COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70238 BETH LINIMAN : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : THE METROHEALTH : OPINION MEDICAL CENTER : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 31, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-273948. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Fred Weisman, Esq. Jeffrey D. Haines, Esq. Weisman, Goldberg & Weisman Co. 1600 Midland Building 101 Prospect Avenue, West Cleveland, OH 44115 For Defendant-Appellee: Deirdre Henry, Esq. William H. Baughman, Esq. Stephen D. Walters, Esq. Weston, Hurd, Fallon, Paisley & Howley 2500 Terminal Tower 50 Public Square Cleveland, OH 44113-2241 -2- DAVID T. MATIA, J.: Beth Liniman, plaintiff-appellant, appeals the jury verdict in the Cuyahoga County Common Pleas Court finding in favor of MetroHealth Medical Center, defendant-appellee. Plaintiff- appellant raises two assignments of error. This court, finding no error, affirms the jury's verdict. I. STATEMENT OF FACT On November 19, 1993, Beth Liniman, plaintiff-appellant, entered MetroHealth Medical Center, defendant-appellee, where the hospital's surgical team provided a D&C and total abdominal hysterectomy. Prior to this date, plaintiff-appellant had no femoral nerve problem, nor any disability relating to her lower left limb. During the surgery, certain retractors were used. A Bookwalter retractor was used while the patient was laying on her back. This was placed over plaintiff-appellant's abdomen and was secured to the operating table. It had the effect of stabilizing the incision for examination. After cysts and fibroids were discovered, the surgical team had to perform the hysterectomy because dissections needed to be taken to test for cancer. The Bookwalter retractor was removed and Dever hand-held retractors were used for the remainder of the surgery. Basically, these retractors are gentle on the tissue and are moved on a regular basis throughout the surgery pulling backwards laterally on the incision to enable the doctors to see portions of the ligaments as they proceed with the hysterectomy. -3- None of the various tissue samples were cancerous. However, the day after the surgery, plaintiff-appellant had difficulty bearing weight on her left leg and had a numbness in her left thigh. Neurological testing disclosed the plaintiff-appellant sustained damage to her left femoral and obturator nerves. By the second round of testing, the obturator neuropathy had healed. However, the femoral nerve damage was permanent. All of the surgeons who testified agreed that the nerve damage resulted from the surgery. On July 18, 1994, plaintiff-appellant filed a complaint against defendant-appellee alleging medical malpractice. Specifically, plaintiff-appellant argued she sustained a compression injury to her femoral nerve as a direct and proximate result of defendant-appellee's carelessness and negligence. Plaintiff-appellant initially prayed for $500,000 in damages. On November 24, 1995, the prayer for damages was amended to $1,370,000. A jury trial began on November 28, 1995. Plaintiff-appellant presented her theory of liability through two expert witnesses. Both doctors concluded that the injury must have resulted from compression placed by retractors during surgery on the femoral nerve or the psoas muscle through which the nerve passes. Defendant-appellee extensively cross-examined plaintiff- appellant's expert witnesses and presented its own explanation of the cause of the femoral neuropathy through its two experts and the surgeon who performed the hysterectomy. The expert witnesses -4- disagreed that the injury must have been caused by compression by the Dever retractors. Both doctors concluded that since both the femoral and obturator nerves sustained damage, the injury must have occurred as a result of interruption to the nerves' common blood supply. Both doctors concluded that the interruption of plaintiff-appellant's blood supply did not result from any deviation in the standard of care by the physicians. The doctor who performed the surgery concurred with these opinions. On December 4, 1995, the final arguments were heard and jury instructions were given. During deliberation, the jury submitted the following written question to the court: Q. Are we basing our decision for negligence on a general negligence or specific negligence caused by the use of the hand- held retractor? The court responded by giving the following written response: A. If you find that there was a departure from accepted standards of care in the use of the hand-held retractor, you will find that the defendant was negligent. If you do not find a departure from the standard of care in the use of the retractor, you will find that the defendant was not negligent. Counsel for both parties stipulated to the answer before the trial judge gave it to the jury. On December 4, 1995, the jury returned a verdict for defendant-appellee. Plaintiff-appellant filed a motion for a new trial pursuant to Civ.R. 59 and requested a hearing. On January 18, 1996, the trial judge denied plaintiff-appellant's motion without granting a hearing. Plaintiff-appellant timely filed this appeal. -5- -6- II. FIRST ASSIGNMENT OF ERROR Beth Liniman, plaintiff-appellant, states as her first assignment of error: THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S MOTION FOR NEW TRIAL BECAUSE THE VERDICT FOR DEFENDANT IS NOT SUSTAINED BY THE WEIGHT OF THE EVIDENCE, IS CONTRARY TO LAW, AND PLAINTIFF WAS PREVENTED FROM HAVING A FAIR TRIAL. (O.R.C.P. 59(6)(7) AND (8) RESPECTIVELY). A. ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING PLAINTIFF-APPELLANT'S MOTION FOR A NEW TRIAL. Plaintiff-appellant argues the trial court erred when it denied her motion for a new trial. Specifically, plaintiff- appellant argues the trial court failed in its duty to grant a new trial in the face of overwhelming facts of liability: 1) plaintiff-appellant had no femoral injury nerve damage prior to surgery, 2) no surgical complications arose to cause the femoral nerve injury, 3) the femoral nerve was not in the operative field in which the surgery was performed, 4) all surgeons have a duty to protect other healthy tissue, including the femoral nerve, during surgery, 5) femoral injury during this procedure is preventable, 6) injury to the femoral nerve during a hysterectomy is an unusual occurrence, 7) it was undisputed the femoral nerve was injured during surgery, 8) the instrumentalities used in surgery were under the exclusive and sole control of the operating room staff, and 9) plaintiff-appellant suffered permanent injury as a result of her femoral nerve injury. -7- Plaintiff-appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW: MOTION FOR A NEW TRIAL. Motions for a new trial are governed by Civ.R. 59 which states in pertinent part: (A) Grounds. A new trial mat be granted to all or any of the parties and on all or part of the issues upon any of the following grounds: (1) Irregularity in the proceedings of the court, jury, referee, or prevailing party, or any order of the court or referee, or abuse of discretion, by which an aggrieved party was prevented from having a fair trial; * * * (6) The judgment is not sustained by the weight of the evidence; however, only one new trial may be granted on the weight of the evidence on the same case[.] (7) The judgment is contrary to law; * * * (9) Error of law occurring at the trial and brought to the attention of the trial court by the party making application. Whether to grant a motion for new trial is up to the discretion of the trial court. Verbon v. Pennese (1982), 7 Ohio App.3d 182. Absent clear evidence that the trial court acted unreasonably, unconscionably, or arbitrarily and rendered a decision which was clearly wrong and without legal basis, the trial court's decision must be affirmed. See Castlebrook, Ltd. -8- v. Dayton Properties (1992), 78 Ohio App.3d 340; Scandinavian Health Spa v. Civil Rights Comm. (1990), 64 Ohio App.3d 480. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING PLAINTIFF-APPELLANT'S MOTION FOR A NEW TRIAL. In the case sub judice, plaintiff-appellant has failed to establish any irregularity or abuse of discretion by which she was unable to receive a fair trial. Civ.R. 59(A)(1). Moreover, plaintiff-appellant has failed to establish the verdict was contrary to law and/or that an error in law occurred at the trial court. Civ.R. 59(A)(7) and (9). Plaintiff-appellant does however assert that the judgment is not sustained by the evidence. We disagree. Defendant-appellee presented the testimony of two expert witnesses and the surgeon who performed the actual hysterectomy. Both experts testified at length regarding the fact that plaintiff-appellant suffered not only femoral nerve injury, but also obturator nerve damage. Since both nerves were damaged, the witnesses dismissed retractor compression as the source of the femoral nerve damage. Rather both witnesses concluded that since both nerves share a common blood supply and since the artery would have been temporarily interrupted throughout the course of the surgery, the nerve damage sustained occurred due to a lack of blood supply. The surgeon who performed the hysterectomy concurred with these opinions. Understanding that the credibility of witnesses and weight of the evidence is primarily a function for the trier of fact, see -9- Moore v. Ohio Dept. of Rehab. & Corr. (1993), 89 Ohio App.3d 107, we conclude there existed sufficient, credible evidence supporting the jury's verdict. Accordingly, the trial court did not abuse its discretion in denying plaintiff-appellant's motion for a new trial. See Betz v. Timken Mercy Med. Ctr. (1994), 96 Ohio App.3d 211. Plaintiff-appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Beth Liniman, plaintiff-appellant, states as her second assignment of error: II. WHETHER THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S MOTION FOR A NEW TRIAL BECAUSE THE COURT COMMITTED PLAIN AND PREJUDICIAL ERROR IN ITS WRITTEN RESPONSE/INSTRUCTION TO THE QUESTION FROM THE JURY DURING DELIBERATIONS. A. ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING PLAINTIFF-APPELLANT'S MOTION FOR A NEW TRIAL. Plaintiff-appellant argues the trial court abused its discretion in denying her motion for a new trial based upon submitting improper instructions to the jury. Specifically, plaintiff-appellant argues the written instruction submitted to the jury had the effect of eliminating both the general negligence and res ipsa loquitur causes of action. Plaintiff- appellant argues since this instruction prejudiced her rights to a fair trial, it constitutes plain error and must result in a new trial. -10- Plaintiff-appellant's second assignment of error is not well taken. -11- B. STANDARD OF REVIEW: MOTION FOR A NEW TRIAL. Again, whether to grant a motion for new trial is up to the discretion of the trial court. Verbon v. Pennese, supra. Absent clear evidence that the trial court acted unreasonably, unconscionably, or arbitrarily and rendered a decision which was clearly wrong and without legal basis, the trial court's decision must be affirmed. See Castlebrook, Ltd., supra; Scandinavian Health Spa, supra. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING PLAINTIFF-APPELLANT'S MOTION FOR A NEW TRIAL. During deliberations, the jury submitted the following written question to the court: Q. Are we basing our decision for negligence on a general negligence or specific negligence caused by the use of the hand- held retractor? The court responded by giving the following written response: A. If you find that there was a departure from accepted standards of care in the use of the hand-held retractor, you will find that the defendant was negligent. If you do not find a departure from the standard of care in the use of the retractor, you will find that the defendant was not negligent. There is no dispute that counsel for both parties stipulated to the answer before the trial judge gave it to the jury. Since plaintiff-appellant failed to object to the instruction at trial level, she cannot now raise the error on appeal, unless it is plain error. Civ.R. 51(A); Shade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207. -12- In State v. Long (1978), 53 Ohio St.2d 91, the Ohio Supreme Court stated that the plain error doctrine should be applied with, "utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." Id. at paragraph three of syllabus. See, also, State v. Cooperrider (1983), 4 Ohio St.3d 226. After a review of the entire record, we find there exists sufficient credible evidence supporting the jury's finding. As such plaintiff-appellant's failure to object does not constitute plain error. Moreover, 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. Not only did plaintiff-appellant's counsel fail to object to the jury instruction, they reviewed and stipulated to the answer prior to it being submitted to the jury. For these reasons, the -13- trial court did not abuse its discretion in denying plaintiff- appellant's motion for a new trial. Plaintiff-appellant's second assignment of error is not well taken. Judgment affirmed. -14- 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. SPELLACY, C.J. and HARPER, J., CONCUR. DAVID T. MATIA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .