fourth appellate district ross county joe .[cite as oyer v.adler, 2015-ohio-1722.] in the court of

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  • [Cite as Oyer v. Adler, 2015-Ohio-1722.]

    IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT

    ROSS COUNTY

    JOE OYER, et al., :

    Plaintiffs-Appellees, : Case No. 13CA3405 v. : DECISION AND

    ROGER T. ADLER, M.D., et al., : JUDGMENT ENTRY Defendants-Appellants. : RELEASED 05/01/2015

    APPEARANCES:

    Karen L. Clouse and Gerald J. Todaro, Arnold Todaro & Welch Co., LPA, Columbus, Ohio, for appellants Harmeet Chawla, M.D. and Eye Specialists, Inc. James S. Savage, Anspach Meeks Ellenberger, LLP, Columbus, Ohio, for appellees Joe and Elaine Oyer. Hoover, P.J.

    { 1} Defendants-appellants, Harmeet Chawla, M.D. and Eye Specialists, Incorporated,

    appeal the jury verdict and several pre and post-trial judgments of the Ross County Court of

    Common Pleas, in a medical negligence action filed by plaintiffs-appellees Joe and Elaine Oyer.

    For the following reasons, we affirm the judgment of the trial court, in part, reverse the judgment

    of the trial court, in part, and we remand this case for proceedings consistent with this opinion.

    I. FACTS & PROCEDURAL HISTORY

    { 2} On May 13, 2009, appellee Joe Oyer visited appellant, Eye Specialists,

    Incorporated, dba Eye Specialists of Ohio, an ophthalmology practice owned by appellant

    Harmeet Chawla, M.D. Mr. Oyer was examined by employee-physician, Roger Adler, M.D. Mr.

    Oyer described a rapid deterioration of the vision in his right eye; however, there is some dispute

  • Ross App. No. 13CA3405 2 over whether Mr. Oyer reported worsening vision over the course of a few days or over the

    course of a week. On the day of his initial examination Mr. Oyer could not see straight ahead and

    could only count fingers in his peripheral vision with his right eye. Dr. Adlers examination

    revealed a detached retina, with macula-off, fluid bullous, and fixed folds.1 Dr. Adler informed

    Mr. Oyer that the detached retina would not heal itself and discussed the risks, benefits, and

    alternatives to surgery to re-attach the retina.

    { 3} Mr. Oyer returned to Eye Specialists of Ohio on May 15, 2009, for surgery. Dr.

    Chawla re-examined the eye and agreed with the prior diagnosis of retina detachment with

    macula-off. Dr. Chawla then performed a posterior vitrectomy with scleral buckling to re-attach

    the retina to the right eye.

    { 4} Following the first surgery, Mr. Oyers retina was re-attached and his right eye

    was able to recover useful vision of 20/70 and 20/60 over the course of several weeks. However,

    in mid-July 2009, Mr. Oyer indicated that his vision in his right eye had been like looking

    through a veil for a period of several days. On July 23, 2009, Dr. Adler diagnosed a recurrent

    retinal detachment with macula-off the right eye.

    { 5} On July 27, 2009, Dr. Chawla attempted his second posterior vitrectomy to re-

    attach the retina to the right eye. However, during the course of the surgery Mr. Oyer suffered a

    choroidal hemorrhage of the eye and surgery was aborted. Dr. Chawla immediately referred Mr.

    Oyer to the Cleveland Clinic.

    { 6} A retinal specialist at the Cleveland Clinic made further attempts to re-attach the

    retina and to restore vision to the right eye. However, Mr. Oyers vision remains severely

    diminished; especially his depth perception and peripheral vision.

    1 There was competing testimony at trial regarding whether it was possible for the detached retina to be bullous and have fixed folds at the same time.

  • Ross App. No. 13CA3405 3 { 7} Appellees commenced this action on October 7, 2010.2 The lawsuit initially named

    Dr. Adler as a defendant in addition to the appellants, but he was dismissed pursuant to

    stipulation on October 2, 2012. Appellees alleged that Dr. Chawla was negligent in the

    performance of the surgical procedures on Mr. Oyers right eye to repair the retinal detachment

    with macula-off, and that such negligence caused permanent loss of vision. The appellees further

    alleged that the Eye Specialists of Ohio was negligent in credentialing Dr. Chawla to perform the

    procedure, that the appellants failed to obtain Mr. Oyers informed consent prior to surgery, and

    that Mrs. Oyer was entitled to damages for loss of consortium.

    { 8} The case proceeded to trial on May 20, 2013. Nancy Holekamp, M.D., an

    ophthalmologist and retinal specialist from St. Louis, Missouri, testified as an expert witness for

    the appellees. Dr. Holekamp noted that she reviewed the medical records; deposition testimonies

    of Dr. Chawla, Dr. Adler, and Mr. Oyer; as well as certain other exhibits. Ultimately, Dr.

