COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71637 CAITLIN PESEK, et al : : Plaintiffs-appellants : : JOURNAL ENTRY vs. : and : OPINION UNIVERSITY NEUROLOGISTS ASSN.,: INC., et al : : Defendants-appellees : : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 11, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 249,529 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiffs-appellants: JAMES G. CORRIGAN Attorney at Law 1520 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 For defendants-appellees JOSEPH A. FARCHIONE University Neurologists DOUGLAS G. LEAK Association, Inc.; Attorneys at Law Susan K. Klein, M.D. and Jacobson, Maynard, Tuschman Samuel J. Horwitz, M.D. : & Kalur 1001 Lakeside Avenue, #1600 Cleveland, Ohio 44114-1192 (Continued) APPEARANCES (Cont.): CARRIE A. FOLIANO Attorney at Law 1370 Ontario Street 800 Standard Building Cleveland, Ohio 44113 -2- TIMOTHY E. McMONAGLE, J.: Plaintiffs-appellants appeal from the verdict entered in the Cuyahoga County Court of Common Pleas in which a jury found in favor of the defendants-appellees in appellants' action for medical malpractice against them. Finding no reversible error in the proceedings below, for the reasons that follow, we affirm. The facts giving rise to this appeal are as follows. The record reflects that Caitlin Pesek was born at Hillcrest Hospital on November 13, 1990. Within twenty-four hours of her birth, the staff at Hillcrest Hospital detected possible seizure activity. Caitlin was treated with phenobarbital and transferred to the Rainbow Babies and Childrens Hospital of the University Hospital System. She was discharged from Rainbow Babies and Childrens Hospital on November 18 without further evidence of seizure activity. On February 22, 1991, Caitlin was again admitted to Rainbow Babies and Childrens Hospital due to seizure activity. During this second admission, an MRI was performed from which it was determined by the neuroradiologist, Dr. Lanzieri, that Caitlin had an agenesis of the corpus callosum. Such an agenesis, or absence of the corpus callosum, is a cause of seizure activity. Caitlin's medical management was based upon this misdiagnosis; however, Caitlin was again successfully treated with phenobarbital and was discharged seizure-free on February 26. On March 9, Caitlin was admitted to Rainbow Babies and Childrens Hospital for the third time with seizure activity. From her admission on March -3- 9 through March 13, Caitlin was treated with phenobarbital and a combination of other anti-convulsant drug therapies, but her seizures persisted. Then, on March 13, a Code Blue medical emergency was called and Caitlin was transferred into the pediatric intensive care unit with intractable seizures. While she was in the intensive care unit, Caitlin was determined to be status epilepticus and was placed into a phenobarbital coma to facilitate treatment with drug therapies to control her seizure activity. On March 20, at the request of her parents, a second opinion regarding Caitlin's condition was rendered by Dr. Rothner, a neurologist from the Cleveland Clinic. He examined Caitlin and reviewed the MRI films taken in February. Dr. Rothner concluded that the MRI did not show an agenesis of the corpus callosum and, consequently, he suspected an alternative cause of Caitlin's seizures to be a rare genetic vitamin B-6 deficiency, thereby rendering her Pyridoxine- dependent. Dr. Rothner ordered the administration of B-6 pyridox- ine to suppress her next seizure activity. On April 6, Caitlin again experienced seizure activity; B-6 was then administered, and Caitlin's seizure activity responded to the B-6 therapy. Thus, it was determined that Caitlin suffered a genetic Pyridoxine or Vitamin B-6 dependency, a rare cause of seizure disorder in infants. During her hospitalization, Caitlin suffered irreversible brain damage. On March 26, 1993, Caitlin's parents, James and Renee Pesek ( appellants ), instituted the present action alleging medical malpractice and asserting claims both for themselves and for -4- Caitlin against Charles Lanzieri, M.D.; University Radiologists of Cleveland, Inc.; Samuel Horwitz, M.D.; Susan Klein, M.D.; Max Wiznitzer, M.D.; University Neurologists Association, Inc.; Benjamin Kaufman, M.D.; Richard Martin, M.D.; John Stork, M.D.; and University Hospitals of Cleveland. After initial discovery, appellants dismissed all named defendants except Dr. Charles Lanzieri, University Radiologists and University Hospitals. Appellants later reinstituted their claims against Drs. Horwitz, Klein and Wiznitzer and University Neurologists. Trial on the matter was set for October 15, 1996; however, on October 11, 1996, appellants settled their claims against Dr. Lanzieri and University Radiologists for $4.1 million, and, before trial, appellants dismissed their claims against Dr. Wiznitzer and, further, dismissed all remaining claims against University Hospital with the exception of the claim for liability of the hospital on the theory of agency by estoppel (pursuant to Clark