COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70685 GEORGE KARNAVAS, ET AL. : : Plaintiffs-appellees : : JOURNAL ENTRY -vs- : AND : OPINION LAKEWOOD HOSPITAL ASSOCIATION, : ET AL. : : Defendants-appellants : : DATE OF ANNOUNCEMENT : OF DECISION : MAY 15, 1997 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 249394 JUDGMENT : Reversed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFFS-APPELLEES: FOR DEFENDANTS-APPELLANTS: J. Michael Monteleone, Esq. Deirdre G. Henry, Esq. William J. Shramek, Esq. William H. Baughman, Jr., Esq. Jeffries, Kube, Forrest & Weston, Hurd, Fallon, Paisley Monteleone Co., L.P.A. & Howley 1650 Midland Building 2500 Terminal Tower 101 Prospect Avenue West 50 Public Square Cleveland, Ohio 44115 Cleveland, Ohio 44113 -2- ROCCO, J.: In this action for medical malpractice, defendant-appellant, the Lakewood Hospital Association (the hospital) appeals from the trial court order which granted plaintiff-appellee George Karnavas' motion for a new trial following a jury verdict in the hospital's favor. The hospital argues the trial court abused its discretion in granting appellee's motion because there was substantial, competent, credible evidence to support the jury's verdict, thus, the verdict was not against the manifest weight of the evidence. This court agrees with the hospital and reinstates the jury's verdict. Appellee, at that time 78 years old, first presented himself at the hospital on October 4, 1991, complaining of blackouts, dizziness, weakness, and chest pain. Appellee told the emergency room nurse that although he was taking medications for a heart 1 condition, he had experien pain. As the nurse spoke to appellee, she noted on his chart that he seemed "somewhat paranoid;" further, that he stated "the IRS gave me AIDS twice." Appellee was examined by the emergency room doctor. Appellee gave a coherent medical history which included coronary artery disease and myocardial infarction. He also informed the doctor of the various medications which had been previously prescribed for him. Appellee was diagnosed with "crescendo" or 1 Quotes indicate testimony given by a witness at trial. -3- "unstable" angina and was admitted to the hospital. Initially, appellee stated he had no family to notify of his admission. The following day, one of appellee's nurses had a conversation with him which she noted on his chart. Appellee stated that his ex-wife was "taking all of his money," that "the IRS is after her money," and that his son was attempting "to regain his millions of dollars from" the government. Dr. Colacarro became appellee's attending physician at the hospital. The doctor reviewed the medical history which appellee had given and spoke to appellee. With Dr. Colacarro, appellee was coherent and unremarkable in his behavior. Dr. Colacarro called for a consultation concerning appellee's medical condition with cardiologist Dr. Brahmbhatt. Thereafter, Dr. Brahmbhatt came to see appellee. Appellee stated he had "absolutely no family members." Following some tests, Dr. Brahmbhatt determined the best medical course of action was to perform surgery in order to relieve appellee's arterial blockages. After Dr. Brahmbhatt discussed his recommendations with appellee, appellee stated he wanted the surgery. He was supported in his decision by his cousin, who had come to the hospital to visit him. Dr. Brahmbhatt asked appellee if he had any other family members with whom he wished to consult; appellee seemed to become "extremely resentful" and stated he did not want anyone else in his family contacted. Appellee's wishes were noted on his hospital chart. Appellee possessed some medications which cardiologist Dr. T.P. Keo had prescribed; thus, it was decided that Dr. Keo would -4- perform appellee's surgery. Dr. Keo scheduled appellee's surgery for October 11, 1994. On October 8, 1994, appellee "insisted on going home." He told the nurses he needed a special cream for a dermatological condition and that he would "come right back." The nurses notified Dr. Colacarro, who called to reassure appellee that the hospital would provide the cream for him. Later that day, appellee began leaving his room to walk in the halls. Furthermore, he again wanted to go home, this time to get his shaver. The nurses provided a shaver to appellee. The following day, appellee insisted on being discharged prior to surgery. The nurses informed Dr. Colacarro, who prescribed a mild tranquilizer for appellee. Both Dr. Colacarro and Dr. Keo later conferred with appellee in order to convince him that remaining in the hospital was the best course of action. Appellee's cousin, who had come for a visit, concurred with the doctors. Eventually, the three convinced appellee he should remain in the hospital while awaiting surgery. On October 10, 1994, the day prior to the scheduled surgery, appellee signed the consent form for the procedure. During that day, the nurses noted appellee was again wandering throughout the hospital. Moreover, during the afternoon, they noted appellee came to the nurses' station requesting aid in contacting his "son in Texas;" appellee told them to call one of his family members for his son's telephone number. The nurses replied the hospital's patient representative, Laura Navin, handled such requests and they would notify her. -5- The following morning, the nurse from the cardiac step-down unit noted on appellee's chart that he seemed to be "dragging his feet" while preparing for surgery. She made the notation in the event Dr. Keo questioned the timing of her administration of appellee's preoperative medication. Appellee's heart surgery proceeded as scheduled. During the surgery, appellee suffered a stroke which left him severely disabled. Appellee's sons and daughter learned of