.2d 464. To warrant application of res ipsa -10- loquitur, a plaintiff must adduce evidence in support of two conclusions: (1) that the instrumentality causing the injury was, at the time of the injury, or at the time of the creation of the condition causing the injury, under the exclusive management and control of the defendant; and (2) that the injury occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed. Hake v. Wiedemann Brewing Co.(1970), 23 Ohio St.2d 65, 66-67, 262 N.E.2d 703. Whether sufficient evidence has been adduced at trial to warrant application of the rule is a question to be determined initially by the trial court. Becker v. Lake Cty. Mem. Hosp. West (1990), 53 Ohio St.3d 202, 203, 560 N.E.2d 165. Here, the Olas met both elements necessary to warrant application of res ipsa loquitur. With respect to the first element, Dr. Portman testified that the instrumentality causing Ola's femoral neuropathy was the body of one of the physicians leaning on Ola's thighs during the hysterectomy. Macfee, et al., point out that Dr. Portman acknowledged other possible causes of femoral neuropathy besides the leaning of the physicians, such as blood clotting or swelling. As a result, Macfee, et al., argue that the Olas failed to identify what instrument or condition actually caused her injury. However, a review of the evidence indicates that any other potential surgical or nonsurgical cause of the injury had been ruled out. Dr. MacFee admitted during cross-examination that blood clotting was not a cause of Ola's femoral neuropathy and that Ola did not suffer from a medical -11- condition such as diabetes that might have brought about the injury. Furthermore, Dr. Portman denied the possibility that Ola's femoral neuropathy could arise after surgery in the absence of a surgeon's wrongdoing. In fulfilling the second element, Dr. Portman testified that the injury would not have occurred if Dr. MacFee had observed ordinary care. Dr. Portman further testified that Dr. MacFee breached the required standard of care when he allowed himself or his assistant to lean against Ola's legs and that such leaning caused Ola's femoral neuropathy. Construing the evidence in favor of the Olas, we find that the trial court erred by directing a verdict for MacFee, et al. Our review indicates that the Olas presented sufficient evidence to warrant an instruction to the jury under the doctrine of res ipsa loquitur In this case the jury should determine the issue of causation with respect to Ola's injury. Appellants' assignment of error is sustained. Accordingly, we reverse the decision of the trial court and remand for proceedings consistent with this opinion. -12- This cause is reversed and remanded for proceedings consistent with this opinion. It is, therefore, considered that said appellants recover of said appellees their costs herein. It is ordered that a special mandate be sent to said 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. CORRIGAN, JOHN F., J., and SWEENEY, JAMES D., J., CONCUR. JOSEPH J. NAHRA PRESIDING 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .