COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72668 ALICE S. HARRIS, et al. : : JOURNAL ENTRY Plaintiffs-Appellants : : AND vs. : : : OPINION MT. SINAI MEDICAL CENTER, et al. : : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION: MAY 28, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-273729 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: For Defendants-Appellees: KOJO O. AGYEMAN MARC W. GROEDEL CAROL JACKSON BRIAN D. SULLIVAN Agyeman & Agyeman Reminger & Reminger 350 Park Plaza 113 St. Clair Building 1111 Chester Avenue Cleveland, Ohio 44114 Cleveland, Ohio 44114-3516 ANDREW S. POLLIS DAVID M. WISE SHARON A. RIEGEL P.O. Box 609263 Hahn Loeser & Parks Cleveland, Ohio 44109 3300 BP America Building 200 Public Square Cleveland, Ohio 44114-2301 -2- O'DONNELL, TERRENCE, J.: Alice Harris, individually, and as Administratrix of the estate of Johnny Lee Harris Stoudmire, and Johnny Lee Stoudmire appeal from decisions of the common pleas court arising out of the death of their 19-day-old infant son at Mount Sinai Medical Center. The trial court granted summary judgment to Deborah Clark, M.D., and Hough Norwood Managed Care, a.k.a. Cleveland Neighborhood Health Services, Inc., and entered judgment in favor of Mount Sinai Medical Center, Sudhakars Rao, M.D., and Janet Evans, R.N., following a jury verdict in favor of Rao and Evans. Following our review of the record and the law in connection with this case, we conclude that the court did not err and we affirm the judgment of the trial court. The record reflects that on July 13, 1993, thirty-three-year- old Alice Harris, who had seven prior pregnancies, one of which resulted in a placental abruption and stillbirth, presented at the labor and delivery unit of The Mount Sinai Medical Center 38 weeks pregnant complaining of vaginal bleeding. Janet Evans, a licensed practical nurse, examined her, took a medical history, and attached a fetal monitor. Thereafter, Dr. Recinto and Dr. Rao, both obstetrical residents, examined Harris and noted that the monitor showed no fetal distress, but indicated that Harris had begun labor. Upon examination, they learned she suffered from an infection which caused her cervix to bleed, but that it had not yet begun to dilate from the labor. Rao then reported their findings to Dr. Deborah Clark, Harris' obstetrician and gynecologist at the -3- Hough Norwood Center. Clark advised Rao by telephone to discharge Harris from the hospital. After prescribing an antibiotic for the infection, Rao followed Clark's directions and discharged Harris. Approximately one hour later, however, Harris returned to Mount Sinai complaining of severe abdominal pain and increased bleeding. Rao at that time diagnosed a placental abruption, and Harris underwent an emergency Cesarean section giving birth to Johnnie Lee Harris Stoudmire, who was born severely asphyxiated and lived for only nineteen days. Appellants subsequently filed suit against Dr. Clark, Hough Norwood Managed Care, Mount Sinai Hospital, Dr. Rao, and nurse Janet Evans, alleging medical negligence resulting in the wrongful death of the newborn infant. The court granted summary judgment in favor of Dr. Clark, Hough Norwood, and Cleveland Neighborhood Health Services prior to trial and tried the medical negligence issues against Mount Sinai, Dr. Rao, and Janet Evans to a jury which resulted in defense verdicts. Appellants now appeal both the summary judgment and the jury verdicts and present eleven assignments of error for our review, the first of which states: I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY SUA SPONTE DISMISSING THE CLAIMS AGAINST MT. SINAI HOSPITAL WITHOUT COMPLYING WITH THE MANDATORY NOTICE REQUIREMENT OF CIVIL RULE 41(B). Citing Civ.R. 41(B), appellants argue the court erred when prior to charging the jury, it dismissed claims against Mount Sinai -4- Medical Center because it did not give notice to the parties as required by Civ.R. 41(B). Mount Sinai urges the court properly dismissed the claims against it because appellants failed to produce evidence on those issues at trial, and further maintains that since the claims against Dr. Rao and nurse Evans were rejected by the jury, no prejudice resulted to appellants. We recognize that this assignment of error stems from an April 23, 1996 post-trial journal entry of the court which stated: As judgment was entered in favor of Rao and Evans and all claims besides respondeat superior as to defendant Mt. Sinai were dismissed before the case went to the jury all claims against Mt. Sinai are dismissed. (Emphasis added). The issue before us, then, is whether the court erred in dismissing the claims against Mount Sinai without giving appellants notice of its action. We begin by examining Civ.R. 41(B) which provides for dismissal of an action or claim by the court either upon failure to prosecute an action or after presentation of evidence in a non-jury case. The rule, however, does not relate to the dismissal of a claim by a trial court during a jury trial, because such action is provided for in Civ.R. 50, styled, Motion for a Directed Verdict. In this case, appellants had alleged numerous causes of action against Mount Sinai including those for breach of due care in failing to provide competent medical personnel, COBRA claims for failure to treat in an emergency, conscious pain and suffering, and alteration of medical records on a theory of respondeat superior relating to Dr. Rao, all of which became the subject of a jury -5- trial. The transcript here reflects that at the close of evidence, appellees moved for a directed verdict, and the court granted the motion as to the pain and suffering claim, but only journalized its ruling after the jury verdict had been returned. At trial, however, appellants presented evidence in support of the remaining claims against the hospital through its claims against Dr. Rao and nurse Evans under the theory of respondeat superior, but the jury exonerated it from liability by returning verdicts in favor of Rao and Evans. Therefore, although it did not timely journalize its ruling, the court did not err in granting a directed verdict dismissing these claims. Accordingly, this first assignment of error is without merit and is therefore overruled. The second and third assignments of error concern the same legal issue and will be considered together. They state: II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT WHEN APPELLEES FAILED TO POINT TO ANY EVIDENCE OF THE TYPE LISTED IN CIVIL RULE 56(C) TO ESTABLISH A LACK OF GENUINE ISSUE OF MATERIAL FACT AND THAT THEY WERE ENTITLED TO JUDGMENT AS A MATTER OF LAW. III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND USURPED THE PROVINCE OF THE JURY WHEN IT RESOLVED ISSUES OF FACT AND ISSUES OF CREDIBILITY IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT. Here, appellants argue that the court erred by granting summary judgment to Dr. Clark and Hough Norwood Managed Care, a.k.a. Cleveland Neighborhood Health Services, Inc., alleging the court invaded the province of the jury by resolving issues of -6- credibility, and erroneously concluding that these appellees were entitled to judgment as a matter of law. These appellees maintain the court properly granted summary judgment because appellants did not produce any expert testimony establishing that the medical treatment Harris received from them fell below the recognized standard of care. The issues then before us are whether any genuine issues of material fact exist for trial on appellants' claims against these parties and whether the court correctly determined their entitlement to judgment as a matter of law. Our review of a court's entry of summary judgment is de novo; in reaching our decision we apply the same test as the trial court. Maust v. Bank One Columbus (1992), 83 Ohio App.3d 103, 107. In this regard, we recognize that Civ. R. 56 provides: * * * Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A party seeking summary judgment bears the initial burden of demonstrating an absence of genuine issues of material fact concerning an essential element of the opponent's case. Dresher v. Burt(1996), 75 Ohio St.3d 280, 292. A defendant may satisfy this burden by showing an absence of evidence to support the non-moving party's case. Dresher, at 293. Once the moving party has satisfied this burden, the non-moving party then has the burden to set forth specific facts showing there is an issue for trial. Id. -7- Next, we consider the substantive law of medical malpractice. In Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, the Ohio Supreme Court established the elements of a medical malpractice claim in its syllabus: In order to establish medical malpractice, it must be shown by a preponderance of evidence that the injury complained of was caused by the doing of some particular thing or things that a physician or surgeon of ordinary skill, care and diligence would not have done under like or similar conditions or circumstances, or by the failure or omission to do some particular thing or things that such a physician or surgeon would have done under like or similar conditions and circumstances, and that the injury complained of was the direct and proximate result of such doing or failing to do some one or more of