his hospitalization soon thereafter. When appellee's children were apprised of his surgery and his condition, they were distraught by what they perceived as the hospital's failure to adequately explore appellee's "support system" prior to obtaining his consent to the surgery. They indicated appellee had previously had psychiatric problems, viz., he had been diagnosed with paranoid schizophrenia in 1978 and had continued to have symptoms of the disorder. Appellee's children' distress was fueled by Dr. Keo's comment to appellee's daughter that if he had known appellee had psychiatric problems and that so many family members were concerned with appellee's decision, he would "never have done the surgery." Subsequently, appellee instituted an action against the hospital and the treating physicians in the Cuyahoga County Court 2 of Common Pleas. Appellee alleged his injuries were caused by the defendants' medical negligence. Appellee also 2 Appellee's action was pursued by and through his daughter Diane Karnavas Ashdown, who had been appointed his legal guardian. -6- included a second cause of action alleging the defendants failed to obtain his informed consent prior to performing the surgical procedure. Following a lengthy discovery process, the case proceeded to jury trial which commenced on December 5, 1995. Appellee presented the testimony of thirteen witnesses in his behalf. With regard to the hospital, appellee suggested four ways in which he alleged appellant was negligent in treating him: 1) the nurses failed to inform the treating physicians of appellee's odd statements and behaviors upon admission and during his stay prior to the surgery; 2) the nurses failed to adequately inform the physicians of appellee's insistence on leaving the hospital; 3) the nurses and the patient representative failed to follow up on contacting appellee's son as he had requested; and 4) the cardiac step-down nurse failed to inform Dr. Keo of appellee's reluctant behavior on the morning of surgery. It was appellant's position that any or all of these negligent omissions were the proximate cause of his injuries. The four defendants, for their part, presented the testimony of twelve witnesses. During the course of the proceedings, the subject of jury interrogatories was discussed on the record. The trial court informed appellant it would not permit any interrogatories to go to the jury which requested "specificity." Thereafter, the trial court denied all the defendants' motions for a directed verdict, commenting that there was "certainly" sufficient evidence to make the case one for the jury to resolve. -7- The jury began their deliberation on December 13, 1995. During the course of deliberation, the jury had a question regarding the definition of proximate cause. With the concurrence of the parties, the trial court reread the pertinent jury instruction. Ultimately, the jury found favor of all of the defendants. In answer to the interrogatories propounded to it, the jury stated the physicians were not negligent in their treatment of appellee, and although the hospital was negligent, its negligence was not the proximate cause of appellee's injuries. Appellee subsequently filed a motion for a new trial with regard only to the hospital, contending the jury's verdict was against the manifest weight of the evidence. In rendering its decision in favor of appellee on his motion, the trial court stated in pertinent part as follows: THE COURT: * * * You may recall two things in connection with the jury's decision regarding the liability of the hospital. The first is that the jury asked, for the first time, at least in my experience, which is over six years of trial work now as a Judge, asked the court to read again to them the definition of proximate cause. And rather than a mistrial after several weeks of hard work by all of you, I choose (sic) to take a very narrow approach and truly, in fact, simply read the OJI instruction on proximate cause, which is about as good as a recipe for linguini quacamole written in Italian, for those of who (sic) don't speak the language. What troubles me greatly about the jury's verdict, in light of what I have just said, is that submitted to me by the defendant was a request for an interrogatory that would have followed what I'm going to call the first interrogatory, was the hospital's negligence, and what would have been an interrogatory asking the jury to determine and to list specifically those acts or -8- failure (sic) to act that in the jury's view constituted negligence in this case. I determined that that was not an appropriate interrogatory and, therefore, I declined to include it in the interrogatories that went to the jury. That is much to my dismay and chagrin as we sit here today, because Ms. Henry [appellant's counsel] is absolutely correct, it would be inappropriate for this Court to speculate and determine in its own mind what act or failure to act on the part of the hospital constituted the negligence that the jury found the hospital was responsible for. And because of that, and because the Court cannot speculate, it is really not possible to determine whether the jury lost its way in its deliberations regarding proximate causation. It seems to this Court, having heard the evidence and having, in fact, reviewed some of the evidence since the trial, that the jury did, indeed, loose (sic) its way in this case with regard to proximate causation. That there was such an abundance of material presented to them over the course of two weeks, almost two weeks, so many witnesses, and so many defendants, that it was difficult, if not impossible, for the jury to sort out all of that testimony a (sic) understanding of causation, other than the jury was very clear that the surgery itself and the surgeon had not malpracticed against this patient and had not, the medical treatment itself had not fallen below the standard of care. I am always slow to grant new trials. I have only done it once before. But I'm going to do it in this instance, because I believe that the jury verdict was against the manifest weight of the evidence. And, more importantly, that the jury lost their way and looked to this Court to assist them and that, indeed, this Judge failed to do so, first of all, by not permitting the interrogatory to go to the jury that would have defined the negligence and would have, in fact, informed us as to whether the negligence of the nurses in failing to talk to Dr. Keo that morning was the negligence that the jury had in mind. We simply don't know that. And because we don't know that, and because this Court did not elaborate on the definition of proximate cause, so as to assist the jury further, I believe that Plaintiffs are entitled to a new trial. (Emphasis added.) It is from the foregoing order that appellant, the hospital, has filed its timely appeal in this court. -9- Appellant presents the following as its sole assignment of error: THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND ABUSED ITS DISCRETION BY GRANTING PLAINTIFF'S MOTION FOR A NEW TRIAL ON THE GROUNDS THAT THE JURY LOST ITS WAY AND THAT THE JURY'S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues there was substantial, competent, credible evidence to support the jury's verdict that appellant's negligence was not the proximate cause of appellee's injuries, therefore, the trial court abused its discretion in granting appellee's motion for a new trial. This court finds appellant's argument to be persuasive. The trial court granted appellee's motion pursuant to Civ.R. 50(A), which states in pertinent part as follows: Rule 59. New trials. (A) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds: * * * (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 in the same case; * * * (9) Error of law occurring at the trial and brought to the attention of the trial court by the party making the application. In addition to the above grounds, a new trial may also be granted in the sound discretion of the court for good cause shown. (Emphasis added.) Where it is contended that the verdict is not sustained by the weight of the evidence, the standard which governs appellate review of a decision to grant a motion for a new trial is whether the trial court abused its discretion. Antal v. Olde Worlde -10- Products, Inc. (1984), 9 Ohio St.3d 144, 145; Jenkins v. Kreiger (1981), 67 Ohio St.2d 314; Rohde v. Farmer (1970), 23 Ohio St.2d 82; Krejci v. Halak (1986), 34 Ohio App.3d 1; Winson v. Fauth (1989), 63 Ohio App.3d 738. The term "abuse of discretion" connotes more than an error of law or judgment; it implies the trial court's attitude is unreasonable, arbitrary or unconscionable. Krejci v. Halak, supra. Ordinarily, the trial court's decision to grant a new trial based upon the manifest weight of the evidence is given considerable deference. [T]he generally accepted rule is that a reviewing court should view the evidence favorably to the trial court's action rather than to the jury's verdict. The predicate for the rule springs, in part, from the principle that the discretion of the trial judge in granting a new trial may be supported by his having determined from the surrounding circumstances and atmosphere of the trial that the jury's verdict resulted in manifest injustice. Jenkins v. Kreiger, supra at 320. The rationale behind this approach is the recognition that the exercise of the trial court's discretion may require an evaluation of witness credibility which is not apparent from the transcript. Sanders v. Mt. Sinai Hospital (1985), 21 Ohio App.3d 249 at 253. However, as this court stated in Gedetsis v. Anthony Allega Cement Contractors, Inc. (Sept. 23, 1993), Cuyahoga App. No. 64954, unreported: The jury system has its roots in our Constitutions, both federal and state, and is fundamental to our democratic form of government, therefore, a jury verdict cannot be set aside lightly by conclusory statements of the trial judge not grounded in the evidence ***. It is axiomatic that the -11- trial court cannot simply substitute its opinion for that of a jury. Thus, the trial court's discretionary action in granting a new trial must be supported by competent, credible evidence in order for a reviewing court to affirm that decision. Id; see, also, Verbon v. Pennese (1982), 7 Ohio App.3d 182, headnote 1; Katzive v. Litton Industries, Inc. (Feb. 19, 1981), Cuyahoga App. No. 42607, unreported. In this case, a review of the trial court's reasons for its decision to grant appellee's motion reveals it was not "grounded in the evidence." Only conclusorily did the trial court so state. The trial court's failure to review the evidence and to articulate a basis therein for its decision constitutes an abuse of discretion. Antal v. Olde Worlde Products, Inc., supra; Gedetsis v. Anthony Allega Cement Contractors, Inc., supra. Of more importance in the trial court's reasoning was its assessment that it had made two errors of law which prevented the jury from properly performing its function to weigh the evidence. The trial court's determination in this regard is not given great deference upon review. Sanders v. Mt. Sinai Hospital, supra at 252; cf., Pangle v. Joyce (1996), 76 Ohio St.3d 389. In considering the trial court's determination, it must first be noted that when granting a new trial pursuant to Civ.R. 59(A)(9), the error must be brought to the trial court's attention by the applicant, i.e., the party seeking a new trial. In this case, appellee never lodged a complaint regarding the trial court's refusal to submit to the jury appellant's -12- "narrative" interrogatory. Rather, appellant, in arguing that the jury's verdict should stand, merely proposed that without knowledge of what the jury considered negligent, it was useless to speculate on that issue. For the trial court to thus use appellant's request then its argument against it was both unreasonable and arbitrary. Moreover, the trial court's reinstruction to the jury of the definition of proximate cause was entirely proper. The jury requested simply that the instruction be repeated. The trial court complied. All of the parties agreed to both the language of the instruction and the appropriateness of the trial court's action. Subsequently, the hearing on appellee's motion for a new trial, appellee did not contend the jury did not understand the instruction; instead, he argued only that the verdict was against the manifest weight of the evidence. The trial court's sudden decision that the jury instruction was somehow incomprehensible completely lacked foundation. In rendering its decision to grant appellee a new trial, the trial court indicated that after reviewing "such an abundance of material," it, and not the jury, was the one who found it "impossible *** to sort out all of that testimony" and come to a decision regarding causation. Thus, rather than reviewing the evidence itself as required by Civ.R. 59(A)(6), the trial court granted appellee's motion on the basis that it would be "inappropriate" for it "to speculate" on the issue of negligence. -13- However, with regard to appellee's motion for a new trial, as appellee himself stated in his argument, the issue for the trial court to determine was not one of negligence, but of proximate cause. On this issue, there was an abundance of evidence presented in this case which supported the jury's verdict. With regard to appellee's statements and behaviors, the evidence indicated appellee's psychiatric problem was in remission. Several witnesses testified appellee functioned normally in most situations; only "key words" had a tendency to "set him off" into manifesting odd behaviors and making unusual statements. These key words were not likely to arise in a hospital setting. In general, therefore, appellee's behavior was no different from that of other geriatric patients and it did not render him incapable of making his own decisions. The treating physicians agreed the best medical course of action for appellee was surgery. Although Dr. Colacarro and Dr. Brahmbhatt indicated they would have preferred to know of appellee's oddness, it would not have made a difference in their clinical recommendation. The expert witnesses agreed the surgery itself was not performed negligently. Thus, the jury could conclude from the evidence that the nurses' failure to directly inform the treating physicians of appellees "paranoid" behaviors and statements was not a proximate cause of his injuries. Furthermore, each of appellee's children testified that appellee was a person of very "independent" nature. Despite his psychiatric problems, he managed his own affairs, lived on his -14- own, and often failed to consult with one of them prior to taking an action. Appellee's daughter testified that during the previous year, when she found appellee had presented himself to a hospital in Westlake, she caused appellee to be transferred to another hospital for a psychiatric evaluation. Upon his subsequent discharge, appellee avoided contact with his daughter. Moreover, the son appellee apparently had wanted to telephone prior to surgery testified in a similar vein. He stated he and appellee had a "stormy" relationship. He testified that after he had been appointed appellee's legal guardian years previously, their relationship was thereafter "strained." The guardianship had been shifted to another in 1980; however, the two had hardly spoken since that time. From the totality of the evidence adduced at trial, therefore, the jury could conclude that even if the nurses had contacted one of appellee's family members on the day before surgery, appellee would have still undergone the procedure. Since the jury could reasonably conclude the omissions of the nurses with regard to appellee while he was under their care were not the proximate cause of appellee's injuries, the jury's verdict in appellant's favor was not against the manifest weight of the evidence. See, e.g., Johnson v. Knebusch (Jan. 7, 1984), Cuyahoga App. No. 47543, unreported. A review of the record in this case demonstrates the trial court's decision to grant appellee a new trial was not based upon the weight of the evidence at all. Rather, it was based upon a -15- misguided perception the jury was unable to fulfill its function to determine the issue of proximate cause. Cf., Pangle v. Joyce, supra. The record reveals the jury's verdict was supported by substantial, competent, credible evidence while the trial court's decision was not. Therefore, the trial court abused its discretion in granting appellee's motion for a new trial. Poske v. Mergl (1959), 169 Ohio St.70; C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279; Verbon v. Pennese, supra; cf., Jenkins v. Kreiger, supra; Sanders v. Mt. Sinai Hospital, supra; Krejci v. Halak, supra. Accordingly, appellant's assignment of error is sustained. The order of the trial court granting appellee's motion for a new trial is reversed and the jury's original verdict for appellant is reinstated. Judgment reversed. -16- It is ordered that appellants recover of appellees its 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 Cuyahoga County 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. JAMES D. SWEENEY, C.J., AND ANN DYKE, J., CONCUR JUDGE KENNETH A. ROCCO 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 .