s-s-s-s-s-s-s-s-s-S-s-s-s-s-s-S-s-s-s-s-s-s-s-S-s-s-S-s-s-s-s-s-s-s-s-s-s-s-S-s-s-s-s-s-s-s-s-S-S-S-s-s-s-s IN THE SUPREME COURT OF OHIO S-S-s-s-s-s-s-s-s-S-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s Mary Johnson, individually, and as Administrator of the Estate of Eugene Johnson, deceased, and Personal Representative of His Next of Kin, Appellee, V. Emergency Physicians of Northwest Ohio at Toledo, Inc., Jaron S. Goldberg, M.D., Carlos A. Sotelo, D.O., Genito- Urinary Surgeons, Inc., Gregor K. Emmert, Jr., M.D. and Richard I. Tapper, M.D., Appellants. s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-S-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s Todd E. Gurney, Esq. (0079141) Brian N. Eisen, Esq. (0060081) William M. Greene, Esq. (0016241) Romney Cullers, Esq. (0053668) GREENE & EiSE:\: CO., L.P.A. 1300 East Ninth Street 1801 Penton Media Building, Cleveland, OH 44114 Phone: (216) 687-0900 FAX: (216) 687-0651 Email: [email protected]Attorneys for Appellee Mary Johnson, Individually and as Administrator of the Estate of Eugene Johnson, deceased, and Personal Representative of His Next of Kin RCDVEU E 1976845.1 MAR 2 5 2013 r%, mr r+MI 10T Supreme Court Case No. 13-0410 On Appeal from the Lucas County Court of Appeals Court of Appeals Case No. L11-1290 MAR ^ 5 ? O'l rj' CLERK OF COURT SUPREME COURT OF OHIO Jeffrey M. Stopar (0066640) (Counsel of Record) Peter R. Casey, III (0000579) William P. Bingle (0089463) EASTMAN & SMITH LTD. One SeaGate, 24th Floor P.O. Box 10032 Toledo, OH 43699-0032 Telephone: (419) 241-6000 Fax: (419) 247-1777 E-mail: [email protected][email protected][email protected]Attorneys for Appellants Genito-Urinary Surgeons, Inc., Gregor K. Emmert, Jy:,1V1.D., and Richard I. Tapper,lV1.D.
37
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Mary Johnson, individually, and asAdministrator of the Estate of EugeneJohnson, deceased, and PersonalRepresentative of His Next of Kin,
Appellee,V.
Emergency Physicians of NorthwestOhio at Toledo, Inc., Jaron S. Goldberg,M.D., Carlos A. Sotelo, D.O., Genito-Urinary Surgeons, Inc., Gregor K.Emmert, Jr., M.D. and Richard I.Tapper, M.D.,
Todd E. Gurney, Esq. (0079141)Brian N. Eisen, Esq. (0060081)William M. Greene, Esq. (0016241)Romney Cullers, Esq. (0053668)GREENE & EiSE:\: CO., L.P.A.1300 East Ninth Street1801 Penton Media Building,Cleveland, OH 44114Phone: (216) 687-0900FAX: (216) 687-0651Email: [email protected]
Attorneys for AppelleeMary Johnson, Individually and asAdministrator of the Estate of EugeneJohnson, deceased, and PersonalRepresentative of His Next of Kin
RCDVEUE1976845.1
MAR 2 5 2013r%, mr r+MI 10T
Supreme Court Case No. 13-0410
On Appeal from the Lucas County Courtof Appeals
Court of Appeals Case No. L11-1290
MAR ^ 5 ? O'l rj'
CLERK OF COURTSUPREME COURT OF OHIO
Jeffrey M. Stopar (0066640)(Counsel of Record)Peter R. Casey, III (0000579)William P. Bingle (0089463)EASTMAN & SMITH LTD.
B. Adversity Between Urology Defendants and Emergency Medicine Defendants............ 4C. Examination of Defense Experts . ............. ....................................................................... 5D. Standard of Care Testimony Against the Urology Defendants . ...................................... 7
E. The Jury's Verdict ............................................................................................................ 8F. The Sixth District's Decision ........................................................................................... 9
III. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ......................................... 9
PROPOSITION OF LAW NO. 1: Ohio does not recognize a right of further cross-examination in the absence of re-direct cross-examination . ....................................................... 9
PROPOSITION OF LAW NO. 2: A trial court does not abuse its discretionconcerning its regulation of the mode and order of the examination of a witness wheneach party has had an opportunity to fully examine a witness . ............................................... 9
PROPOSITION OF LAW NO. 3: A trial court does not abuse its discretion in regulatingthe method of interrogation of a witness in the absence of any legal authority recognizingthe right to further cross-examination ........................................................................................ 9
PROPOSITION OF LAW NO. 4: Ohio's two-issue rule applies to medical malpracticeclaims ..................................................................................................................................... 10
PROPOSITION OF LAW NO. 5: Ohio's two-issue rule requires upholding a jury verdictwhen jury interrogatories do not distinguish between negligence and issues of causationand the testimony at issue addresses only causation ................................................................. 10
PROPOSITION OF LAW NO. 6: Under Evid.R. 702(B), a physician is not qualifiedto give a standard of care opinion regarding a physician of a different specialty whenthat physician has not demonstrated familiarity with the standard of care of the differentspecialty................................................................................................................................. 10
IV. CONCLUSION .................................................................................................................... 13
PROOF OF SERVICE ............................................................................................................... 14
i1976845.1
TABLE OF AUTHORITIES
Pa e s )
Cases
Alexander v. Mt. Carmel Med. Ctr., 56 Ohio St.2d 155, 383 N.E.2d 564 (1978) .................... 1, 11
Nead v. Brown Cty. Gen. Hosp., 12th Dist. No. CA2005-09-018, 2007-Ohio-2443¶¶ 49-50, 56 ......................................................................................................................... 11,12
The propositions of law presented in this case go to the essence of both trial and appellate
litigation and therefore raise issues of public and great general interest. One issue raised by the
Urology Defendants involves the proper foundation of expert testimony in medical malpractice
litigation. The decision of the Sixth District eliminates the requirement that a physician have
knowledge of a different specialty in order to give standard of care opinions regarding that
specialty. Under the Sixth District's ruling, a critical care doctor does not need to have any
knowledge of urology to give a standard of care opinion against a urologist. This holding will
prospectively permit a plaintiff to file a new malpractice lawsuit by attaching an affidavit of
merit prepared by a physician with no knowledge whatsoever of the specialty at issue,
undermining the affidavit of merit requirement of Civ.R. 10(D)(2) and potentially increasing the
medical malpractice dockets in Ohio's trial and appellate courts.
The seminal case from this Court regarding the requirements for a physician to testify
regarding the standard of care of a different specialty is Alexander v. Mt. Carmel Med. Ctr., 56
Ohio St.2d 155, 383 N.E.2d 564 (1978). This Court has not cited Alexander regarding this issue
since 1978, the year it was decided, but Alexander has been cited by Ohio's appellate courts at
least 29 times in analyzing this issue, including 14 times since 2003. Obviously, this issue arises
far more often in trial courts in motions in.limine and related objections to expert testimony. As
such, Ohio's trial and appellate courts, as well as the practicing bar, would benefit from further
guidance and clarification on this often-litigated issue.
In addition, the Sixth District's decision, if allowed to stand, would undercut the broad
discretion of trial courts to regulate the examination of witnesses. Despite no reported case
supporting its decision, the Sixth District concluded that the trial court abused its discretion by
1976845.1
not allowing re-cross examination when there was no re-direct examination. If this holding is
permitted to stand, parties will use this decision to "sandbag" on cross-examination material and
later argue that further cross-examination is needed. Courts may never know when to conclude
the examination of witnesses without risking reversal. Public policy and judicial economy
require parties to use all cross-examination material at the first opportunity, or risk being barred
from further cross-examination.
Finally, the decision of the Sixth District undermines the two-issue rule, the well-
established principle that avoids reversals when a dispositive issue has been tried free of error.
Ohio Jury Instruction CV 417.17 includes a jury interrogatory for medical malpractice cases that
suggests combining standard of care and causation into one interrogatory. Plaintiff vigorously
argued below that the O.J.I. interrogatory precluded application of the two-issue rule. As this
Court is well aware, trial courts follow O.J.I. with great reverence, expecting that there can be no
reversal if it is followed. If this issue is not resolved, trial courts will incorrectly continue to
refuse to allow separate interrogatories for standard of care and causation. That cannot be what
the Editorial Board of Ohio Jury Instructions intended and this Court should clarify Ohio law on
this issue by holding that separate interrogatories for standard and causation are proper under
Civ.R. 49(B) and that the two-issue rule remains viable in medical malpractice cases.
II. STATEMENT OF THE CASE AND FACTS
A. General Background.
This is a medical malpractice wrongful death action brought by Plaintiff Mary Johnson,
Administrator of the Estate of Eugene Johnson, deceased, against Dr. Gregor K. Emmert, Jr.,
Dr. Richard I. Tapper, and their group, Genito-Urinary Surgeons, Inc. ("GUSI") (the "Urology
Defendants") and Dr. Jaron S. Goldberg, Dr. Carlos A. Sotolo, and their group, Emergency
Physicians of Northwest Ohio at Toledo, Inc. ("Emergency Medicine Defendants"). After a
21976845.1
lengthy trial, the jury found for all Defendants, but the appellate court reversed, reasoning that
the trial court erred in prohibiting re-cross examination of an expert witness, although there was
no re-direct examination.
On February 15, 2007, Dr. Eric Pizza, a member of GUSI, performed a radical retropubic
prostatectomy and bilateral pelvic lymphadenectomy on Eugene Johnson, age 69. Mr. Johnson
did well during and following the procedure and was discharged in good condition on
February 20, 2007. One week later, Mr. Johnson was admitted to The Toledo Hospital
Emergency Department complaining of swelling in both of his legs. Mr. Johnson denied calf
pain, chest pain or shortness of breath, and his vital signs were stable.
Dr. Goldberg, an emergency department physician, contacted Dr. Emmert, who was on
call for the urology group, informed him of Mr. Johnson's status, and indicated that he felt that
an ultrasound would be appropriate. Dr. Emmert agreed and asked to be notified of the result.
The ultrasound of the lower extremities was negative and Dr. Sotolo notified Dr. Emmert (or,
according to Dr. Sotolo, Dr. Tapper)1 of that fact and of the fact that Mr. Johnson was to be
discharged, to which Dr. Emmert (or, arguably, Dr. Tapper) expressed no objection as the patient
was, by that point, improving. Mr. Johnson collapsed at home the following morning and was
pronounced dead upon his arrival at the hospital. The cause of death was found to be an acute
pulmonary embolism.
Plaintiff sued the Urology Defendants and the Emergency Medicine Defendants claiming
that, at the time of Mr. Johnson's care in the Emergency Department, he must have had pelvic
vein thrombosis which ultimately caused his death. Plaintiff claimed that the lower extremity
1 Dr. Tapper was named in this suit because Dr. Sotolo testified that he spoke toDr. Tapper, rather than Dr. Emmert, in the second call. This was an issue of contention betweenthe Defendants throughout the trial.
31976845.1
ultrasound study that was performed would not normally discover pelvic vein thrombi and that
Mr. Johnson should not have been discharged without a diagnosis of what had caused his lower
extremity edema. Plaintiff argued that Dr. Emmert/Dr. Tapper, as urologists, had knowledge
superior to that of the Emergency Medicine Defendants and should have known that the prostate
procedure Mr. Johnson had previously undergone could cause pelvic vein thrombosis which, in
turn, could cause bilateral lower extremity swelling. Drs. Emmert and Tapper vigorously
disputed these contentions.
B.
The Urology Defendants and the Emergency Medicine Defendants disagreed on some
significant issues. Plaintiff's primary theory of liability against the Urology Defendants was that
they did not communicate properly with the Emergency Medicine Defendants. This was based,
in part, on the fact that_ although Dr. Emmert testified that he participated in both of the telephone
calls from the Emergency Medicine Defendants, Dr. Sotolo, one of the Emergency Medicine
Defendants, testified both at deposition and at trial, that during the second, and most critical call,
he spoke with Dr. Tapper. Dr. Tapper testified that he has no recollection of such a call and that
it was unlikely that he received the second call. That testimony was enough to keep Dr. Tapper
in the case, although his testimony, and that of Dr. Emmert, stressed that he had nothing to do
with the care of Mr. Johnson.
41976845.1
C. Examination of Defense Experts.
Before trial, Plaintiff argued that each Defendant should be prohibited from cross-
examining each other's experts during the Defendants' case-in-chief. Upon considering the
memoranda filed by all parties and the arguments of counsel, the Court overruled Plaintiff's
motions and held that the Urology Defendants and the Emergency Medicine Defendants were
adverse to each other, and that Defendants were entitled to cross-examine each other's expert
witnesses during the Defendants' case-in-chief.
As the defense case progressed during a three-week trial, Plaintiff s counsel was made
well aware that he would be prohibited from re-cross examining defense witnesses if there was
no re-direct examination, as this issue arose and was addressed by the parties and the Court
during the testimony of various defense experts. First, during the examination of Dr. Norman
Schneiderman, an expert for the Emergency Medicine Defendants, Plaintiff argued that she
should be permitted re-cross examination despite the absence of re-direct examination, and the
trial court denied the request. Second, during the examination of Dr. Robert Kose, a pulmonary
and critical care expert for the Emergency Medicine Defendants, there was no re-direct
examination and Plaintiff again requested re-cross examination which was denied. Thereafter,
when the Urology Defendants called Dr. David Janiak, an emergency physician, as an expert,
there was a re-direct examination, but Plaintiff did not take advantage of the opportunity for re-
cross examination. The Emergency Medicine Defendants next called Dr. Creighton Wright, a
cardiovascular and thoracic surgeon. There was no re-direct examination, and Plaintiff did not
request re-cross examination. The Urology Defendants then called Dr. Arnold Melman, their
expert urologist. There was no re-direct examination and Plaintiff did not request re-cross
examination.
51976845.1
Next, the Urology Defendants called Dr. Anthony Comerota. The direct examination of
Dr. Comerota began with a discussion of his credentials and Mr. Johnson's clinical presentation
in the emergency department. He then criticized the opinions of Dr. Avery, one of Plaintiff's
experts, regarding the cause of the swelling in Mr. Johnson's legs. In great detail, Dr. Comerota
then demonstrated that the results from testing on Mr. Johnson's legs in search of any blood clots
was normal, which, in Dr. Comerota's opinion, meant that Plaintiff's causation theory, as stated
by Dr. Avery, had no merit. The basic conclusion of the direct examination of Dr. Comerota was
that if he had been contacted by a physician in the emergency department, he, as a vascular
surgeon, would not have suggested any additional tests for Mr. Johnson and would have agreed
with the decision to discharge him. Dr. Comerota, however, never gave any standard of care
opinion regarding a urologist or an emergency department physician.
After that direct examination, Plaintiff conducted a lengthy and broad-based cross-
examination of Dr. Comerota, encompassing 72 pages of transcript, which was longer than the
direct examination. Plaintiff s counsel chose, however, not to ask any questions regarding a key
causation issue: whether anticoagulation therapy (i.e. heparin) or an inferior vena cava filter
("IVC filter") would have made a difference in Mr. Johnson's outcome if the pelvic clot had
been diagnosed in the emergency department. Next, counsel for the Emergency Medicine
Defendants asked those very questions (as he had during Dr. Comerota's discovery deposition)
and obtained testimony indicating that heparin would not have saved Mr. Johnson's life and that
Mr. Johnson would not have been a candidate for an IVC filter. There was no re-direct
examination by the Urology Defendants. At that point, Plaintiff's counsel objected to the general
trial procedure: "He [counsel for the Emergency Medicine Defendants] didn't ask a single
question of proper cross- examination. All he did was point out everything that [counsel for the
61976845.1
Urology Defendants] pointed out to attempt to undermine my examination. And I have no
ability to come back." Plaintiff's counsel, however, did not state, as the basis of his objection,
the inability to cross-examine regarding heparin and the IVC filter, or any allegedly "new"
matter raised on cross-examination of the Emergency Medicine Defendants. Yet, the court of
appeals reversed on this very issue.
D. Standard of Care Testimony Against the UrologyDefendants.
The only witness introduced by Plaintiff to offer standard of care testimony against the
Urology Defendants was Dr. Edward Panacek, who practiced emergency medicine, internal
medicine and critical care medicine, but not urology. At trial, the Urology Defendants objected
to Dr. Panacek's standard of care testimony against them, arguing that no foundation had been
laid establishing knowledge and understanding of the urology standard of care. Dr. Panacek
never stated that he was even familiar with the standard of care applicable to urologists. Instead,
Dr. Panacek merely claimed that he was familiar with the manner in which an unidentified
"specialist" should communicate with emergency department physicians.
On cross-examination by the Urology Defendants, Dr. Panacek conceded:
• He is not a urologist;
• Other than a brief rotation in urology nearly 30 years ago, he has no trainingin urology;
• He never performed a radical retro-pubic prostatectomy;
• He never primarily cared for a patient post radical retro-pubic prostatectomy;
• He did not know how often a Board-certified urologist would need to addressbilateral edema in the lower extremities; and
• He did not know whether urologists would even know what test to order forpelvic vein thrombosis.
71976845.1
At the conclusion of Plaintiff's case, the Urology Defendants moved for a directed
verdict for lack of competent expert standard of care testimony against the Urology Defendants.
The trial court overruled the motion. At the conclusion of all evidence, the Urology Defendants
again moved for a directed verdict, arguing that there was no testimony from a urologist, or any
physician familiar with the standard of care applicable to urologists, indicating that the Urology
Defendants had breached the standard of care. After taking a recess, the trial court denied the
motion.
E. The Jury's Verdict.
The Emergency Department Defendants submitted jury interrogatories separating the
jury's findings regarding the standard of care and causation for each of the individually named
physicians. At that time, the jury interrogatories were discussed outside the jury's presence and
the Emergency Medicine Defendants asserted that interrogatories should be separate for each
Defendant for negligence and causation, stating, "If these two [negligence and causation] are
compressed it - it doubles the risk that at the appellate level there will be the opportunity to
argue for instance errors regarding the admission of causation testimony, when in fact the jury
may well have decided this case solely on the issue of negligence." The Urology Defendants
joined the request for separate interrogatories. Plaintiff nevertheless argued that the combined
interrogatories should be submitted and that course was ultimately adopted by the trial court.
Specifically, for each Defendant, there was an interrogatory inquiring whether the individual
physician was "negligent and did that negligence directly and proximately cause the death of
Eugene Johnson?" The jury ultimately found for each Defendant, answering each compound
interrogatory in the negative.
81976845.1
F. The Sixth District's Decision.
The primary issue on appeal was whether "the trial court committed a reversible error
when it denied Mrs. Johnson the right to examine defendants' expert witness on opinions that
were elicited after her initial cross-examination." On February 1, 2013, the Sixth District
reversed the defense verdict, concluding that the trial court's denial of Plaintiff's request to
conduct further cross-examination of Dr. Comerota on matters raised during the cross-
examination conducted by the Emergency Medicine Defendants constituted an abuse of
discretion. On February 6, 2013, the Sixth District Court of Appeals issued a decision correcting
errors in its prior opinion, but did not change the outcome.
III. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW
PROPOSITION OF LAW NO. 1: Ohio does not recognize a right of furthercross-examination in the absence of re-direct cross-examination.
The Urology Defendants join the argument of the Emergency Department Defendants
regarding the Proposition of Law No. 1.
PROPOSITION OF LAW NO. 2: A trial court does not abuse its discretion
concerning its regulation of the mode and order of the examination of a
witness when each party has had an opportunity to fully examine a witness.
The Urology Defendants join the argument of the Emergency Department Defendants
regarding the Proposition of Law No. 2.
PROPOSITION OF LAW NO. 3: A trial court does not abuse its discretion inregulating the method of interrogation of a witness in the absence of any legalauthority recognizing the right to further cross-examination.
The Urology Defendants join the argument of the Emergency Department Defendants
regarding the Proposition of Law No. 3.
91976845.1
PROPOSITION OF LAW NO. 4: Ohio's two-issue rule applies to medical
malpractice claims.
The Urology Defendants join the argument of the Emergency Department Defendants
regarding the Proposition of Law No. 4.
PROPOSITION OF LAW NO. 5: Ohio's two-issue rule requires upholding ajury verdict when jury interrogatories do not distinguish between negligenceand issues of causation and the testimony at issue addresses only causation.
The Urology Defendants join the argument of the Emergency Department Defendants
regarding the Proposition of Law No. 5.
PROPOSITION OF LAW NO. 6: Under Evid.R. 702(B), a physician is notqualified to give a standard of care opinion regarding a physician of a differentspecialty when that physician has not demonstrated familiarity with the standard ofcare of the different specialty.
Plaintiff did not present any testimony from a urologist, or a physician familiar with the
standard of care applicable to a urologist, to establish the urology standard of care. As such, the
court of appeals and trial court erred in allowing Plaintiff s claim against the Urology Defendants
to go to the jury.
An expert may testify at trial only if he "is qualified as an expert by specialized
knowledge, skill, experience, training or education." Evid.R. 702(B). The standard for
admissibility of standard of care opinions by a physician of a different specialty than the
defendant has been stated as follows:
In a medical-malpractice case, it is not required that the witnesspractice in the same specialty as the defendant-physician. `Where* * * fields of medicine overlap and more than one type of specialistmay perform the treatment, a witness may qualify as an experteven though he does not practice the same specialty as thedefendant.' The witness must demonstrate, however, that he isfamiliar with the standard of care applicable to the defendant'sschool or specialty and that his familiarity is `sufficient to enablehim to give an expert opinion as to the conformity of thedefendant's conduct to those particular standards and not to the
101976845.1
standards of the witness' school and, or, specialty if it differs fromthat of the defendant.' `It is the scope of the witness' knowledgeand not the artificial classification by title that should govern thethreshold question of his qualifications.' (Emphasis added.)
An analysis of Alexander and two more recent cases reveals the error in the Sixth
District's decision. In Alexander, a podiatrist testified as an expert regarding the application and
removal of a cast, a practice which he applied on patients in his own practice. Alexander at 158.
The podiatrist testified "that the principles used in applying plaintiffs cast were the same as he
had been taught." Id. at 160. Because he was familiar with the applicable standard of care of
application and removal of casts, the court allowed the podiatrist to testify as an expert regarding
an orthopedic surgeon's application of a cast. Id, at 162. In Taulbee v. Dunsky, 12th Dist.
No. CA2003-03-059, 2003-Ohio-5988, ¶ 24, even though a board certified cardiothoracic
surgeon worked with emergency department and family physicians on a daily basis, he was
deemed not an expert on the standard of care of those specialties in diagnosing initial complaints
of chest pain because his involvement with patients comes long after the initial diagnosis. In
Nead v. Brown Cty. Gen. Hosp., 12th Dist. No. CA2005-09-018, 2007-Ohio-2443 ¶¶ 49-50, 56,
an emergencv department physician who taught residents how to evaluate and explore puncture
wounds testified as an expert regarding a surgeon's treatment, several days after the injury, of an
infected foot wound. The court ruled that the emergency department physician failed to
demonstrate a sufficient knowledge to enable him to give an expert opinion on the surgeon's
conduct due to both his "lack of training and practice in the field of surgery" and the fact that he
did not have experience following up with patients days after an injury. Id.
111976845.1
In this case, Dr. Panacek's testimony fails to meet the requirements of Alexander,
Taulbee, and Nead. Indeed, there was no testimony from Dr. Panacek, a critical care physician,
that he is familiar with the standard of care applicable to urologists. He merely testified that he
was familiar with the manner in which a generic specialist should communicate with an
emergency department physician. Urology Defendants do not argue, as the appellate court
stated, that evidence of the standard of care was lacking because Plaintiff failed to call a
urologist to testify. (See Decision and Judgment, at ¶ 36.) Instead, the Urology Defendants
assert that evidence of the standard of care was lacking because there was no demonstration that
Dr. Panacek's knowledge of urology was sufficient to enable him to give an expert opinion on a
urologist's standard of care in communication. This is not sufficient to establish that Dr.
Panacek was familiar enough with the standards of urology to enable him to express to the trier
of fact how a urologist should communicate to an emergency department physician, given a
specific clinical situation.
Unlike the podiatrist in Alexander, who practiced and was trained in the application and
removal of casts, Dr. Panacek does not practice and has not been trained in urology.
Furthermore, although Dr. Panacek interacts and communicates with "specialists" every day, he
does not have the practice or training in urology necessary to assist the trier of fact in
understanding everything that a urologist must communicate to an emergency department
physician. Dr. Panacek did not demonstrate that he is familiar with the standard of care
applicable to urology and could not provide a standard of care opinion from the perspective of a
urologist under the facts of this case. In other words, although the stated criticism was "poor
communication," that communication was from the perspective of a urologist after prostate
cancer surgery. Dr. Panacek was plainly not qualified to address that standard and was therefore
121976845.1
not qualified to testify as to the standard of care for communications between urologists and
emergency department physicians.
Based on Dr. Panacek's complete lack of knowledge of urology, his testimony should not
have been permitted regarding the standard of care relating to the Urology Defendants.
Accordingly, the trial court and the appellate court erred in permitting the case against the
Urology Defendants to go to the jury.
IV. CONCLUSION
For the foregoing reasons, this case involves matters of great public and general interest.
The Urology Defendants request that this Court accept jurisdiction to clarify Ohio law regarding:
(1) the discretion of trial court to regulate re-cross examination, especially where there is no re-
direct examination; (2) the scope and application of the two-issue rule in medical malpractice
cases, given the confusion created by the proposed jury interrogatories in Ohio Jury Instructions;
and (3) the required knowledge of a physician when testifying on the standard of care of a
different specialty.
Respectfully submitted,
EASTMAN & SMITH LTD.
J
Peter R. Casey;`III (0000579)William P. Bingle (0089463)One SeaGate, 24th Floor, P.O. Box 10032Toledo, OH 43699-0032
Attorneys for AppellantsGenito-Urinary Surgeons, Inc., Gregor K.Emmert, Jr., M.D., and Richard I. Tapper, M.D.
131976845.1
PROOF OF SERVICE
A copy of the foregoing Memorandum in Support of Jurisdiction of Appellants
Genito-Urinary Surgeons, Inc., Gregor K. Emmert, Jr., M.D. and Richard I. Tapper, M.D.
has been mailed this ^ day of March, 2013 to: Todd E. Gurney, Esq., Brian N. Eisen,
Esq., William M. Greene, Esq., and Romney Cullers, Esq., Greene & Eisen Co., L.P.A., 1300
East Ninth Street, 1801 Penton Media Building, Cleveland, Ohio 44114, attorneys for Plaintiff;
and to John C. Barron, Esq., Shumaker, Loop & Kendrick, LLP, 1000 Jackson Street, Toledo,
Ohio 43604-5515, attorney for Defendants Emergency Physicians of Northwest Ohio at Toledo,
Inc., Jaron S. Goldberg, M.D., and Carlos A. Sotelo, D.O.
UrirW Sur oe, nc., Gregor K.t, Jr., M. d Richard I. Tapper, M.D.
141976845.1
r ^RT OF PPEAI-S
1013EE8-1 Aa. 03
COMmONPLEUIS cR y^1O^^t^l^ 0 COU^TS
C^ K OfIN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICTLUCASCOUNTY
Mary Johnson, etc.
Appellant/Cross-Appellee
V.
Emergency Physicians of NorthwestOhio at Toledo, Inc., et al.
