Not a good week for plaintiffs around the state, losing two appeals after jury trials in medical malpractice cases. In one, the Ohio Supreme Court virtually assured the outcome in light of their specific holding that any error with a remote-cause jury instruction was not reversible error as a matter of law. In the second decision, the appellate court's omission of the facts of the case highlighted the cursory nature of the resulting affirmance.
In Hayward v. Summa Health System, the plaintiff was injured during a colectomy. A retractor caused pressure the left femoral nerve during the surgery. In an earlier decision, the Ninth District determined that a remote-cause jury instruction was improper in light of the fact that there was no dispute as to the cause of the injury. The panel remanded the case for a new trial. The Ohio Supreme Court accepted review on the specific issue of whether any error with the remote-cause instruction was reversible error, ultimately holding that it was not. The case was remanded to the Ninth District to resolve the remaining assignments of error determined to be moot following their first decision. The only remaining issues, however, were whether the jury's verdict was against the manifest weight of the evidence and the admissibility of evidence for which the plaintiff consented to the admission at trial. Those are tough arguments on a good day, much less upon remand from the Ohio Supreme Court.
Finally, in O'Loughlin v. Mercy Hospital, the First District affirmed a jury verdict in favor of the hospital. The panel included no facts in its decision, despite removing the case from the accelerated docket. The court documents were not available online due to privacy concerns, but that will limit the applicability of this case to future analysis. Most of the court's treatment of the assignments of error are predictable, for example, the defense is entitled to their own allotment of peremptory challenges because of the remote and speculative possibility that one of the treating members of the medical team may be found not negligent. According to the court, this means the defenses do not rise and fall together. The most interesting part of the First District's decision, however, is its determination that the trial court properly excluded rebuttal testimony based on the fact that the proffered testimony only addressed a "collateral detail." Generally a party has a unconditional right to present rebuttal testimony, especially that which is relevant to the veracity of a defense witness. Apparently that right ceases if the fact being rebutted is a "collateral detail" of the witnesses memory.
The First District cited no authority addressing the "collateral detail" issue, and no court in the state has held that a trial court may preclude rebuttal testimony of a "collateral detail" that addresses the veracity of the witness. In this case, the defendant doctor testified at trial that he specifically remembers the plaintiff refusing treatment, the primary defense, because as she did so, a scrunchy fell from her hair. The plaintiff intended to offer rebuttal evidence that she never wore a scrunchy, implying the doctor either did not remember the situation accurately, or was thinking of another patient, either of which address the witness' veracity. It seems a bit of a stretch to dispose of that argument because it was a "collateral detail." It directly impugns the doctor's memory, and such rebuttal evidence should be unconditionally allowed. This, of course, begs the question of whether or not that decision would lead to a new trial, but without more, we are left with a proposition of law that seemingly contradicts established precedent.