such particular things. At 131-32, the court went on to state: Failure to establish the recognized standards of the medical community [is] fatal to the presentation of a prima facie case of malpractice. * * * Proof of the recognized standards must necessarily be provided through expert testimony. In this case, the record shows appellees moved for summary judgment on the basis that appellants failed to submit an expert report establishing a prima facie case of negligence against Dr. Clark or the Cleveland Neighborhood Health Services, Inc. In response, appellants filed a brief in opposition together with a report from Dr. Albert Cook which concluded there had been a definite breach of the standard of care and serious malpractice, but Dr. Cook's report failed to state any specific criticism of the care rendered by Dr. Clark. Since appellants failed to present evidence in accordance with Bruni v. Tatsumi, supra, regarding these appellees, the trial court correctly granted the motion for -8- summary judgment. Accordingly, these assignments of error are overruled. Appellants' fourth assignment of error states: IV. APPELLEES EXCLUSION OF AFRICAN-AMERICANS FROM THE JURY DENIED APPELLANTS AND THE EXCLUDED AFRICAN-AMERICANS THEIR CONSTITUTIONAL RIGHTS TO EQUAL PROTECTION OF THE LAWS UNDER THE UNITED STATES AND/OR OHIO CONSTITUTIONS. Appellants assert the court erred by overruling their objections and permitting defense counsel to use peremptory challenges to exclude three African-American jurors. The appellees at trial, Mount Sinai, Rao, and Evans, contend the court did not err in allowing the exercise of these peremptory challenges because the defense stated legitimate, non-racial reasons for their exclusion. The issue before us, then, is whether the court erred in excluding these jurors. In Batson v. Kentucky (1986), 476 U.S. 79, the Supreme Court established that litigants may not use peremptory challenges to exclude prospective jurors on the basis of race, and in Hernandez v. New York (1991), 500 U.S. 352, 358-59, set out a three-prong test to apply in the context of a Batson challenge: First, the [plaintiff] must make a prima facie showing that the [defendant] has exercised challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the [plaintiff] to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the [plaintiff] has carried his burden of proving purposeful discrimination. -9- In this case, during jury selection, appellants objected to the use by defense counsel of peremptory challenges to exclude three African-American jurors. The record reflects that defense counsel excluded two of the jurors because of previous miscarriages and obstetrical complications, and a third juror because of his employment with the prison system and some statements he made during voir dire. Accordingly, the record contains race-neutral explanations for exercise of each of these challenges, and we cannot conclude the court clearly erred in overruling the objections to these peremptory challenges. Thus, the fourth assignment of error is overruled. The fifth and sixth assignments of error concern the same issues and state: V. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS IN DIRECTING A VERDICT ON APPELLANTS' CLAIM FOR PAIN AND SUFFERING OF THE DECEDENT WHEN THERE WAS AFFIRMATIVE EVIDENCE SHOWING THAT THE DECEDENT WAS CONSCIOUS IN THE INTERVAL BETWEEN HIS BIRTH AND HIS DEATH. VI. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PREJUDICIAL ERROR IN ALLOWING THE SURPRISED AND PREJUDICIAL TESTIMONY OF APPELLEES' EXPERT WITNESS ON THE ISSUE OF DECEDENT'S PAIN AND SUFFERING WHEN THE EXPERT WITNESS FAILED TO DISCLOSE ANY OPINION ON THAT ISSUE IN HIS REPORT OR DURING DISCOVERY IN CONTRAVENTION OF THE LOCAL RULES AND OHIO RULES OF CIVIL PROCEDURE. Appellants contend the court erred in directing a verdict for the appellees on the claim for conscious pain and suffering because they maintain the evidence suggests the infant gained consciousness and suffered pain prior to his death. -10- Appellees urge that the court properly granted a directed verdict on this claim because appellants failed to offer expert testimony establishing that the infant in fact gained consciousness, which is a necessary element of this claim. The issue before us, then, is whether appellants established a prima facie case relating to conscious pain and suffering. Civ.R. 50(A)(4) establishes the procedure for a court to follow in granting a directed verdict: When a motion for a directed verdict has properly been made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon a 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. It is the duty of the court to submit an issue to the jury if there is sufficient evidence to permit reasonable minds to reach different conclusions on that issue; conversely, the court must withhold an issue from the jury when there is not sufficient evidence presented relating to the issue to permit reasonable minds to reach different conclusions. See O'Day v. Webb (1972), 29 Ohio St.2d 215. In Laverick v. Children's Hospital Medical Center (1988), 43 Ohio App.3d 201, 202, the court explained, A decedent may not recover for pain and suffering endured when it is shown that the decedent was rendered unconscious at the instant of the injury and died of such injuries without ever having regained consciousness. In this case, only Johnny Lee Stoudmire, the father of the decedent, testified that the newborn infant gained consciousness; -11- he stated that he saw the baby shake and that he felt as if the baby responded when he held him. No expert offered an opinion that the baby gained consciousness at any time during its nineteen days on life support systems. In fact, appellee's expert, Dr. Steven Klein, who testified by way of video taped deposition, stated that he was able to determine that at no time was the baby conscious. As this testimony had been video taped, it cannot be the basis of surprise testimony and cannot be considered prejudicial on this issue, because it related to a significant part of the claim for damages at trial. Accordingly, we reject these assignments of error. The seventh assignment of error states: VII. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND VIOLATED APPELLANTS' CONSTITUTIONAL RIGHT TO A TRIAL BY JURY IN FAILING TO GIVE COMPLETE AND PROPER JURY INSTRUCTIONS THAT WOULD FULLY PLACE THE JURY IN POSSESSION OF THE ISSUABLE FACTS IN CONTROVERSY AS POINTED OUT BY THE PLEADINGS AND THE EVIDENCE. Appellants contend the court erred in refusing to submit two requested jury instructions concerning the duty of a hospital to provide an adequate staff, and a reliance by a patient on a physician's judgment. Appellees argue the court properly rejected these instructions because they did not relate to contested issues at trial and were cumulative of instructions already provided to the jury. The issue before us, then, is whether the court erred by declining to give the requested instructions to the jury. -12- In its syllabus in Bosticv. Connor (1988), 37 Ohio St.3d 144, the court stated: It is within the sound discretion of a trial court to refuse to admit proposed jury instructions which are either redundant or immaterial to the case. At trial, appellants requested the court to provide the following jury instructions as part of its charge: The hospital has the same duty to act for the protection and safety of its patients as a hospital of ordinary care, skill and diligence that offers the same services in the same or similar locality, under like or similar conditions, taking into consideration the patient's known physical condition, mental capacity and ability to care for herself. As a part of the physician-patient relationship, both parties envision that the patient will rely on the judgment and expertise of the physician. The relationship is predicated on the proposition that the patient seeks out and obtains a physician's services because the physician possesses special knowledge and skill in diagnosing and treating diseases and injuries which the patient lacks. Regarding the first proposed instruction, a careful reading of the transcript reveals appellants sought the instruction in connection with claims of negligent staffing which we have previously considered. Further, we note that the trial court did give instructions regarding the hospital's responsibility for the negligence of its employees. Accordingly, the court did not abuse its discretion in rejecting this proposed instruction. Regarding the second proposed instruction, we recognize that one part of this instruction is duplicative of another instruction given by the trial court, and the remainder regarding the patient's reliance on the physician is not relevant to the issues presented in this case. -13- At oral argument, appellants claimed entitlement to a jury instruction regarding the standard of care for resident physicians, citing Rush v. Akron General Hospital, (1957), 84 Ohio Law Abs. 292, 295, but never briefed this argument. Upon review of the record, we note appellants did not request such an instruction at trial. Thus, they may not raise this issue on appeal. See Civ.R. 51(A). Accordingly, we conclude the trial court did not abuse its discretion, and this assignment of error is overruled. Appellants' eighth assignment of error states: VIII. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO GRANT A NEW TRIAL UPON A SHOWING OF MISCONDUCT BY APPELLEES. Appellants complain that during final argument, appellees' counsel made derogatory remarks which amounted to misconduct and warranted a new trial and now urge reversal of the verdict based on the trial court's failure to grant a new trial. Appellees contend the court did not err in denying the request for new trial. The issue before us, then, is whether the trial court abused its discretion in failing to grant a new trial based upon counsel's statements and the alleged misconduct of appellee's counsel during final argument. Civ.R. 59(A)(2) provides that a new trial may be granted upon a showing of misconduct by the prevailing party, and we review a court's decision whether to grant a new trial for an abuse of discretion. Verbon v. Pennese (1982), 7 Ohio App.3d 182, 184. In -14- Dawson v. Metrohealth Center (1995), 104 Ohio App.3d 654, 656-57, this court examined a similar situation in which, during closing arguments counsel referred to witnesses as hired guns , questioned their credibility, and held that the isolated statements, when viewed in the context of the entire proceedings, did not deprive the party of a fair trial; thus the court did not abuse its discretion in refusing to grant a new trial on that basis. In this case, the complaints pertain to the references made describing appellants' expert as a hired gun from Philadelphia, and a cowboy from Philadelphia, and several statements that the expert had been paid for his testimony, all of which referred to a statement the expert made during his testimony. Appellants, however, did not object to these statements during final argument and have waived their right to raise these issues on appeal. Further, viewed in the context of the entire trial, these isolated statements by defense counsel do not rise to the level of conduct necessary to deprive appellants of a fair trial. Thus, the court did not abuse its discretion in refusing to grant the motion for a new trial on this basis, and this assignment of error is therefore overruled. -15- The ninth assignment of error states as follows: IX. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO GRANT APPELLANTS' MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT/NEW TRIAL WHEN THE JUDGMENT IS NOT SUSTAINED BY THE WEIGHT OF THE EVIDENCE. Appellants contend the jury's verdict and the court's judgment, are not supported by the evidence. However, in our review of the previous assignments of error, we have found competent, credible evidence in support of those findings and conclusions. We may not reverse a trial court's decisions when they are supported by competent, credible evidence. See Cent. Motor Corp. V. Pepper Pike (1995), 73 Ohio St.3d 581; C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. Accordingly, this assignment of error is overruled. The remaining assignments of error concern the same issue and we will address them together: X. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DENYING APPELLANTS THEIR RIGHT TO A FAIR TRIAL IN VIOLATION OF THE CONSTITUTIONAL RIGHT TO A TRIAL BY JURY. XI. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS IN DENYING APPELLANTS' MOTION FOR DIRECTED VERDICT AGAINST MT. SINAI HOSPITAL. Regarding these assignments of error, appellants argue the court erred by failing to submit the issue of Mount Sinai's negligent staffing to the jury and by failing to direct a verdict against Mount Sinai on this issue. -16- Mount Sinai contends the court did not err because appellants presented no evidence establishing this claim during their case in chief. The issue before us, then, is whether the court erred by refusing to permit the jury to decide this claim. Our review of the record indicates the court explicitly instructed the jury on the issue of respondeat superior liability of Mount Sinai for the negligence of its physicians and employees. Because the record contains no expert evidence whatsoever pertaining to the claim that Mount Sinai negligently staffed its hospital, the court did not err in refusing to direct a verdict on this issue or to submit this claim to the jury. Accordingly, these assignments of error are without merit and are overruled. The judgment of the trial court is accordingly affirmed. Judgment affirmed. -17- It is ordered that appellee(s) recover of appellant(s) 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. DIANE KARPINSKI, J., and LEO M. SPELLACY, J., CONCUR PRESIDING JUDGE TERRENCE O'DONNELL 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 .