Court of Appeals No. L-11-I290
Trial Court No. C10200805902
DECISION AND JUDGMENT
FEB 012413Appellees/Cross-Appellants Decided:
Todd E. Gurney, Brian N. Eisen, William M. Greene and RomneyCullers, for appellant/cross-appellee.
John C. Barron and Stefanie E. Deller, for appellees EmergencyPhysicians of Northwest Ohio at Toledo, Inc., Jaron Goldberg, M.D.and Carlos Sotelo, D.O.
Peter R. Casey, III and Jeffrey M. Stopar, for appellees/cross-appellants.
PIETRYKOWSKI, J.
{¶ 1} This appeal arises in a medical malpractice/wrongful death action brought
by appellant, Mary Johnson, individually and as administrator of the estate of her
1.
E-JOURNAIIZEDFEB - ! 2013
husband, Eugene Johnson, and as personal representative of his next of kin. Mr. Johnson
died on February 28, 2007.
{¶ 2} Appellees are the defendants in the case and include urologists, emergency
room physicians, and their employers. The urology appellees are Gregor K. Emmert, Jr.,
M.D., Richard I. Tapper, M.D., and Genito-Urinary Surgeons, Inc. The emergency room
appellees are Jaron S. Goldberg, M.D., Carlos A. Sotelo, D.O. and Emergency Physicians
of Northwest Ohio at Toledo, Inc.
{¶ 31 The case proceeded to trial before a jury in the Lucas County Court of
Common Pleas in January 2011. The jury returned a verdict in favor of all defendants,
and, pursuant to the verdict, the trial court entered judgment in favor of appellees and
against appellant on February 1, 2011. Appellant appeals the February 1, 2011 judgment.
The urology appellees also have cross-appealed.
{¶ 4) A series of medical experts testified at trial. Together they presented a basic
framework to understand medical issues and testimony presented at trial. A deep vein
thrombosis (DVT) is a blood clot that has formed in a vein located deep in the body.
When a clot breaks off and moves through the bloodstream, it is an embolism. A
pulmonary embolism is a blood clot that has moved from some other place in the body
and into the lungs. The parties do not dispute that the cause of Mr. Johnson's death was
an acute pulmonary embolism.
{¶ 5) Eugene Johnson suffered from prostate cancer and underwent prostate
cancer surgery by Dr. Eric A. Pizza, M.D. in February 2007. Dr. Pizza is a urologist and
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together with Drs. Emmert and Tapper has been employed by appellee Genito-Urinary
Surgeons, Inc.
{¶ 6} At 12:54 a.m. on February 27, 2007 (twelve days after the prostate surgery),
Mr. Johnson went to the emergency room department at Toledo Hospital because both his
legs were swollen and tight. Dr. Jaron S. Goldberg, M.D. was the initial emergency room
physician who treated Mr. Johnson at the emergency room. That night Dr. Emmert was
the physician on call for the urology practice group.
(417) After examining Mr. Johnson, Dr. Goldberg ordered a D-dimer blood test to
look for blood clots located anywhere in the body. (D-dimer is a substance released by
the body in an effort to breakdown blood clots.) After receiving the D-dimer test results,
Dr. Goldberg ordered a Venous Duplex Doppler ultrasound of the lower extremities to
rule out possible blood clots. Dr. Goldberg requested emergency room staff to contact
the physician on call for the urology practice group.
{¶ 8} Dr. Emmert and Dr. Goldberg spoke concerning Mr. Johnson's situation and
Goldberg's evaluation and plan to secure the Venous Duplex Doppler ultrasound. Dr.
Emmert has acknowledged that he agreed with the plan of care and that he requested that
Dr. Goldberg advise him of the results of the ultrasound study.
{¶ 9} Dr. Goldberg's shift in the emergency room department ended before the
Duplex Doppler ultrasound study was conducted. Dr. Sotelo took over for Dr. Goldberg
and performed his own evaluation of Mr. Johnson. The study was reported negative for
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blood clots in the legs. Dr. Sotelo contacted the urology practice group to provide the test
results. During the course of the night, the swelling in Mr. Johnson's legs lessened.
{¶ 10} Dr. Sotelo reviewed Mr. Johnson's course while in the emergency room
department including Duplex Doppler ultrasound test results with either Dr. Emmert or
Dr. Tapper of the urology group. Dr. Sotelo also advised the urologist of his plan to
discharge Mr. Johnson home with instructions.
{¶ 11} At approximately 9:38 a.m. on February 27, 2007, Mr. Johnson was
discharged from the hospital to home with instructions. The instructions were that he
was to follow up with his urologist, Dr. Pizza, at a scheduled appointment (scheduled for
February 28, 2007) and to keep his legs elevated when at rest.
