COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72314 KIMBERLY ECHOLS Plaintiff-appellant JOURNAL ENTRY vs. AND MITCHELL BARNEY, D.D.S., ET AL. OPINION Defendant-appellee DATE OF ANNOUNCEMENT OF DECISION: APRIL 30, 1998 CHARACTER OF PROCEEDINGS: Civil appeal from Common Pleas Court Case No. CV-288236 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellant: For defendant-appellee: MARK W. RUF, ESQ. ROY A. HULME, ESQ. Hoyt Block, Suite 300 BRIAN D. SULLIVAN, ESQ. 700 West St. Clair Avenue REMINGER & REMINGER Cleveland, Ohio 44113-1230 113 St. Clair Building Cleveland, Ohio 44114 -2- KARPINSKI, J.: Plaintiff-appellant, Kimberly Echols, appeals from the judgment of the trial court in which a jury rendered a defense verdict in her dental malpractice case against Dr. Mitchell Barney. On appeal, plaintiff argues that the jury instructions were in error and that defense counsel's statement describing plaintiff's lawsuit as frivolous warrants a reversal by this court. We do not agree and affirm the judgment of the court below. The relevant facts follow. Plaintiff visited Dr. Barney's office because of problems with a bottom right molar. Dr. Barney examined the molar and informed plaintiff that she needed a soft tissue extraction. He stated he could remove the tooth and that she did not need to see an oral surgeon. On August 30, 1994, Dr. Barney performed the extraction using forceps to remove the tooth. After pushing and pulling for over 20 minutes, he was able to remove the tooth only after it broke. Both parties acknowledge that this procedure was upsetting to plaintiff. She was in such pain she had to stop the extraction to compose herself. She described the dentist as being frustrated during the procedure and having to start and stop more than once. The root tip remained in plaintiff's mouth. Not telling plaintiff about the fragment, Dr. Barney sent her home and told her if she had any immediate problems to come back. Two days later, plaintiff returned for the scheduled follow-up visit. At that time, Dr. Barney told plaintiff she would need to see an oral surgeon to -3- remove the root tip. The dentists at Case Western Reserve University ( Case ) removed the root tip, along with two remaining wisdom teeth on September 5, 1994. On September 13, 1994, when plaintiff returned to Case for a follow-up, she complained for the first time of some numbness and tingling in her lip or slight paresthesia. 1 Plaintiff alleged this numbness was caused by damage to her inferior alveolar nerve. Plaintiff sued Dr. Barney for malpractice.2 In her suit, plaintiff alleged that Dr. Barney's treatment fell below the standard of care because (1) he used too much force in removing the tooth, (2) he should have stopped trying to remove the tooth when he became aware of the difficulty involved, and (3) he failed to inform plaintiff that the root tip remained in her mouth before he sent her home. No dispositive motions were filed and the case proceeded to trial. At trial, plaintiff presented the testimony of Dr. Judith Wheeler who testified Dr. Barney deviated from the standard of care in three ways. First, after experiencing difficulties with the extraction, he continued instead of referring plaintiff to a specialist. Second, too much force was used in extracting the tooth. Third, Dr. Barney should have told plaintiff earlier that a root tip remained in her mouth. 1 Appellee's brief defines paresthesia as an altered sensation in a particular area. 2 Plaintiff specifically states that Dr. Marciano, the oral surgeon from Case, did not damage any nerves during the extraction of the root tip. Moreover, she had signed a waiver before Case treated her. -4- Testifying for the defense, Dr. John Distefano opined that Dr. Barney's care of plaintiff did not fall below the applicable standard of care. Specifically, he stated that if too much force were used in the extraction of a tooth, tissue or bone damage would be observable and these conditions were not present in plaintiff. Dr. Distefano also testified that teeth commonly break during extraction and that this is not evidence of substandard care. Finally, he stated that it was not unusual to delay telling a patient that a root tip had broken off, because that news may make the patient more upset. The defense also pointed out that the patient did not report any symptoms of paresthesia until after the root tip was removed at Case. In the following statement during closing arguments, defendant's counsel called plaintiff's lawsuit frivolous : [T]here are too many frivolous lawsuits around, such as this one, and his [plaintiff's counsel] concern is that you might look at this--he's trying to condition you to say well, its here, it must be an important lawsuit (Tr. 204-205.) Plaintiff's counsel immediately voiced an objection, which was sustained by the trial judge. After the objection was sustained, plaintiff's counsel did not seek a curative instruction. Three other times, defense counsel again referred indirectly to this lawsuit as frivolous. (Tr. 211, 213, 222.) In the last instance, plaintiff stated, I ask you, do not compound the problem that we have in this society of frivolous lawsuits. Do not award this woman money. (Tr. 222.) In each of these instances, plaintiff's counsel did not object or request a curative instruction. -5- In closing, plaintiff's counsel brought up the issue of whether this case was a frivolous lawsuit when he stated, If this case was a frivolous suit, it would have never made it this far. Frivolous suits do not get before the jury. (Tr. 223.) Defense counsel objected, and the court sustained the