COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70032 NANCY CZERWINSKI, ET AL., : : Plaintiffs-Appellants : : JOURNAL ENTRY vs. : and : OPINION ST. LUKE'S MEDICAL CENTER, : ET AL., : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION : JULY 25, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 276215 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiffs-appellants: Michael Shafran SHAFRAN & ASSOCIATES 113 St. Clair Building Suite 375 Cleveland, Ohio 44114 For defendant-appellee, Christine S. Reid St. Luke's Medical Center: REMINGER & REMINGER CO., LPA 113 St. Clair Avenue Suite 700 Cleveland, Ohio 44114-1273 For defendants-appellees, John A. Simon Mark S. Kreindel, M.D., Wael Patrick J. Murphy Khoury, M.D. and Cardiology JACOBSON, MAYNARD, TUSCHMAN Associates of Cleveland, Inc.: & KALUR CO., LPA 1001 Lakeside Avenue Suite 1600 Cleveland, Ohio 44114-1192 -3- NAHRA, J.: Plaintiff-appellant Nancy Czerwinski, Executrix of the Estate of Donald Czerwinski, Sr., deceased, appeals from the trial court order which granted the motions for directed verdict made by defendants-appellees Doctors Mark S. Kreindel and Wael Khoury, Cardiology Associates of Cleveland, Inc., and St. Luke's Medical Center ("St Luke's"), thus terminating her action for wrongful death based upon medical malpractice. The record reflects that on the afternoon of December 30, 1993, appellant's husband, the decedent, collapsed after snowblowing the driveway. Appellant rushed her husband to the emergency room of the nearest hospital. Once there, he went into full cardiac arrest, necessitating cardio-pulmonary resuscitation and defibrillation. Thereafter, the decedent spent a few days at the hospital under the care of Dr. George Hawwa, a member of appellee Cardiology Associates of Cleveland, Inc., who had been referred by the decedent's family physician. Dr. Hawwa soon realized the hospital did not have the appropriate facilities to determine the cause of the decedent's heart attack. Therefore, early on January 4, 1994, he had the decedent transferred to appellee St. Luke's. At St. Luke's, the decedent came under the care of Dr. Hawwa's associate, appellee Dr. Kreindel. Dr. Kreindel performed an 1 angiogram on the decedent and found "a 70 percent blockage" of the 1 Quoted material indicates testimony given by a witness during the trial of this case. -4- decedent's "left anterior descending coronary artery." Dr. Kreindel recommended surgery to remove the blockage. The decedent agreed to undergo the surgical procedure. Dr. Kreindel performed an atherectomy that same day. This procedure involved inserting a catheter into the artery; the catheter had a device which shaved off the blockage from the interior of the artery. After the surgery was performed, Dr. Kreindel noted the results were "excellent." The decedent then was taken to the cardiac "Step Down Unit." That evening, the decedent was monitored by the nursing staff. The following morning, the decedent's chart was checked by appellee Dr. Khoury, an associate of doctors Hawwa and Kreindel. Although Dr. Khoury noted that the decedent had on the previous evening complained of chest "soreness" and "back pain," he considered these complaints to be "incidental" to the medical treatments the decedent had previously undergone. Since the decedent had denied any chest pain and had no other significant symptoms, Dr. Khoury signed an order discharging the decedent. Prior to the decedent's discharge, nurse Rita Jane Johnson reviewed with him and appellant some dietary and activity restrictions he was to observe. Then appellant took her husband home. Five days later, while watching television, the decedent suffered another heart attack. Efforts to resuscitate him failed. Appellant thereafter refused to permit an autopsy to be performed on her husband's body. -5- On August 31, 1994, appellant instituted this action for 2 wrongful death based upon medical malpractice. She alleged appellees were negligent in their care and treatment of her husband. Specifically, appellant alleged that "allow[ing] the Decedent to be discharged just seven (7) days after a major myocardial infarction and less than twenty-four (24) hours after a coronary artery atherectomy" led to the decedent's "premature death." The case proceeded to trial. Appellant presented the testimony of two of her children and testified in her own behalf. She also cross-examined doctors Khoury and Kreindel. She then read into the record her expert witness' report. Appellant's expert, Dr. Robert M. Stark, Clinical Assistant Professor of Medicine at the Yale University School of Medicine, stated in his report in pertinent part as follows: The [decedent's] initial M.I. [myocardial infarction] (on 12/30/93) was complicated by shock, right bundle branch block, and ventricular tachycardia necessitating cardio-pulmonary resuscitation and defibrillation. Major cardiac damage occurred (peak CPK = 3,457), and subsequent echocardiogram showed reduced left ventricular function. This was, therefore, a major M.I. with significant complications. The patient was, nevertheless, discharged and back at home on 1/5/94, just seven days later. Patients with major, complicated M.I.'s are usually kept in-hospital, observed, and gradually reambulated over a period of 10 to 14 days. Particularly, when there 2 The original complaint listed only doctors Hawwa and Kreindel and St. Luke's as defendants. Appellant was later permitted to amend her complaint to add Dr. Khoury and Cardiology Associates of Cleveland, Inc. as defendants. Dr. Hawwa was dismissed as a defendant prior to trial. -6- has been ventricular ectopy or cardiac arrest, care is taken to ensure that the cardiac rhythm remains normal in-hospital during the reambulation phase. Mr. Czerwinski did not have benefit of this type of supervised reambulation. No pre-discharge stress test was done to gauge his fitness for outpatient physical activity. No Holter Monitor was done to detect possible exercised-induced arrhythmias during his in-hospital reambulation period. *** At the time of the discharge from St. Lukes (sic) Hospital, the patient was given two differing sets of instructions on how active he could be at home. *** It is not clear whether the patient or his wife questioned these conflicting instructions. It is impossible to know which set of activity guidelines he followed at home for the next five days. What is clear is that normal procedures for hospital discharge, patient education, and continuity of care were not followed. *** [T]he abruptness and rapidity of the patient's discharge from the hospital should be questioned with respect to appropriateness. It is likely he would have had a much better chance for survival if his second cardiac arrest (occurring on 1/10/94) had occurred in-hospital in a monitored setting. The occurrence of this second cardiac arrest was only 12 days following his initial presentation with anterior wall M.I. At any medical center, the patient would (sic) still have been in the hospital 12 days after such a major M.I. complicated by ventricular tachycardia, heart block and cardiac arrest. (Underscoring in original; emphasis added.) Following the presentation of appellant's evidence, appellees made motions for a directed verdict. The trial court heard arguments, considered the motions, and subsequently granted them. Appellant has timely appealed from the trial court's order, presenting the following as her sole assignment of error: THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEES' MOTION (SIC) FOR DIRECTED VERDICT UNDER RULE 50(A)(4). -7- Appellant argues a Civ.R. 50(A)(4) directed verdict in appellees' favor was improper because she presented sufficient evidence on each element of her claim for wrongful death based upon medical malpractice. This court disagrees. Civ.R. 50(A)(4) provides: RULE 50. Motion for a directed verdict and for judgment notwithstanding the verdict. (A) Motion for directed verdict. *** (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, find 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. (Emphasis added.) In Eldridge v. Firestone Tire & Rubber Co. (1985), 24 Ohio App.3d 94, the application of Civ.R. 50(A)(4) was explained as follows: The determination to be made by a trial court when a motion for directed verdict has been made is not whether one version of the facts presented is more persuasive than another; rather, it is a determination that only one result could be reached under the theories of law presented in the complaint. When a motion for directed verdict is entered, it is the legal sufficiency of the evidence to take the case to the jury that is being tested. The trial court may not weigh the evidence or try the credibility of witnesses, but must give to the party opposing the motion the benefit of all reasonable inferences from the evidence. The "reasonable minds" test of Civ.R. 50(A)(4) requires the court only to determine whether there is any evidence of substantial probative value in support of the non-moving party's claim. A motion for a directed verdict raises a question -8- of law because it examines the materiality of the evidence rather than the conclusions to be drawn from the evidence. [Citation omitted.] (Emphasis added.) Thus, as the Ohio Supreme Court more succinctly stated: Simply because resolution of a question of law involves a consideration of the evidence does not mean that the question of law is converted into a question of fact or that a factual issue is raised. Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66 at 68. Appellant in this case instituted an action for wrongful death. Therefore, appellant was required to prove by a preponderance of evidence the following: 1) the existence of a duty owed to her decedent; 2) a breach of that duty; and 3) that the breach proximately caused the death. Littleton v. Good Samaritan Hosp. & Health Ctr. (1988), 39 Ohio St.3d 86; Wells v. Miami Valley Hosp. (1993), 90 Ohio App.3d 840; Keller v. Guyton (Feb. 4, 1993), Cuyahoga App. No. 61363, unreported. Appellant alleged that appellees' act of discharging her husband the day after his atherectomy was below the acceptable standard of medical care and was the proximate cause of his death. Bruni v. Tatsumi (1976), 46 Ohio St.2d 127; Ramage v. Central Ohio Emergency Serv., Inc. (1992), 64 Ohio St.3d 97. The only medical evidence appellant presented to support her allegation was Dr. Stark's report. Assuming arguendo it was sufficient to establish appellees' act fell below the acceptable standard of medical care, see, e.g., Wells v. Miami Valley Hosp., supra, a review of Dr. Stark's report reveals it was insufficient -9- to establish appellees' act proximately caused the decedent's death. As to appellee doctors, Dr. Stark cautiously opined only as follows: 1) the "abruptness" of the decedent's discharge "should be questioned" and 2) it was "likely" the decedent would have had a "much better chance of survival" if he had remained in the hospital for another three to seven days. This testimony, however, was insufficient to establish proximate cause. In Ohio, there is no recovery in wrongful death for the loss of any chance of survival on account of medical malpractice. Williams v. Grant (1979), 65 Ohio App.2d 225, 19 O.O.3d 168, 417 N.E.2d 586. Rather, there must be sufficient evidence to show that with proper diagnosis, treatment, and surgery, the patient probably would have survived. Cooper v. Sisters of Charity of Cincinnati, Inc. (1971), 27 Ohio St.2d 242, 56 O.O.2d 146, 272 N.E.2d 97 (expert's testimony that patient had a fifty percent chance of survival held insufficient). Lambert v. Shearer (1992), 84 Ohio App.3d 266 at 282 (Emphasis in original; underscoring added.). See, also, Schlachet v. Cleveland Clinic Found. (1995), 104 Ohio App.3d 160; Dellenbach v. Robinson (1993), 95 Ohio App.3d 358; Moore v. Univ. of Cincinnati (1994), 93 Ohio App.3d 616; Wells v. Miami Valley Hosp., supra. This rule of law has been recently emphasized in Stinson v. England (1994), 69 Ohio St.3d 451, syllabus 1, as follows: The admissibility of expert testimony that an event is the proximate cause is contingent upon the expression of an opinion by the expert with respect to the causative event in terms of probability. (Shepherd v. Midland Mut. Life Ins. Co. [1949], 152 Ohio St. 6, 39 O.O. 352, 87 N.E.2d 156, paragraph two of the syllabus, followed.) An event is probable if there is a greater than fifty percent likelihood that it produced the occurrence at issue. (Cooper v. Sisters of Charity of Cincinnati, Inc. [1971], 27 Ohio St.2d 242, 253, 56 O.O.2d 146, 152, 272 -10- N.E.2d 97, 104, followed.) Inasmuch as the expression of probability is a condition precedent to the admissibility of expert opinion regarding causation, it relates to the competence of the evidence and not its weight. (State v. Benner [1988], 40 Ohio St.3d 301, 313, 533 N.E.2d 701, 714, followed.) Consequently, expert opinion regarding a causative event, including alternative causes, must be expressed in terms of probability irrespective of whether the proponent of the evidence bears the burden of persuasion with respect to the issue. (Emphasis added.) In this case, Dr. Stark stated a longer in-hospital stay for the decedent would have been preferable treatment. However, Dr. Stark failed to state that, with such treatment, either it was "more likely than not" or "probably" the decedent would have survived. Moreover, when cross-examined, appellant admitted that her husband's family had a history of heart problems and that after undergoing the atherectomy, her husband had neither complaints nor symptoms. In addition, appellee doctor Khoury testified there was nothing in the decedent's medical charts which would have caused him to do anything different with respect to discharging the decedent. Under these circumstances, appellant failed to produce sufficient evidence to establish an element of her claim, viz., that appellee doctors' act was the proximate cause of her decedent's death. Cooper v. Sisters of Charity, Inc. (1971), 27 Ohio St.2d 127; Moore v. Univ. of Cincinnati Hosp., supra; Sweeney v. Deaconess Hospital of Cleveland (Dec. 10, 1993), Cuyahoga App. -11- Nos. 64349, 64357, unreported; cf. Safranic v. Bellamy (1993), 89 Ohio App.3d 65; Lambert v. Shearer, supra. Similarly, with regard to appellee St. Luke's, there was no evidence to establish a causal connection between the differing sets of discharge instructions provided to the decedent and his 3 subsequent death. Dr. Stark stated "it was impossible to know" which set the decedent might have followed; nowhere did Dr. Stark state that the death was causally related to the decedent having received two sets of instructions. Moreover, appellant testified that neither she nor her husband had either read or relied on the discharge instructions after they received them. Since a review of the record thus reveals appellant failed to provide sufficient evidence that appellees' act of discharging her husband the day after his atherectomy proximately caused his death, the trial court did not err in directing a verdict in appellees' favor. Cooper v. Sisters of Charity, Inc., supra; Ruta v. Breckenridge-Remy Co., supra; Shapiro v. Burkons (1978), 62 Ohio App.2d 73; cf. Ramage v. Central Ohio Emergency Serv., Inc., supra. Accordingly, appellant's assignment of error is overruled. The order of the trial court is affirmed. 3 Appellant also failed to present evidence which would establish appellee St. Luke's nurses deviated from acceptable standards of nursing care. Ramage v. Central Ohio Emergency Serv., Inc., supra. -12- It is ordered that appellees recover of appellants 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. SPELLACY, C.J., and O'DONNELL, J., CONCUR. JOSEPH J. NAHRA 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 .