Miller v. Andrews

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Miller v. Andrews

State: Ohio

Court: Ohio Southern District Court

Docket No: 2013-Ohio-2490

Case Date: 06/13/2013

Plaintiff: Miller

Defendant: Andrews

Preview:[Cite as Miller v. Andrews, 2013-Ohio-2490.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CAROL S. MILLER                                :                                          JUDGES:
                                               :
Plaintiff-Appellant/                           :                                          Hon. Patricia A. Delaney, P.J.
Cross-Appellee                                 :                                          Hon. W. Scott Gwin, J.
                                               :                                          Hon. John W. Wise, J.
-vs-                                           :
                                               :                                          Case No. 12CA44
DANA H. ANDREWS, M.D., ET AL.                  :
                                               :
Defendants-Appellees/                          :
Cross-Appellants                               :                                          O P I N I O N
CHARACTER OF PROCEEDING:                       Appeal from the Richland County Court of
Common Pleas, Case No. 2010 CV 0116 H
JUDGMENT:                                      AFFIRMED IN PART; REVERSED AND
                                               REMANDED IN PART
DATE OF JUDGMENT ENTRY:                        June 13, 2013
APPEARANCES:
For Appellant/Cross-Appellee:                  For Appellees/Cross-Appellants:
MICHAEL L. INSCORE                             GERALD J. TODARO
13 Park Ave. West, Suite 400                   KAREN L. CLOUSE
Mansfield, OH 44902-1741                       2075 Marble Cliff Office Park
Columbus, OH 43215

Richland County, Case No. 12CA44                                                                2
Delaney, P.J.
{ ¶ 1 }   Plaintiff-Appellant/Cross-Appellee Carol S. Miller appeals the May  14,
2012 judgment entry of the Richland County Court of Common Pleas that journalized
a jury verdict in favor of Defendants-Appellees/Cross-Appellants Dana Andrews, M.D.
and American Health Network of Ohio.
{ ¶ 2 }   Defendant-Appellees/Cross-Appellants   Dana   Andrews,   M.D.   and
American Health Network of Ohio appeal the May  14,  2012 judgment entry of the
Richland County Court of Common Pleas that awarded sanctions to Miller based on a
discovery issue.
APPEAL OF PLAINTIFF-APPELLANT CAROL S. MILLER
FACTS AND PROCEDURAL HISTORY
{ ¶ 3 }   Plaintiff-Appellant/Cross-Appellee  Carol  S.  Miller,  born  in                      1942,  was
admitted to MedCentral Health System on December  17,  2008 with a diagnosis of
acute bilateral pulmonary emboli and deep vein thromboses (DVT) in both legs.   DVT
is a blood clot in the veins of the lower leg.   A pulmonary embolus occurs when the
blood clot in the vein of the leg breaks away and enters the pulmonary system.   A
pulmonary embolus can result in death.   The physicians at MedCentral Health System
administered the medication Heparin to treat the blood clots causing the DVT and
pulmonary emboli.   Heparin is a blood thinner.   While on Heparin, Miller experienced a
drop in her platelet count.   A side effect of the use of Heparin is an immune response
called Heparin Induced Thrombocytopenia (HIT).   HIT reduces the amount of platelets
in  the  system  and  can  cause  clots  to form,  which  is  converse to  the  purpose of
Heparin.    HIT  is  diagnosed  by  determining  if  there  are  antibodies  in  the  system.

Richland County, Case No. 12CA44                                                                   3
MedCentral ordered a test to determine whether Miller had HIT, but the results of the
test  were  not  in  her  record;  however,  MedCentral  diagnosed  Miller  with  HIT.
MedCentral stopped the administration of Heparin and switched Miller to the blood
thinner  medication  called  Lovenox,  which  is  low  molecular  weight  Heparin.
MedCentral continued to give Lovenox to Miller until her discharge from the hospital
on December  21,  2008.    Upon her discharge, Miller was prescribed Coumadin, a
blood thinner medication taken orally.
{ ¶ 4 }   On  December  26,  2008, Miller was readmitted  to  MedCentral due to
mental confusion.   She suffered a seizure in the emergency room and experienced
respiratory failure.   There was no explanation for her symptoms.   On January 8, 2009,
Miller was discharged from MedCentral.
{ ¶ 5 }   Instead of returning home after her discharge from the hospital, Miller
was transferred to Winchester Terrace Nursing Home.   The purpose of transferring
Miller to Winchester Terrace was for rehabilitation physical and occupational therapy
due  to  her  lengthy  hospital  stay  and  to  monitor  her  INR  levels.    INR  diagnoses
whether  Miller  is  receiving  therapeutic  levels  of  Coumadin.    MedCentral  provided
Winchester Terrace with Miller’s discharge papers.   The discharge papers included
Miller’s diagnoses of pulmonary emboli, DVT, and HIT.   Miller was taking Coumadin at
the time of her admission to Winchester Terrace.
{ ¶ 6 }   The   medical   director   of   Winchester   Terrace   is   Defendant-
Appellee/Cross-Appellant  Dana  Andrews,  M.D.     Dr.  Andrews  is  employed  by
Defendant-Appellee/Cross-Appellant American Health Network of Ohio.   Dr. Andrews
is  an  internal  medicine  practitioner.    In  addition  to  being  the  medical  director  of

Richland County, Case No. 12CA44                                                               4
Winchester Terrace, Dr. Andrews has a private medical practice.   He divides his time
between overseeing the residents of Winchester Terrace and his private patients.   The
staff of Winchester Terrance includes registered nurses and licensed practical nurses.
The nurses and support staff attend to the daily supervision and health needs of the
residents.   When Dr. Andrews is not present at the nursing home, the staff contacts
Dr. Andrews by telephone or fax as to the care of the residents, such as medicine
adjustments or issues with pain.   Dr. Andrews conducts weekly rounds at Winchester
Terrace and physically examines the residents under his care.
{ ¶ 7 }   When Miller was transferred to Winchester Terrace on January 8, 2009,
Dr. Andrews was not present and he did not physically examine Miller.   Dr. Andrews
was provided with her discharge papers from MedCentral by the staff of Winchester
Terrace.   Upon Miller’s admission, Winchester Terrace contacted Dr. Andrews to alert
him that Miller’s INR was low and not at therapeutic levels.   An INR at subtheraputic
levels  could  result  in  the  reoccurrence  of  a  DVT.    Coumadin  is  a  blood  thinner
medication; it is administered orally and takes a few days to take effect.   Heparin and
Lovenox  are  blood  thinner  medications  and  are  administered  subcutaneously.
Heparin and Lovenox take immediate effect.    In order to remedy her low INR, on
January  9,  2009, Dr. Andrews ordered the administration of Lovenox as a bridge
therapy until the Coumadin was at therapeutic levels.   At that time he initially ordered
the use of Lovenox, Dr. Andrews was not aware Miller was diagnosed with HIT by
MedCentral.
{ ¶ 8 }   Miller began physical therapy at Winchester Terrace on January 9, 2009.
Her physical therapy included walking therapy.    According to the nursing records,

Richland County, Case No. 12CA44                                                             5
Miller began to complain of pain in her left leg.   During the three nursing shifts, the
nurses  documented  Miller’s  pain  complaints  and  showed  Miller’s  pain  waxed  and
waned from severe pain to low pain.   Leg pain is consistent with a DVT.   Dr. Andrews
initially prescribed the use of Tylenol to control Miller’s pain.   Dr. Andrews physically
examined Miller on January 14, 2009.   On January 17, 2009, Dr. Andrews prescribed
Darvocet for Miller’s leg pain.   On January 19, 2009, Dr. Andrews prescribed a low
dose  Duragesic  patch  for  Miller’s  leg  pain.    Dr.  Andrews  conducted  a  physical
examination of Miller and saw that her left leg was swollen and tender.   Dr. Andrews
consulted with a local vascular surgeon for treatment recommendations for a patient
experiencing pain with a DVT.   Based on the recommendation, Dr. Andrews ordered
the staff to wrap Miller’s left leg with an ACE bandage, elevate the leg, and increase
the pain medication.
{ ¶ 9 }   On January 22, 2009, during the shift of 11:00 p.m. to 7:00 a.m., a nurse
failed to document her periodic checks of Miller’s condition, including her left leg.
During the same shift, the nurse made a progress note that Miller’s left leg appeared
edematous (swollen), discolored, and the foot was pale.   At 8:00 a.m. on January 22,
2009, a nurse from Winchester Terrace contacted Dr. Andrews to advise him Miller’s
left foot was cold, purplish, and pulseless with no movement or sensation.
{ ¶ 1 0 } Miller was transferred to MedCentral at 9:00 a.m. on January 22, 2009.
Miller was taken by life flight to The Ohio State University Medical Center.   On January
23, 2009, Miller’s left leg was amputated above the knee.   Pathologic examination of
the leg tissue did not show any evidence of an arterial clot.