1112) Mr. Johnson collapsed at home on the morning of February 28, 2007, and
was pronounced dead upon arrival at the hospital. An autopsy determined that the cause
of death was an acute pulmonary embolism.
{¶ 13} Appellant asserts two assignments of error in her appeal:
Assignments of Error
1. The trial court committed reversible error when it refused to
excuse a juror for cause where there was doubt as to the juror's being
entirely unbiased; and
2. The trial court committed reversible error when it denied Mrs.
Johnson the right to examine defendants' expert witness on opinions that
were elicited after her initial cross-examination.
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{¶ 14} We consider Assignment of Error No. 2 first.
Denial of Recross-Examination of Expert Witness
11115) Appellant argued at trial that appellees breached the standard of care owed
Mr. Johnson by failing to secure additional testing to directly examine Mr. Johnson's
pelvis for blood clots and upon discovery of a blood clot to treat the condition by either
instituting heparin anticoagulant drug therapy or by placement of an IVC (inferior vena
cava) filter. Appellant has contended that the additional testing would have disclosed the
existence of a blood clot in veins of Mr. Johnson's pelvis and that the available treatment,
if pursued, would have prevented Mr. Johnson's death. These contentions were highly
disputed at trial.
11116) Appellant argues under Assignment of Error No. 2 that the trial court erred
by denying appellant an opportunity to cross-examine Dr. Anthony J. Comerota, M.D., at
trial, after the witness was questioned by the emergency room appellees. Dr. Comerota
testified as an expert witness at trial on behalf of the urology appellees. Dr. Comerota is
a vascular surgeon.
{¶ 171 The urology and emergency room appellees were co-defendants and the
trial court permitted them to cross-examine each other's witnesses at trial. The order of
evidence was that Dr. Comerota testified first on direct examination by the urology
appellees, followed by appellant on cross-examination, and then by the emergency room
appellees, also on cross-examination.
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{¶ 18} On direct, the emergency room appellees limited their questioning of Dr.
Comerota to liability issues concerning the care received by Mr. Johnson at The Toledo
Hospital and expert opinion testimony with respect to compliance with the standard of
care. The emergency room appellees did not question Dr. Comerota on direct about
appellant's theory that if Mr. Johnson had been treated with heparin or with an IVC filter,
he would have survived. Appellant limited her questioning to issues raised on direct.
(1119) The emergency room appellees explored new matter and secured expert
opinion testimony of the witness on issues not raised in prior questioning by either the
urology appellees or appellant. In examination by the emergency room appellees, Dr.
Comerota testified to his opinions that administration of the drug heparin would not have
saved Mr. Johnson's life and that Mr. Johnson was not a candidate for treatment through
placement of an IVC filter:
Mr. Barron: And if anti-coagulation therapy had been administered
for a 24-hour period do you have an opinion to a reasonable degree of
medical probability whether or not that heparin therapy over a 24-hour
period would have prevented the death? Do you have such an opinion?
Dr. Comerota: It probably would not have.
Mr. Barron: Okay. Now, there has been some testimony in this case
to this jury by other medical witnesses about the potential lifesaving
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promise or ability or effect of an inferior vena cava filter. And I want to
ask you some specific questions about that device.
Based upon again a hypothetical situation where this internal iliac
venin clot was somehow diagnosed on February 27th, 2007 in Mr. Johnson,
would Mr. Johnson have been an appropriate candidate for the placement of
inferior vena cava filter?
First, do you have an opinion to a reasonable medical probability on
that issue?
Dr. Comerota: The proper treatment of Mr. Johnson - if the internal
iliac vein thrombosis was diagnosed the proper treatment would have been
anti-coagulation not an IVC filter.
Q. And -
An IVC filter has complications in and of itself. It will go on to
thrombose the vena cava in varying percentages of patients. And some of
them as much as four to five percent over the next six months in some
reports.
Additionally what has been unquestionably established is that there
is a higher risk of deep vein thrombosis in patients who have an IVC filter
placed. So I'm in favor of the proper use of IVC filters, but I'm not in
favor of the improper use of these filters.
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Q. And again, just to come back, based upon your knowledge,
training, and expertise, if hypothetically this internal iliac clot had been
diagnosed on February 27th, would Mr. Johnson have been a proper
candidate for the placement of such a filter on that date?
A. No.
11120) After the emergency room appellees concluded questioning of Dr.
Comerota, the urology appellees advised the court that they had no re-direct. Appellant
requested an opportunity to recross-examine the witness, limited to new matters that were
not raised on direct. The trial court denied the request on the basis that there had been no
re-direct.
{¶ 21) Trial courts have broad discretion to admit or exclude evidence and a ruling
on evidence will not be reversed on appeal absent a showing of an abuse of discretion
that affects the substantial rights of a party or is inconsistent with substantial justice.