    Holekamp opined that Dr. Chawlas care fell below the applicable standard of care in performing

    the surgical procedures on Mr. Oyer for a multitude of reasons. The defense attempted to

    discredit Dr. Holekamp by offering competing testimony from Dr. Chawla regarding the

    standard of care. However, the jury returned a verdict in favor of the appellees. In response to

    interrogatories, the jury found deviations from the standard of care as follows: (1) Dr. Chawla

    lacked proper training and qualifications to perform the procedures in question; (2) Dr. Chawla

    performed the procedures incorrectly; and (3) the appellants kept poor medical records. The jury

    also determined that the appellants negligence caused Mr. Oyer to suffer permanent vision loss

    in his right eye and awarded him damages of $195,000, with $150,000 representing non-

    2 The appellees initial complaint was filed on October 10, 2010. However, the appellees filed an amended complaint with leave of court on November 16, 2011, adding additional claims for relief.

  • Ross App. No. 13CA3405 4 economic loss and $45,000 being awarded for medical expenses. The jury awarded $0 to Mrs.

    Oyer on her loss of consortium claim.

    { 9} Following trial, appellants filed a motion for judgment notwithstanding the verdict

    (motion for JNOV), arguing that appellees expert, Dr. Holekamp, failed to express her

    opinions regarding the causation of Mr. Oyers injuries to the required greater than 50%

    probability. The appellants had made nearly identical arguments previously, once in a motion to

    exclude proximate cause testimony of plaintiffs expert filed in October 2012 following the

    deposition of Dr. Holekamp, once in a motion in limine to exclude proximate cause testimony of

    plaintiffs expert filed just prior to commencement of trial, and in a motion for directed verdict

    made during trial. The trial court overruled each motion, including the motion for JNOV.

    { 10} Meanwhile, appellees filed a post-trial motion for pre-judgment interest. The trial

    court held an evidentiary hearing on the motion. The trial court announced its decision from the

    bench on the day of the hearing and also journalized its decision on August 29, 2013, finding in

    favor of the appellees and granting pre-judgment interest in the amount of $17,934.66.

    { 11} It is from the jury verdict, judgment on the motion for JNOV, and judgment on

    pre-judgment interest that the appellants now appeal.

    II. ASSIGNMENTS OF ERROR

    { 12} Appellants assign three errors for our review:

    First Assignment of Error

    THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO FIND THAT THE TESTIMONY OF THE PLAINTIFFS SOLE MEDICAL LIABILITY EXPERT FAILED TO ESTABLISH TO A REASONABLE DEGREE OF MEDICAL PROBABILITY THAT ANY ALLEGED NEGLIGENCE BY APPELLANTS WAS THE PROXIMATE CAUSE OF THE INJURIES ALLEGED.

    Second Assignment of Error

  • Ross App. No. 13CA3405 5 THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO APPLY THE ROBINSON V. BATES RULE REGARDING A PLAINTIFFS MEDICAL EXPENSES AND FAILING TO ALLOW APPELLANTS TO PRESENT EVIDENCE THAT WOULD ALLOW THE JURY TO CONSIDER BOTH THE AMOUNT CHARGED AND THE AMOUNT ACCEPTED BY THE PROVIDER IN DETERMINING THE AMOUNT TO AWARD FOR THAT ELEMENT OF ECONOMIC LOSS.

    Third Assignment of Error

    THE TRIAL COURT ERRED AS A MATTER OF LAW IN AWARDING PREJUDGMENT INTEREST TO PLAINTIFFS AS THE REQUIREMENTS OF R.C. 1343.03(C) WERE NOT SATISFIED.

    III. STANDARD OF REVIEW

    A. First Assignment of Error

    1. Ruling on motion for directed verdict and motion for JNOV

    { 13} A motion for JNOV, like a motion for a directed verdict, tests the legal sufficiency

    of the evidence. See Posin v. A.B.C. Motor Court Hotel, Inc., 45 Ohio St.2d 271, 275, 344

    N.E.2d 334 (1976); McKenney v. Hillside Dairy Co., 109 Ohio App.3d 164, 176, 671 N.E.2d

    1291 (8th Dist.1996). Thus, the standard of review when ruling on a motion for JNOV is the

    same as that used when ruling on a directed verdict motion. Wagner v. Roche Laboratories, 77

    Ohio St.3d 116, 121, 671 N.E.2d 252 (1996), fn. 2, citing Gladon v. Greater Cleveland Regional

    Transit Auth., 75 Ohio St.3d 312, 318319, 662 N.E.2d 287 (1996); Posin at 275. If the record

    contains any competent evidence, when construed most strongly in favor of the nonmoving

    party, upon which reasonable minds could reach different conclusions, the court must deny the

    motion. See Meyers v. Hot Bagels Factory, Inc., 131 Ohio App.3d 82, 92, 721 N.E.2d 1068 (1st

    Dist.1999). Like the directed verdict motion, a JNOV motion also presents a question of law,

    which we revie

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