Richland County, Case No. 12CA44                                                                    6
{ ¶ 1 1 } On  January                                                                         22,   2010,  Miller  filed  a  professional  negligence  action
against Dr. Andrews and American Health Network of Ohio in the Richland County
Court of Common Pleas.   The matter went to trial by jury beginning April 5, 2012.
{ ¶ 1 2 } At  trial,  Miller  presented  the  expert  testimony  of  Dr.  Vogel,  a
hematologist; Dr. Shoag, an internist; and Dr. Collier, a vascular surgeon.   The experts
opined Miller suffered an ischemic event in her left leg caused by arterial thrombosis
or massive venous occlusion.    Miller’s experts testified Dr. Andrews fell below the
standard  of  care  when  he  prescribed  Lovenox  to  Miller  based  on  MedCentral’s
diagnosis  of  HIT.    Further,  Dr.  Andrews  fell  below the  standard  of  care  because
Miller’s worsening condition of her left leg should have caused Dr. Andrews to do a
more intensive examination of the leg and have Miller evaluated by a hematologist or
vascular surgeon.   The experts testified that with the proper intervention, Miller’s leg
could have been saved.
{ ¶ 1 3 } Dr.  Andrews  and  American  Health  Network  presented  the  expert
testimony of Dr. Cefalu, a nursing home care expert; Dr. Balko, a pathologist; and Dr.
Naslund,  a  vascular  surgeon.    The  experts  stated  within  a  reasonable  degree  of
medical certainty Dr. Andrews did not fall below the standard of care by prescribing
Lovenox to Miller.    Miller was not definitively diagnosed with HIT nor were Miller’s
symptoms consistent with HIT.   Miller’s symptoms were consistent with a DVT and Dr.
Andrews treated her symptoms accordingly.    Miller suffered a complication from a
DVT, which resulted in the ischemic damage to her left leg.    Finally, the experts
testified that the nursing home staff failed to recognize the symptoms of an ischemic
event and transmit the information to Dr. Andrews in a timely fashion.

Richland County, Case No. 12CA44                                                       7
{ ¶ 1 4 } Based on the evidence presented, the jury found Dr. Andrews did not fall
below the standard of care and was therefore not negligent in providing medical care
to Miller.
{ ¶ 1 5 } The trial court journalized the verdict on May 14, 2012.   It is from this
decision Miller now appeals.
ASSIGNMENTS OF ERROR
{ ¶ 1 6 } Miller raises six Assignments of Error:
{ ¶ 1 7 }                                                                              “I.  THE  TRIAL  COURT  ERRED  IN  INSTRUCTING  THE  JURY
REGARDING THE USE OF HINDSIGHT AND AFTER ACQUIRED INFORMATION IN
DETERMINING   WHETHER   OR   NOT   THE   DEFENDANT   PHYSICIAN   WAS
NEGLIGENT.
{ ¶ 1 8 } “II.                                                                         THE    TRIAL    COURT    ERRED    IN    SUBMITTING    JURY
INTERROGATORIES     THAT     WERE     CONFUSING,     MISLEADING     AND
INCONSISTENT WITH THE GENERAL JURY INSTRUCTIONS REGARDING THE
STANDARD OF CARE.
{ ¶ 1 9 } “III. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT
USE  BY  ANOTHER  PHYSICIAN  OF  A  DIFFERENT  METHOD  OF  TREATMENT
DOES NOT IN AND OF ITSELF PROVE NEGLIGENCE WHERE NO EVIDENCE OF
SUCH DIFFERENT METHOD WAS PRESENTED.
{ ¶ 2 0 } “IV.  THE  TRIAL  COURT  ERRED  IN  GIVING  REPETITIVE  JURY
INSTRUCTIONS UPON THE ISSUE OF THE STANDARD OF CARE AND UPON
THE SIGNIFICANCE THAT COULD BE ATTACHED TO A BAD RESULT.

Richland County, Case No. 12CA44                                                                8
{ ¶ 2 1 } “V. THE TRIAL COURT ERRED IN DENYING PLAINTIFF’S MOTION
FOR PARTIAL DIRECTED VERDICT AT THE CLOSE OF THE EVIDENCE AS TO
THE  AFFIRMATIVE  DEFENSE  ASSERTING  NEGLIGENCE  OF  NURSING  HOME
EMPLOYEES AND BY SUBMITTING INSTRUCTIONS AND INTERROGATORIES TO
THE JURY WITH REGARD THERETO.
{ ¶ 2 2 } “VI. THE TRIAL COURT ERRED IN GIVING AN INSTRUCTION TO THE
JURY WITH REGARD TO REMOTE CAUSE.”
ANALYSIS
I.
{ ¶ 2 3 } Miller  argues  in  her  first  Assignment  of  Error  the  trial  court  erred  in
overruling counsel’s objection as to the inclusion of a jury instruction on hindsight in its
standard of care instructions.   The trial court gave a jury instruction entitled, “Standard
of Care Not Determined by Hindsight or After Acquired Knowledge.”   The instruction
read:
In determining whether Dr. Andrews was negligent, you are to consider
his conduct in light of all the facts before him under the same or similar
circumstances.   You must consider his care based on the then known
facts and the existing state of medical knowledge at the time the events
were occurring.   You are not to evaluate his care based on after-acquired
information.
(T. 1122).
{ ¶ 2 4 } The jury instruction is not found in the Ohio Jury Instructions, but was
developed by the Ohio State Bar Association.   The OSBA Jury Instruction states:

Richland County, Case No. 12CA44                                                             9
In determining whether  (defendant’s name) was negligent, you are to
consider (his, her, its, their) conduct in light of all of the facts before (him,
her, it, them) under the same or similar circumstances.   You are not to
evaluate (his, her, its, their) care based on after acquired information, but
you may consider  (defendant’s name) care based on the then known
facts and the existing state of (medical, nursing, technical) knowledge at
the time the events were occurring.
{ ¶ 2 5 } The trial court has the duty to instruct the jury on the applicable law on all
issues raised by the pleadings and evidence, and it must give jury instructions that
correctly and completely state the law.   Pallini v. Dankowski, 17 Ohio St.2d 51, 53,
245 N.E.2d  353  (1969); Marshall v. Gibson,  19 Ohio St.3d  10, 12, 482 N.E.2d 583
(1985);  Murphy  v.  Carrollton  Mfg.  Co.,  61  Ohio  St.3d  585,  591,  575  N.E.2d  828
(1991); Groob v. Keybank, 108 Ohio St.3d 348, 2006-Ohio-1189, 843 N.E.2d 1170, ¶
32.   A jury charge should be “a plain, distinct and unambiguous statement of the law
as applicable to the case made before the jury by the proof adduced.” Marshall, 19
Ohio St.3d at 12, 482 N.E.2d 583, citing Parmlee v. Adolph, 28 Ohio St. 10 (1875),
paragraph two of the syllabus.   Furthermore, “[a] charge ought not only be correct, but
it should also be adapted to the case and so explicit as not to be misunderstood or
misconstrued by the jury.”   Id., citing Aetna Ins. Co. v. Reed, 33 Ohio St. 283, 295
(1877).
{ ¶ 2 6 } The giving of jury instructions is within the sound discretion of the trial
court and will not be disturbed on appeal absent an abuse of discretion.    State v.
Martens, 90 Ohio App.3d 338, 629 N.E.2d 462 (1993).   In order to find an abuse of

Richland County, Case No. 12CA44                                                             10
discretion, we must determine that the trial court's decision was unreasonable, arbitrary,
or  unconscionable  and  not  merely  an  error  of  law  or  judgment.    Blakemore  v.
Blakemore,  5 Ohio St.3d  217,  450 N.E.2d  1140  (1983).    Jury instructions must be
reviewed as a whole.   State v. Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792 (1988).
Whether the jury instructions correctly state the law is a question of law, which we
review de novo.   Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 575 N.E.2d 828
(1991).
{ ¶ 2 7 } In arguing the use of the hindsight instruction was in error, Miller cites to
this Court’s decision in Moore v. Alliance Obstetrics, Inc., 5th Dist. No. 2001CA00006,
2002-Ohio-1138.   Moore was a medical negligence action alleging the physician failed
to diagnose a pulmonary embolism suffered by the decedent after her hysterectomy.
The trial court gave the jury following instruction:
When  examining  the  conduct  of  the  defendant,  with  respect  to  the
standard of care, the conduct or care should be judged prospectively,
looking forward in time.   The care and conduct of the defendant must be
judged in light of the circumstances apparent to him at the time, and not
by looking backward retrospectively.
Id. at *3.
{ ¶ 2 8 } We  found  the  jury  instruction  on  hindsight  to  be  ambiguous  and
confusing.   We held:
We find the jury instruction as given by the trial court in this case was
ambiguous and confusing.   The jury is told to judge appellee's conduct or
care prospectively looking forwards in time [and] are then told to judge

Richland County, Case No. 12CA44                                                               11
appellee's care and conduct in light of the circumstances at that time, not
retrospectively.    Notions  of  further,  present,  and  past  injury  are  all
mentioned  in  the  instruction.     The  jurors  are  instructed  to  judge
appellee's  conduct  and/or  care                                                              “at  the  time”  while   “looking  forward.”
They  are  told  not  to  look  back  retrospectively  when  the  standard
contemplates  retrospective,  factual  inquiry.    Though  we  believe  we
understand the intent of the instruction, we find a jury could easily be
confused by it.   After reviewing the jury charge as a whole, we find the
jury charge probably mislead  the jury in a matter materially effecting
appellant's substantial rights.
Id.
{ ¶ 2 9 } Since  our  decision  in  Moore,  this  Court  has  affirmed  the  use  of  a
hindsight jury instruction similar to that in the present case in Thompson v. Capaldo,
5th Dist. No. 08 CA 1, 2008-Ohio-6329.   In that case, the trial court instructed the jury:
In  determining  whether  or  not  Dr.  Capaldo  is  negligent,  you  are  to
consider his conduct in light of all the facts before him under the same or
similar  circumstances  and  not  to  evaluate  his  care  based  on  after-
acquired information.   You may consider Dr. Capaldo's care based on
the then-known facts and the existing state of medical knowledge at the
time the events were occurring.
Id. at ¶ 58.
{ ¶ 3 0 } The Eighth and the Third appellate districts have reviewed the hindsight
instruction or a conceptually similar hindsight instruction.   In Holda v. Blankfield, M.D.,

Richland County, Case No. 12CA44                                                                 12
8th  Dist.  No.  84350,  2005-Ohio-766,  the  plaintiff’s  medical  negligence  action  was
based on the physicians’ failure to diagnose the decedent’s heart disease before she
suffered  a  fatal  cardiac  arrest.    The  court  analyzed  the  use  of  a  hindsight  jury
instruction worded as follows:
Next,  in  determining  whether  the  physician  was  negligent,  you
should consider his care in light of all the attendant circumstances on the
date and at the time of the alleged negligent event.    You should not
judge the physician by after-acquired knowledge or research.
The test of the existence of medical negligence is not hindsight,
but one of foresight, considering all of the then-known facts and with the
state of medical knowledge at the time the caregivers acted.
Id. at ¶ 38.
{ ¶ 3 1 } The majority in Holda found Moore to be distinguishable and inapplicable
to its case.   Id. at ¶ 19.   In a concurring opinion, Judge Gallagher expanded upon the
majority analysis:
Appellant asserts this instruction was defective because the “after
acquired knowledge” clause was not supported by the evidence and the
“hindsight” portion of the instruction inadequately expressed the law and
was ambiguous, misleading, and confusing.   I disagree.
*                                                                                                *    * where the record does not indicate that an  “after acquired
knowledge or research” clause was necessary, it cannot be said that the
instruction was inherently prejudicial.   The facts of the case presented to

Richland County, Case No. 12CA44                                                    13
the  jury  clearly  defined  the  alleged  errors  of  the  treating  physicians.
These alleged errors were framed in the context of a treatment “time-line”
and made it clear when the purported negligence occurred.   The jury, for
whatever reason, declined to find the physicians negligent.
It is also important to address appellant's reliance on the instruction
given in Moore v. Alliance Obstetrics, Inc., Stark App. No.2001 CA 00006,
2002-Ohio-1138, in comparison to the “hindsight” instruction given here.
In Moore, the trial court gave the following instruction:
“When examining the conduct of the defendant, with respect to the
standard of care, the conduct of care should be judged prospectively,
looking forward in time.   The care and conduct of the defendant must be
judged in light of the circumstances apparent to him at the time, and not
by looking backward retrospectively ‘with the wisdom born of the event’.
[sic]   The standard is one of conduct, and not of consequence.”
This instruction is distinguishable from the instruction given in the
present case where the trial court clearly remarked “you should consider
his care in light of all the attendant circumstances on the date and at the
time of the alleged negligent event * * *.”   As the majority noted, this is an
accurate statement of the law.
Lastly, appellant fails to support the assertion that the “hindsight”
instruction was erroneous.                                                          “Actionable negligence does not consist of
failing  to  take  extraordinary  measures  which  hindsight  demonstrates

Richland County, Case No. 12CA44                                                  14
would have been helpful.”   Bender v. First Church of the Nazarene (1989),
59  Ohio App.3d  68,  69,  571 N.E.2d  475, quoting  70 O.Jur.3d  (1986),
Negligence, Section 9, at 46-47 (footnotes omitted).
“A hindsight charge instructs the jury on the distinction between
foresight and hindsight, the former of which is the basis for a negligence
claim.   It instructs the jury that an after-the-fact assessment of facts or
evidence cannot be the basis of a negligence claim so long as the initial
assessment was made in accordance with the reasonable standards of
medical  care.    In  a  medical  malpractice  case,  a  hindsight  charge  is
authorized  where  the  evidence  raises  an  issue  as  to  whether  the
negligence claim is based on later acquired knowledge or information not
known or reasonably available to the defendant physician at the time the
medical care was rendered.”   Mercker v. Abend, 260 Ga.App. 836, 839,
581 S.E.2d 351 (internal quotes and citations omitted).
The court in Mercker noted that the claims there were, like here, not
based on “after acquired knowledge”; nevertheless, the court noted:
“In her appellate brief, Mercker argues that  [her] claims against
[Abend] were not based upon later acquired knowledge or information not
known  or  reasonably  available.  But  jury  charges  are  not  limited  to  a
plaintiff's characterization of the lawsuit. A trial court has a duty to charge
the  jury  on  the  law  applicable  to  issues  which  are  supported  by  the
evidence. If there is even slight evidence on a specific issue, it is not error