objection. The jury returned with a verdict for the Dr. Barney. Plaintiff timely appealed raising the following two assignments of error, the first of which states as follows: I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO GIVE PLAINTIFF'S INSTRUCTION NOS. 13, 15, AND 19 WHICH DEFINED THE DENTIST/PATIENT RELATIONSHIP AND TWO THEORIES SUPPORTING A FINDING OF DENTAL MALPRACTICE. In this assignment, plaintiff argues that the trial court's failure to give three requested jury instructions constitutes reversible error. The court instructed the jury in pertinent part as follows. What is negligence? Negligence is the failure to use ordinary care. Every person is required to use ordinary care to avoid injury to another person or to themselves. Ordinary care is the care that a reasonably cautious and prudent person would use under the same or similar circumstance. This same standard applies to both the plaintiff and the defendant in this case. The fact that Dr. Barney's treatment did not bring about a cure or fulfill expectations does not, in and of itself, without more, prove that Dr. Barney was negligent. The existence of a dentist/patient relationship places upon the dentist the duty to act as would a dentist of ordinary skill, care and diligence, under like or similar conditions. His standard of care is to do those things which a dentist would do, and refrain from doing those thing which a dentist would not do. If you find by the greater weight of the evidence that the defendant failed to act like [sic] another -6- dentist of the same skill and care would have acted, then you may find that he was negligent. Although some other dentists may have used a different method of diagnosis or treatment than that used by Dr. Barney, this circumstance will not, by itself, without more proof, indicate that Dr. Barney was negligent. The mere fact that the defendant used an alternative method of treatment is not by itself proof of negligence. You are to decide whether the treatment procedure used by him was reasonable and in accordance with the standard of care of a dentist in his field of practice. The customary or routine method of diagnosis and treatment may be considered by you along with the other facts and circumstances in evidence. You are to decide whether the method of treatment used by the defendant was reasonably prudent and in accordance with the standard of care required of a dentist in his field of practice. Therefore, the issues for you to decide in this case are, one, whether Dr. Barney was negligent in any respect. If so, was that negligence the proximate cause of any injury or damage to Kimbery Echols. Two, whether the plaintiff, Kimberly Echols, was negligent in any respect. If so, did her negligence contribute to proximately cause her own injury or damage, if any. Three, if you find Dr. Barney was negligent, and it was the proximate cause of some damage or injury to the plaintiff, what sum of money will fairly and reasonably compensate Kimberly Echols for the injury and damage. I instruct you as a matter of law that a consent form which discloses the risk of a procedure does not relieve a dentist of the obligation to meet the accepted standard of care. An apparent signature on a consent form does not relieve a dentist from liability of negligence. If you find that the defendant was negligent, then you will proceed to decide by the greater weight of the evidence whether such negligence was the proximate cause of plaintiff's injuries, and if so, what is the extent of her damages. Plaintiff must prove the nature and extent of the injuries, and also that the defendant caused them. If you so find, you must render a verdict for the plaintiff. On the other hand, you must find for the defendant if plaintiff failed to prove to you by the greater weight of the evidence, one, that the defendant was negligent; or two, that the plaintiff was injured; or three, that the defendant's negligence was the proximate cause of the injuries complained of. -7- In any one of these events, you will not proceed to consider damages, and your verdict must be for the defendant. A party who seeks to recover for injury must prove not only that the other party was negligent, but also that such negligence was the proximate cause of injury. Proximate cause is an act or failure to act which, in a natural and continuous sequence, directly produces the injury and death, and without which it would not have occurred. Cause occurs when the injury and death is the natural and foreseeable result of the act or failure to act. There may be more than one proximate cause. When the negligent act or failure to act of one party combines with the negligence of another to produce the injury and death, the negligence of each may be a cause. It is not necessary that the negligence of each occur at the same time or place, nor that there be a common purpose of action for either or both to proximately cause the injury. In order for Dr. Barney to be liable in damages, however, it is not necessary that the defendant's negligence be the sole and only cause of the injury, but merely that it be a proximate cause of the injury for which damages are claimed. If you find for the plaintiff, Kimberly Echols, you will determine from the preponderance of the evidence and amount of money that will reasonably compensate Kimberly Echols for the actual injuries and damages proximately caused by the defendant's alleged dental malpractice. In determining this amount, you will consider the nature and extent of the injuries, the effect upon physical health, the pain suffered, the ability or inability to