v. Southview Hospital and Family Health Center (1993), 68 Ohio St.3d 435) should the remaining defendants be found to be liable in medical malpractice. Consequently, on October 15, 1996, the matter proceeded to jury trial against the three remaining defendants, Drs. Horwitz and Klein, pediatric neurologists who had each treated Caitlin during her March admission to the hospital, University Neurologists, and University Hospital. At trial, appellants contended that appellees committed medical malpractice for failing to administer vitamin B-6 to Caitlin during the very narrow period of her hospitalization from March 11 until March 13 and that, as a result of this failure, -5- Caitlin suffered irreversible brain damage. At the close of appellants' case, the court granted a motion for directed verdict in favor of University Neurologists. At the conclusion of the trial, the jury found by interrogatory that the claims of Caitlin's parents were brought outside the applicable statute of limitations and returned a verdict in favor of the defendant physicians, Drs. Horwitz and Klein, on the parents' claims against them. On Caitlin's claims, the jury returned a verdict in favor of Drs. Horwitz and Klein ( appellees ), thereby rendering the claims for agency by estoppel (the Clark claims) against University Hospital moot. It is from this jury verdict that appellants bring this appeal, setting forth three assignments of error for our review. I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANTS WHEN IT GAVE THE JURY A SCHOOL OF THOUGHT INSTRUCTION, OVER THE OBJECTION OF THE PLAINTIFF'S COUNSEL, WHEN NO EVIDENCE WAS INTRODUCED THAT A SECOND SCHOOL OF THOUGHT EXISTED IN THE FACTS OF THIS CASE. II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANTS WHEN IT ALLOWED IMPROPER CLOSING ARGUMENTS BY DEFENSE COUNSEL WHICH INCLUDED PERSONAL ATTACKS ON THE PLAINTIFF AND THEIR COUNSEL AND OTHER INFLAMMATORY STATEMENTS WHICH INFLAMED THE JURY. III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANTS WHEN IT ALLOWED IMPROPER CLOSING -6- ARGUMENTS BY DEFENSE COUNSEL REGARDING A SETTLEMENT OF PART OF THE PLAINTIFFS CLAIM IN DIRECT CONTRAVENTION OF A PREVIOUS COURT RULING IN LIMINE. In their first assigned error, appellants contend that the trial court erred when it gave the jury a school of thought instruction over appellants' objection. Appellants argue that appellees presented no evidence to support a jury instruction regarding a second school of thought on the standard of care required of pediatric neurologists for treatment of infants presenting with intractable seizures by administration of B-6. Appellees, on the other hand, assert that sufficient evidence existed in the record to support this jury instruction on differing methods of diagnosis and treatment. We agree. The instruction to which appellants objected was taken directly from Ohio Jury Instructions 331.02(3), which provides: 331.02 Physician or surgeon: specific standards of care * * * 3. DIFFERENT METHODS. Although some other (physician) (surgeon) (in the specialty) might have used a method of (diagnosis) (treatment) (procedure) different from that used by defendant, this circumstance will not by itself, without more prove that defendant was negligent. The mere fact that the defendant used an alternative method of (diagnosis) (treatment)(procedure) is not by itself without more, proof of his negligence. You are to decide whether the (diagnosis) (treatment) (procedure) used by the defendant was reasonably (careful) (cautious) (prudent) and in accordance with the standard of care required of a (physician) (surgeon) (specialist) in his field. -7- In order to determine whether a jury instruction is properly given, we recognize that: *** [i]t 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, 75 O.O.2d 331, 348 N.E.2d 135. However, the corollary of this maxim is also true. [Footnote omitted.] Ordinarily requested instructions should be given if they are correct statements of the law applicable to the facts in the case and reasonable minds might reach the conclusion sought by the instruction. Markus & Palmer, Trial Handbook for Ohio Lawyers (3 Ed. 1991) 860, Section 36:2. See, also, Feterle v. Huettner (1971) 28 Ohio St.2d 54, 57 O.O.2d 213, 275 N.E.2d 340, at the syllabus: In reviewing a record to ascertain the presence of sufficient evidence to support the giving of an *** instruction, an appellate court should determine whether the record contains evidence from which reasonable minds might reach the conclusion sought by the instruction. (Emphasis added). Murphy v Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585,591, 575 N.E.2d 828, 832. Wightman, Admr. v. Consolidated Rail Corp. (1994), 94 Ohio App.3d 389; See, also, State v. Hill (July 10, 1997), Cuyahoga App. No. 70930, unreported. In the matter before us, the record reveals that appellants' expert, Dr. Arthur Prensky, testified that even if the pediatric neurologists in this case had been misled by the inaccurate diagnosis of the pediatric neuroradiologist, the method of treatment utilized by these appellee physicians fell below the standard of care required by pediatric neurologists when they failed to administer Vitamin B-6 when faced with an infant with intractable seizures. On the other hand, Dr. Hart deC. Peterson, expert for appellees, testified by deposition that where these physicians were treating a child with a diagnosis of structural -8- brain disease made by the neuroradiologist ( agenesis of corpus callosum ), [t]heir approach to treating that seizure disorder presumed due to a congenital abnormality of the development of the brain was entirely appropriate[,] indicating that they met the required standard of care of pediatric neurologists with the treatment protocol that they used. When faced with the competing expert opinions, counsel for appellees elicited further testimony from Dr. Prensky on cross- examination, wherein he conceded that if two physicians disagree on how to treat a patient, including the rare condition of Pyridoxine (B-6) dependency, as in the case before us, it does not necessarily mean that one of the two physicians is below the standard of care. Moreover, Dr. Prensky testified that it would not shock him if Dr. Peterson testified that a pediatric neurologist would not have used B-6 from March 9 through March 12, although in Dr. Prensky's opinion it would be wrong. Finally, although Dr. Prensky stated that while, in his opinion, most pediatric neurologists would have used B-6 to treat an infant with intractable seizures, he conceded that there is a minority that would have not. To prove a medical malpractice case, it is axiomatic that the plaintiffs must put on expert testimony to show that the doctors whom the plaintiffs believe committed malpractice fell below the standard of care of like practitioners under the same or similar circumstances. Bruni v. Tatsumi (1976), 46 Ohio St.2d 127. Here, appellants' expert, Dr. Prensky, opined that the treatment by the appellee physicians fell below the standard of care due to their -9- failure to administer vitamin B-6 to Caitlin during this time; however, Dr. Peterson testified that the failure to administer B-6 to this child under the circumstances of the case did not fall below the acceptable standard of care. Further, Dr. Prensky conceded that a minority view such as expressed by Dr. Peterson might exist. Therefore, we find that reasonable minds could reach the conclusion that Drs. Horwitz and Klein treated Caitlin in accordance with a treatment protocol that met an acceptable standard of care in the medical community although other physicians in this field may have used an alternative method of diagnosis and treatment. Consequently, we find that sufficient evidence was presented at trial to support the trial court's decision to instruct the jury on differing methods of diagnosis and treatment. Accordingly, we find appellants' first assignment of error not well taken. In both their second and third assigned errors, appellants assert that the trial court erred and abused its discretion when it allowed appellees' counsel to make improper comments during his closing argument. In their second assigned error, appellants contend that appellees' counsel's closing remarks included personal attacks on them and their counsel that inflamed the jury. In their third assigned error, appellants contend that appellees' counsel's comments were in direct contravention of the previous court ruling to preclude evidence on the reasons or the amount of the settlement reached by appellants and Dr. Lanzieri and -10- University Radiologists and, consequently, prejudiced appellants and denied them a fair trial. Appellees, on the other hand, assert that each of the comments of which appellants complain is supported by evidence in the record and is, therefore, proper and, further, that the comments were not objected to at trial. The record reveals that appellants' counsel failed to object to any comment during appellees' closing argument. Although counsel failed to object to any of the comments of which appellants complain in this appeal, appellants seem to urge this court to find reversible error in the trial court's failure to sua sponte intervene. The supreme court in Snyder v. Stanford (1968), 15 Ohio St.2d 31, paragraph 1 at the syllabus, stated: Except where counsel, in his opening statement and closing argument to the jury, grossly and persistently abuses his privilege, the trial court is not required to intervene sua sponte to admonish counsel and take curative action to nullify the prejudicial effect of counsel's conduct. Ordinarily, in order to support a reversal of a judgment on the ground of misconduct of counsel in his opening statement and closing argument to the jury, it is necessary that a proper and timely objection be made to the claimed improper remarks so that the court may take proper action thereon. See, also, Mansfield v. Ector (Oct. 29, 1987), Cuyahoga App. No. 52517, unreported. Great latitude is afforded counsel in presentation of closing argument to the jury. Pang v. Minch (1990), 53 Ohio St.3d 186, paragraph 2 at the syllabus. Control over the latitude allowed rests within the discretion of the trial court. Hitson v. City of Cleveland(Dec. 13, 1990), Cuyahoga App. No. 57741, unreported. A -11- reviewing court will not disturb the exercise of that discretion unless the record clearly demonstrates a highly improper argument that tends to inflame the jury. Lance v. Loehr (1983), 9 Ohio App.3d 297, 298; see, also, Brooks v. Brost Foundry (May 2, 1991), Cuyahoga App. No. 58065, unreported. In order to find an abuse of discretion, we must determine that the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. Appellants, in reliance on Jackson v. Booth Memorial Hosp. (1988), 47 Ohio App.3d 176, contend that prejudicial error occurs where remarks are not supported by the evidence and are calculated to arouse passion or prejudice or designed to misrepresent the evidence to the extent that there is a substantial likelihood that the jury may be misled. We find appellants' reliance on Jackson to be misplaced. First, we note that in Jackson, unlike the matter sub judice, appellants had, in fact, objected to the closing remarks of the appellee's counsel. The Jackson court found the trial court did abuse its discretion in overruling the appellant's objections. (Emphasis added.) Id. at 180. Even so, we agree that a trial court has the discretion to limit the closing argument of counsel where remarks are not supported or warranted by the evidence and are calculated to arouse passion or prejudice or designed to misrepresent the evidence to the extent that there is a substantial likelihood that the jury may be misled. Jackson, supra. But, -12- clearly, such remarks, to constitute reversible error, must be sufficient to taint the verdict. Larrissey v. Norwalk Truck Lines, Inc. (1951), 155 Ohio St. 207. The determination of whether such conduct is sufficient to taint the verdict with passion or prejudice lies within the sound discretion of the trial court. Gilley v. Huron Regional Urgent Care (Apr. 19, 1990), Cuyahoga App. No. 56863, unreported. Appellants contend, in their second assigned error, that opposing counsel, in closing argument, accused their counsel of deliberate misrepresentation, of innuendo, of hiding and misstating facts, of half truths and untruths, of threatening a witness, and of suppressing testimony. Appellants correctly assert that even where opposing counsel failed to object to the complained-of comments, under the proper circumstance, the trial court is bound to sua sponte admonish counsel and take curative action to nullify the prejudicial effect of counsel's conduct. Snyder, supra at 37. Here, a review of the record before us shows that many of the comments of which appellants complain could be supported inferentially by testimony at trial and, as such, are not improper. Coffey v. Shenk (1974), 39 Ohio App.2d 155, 160. As to the other complained-of comments, while we find some of the remarks to have been somewhat inflammatory, appellants' counsel simply failed to object. We need not speculate on whether the trial court would have sustained or overruled objections. As a reviewing court, our obligation is to determine whether such remarks were such a gross abuse of counsel's privilege as to cause such manifest prejudice to -13- the appellants that the trial court abused its discretion in failing to sua sponte intervene. Jones v. Macedonia Northfield Banking Co. (1937), 132 Ohio St. 341. Upon careful review of the testimony before us, we do not find the challenged statements of counsel to be of such gross, flagrant and abusive conduct to warrant intervention of the trial court where counsel, himself, did not object. Further, appellants have not demonstrated prejudice of the jury as a result of the remarks; therefore, although improper, the misconduct of counsel did not rise to such a level as to prejudice and taint the jury's verdict. Consequently, we do not find that the trial court abused its discretion when it failed to sua sponte intervene during closing argument. Accordingly, we find appellant's second assignment of error not well taken. In their third assigned error, appellants contend that appellees' counsel made comments during his closing argument that were in direct contravention of the court's previous ruling on appellants' motion in limine. Appellants argue that these remarks were so damaging and prejudicial that they were denied a fair trial. The record reflects that prior to trial, upon appellants' motion for an order to keep the settlement figure between appellants and defendants Dr. Lanzieri and University Radiologists out of both the opening statement and the closing argument, the court stated the following: Ladies and gentlemen of the jury, Dr.Lanzieri and University Radiologists are defendants. -14- Settlement agreements were reached between the plaintiffs and those two defendants. You may not speculate about reasons for the settlement, nor the amount of the settlement. (Emphasis added.) Therefore, appellants complain that the comment made by counsel is in direct contravention of the court's ruling. In the complained-of comment, counsel stated: It is because the diagnosis of agenesis of the corpus callosum was wrong that Dr. Lanzieri is not standing in front of you right now justifying what he did saying, Well, it doesn't matter what I did. The pediatric neurologist should have gone ahead anyways and used the B-6 so I'm really not at fault. He's not saying that, folks, because he knows that's not true. His attorneys knew that wasn't true and he has settled out of this case. Ample testimony was presented at trial to support counsel's commentary on the incorrect diagnosis of agenesis of the corpus callosum made by Dr. Lanzieri. Further, ample testimony was presented at trial to support the proposition that the pediatric neurologists treating Caitlin relied upon this misdiagnosis, which resulted in their failure to treat her seizures with vitamin B-6. The expert testimony of Dr. Peterson supports the proposition that it was not true that a pediatric neurologist should have gone ahead anyway and used B-6" where there had been a diagnosis of a brain malformation. Further, there is no dispute that Dr. Lanzieri did, in fact, settle out of this case. Therefore, we do not see that this first comment complained of was in contravention of the trial court's ruling. -15- Finally, appellants complain that counsel's statements, These parents would not have settled for anything less than this child's financial security for the rest of her life, and, The individual who caused harm in this case has settled out of this case and is not here. Now, we're here simply to roll the dice, contravene the directive of the trial court that precluded speculation by the jury of the amount of the settlement made prior to trial. As support for this comment, appellees urge us to recognize that the testimony of Caitlin's father supports such a comment. A review of the trial testimony indicates that Caitlin's father stated that he and his wife reviewed the settlement offer very closely and approved the settlement as being [f]or the best interest of our family ***. We do not find that this single statement by the father supports the conclusion that the parents would not have settled for anything less that the child's financial security for the rest of her life when they settled with less than all defendants prior to trial. We agree that such a comment may cause a jury to speculate on the amount of the settlement, which they were instructed not to do. Appellants did not object to these comment at trial; however, we acknowledge that the trial court is bound to sua sponte admonish the court and take curative action to nullify the prejudicial effect of counsel's misconduct where gross and abusive conduct occurs. Snyder, supra. Unfortunately, this comment may have encouraged the jurors to speculate on the amount of the settlement, which they had been told not to do. -16- Nonetheless, in this instance, we do not find counsel's comment to be so egregious and prejudicial that the trial court abused its discretion by failing to admonish counsel and take curative action. Even so, the jury was properly instructed to consider only the evidence in the case and were further instructed that closing argument of counsel does not constitute evidence. A presumption exists that the jury follows the instructions given by the trial court. Pang v. Minch (1990) 53 Ohio St.3d 186, 195. Thus, we must presume that, in the absence of evidence to the contrary, the jury disregarded the comments of appellees' counsel when determining the liability of appellees for medical malpractice. Accordingly, we find that appellants' third assignment of error is not well taken. As this court has stated, before a judgment will not be reversed on the grounds of misconduct in closing argument unless the circumstances are of such reprehensible and heinous nature as to constitute prejudice. Plavcan v. Longo (July 3, 1980), Cuyahoga App. No. 39964[, unreported]." Hitson v. City of Cleveland, supra. Appellants, here, have failed to demonstrate to this court that their substantial rights were violated by comments made by appellees' counsel during closing argument. Upon a review of the record before us, even though some of the remarks made by counsel may have been objectionable, counsel did not object. The jury was properly instructed not to consider remarks made during closing argument as evidence in the case, and there has been no demonstration of error prejudicial to appellants. Thus, in the -17- absence of showing of prejudicial error, we can only conclude any errors occurring during closing argument were harmless. Judgment of the trial court is affirmed. -18- 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 Cuyahoga County Court of Common Pleas 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 M. PORTER, P.J. and JOSEPH J. NAHRA, J. CONCUR JUDGE TIMOTHY E. McMONAGLE 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 of decision by the .