Richland County, Case No. 12CA44                                                     15
for the court to charge the jury on the law related to that issue.”    Id.
(Internal quote and citation omitted.)
Holda, supra at ¶ 39 - 47.
{ ¶ 3 2 } The Third District in Clements v. Lima Memorial Hosp., 3rd Dist. No. 1-
09-24,  2010-Ohio-602, appeal not allowed,  126 Ohio St.3d  1513,  2010-Ohio-3331,
930 N.E.2d 331, analyzed this jury instruction as to foreseeability:
Reasonable foreseeability of harm is an essential ingredient of negligence
in the action brought against the defendants.   The test for foreseeability is
not whether a defendant should have foreseen the injury exactly as it
happened  to  the  specific  person.    The  test  is  whether  under  all  the
circumstances a reasonably prudent person would have anticipated that
injury was likely to result to someone from the act or failure to act.   The
test, therefore, is one of foreseeability or foresight, not hindsight.
Id. at ¶ 74.
{ ¶ 3 3 } The  plaintiffs  argued                                                    “foresight,  not  hindsight”  was  an  inaccurate
statement of law.   The court disagreed:
With  respect  to  the  Clements'  issue  with  the  phrase                          “foresight,  not
hindsight,” we find that this was not an inaccurate statement regarding
the  law.    Even  though  this  language  is  absent  from  the  Ohio  Jury
Instructions  (hereinafter “OJI”), the OJI instructions are only models or
guidelines and are not mandatory.   State v. Burchfield (1993), 66 Ohio
St.3d  261,  263,  611  N.E.2d  819.    With  respect  to  foreseeability,  the

Richland County, Case No. 12CA44                                                          16
question is one looking forward from the time of the purported negligent
action                                                                                    (foresight),  not  looking  back  after  the  injury  has  occurred
(hindsight).    Grabill  v.  Worthington  Industries,  Inc.                               (1994),                                                               98  Ohio
App.3d  739,  744,  649 N.E.2d 874  (“[i]t is nearly always easy, after an
[incident] has happened to see how it could have been avoided.    But
negligence is not a matter to be judged after the occurrence.”)   * * *
Id. at ¶ 75.
{ ¶ 3 4 } As in Holda, we find the jury instruction in Moore to be distinguishable
from that of the present case.   We stated in Moore that while we understood the intent
of the jury instruction, we found instructing the jurors to consider the past, present,
and future in determining whether the physician was negligent was confusing and
ambiguous.   In the present case, the jurors were instructed to consider Dr. Andrews’
conduct in light of the facts before a physician under same or similar circumstances.
This is in accord with our decision in Thompson.
{ ¶ 3 5 } The concept of same or similar circumstances underpins the hindsight
theory.   Information acquired after the negligent event is outside the framing of same
or similar circumstances.   In Bruni v. Tatsumi,  46 Ohio St.2d  127,  346 N.E.2d  673
(1976), at paragraph one of the syllabus, the Supreme Court of Ohio held:
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

Richland County, Case No. 12CA44                                                               17
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.
Bruni supports the hindsight instruction.
{ ¶ 3 6 } On review of the present case, we have examined the instructions as a
whole, and we find that they are fairly balanced and include accurate statements of
the law.   Accordingly, we cannot find that the trial court abused its discretion in giving
this instruction.
{ ¶ 3 7 } Miller’s first Assignment of Error is overruled.
II.
{ ¶ 3 8 } Miller contends in her second Assignment of Error the trial court erred in
submitting confusing interrogatories to the jury.   We disagree.
{ ¶ 3 9 } Counsel for Miller objected to Interrogatory No. 1 and No. 2 stating, “On
the jury interrogatories, I’m going to object to No. 1 because it refers to the violation of
being below the appropriate standard of care rather than just saying he was negligent,
which is contrary to OJI.”                                                                     (T. 1146-1147).   The trial court stated, “Well, just a second.
They’re the same thing.”   Counsel replied, “I understand they’re the same thing.”             (T.
1147).
{ ¶ 4 0 } Interrogatory  No.                                                                   1  states,                                                        “Do  you  find  by  a  preponderance  of  the
evidence that Dana H. Andrews, M.D., provided care and treatment to Carol S. Miller
that was below the appropriate standard of care?   You will deliberate, and you will
answer that first question.   If you find that the conduct of the Defendant fell below the

Richland County, Case No. 12CA44                                                            18
medical standard required of him, you answer that question by checking yes.   If you
find that the conduct of the doctor met the standard of care required of him, you will
answer that question no.”                                                                   (T. 1132).   Interrogatory No. 2 read, “State in what respects
you find that the Defendant Dana H. Andrews, M.D., provided care or treatment that
was below the appropriate standard of care.”   (T. 1133).
{ ¶ 4 1 }   Civ. R. 49(B) governs the use of interrogatories and reads in relevant
part: “ * * * [t]he court shall inform counsel of its proposed action upon the requests
prior to their arguments to the jury, but the interrogatories shall be submitted to the
jury in the form that the court approves.   The interrogatories may be directed to one or
more determinative issues whether issues of fact or mixed issues of fact and law.”
{ ¶ 4 2 } The Supreme Court of Ohio, interpreting Civ. R.  49(B), has held that
Civ.R. 49(B) “does not require the trial judge to act as a * * * mere conduit who must
submit all interrogatories counsel may propose.”   Ziegler v. Wendel Poultry Serv., Inc.,
67 Ohio St.3d 10, 15, 615 N.E.2d 1022 (1993), citations omitted.                            “The court retains
limited  discretion  to  reject  proposed  interrogatories  where  they  are  ambiguous,
confusing, redundant, or otherwise legally objectionable.   Proper jury interrogatories
must address determinative issues and must be based upon the evidence presented.”
Id. at 15.
{ ¶ 4 3 } Reviewing the jury instructions and interrogatories as a whole, we find no
error.    The jury instructions sufficiently explain the appropriate standard of care in
relation to negligence.   The jury instructions stated in part:
This is a medical negligence claim brought by the Plaintiff, Mrs. Carol
Miller, to recover compensation for injuries claimed to have been caused

Richland County, Case No. 12CA44                                                    19
by the negligence of the Defendants, Dr. Andrews and American Health
Network.   The Plaintiff must prove by the greater weight of the evidence
that the Defendant physician was negligent and that his negligence was
the proximate cause of injury to the Plaintiff.   A physician is negligent if
the physician fails to meet the required standard of care.
If you find by the greater weight of the evidence that Dr. Andrews failed
to meet the standard of care, then you shall find that he was negligent.
You shall decide whether the treatment used by the Defendant was in
accordance with the required standard of care.
(T. 1119-1121).
{ ¶ 4 4 } Miller’s second Assignment of Error is overruled.
III.
{ ¶ 4 5 } Miller argues in her third Assignment of Error the trial court erred in
including the different methods jury instruction.   The jury instruction stated:
Although some other physician might have used a method of treatment
different from that used by the Defendant, this circumstance will not by
itself prove that the Defendant was negligent.   You shall decide whether
the  treatment  used  by  the  Defendant  was  in  accordance  with  the
required standard of care.
(T. 1121).

Richland County, Case No. 12CA44                                                            20
{ ¶ 4 6 } The giving of jury instructions is within the sound discretion of the trial
court and will not be disturbed on appeal absent an abuse of discretion.    State v.
Martens, 90 Ohio App.3d 338, 629 N.E.2d 462 (3rd Dist.1993).   “The trial court retains
discretion on how to conform the jury instructions to the evidence presented at trial.”
State v. Condon, 152 Ohio App.3d 629, 2003-Ohio-2335, 789 N.E.2d 696, ¶ 90 (1st
Dist.), citing State v. Guster, 66 Ohio St.2d 266, 421 N.E.2d 157 (1981).   In order to
find an abuse of that discretion, we must determine the trial court's decision was
unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).   Jury instructions
must be reviewed as a whole.   State v. Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792
(1988).
{ ¶ 4 7 } The evidence in this case supports the inclusion of the different methods
instruction.   Plaintiff’s expert, Dr. Vogel testified the use of Heparinoid drugs should
not be used in a patient with HIT.    Defendants’ expert, Dr. Naslund testified that
Lovenox was Dr. Andrews’ best choice for Miller’s anti-coagulation therapy in the
nursing home setting.
{ ¶ 4 8 } Miller’s third Assignment of Error is overruled.
IV.
{ ¶ 4 9 } Miller contends in her fourth Assignment of Error the jury instructions
were duplicative as to the standard of care, causing prejudice to Miller.
{ ¶ 5 0 } We stated in Cole v. Beallor, 5th Dist. No. 1999CA00080, 2000 WL 1687
(Dec. 30, 1999):