perform usual activities by the plaintiff, Kimberly Echols. From these you will determine what sum will compensate the plaintiff for the injury to date. (Tr. 236-242.) Plaintiff argues that the trial court committed reversible error by not giving instructions specifically tailored to the facts of this case. In her proposed Instruction No. 13, plaintiff wanted the court to instruct the jury that the dentist-patient relationship is a relationship of special trust and confidence and that the failure to disclose material information is malpractice. In her proposed Instruction No. 15, plaintiff sought to have the -8- jury instructed that it could find defendant liable if it found that defendant knew or should have known that he did not have the skill to treat defendant and that a more favorable result would have occurred if defendant had referred plaintiff to another medical facility in a timely manner. Finally, in her proposed Instruction No. 19, plaintiff wanted to have the judge instruct the jury that if the defendant were negligent and a second dentist's treatment resulted in damage in trying to correct the damage caused by the defendant then the defendant is still liable. Defense counsel argues that the general instructions given by the trial court were correct instructions on the applicable standard of care that dentists must provide. Dr. Barney further argues that it is not necessary for the trial court to instruct a jury on each specific way the defendant could have committed malpractice. Generally, requested jury 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. Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585. In reviewing an instruction, a reviewing court must view the instructions as a whole. Atkinson v. Internatl. Technegroup, Inc. (1995), 106 Ohio App.3d 349. Additionally, a trial court commits reversible error by giving instructions which are misleading or argumentative. Sharp v. Norfolk & W. Ry. Co. (1995), 72 Ohio St.3d 307; Pickering v. Cirell (1955), 163 Ohio St. 1. -9- In the case at bar, the trial court did not err in failing to give the instructions plaintiff proposed. Plaintiff does not argue that the instructions erroneously state the general dental malpractice standard of care. Rather, plaintiff wanted more specific instructions tailored to the facts of this case. A court does not err in refusing to give specific instructions, however, if the general instruction adequately covers the subject. Meadows v. Vangilse (Aug. 1, 1997), Hamilton App. No. C-960080, unreported. See also, Hardin v. Ski Venture, Inc. (C.A.4 1995) 50 F.3d 1291. In this case, the instruction on the standard of care for a dentist adequately covered the subject. It is not necessary to repeat the standard of care under each of plaintiff's theories of liability. It is the role of the attorney to argue the facts of the case under the various theories. It is not the role of the court to instruct the jury regarding each fact scenario presented by that plaintiff. Because the trial court did not err in instructing the jury, the first assignment of error is, therefore, overruled. Plaintiff's second assignment states as follows: II. DEFENSE COUNSEL'S PREJUDICIAL STATEMENTS IN CLOSING THAT THIS CASE IS FRIVOLOUS WARRANT REVERSAL. Plaintiff argues that this case should be reversed because defense counsel called the lawsuit frivolous in closing arguments to the jury. This assignment is meritless. Trial counsel is afforded great latitude in presenting closing argument to the jury. Pang v. Minch (1990), 53 Ohio St.3d 168, paragraph 2 of the syllabus. The determination of what is appropriate in closing argument is left to the sound discretion of -10- the trial court. Id. at paragraph 3 of the syllabus. Moreover, improper comments will be grounds for reversal only if the circumstancesare of such a reprehensible and heinous nature as to constitute prejudice. Bell v. Mt. Sinai Med Ctr. (1994), 95 Ohio App.3d 590, 601; Kubiszak v. Rini's Supermarket (1991), 77 Ohio App.3d 679, 688. The description of plaintiff's case as frivolous does not warrant a reversal. While it may have been inappropriate to characterize plaintiff's case as frivolous, these statements in a closing argument do not rise to the level of being so reprehensible and heinous as to constitute prejudice. More importantly, even though it appears that the trial court agreed with plaintiff's counsel that the statements were inappropriate, plaintiff's counsel took no steps to remedy the matter. The first time defense counsel characterized the case as frivolous, plaintiff's counsel made an objection, which was sustained by the trial court. However, after the objection was sustained, plaintiff's counsel did not ask for a curative instruction to be given to the jury. No objection was made after the other references to the case being frivolous. Nor did plaintiff ever request a curative instruction or move for a mistrial after the subsequent references to the case being frivolous. Finally, it must be pointed out that a jury is presumed to follow the instructions given by the court, Pang, supra, and the trial court specifically instructed the jury that statements made by counsel in closing arguments were not evidence. Accordingly, because we find -11- no error on the part of the trial court, plaintiff's second assignment of error is overruled. Judgment affirmed. -12- It is ordered that appellee recover of appellant his 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. O'DONNELL, P.J., and JAMES D. SWEENEY, J., CONCUR. DIANE KARPINSKI 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 of decision by the .