COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69525 PATRICK J. CONROY, : ADMINISTRATOR : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : JEFFREY R. BECK, D.O., : OPINION ET AL. : : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: JUNE 6, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-246550. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Ellen Simon Sacks, Esq. Spangenberg, Shibley, Traci, Lancione, Liber 2400 National City Center 1900 East 9th Street Cleveland, OH 44114 For Jeffrey R. Beck, D.O.: Stephen E. Walters, Esq. Andrew J. Dorman, Esq. Thomas R. Wolf, Esq. Reminger & Reminger The 113 St. Clair Building Cleveland, OH 44114 For Fairview General Hospital: Harry D. Cornett, Esq. Jeffrey A. Healy, Esq. Arter & Hadden 1100 Huntington Building 925 Euclid Avenue Cleveland, OH 44115-1475 -3- DAVID T. MATIA, P.J.: Patrick J. Conroy, Administrator of the Estate of Robert E. Conroy, plaintiff-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, Case No. CV-246550, in which the trial court granted a directed verdict in favor of Fairview General Hospital, defendant-appellee, and the jury returned a verdict in favor of Jeffrey R. Beck, D.O., defendant-appellee. Plaintiff-appellant assigns three errors for this court's review. Plaintiff-appellant's appeal is not well taken. I. THE FACTS On January 30, 1991, Robert Conroy, a sixty-four-year-old retired Cleveland fireman, presented himself at the Fairview General Hospital emergency room complaining of depression. Robert Conroy's medical chart indicated that he was emotional and was unable to sleep for several days. In addition, the emergency room nurse noted that Conroy had been treated for depression at the Cleveland Clinic on two prior occasions, in 1977 and after his wife's death in 1985. Conroy's previous treatment had been successful and he was able to return to his normal daily activities. Robert Conroy was then seen by Dr. Jeffrey Beck, D.O., defendant-appellee. Dr. Beck's notes indicated that Conroy was indeed suffering from depression. Conroy stated that "he had a passing thought that he would be better off dead." However, the notes indicated further that Conroy was not actively suicidal on the day in question. -4- Dr. Beck, defendant-appellee, then prescribed Buspar, an anti- anxiety medication, and Restoril to help Conroy sleep. Dr. Beck also referred Conroy to the psychiatrist on-call at Fairview General Hospital, Dr. Chad Murdock, and told Conroy to make an appointment as soon as possible. Conroy was not admitted to Fairview General Hospital. It is unclear whether Conroy contacted Dr. Murdock who testified that if Conroy had called, he would have referred Conroy to another psychiatrist. Apparently, Dr. Murdock specializes in child psychology and does not take adult patients. There was testimony presented at trial that Conroy possibly made an appointment with an unknown psychiatrist for February 12, 1991 however this fact was unsubstantiated. For approximately eleven days after his visit to the emergency room, Robert Conroy seemed to live a normal life. During this time period Conroy went grocery shopping with his son Patrick on two separate occasions and went out to dinner with his two daughters. Conroy also attended a spaghetti dinner at his church where he spoke with his parish priest, Father Creegan. At no time during this period did Conroy appear to be despondent. On February 11, 1991, Robert Conroy committed suicide. On January 28, 1993, Patrick J. Conroy, Administrator of the Estate of Robert E. Conroy, plaintiff-appellant, filed a medical malpractice action against Jeffrey Beck, D.O., Fairview General Hospital and Acute Care Specialists, Inc., the employer of Dr. Beck. Acute Care Specialists, Inc. was later dismissed from the -5- action with prejudice. Plaintiff-appellant claimed that Dr. Beck negligently diagnosed and treated Robert Conroy resulting in the latter's death on February 11, 1991. On June 5, 1995, a jury trial began in the Cuyahoga County Court of Common Pleas on the issue of medical negligence relating to the care of Robert Conroy. At the close of plaintiff-appellant's case, the trial court granted a motion for directed verdict in favor of Fairview General Hospital, defendant-appellee. The remaining issues proceeded to the jury for final determination. On June 9, 1993, the jury returned a verdict by a seven-to-one vote in favor of Dr. Beck, defendant-appellee. In its answer to the first interrogatory, the jury found that Dr. Beck did not deviate from the appropriate standard of care and was therefore not negligent. Plaintiff-appellant soon after filed a motion for a new trial pursuant to Civ.R. 59(A). Plaintiff-appellant's motion was denied by the trial court on August 8, 1995. On September 7, 1995, Patrick J. Conroy, Administrator of the Estate of Robert E. Conroy, plaintiff-appellant, filed a timely notice of appeal from the judgment of the trial court. II. FIRST ASSIGNMENT OF ERROR Patrick J. Conroy, Administrator of the Estate of Robert E. Conroy's, plaintiff-appellant's, first assignment of error states: THE COURT ERRED WHEN IT IMPROPERLY EXCLUDED ALL EVIDENCE OF DEFENDANT FAIRVIEW GENERAL -6- HOSPITAL'S NEGLIGENCE AND THEREAFTER DIRECTED A VERDICT ON THAT CLAIM. A. THE ISSUE RAISED: DIRECTED VERDICT. Plaintiff-appellant argues, through its first assignment of error, that the trial court erred in excluding all evidence of Fairview General Hospital's, defendant-appellee's, negligence and entering a directed verdict in favor Fairview General Hospital, defendant-appellee. Specifically, plaintiff-appellant maintains that the trial court erred by excluding two medical opinions regarding the independent negligence of Fairview General Hospital's emergency room procedures and policies for the treatment of psychiatric patients. It is plaintiff-appellant's position that this independent negligence was one cause of Robert Conroy's death. Dr. Jeffrey Beck and Fairview General Hospital, defendants-appellees, maintain that the trial court properly excluded the evidence in question and granted Fairview General Hospital's motion for directed verdict. Defendants-appellees maintain that, at a pretrial conference with all counsel present, plaintiff-appellant's counsel informed the trial court that the only claim against Fairview General Hospital would be on the basis of agency by estoppel pursuant to the Ohio Supreme Court case, Clark v. Southview Hospital (1994), 68 Ohio St.3d 435. Defendants-appellees maintain further that, based upon plaintiff- appellant's representation, the trial court ruled, pursuant to Civ.R. 47(B), that defendants-appellees' interests were aligned and they would only be permitted to share three preemptory -7- challenges. In addition, defendants-appellees argue that the course of the trial was shaped by plaintiff-appellant's representation in that opening statements were tailored to reflect plaintiff-appellant's abandonment of any claim regarding independent negligence of Fairview General Hospital as well as the scope of the cross-examination of plaintiff-appellant's witnesses. For these reasons, defendants-appellees argue that the trial court properly excluded the evidence regarding independent negligence of Fairview General Hospital and granted the motion for directed verdict in its favor. Plaintiff- appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW FOR INVITED ERROR. Under the invited error doctrine, a party is not permitted to take advantage of an alleged error which that party induced or invited the trial court to make. State ex rel Fowler v. Smith (1994), 68 Ohio St.3d 357; Rhodes v. Rhodes Industries, Inc. (1991), 71 Ohio App.3d 797. As the Ohio Supreme Court stated: A litigant cannot be permitted, either intentionally or unintentionally, to induce or mislead a court into the commission of an error and then procure a reversal of the judgment for an error for which he was actively responsible. Lester v. Leuck (1943), 142 Ohio St. 91; State v. Kolar (1915), 93 Ohio St. 89; see, also, Faber v. Queen City Terminals, Inc. (1994), 93 Ohio App.3d 197, 203. C. STANDARD OF REVIEW FOR DIRECTED VERDICT. -8- Civ.R. 50(A), which sets forth the grounds upon which a motion for directed verdict may be granted, states: (A) Motion for directed verdict. (1) When made. A motion for a directed verdict may be made on the opening statement of the opponent, at the close of the opponent's evidence or at the close of all the evidence. (2) When not granted. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. (3) Grounds. A motion for a directed verdict shall state the specific grounds therefor. (4) When granted on the evidence. When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. A motion for directed verdict is to be granted when, construing the evidence most strongly in favor of the party opposing the motion, the trial court finds that reasonable minds could come to only one conclusion and that conclusion is adverse to such party. Civ.R. 50(A)(4); Crawford v. Halkovics (1982), 1 -9- Ohio St.3d 184; The Limited Stores, Inc. v. Pan American World Airways, Inc. (1992), 65 Ohio St. 3d 66. A directed verdict is appropriate where the party opposing it has failed to adduce any evidence on the essential elements of his claim. Cooper v. Grace Baptist Church (1992), 81 Ohio App.3d 728, 734. The issue to be determined involves a test of the legal sufficiency of the evidence to allow the case to proceed to the jury, and it constitutes a question of law, not one of fact. Hargrove v. Tanner (1990), 66 Ohio App.3d 693, 695; Vosgerichian v. Mancini Shah & Associates, et al. (Feb. 29, 1996), Cuyahoga App. Nos. 68931 and 68943. D. THE TRIAL COURT PROPERLY GRANTED A DIRECTED VERDICT IN FAVOR OF FAIRVIEW GENERAL HOSPITAL, DEFENDANT-APPELLEE. In the case sub judice, a review of the record from the trial court demonstrates that the motion for directed verdict was properly granted in favor of Fairview General Hospital, defendant-appellee. In opening statement, plaintiff-appellant's counsel set forth the theory upon which the case was to proceed: So we are not here and it will not be your job to decide whether the children were at fault or Dr. Murdock was at fault or Father Creegan was at fault or the neighbor. We are here and you will be asked to decide whether or not what Dr. Beck did was reasonable and appropriate under the circumstances, and that will be the only question that you will be asked to decide at the end of this case. (Tr. pp. 39-40). No mention was made of any alleged negligence relating to Fairview General Hospital's, defendant-appellee's, emergency room -10- procedures for dealing with psychiatric patients until plaintiff- appellant's sixth witness, Dr. Kathleen Quinn, took the stand at which time the following exchange took place: Q. Do you have an opinion, Doctor, as to whether or not any procedures at Fairview General Hospital contributed to the inadequate treatment that Mr. Conroy received? MR. CORNETT: Objection. THE COURT: Sustained. Q. Do you have an opinion, Doctor, with a reasonable degree of medical certainty, as to whether or not any of the procedures or policies at Fairview General Hospital-- THE COURT: Approach the bench, please. (Thereupon a sidebar discussion was had off the record.) At this point, plaintiff-appellant's counsel proffered the proposed testimony of Dr. Quinn relating to the independent negligence of Fairview General Hospital, defendant-appellee. The trial court responded to the proffer by stating: The Court finds it may be a separate area of negligence, one the Court was not aware of, one that was not discussed in chambers, one not mentioned in opening statement. I believe that's the reason for the objection, was it not, gentlemen? MR. WALTERS: That's correct, your Honor. MR. CORNETT: That's correct, your Honor. THE COURT: That's why the Court sustained the objection. (Tr. pp. 192-194.) -11- Plaintiff-appellant's counsel made no further statement at this time nor did counsel attempt to clarify or justify her position. In addition, at the close of plaintiff-appellant's case, Fairview General Hospital, defendant-appellee, made a motion for a directed verdict as to any independent negligence of Fairview General and any claim arising out of the doctrine of agency by estoppel. Once again, plaintiff-appellant's counsel did not argue or attempt to explain her position regarding the exclusion of the expert testimony relating to the independent negligence of Fairview General. Under the circumstances of this case, the doctrine of invited error precludes plaintiff-appellant from now arguing that the trial court erred in excluding the proffered expert testimony relating to the alleged independent negligence of Fairview General Hospital, defendant-appellee. State ex rel Smith v. O'Connor (1995), 71 Ohio St.3d 660, 663; State ex rel Fowler v. Smith, supra. It is apparent from the record that plaintiff- appellant abandoned the claim of independent negligence against Fairview General Hospital at the outset of the trial and then failed to clarify its position on that issue when the opportunity arose during trial. Plaintiff-appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR -12- Patrick J. Conroy, Administrator of the Estate of Robert E. Conroy's, plaintiff-appellant's, second assignment of error states: THE COURT ERRED IN CHARGING THE JURY ON THE ISSUES OF INTERVENING/SUPERSEDING CAUSE AND COMPARATIVE NEGLIGENCE BECAUSE THERE WAS NO EVIDENCE TO SUPPORT THOSE CHARGES. A. THE ISSUE RAISED: JURY INSTRUCTIONS. Plaintiff-appellant argues, through its second assignment of error, that the trial court improperly charged the jury on the issues of intervening/superseding cause and comparative negligence. Specifically, plaintiff-appellant maintains that no evidence was presented to justify a jury charge on the issues in question and therefore the submission of said charge prejudiced plaintiff-appellant's case by implying that the blame for Robert Conroy's death could be placed on Mr. Conroy himself, the Conroy family or Dr. Murdock and not defendants-appellees. Defendants-appellees maintain that sufficient evidence was put forth to allow the trial court to charge the jury on the issues of intervening/superseding cause and comparative negligence. Defendants-appellees maintain further that, even if the trial court's jury instructions were erroneous, such instructions merely constitute harmless error since the jury did not reach the issues of causation or comparative negligence. Plaintiff-appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW FOR JURY INSTRUCTIONS. -13- In Ohio, it is well established that the trial court will not instruct the jury where there is no evidence to support an issue. Riley v. Cincinnati (1976), 46 Ohio St.2d 287. However, requested instructions should ordinarily be given if they are correct statements of law applicable to the facts in the case and reasonable minds might reach the conclusion sought by the specific instruction. Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585, 591. A charge to the jury should be a plain, distinct and unambiguous statement of the law as applicable to the case made before the jury by the proof adduced. Marshall v. Gibson (1985), 19 Ohio St.2d 10, 12. It is well established that a trial court should confine its instructions to the issues raised by the pleadings and the evidence. Becker v. Lake Cty. Mem. Hosp. West (1990), 53 Ohio St.3d 202, 208. C. JURY INSTRUCTIONS WERE PROPER. In this case, a review of all the evidence submitted by the parties demonstrates that the trial court properly instructed the jury on the issues of intervening/superseding cause and comparative negligence. Specifically, evidence was presented whereby the jury could have concluded that Mr. Conroy's own actions constituted a superseding, intervening cause resulting in his death. In addition, the jury's determination that Dr. Beck, defendant-appellee, was not negligent renders plaintiff- appellant's second assignment of error harmless since the jury did not reach the issues of intervening/superseding cause or -14- comparative negligence. See, Seeley v. Rahe (1985), 16 Ohio St.3d 25, 26-27 (erroneous application of contributory negligence instead of comparative negligence harmless where jury found not negligence); Sech v. Rogers (1983), 6 Ohio St.3d 462, 466 (erroneous jury instruction on assumption of risk harmless where jury interrogatory showed jury found no negligence); Schulz v. Sullivan (1993), 92 Ohio App.3d 205, 211-212 (any error in admitting evidence concerning fair market value of property harmless where disposition of case resulted in rescission of contract to purchase the property); Schaffer v. Donegan (1990), 66 Ohio App.3d 528, 536 (erroneous exclusion of evidence concerning damages harmless where jury found defendant not negligent); Joseph v. Ohio Power Co. (1988), 46 Ohio App.3d 170, 174 (any defect in interrogatory concerning proximate cause harmless where a separate jury interrogatory showed jury found not negligence); Hager v. Griesse (1985), 29 Ohio App.3d 329, 332-333 (erroneous application of assumption of risk and contributory negligence harmless where defendant owed no duty to plaintiff); and Yacobucci v. Sazima (Dec. 14, 1989), Cuyahoga App. No. 55892, unreported (any error in jury instruction on proximate cause harmless where jury found defendant not negligent). Kansa General International Ins. Co. v. Weston, Hurd, Fallon, Paisley & Howley (Nov. 22, 1995), Cuyahoga App. No. 68186, unreported. Accordingly, plaintiff-appellant's second assignment of error is not well taken. -15- IV. THIRD ASSIGNMENT OF ERROR Patrick J. Conroy, Administrator of the Estate of Robert E. Conroy's, plaintiff-appellant's, third and final assignment of error states: THE ABUSIVE CONDUCT OF THE COURT TOWARDS PLAINTIFF'S COUNSEL CONSTITUTED AN IRREGULARITY IN THE PROCEEDINGS WHICH SUBSTANTIALLY PREJUDICED PLAINTIFF'S RIGHT TO A FAIR TRIAL. A. THE ISSUE RAISED: JUDICIAL MISCONDUCT. Plaintiff-appellant argues, through its final assignment of error, that the trial court's attitude and conduct toward plaintiff-appellant's counsel was discrediting, obstructing and belittling to the extent that it constituted an impermissible deviation from the appearance of impartiality required by the Code of Judicial Conduct and Ohio law. It is plaintiff- appellant's position that the trial court's abusive conduct resulted in severe prejudice to plaintiff-appellant's case to such an extent that a new trial is warranted. Plaintiff-appellant's third assignment of error is not well taken. B. STANDARD OF REVIEW FOR JUDICIAL MISCONDUCT. In reviewing a claim of alleged prejudicial misconduct, an appellate court is guided by the presumption that the presiding judge is unbiased and free from prejudice. Cleveland v. Zayed (Oct. 29, 1992), Cuyahoga App. No. 61247, unreported. The burden is upon the complaining party to rebut this presumption and to -16- demonstrate resulting prejudice. Id., Civ.R. 61; Leygraff v. Andrew (Dec. 1, 1994), Cuyahoga App. No. 65811, unreported. C. NO JUDICIAL MISCONDUCT OCCURRED. In this action, plaintiff-appellant refers to numerous examples of alleged judicial misconduct. One such example of the trial court's alleged misconduct occurred during plaintiff- appellant's direct examination of Dr. Kathleen Quinn at which time the following exchange occurred: Q. Now, I want to ask you a little bit about, before we move on, about just to explain to the jury, now, again, just generically speaking, what about the symptoms of major depression, and if you have an opinion as to whether Mr. Conroy had major depression, can you explain why that would be true? MR. CORNETT: Objection. THE COURT: That's a convoluted, three part question. Do it one at a time. Q. Can you tell us what the symptoms are of major depression. (Tr. p. 174.) Clearly, the trial court's admonition regarding the manner in which plaintiff-appellant's counsel phrased the question was merely a legitimate attempt by the trial court to clarify the testimony of an expert witness in order to facilitate the jury's understanding of the medical issues in the case. -17- Similarly, a complete review of other examples of alleged judicial misconduct fails to demonstrate any bias or prejudice on the part of the trial judge. On the contrary, a review of the transcript of this case in its entirety demonstrates that the trial court presided in an appropriate and even-handed manner throughout the proceedings. Accordingly, plaintiff-appellant's third and final assignment of error is not well taken. Judgment of the trial court is affirmed. -18- It is ordered that appellees recover of appellant their 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. PORTER, J. and PATTON, J, CONCUR. DAVID T. MATIA 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 .