Richland County, Case No. 12CA44                                                             21
“ * * * The mere fact that a legal proposition is repeated in an instruction
is not ground for reversal, provided it is correct in itself, unless it appears
that the party complaining was prejudiced thereby, or that such repetition
was unnecessary and was made by way of emphasis or for the purpose
of influencing the decision of the jury.”   Billie v. Mutchler (September 30,
1994), Columbiana App. No.  93-C-04, unreported, at  3, citing 89 Ohio
Jurisprudence 3d 388-390, Trial, Sec. 308.   The decision to repeat jury
instructions is within the trial court's discretion.   State v. Carver (1972),
350 Ohio St.2d 280, 289.
{ ¶ 5 1 } Miller argues the trial court’s use of the  “bad results” and  “guarantee”
instructions together weighted the instructions, causing prejudice to Miller.   The bad
results instruction, found in OJI, read,  “The fact that the doctor’s treatment did not
fulfill the patient’s expectations does not by itself prove the doctor was negligent.”       (T.
1121).   The guarantee instruction read, “A physician treating a patient in practicing his
medical specialty is not a guarantee of favorable results.   The mere fact that a bad
result or an unexpected result or a disappointing result followed the treatment which
the Defendant physician administered does not in itself form a basis for you to find that
the Defendants failed in the duty they owed to this patient to exercise ordinary care in
the practice of his medical specialty.”                                                      (T. 1121-1122).
{ ¶ 5 2 } In Miller v. Defiance Regional Med. Ctr., 6th Dist. No. L-06-1111, 2007-
Ohio-7101, the trial court used the same jury instructions in its medical negligence
action.   The Sixth District relied on Callahan v. Akron Gen. Med. Ctr, 9th Dist. No.
Civ.A.  22387,  2005-Ohio-5103, to find that the trial court's instructions as a whole

Richland County, Case No. 12CA44                                                               22
were “fairly balanced” and included “accurate statements of the law.”   Miller at ¶ 51.
The Miller court stated the appellant's heavily weighted argument implied bias on the
part of the trial court.   The court reviewed the jury instructions as a whole and found
they were fair and accurate.
{ ¶ 5 3 } Pursuant to Miller and Callahan, we have reviewed the jury instructions
as  a  whole  and  we  find  them  to  be  fair  and  accurate.    There  was  no  abuse  of
discretion by the trial court to include the instructions.
{ ¶ 5 4 } Miller’s fourth Assignment of Error is overruled.
V.
{ ¶ 5 5 } In Miller’s fifth Assignment of Error, she argues the trial court erred in
denying her motion for directed verdict on the affirmative defense of negligence by
non-parties raised by Dr. Andrews and American Health Network of Ohio.    At the
conclusion of the defendants’ case, Miller moved for a partial directed verdict upon the
“empty chair” affirmative defenses asserting negligence of non-parties.   Miller argued
defendants  failed  to  present  expert  testimony  that  the  non-parties  fell  below  the
standard of care.    The trial court denied the motion for directed verdict as to the
employees and agents of Winchester Terrace.   The trial court instructed the jury in
part:
The Defendant Dana Andrews, M.D., claims negligence by other medical
providers who rendered care to Carol Miller but who are not defendants
in this case.   If you find that Dr. Andrews was negligent and that such
negligence proximately caused injury to Carol Miller, then your verdict
must be for the Plaintiff and against  Dr. Andrews.    However,  in  that

Richland County, Case No. 12CA44                                                               23
event,  you  will  also  be  asked  to  answer  interrogatories,  which  I  will
further explain to you later, in determining whether any other medical
provider  about  whom  you  have  heard  evidence  was  negligent  and
whether  that  negligence  proximately  caused  or  contributed  to  cause
injury to Carol Miller.
(T. 1123).
{ ¶ 5 6 } Interrogatory No.  5 asked the jury to determine whether the agents or
employees of Winchester Terrace provided care or treatment below the standard of
care.                                                                                          (T. 1134).
{ ¶ 5 7 } Interrogatory No. 1 asked the jury if they found by the preponderance of
the evidence that Dr. Andrews provided care or treatment to Miller that was below the
appropriate standard of care.   If the answer of six or more jurors was no, the jurors
were instructed to sign the general verdict form in favor of Dr. Andrews and proceed
no further.                                                                                    (T. 1132-1133).   The jury answered “no” to Interrogatory No. 1.   The jury
signed the general verdict form in favor of Dr. Andrews and American Health Network
of Ohio.                                                                                       (T. 1149).
{ ¶ 5 8 } An error in a charge or an error in charging, however, “ * * * may not
always work to the prejudice of a party in the case * * *.”   Dunn v. Higgins, 14 Ohio St.
2d 239, 246, 237 N.E.2d 386 (1968); and, when special interrogatories are submitted
to a jury, the answers “ * * * are to be relied upon to determine whether substantial
justice has been afforded in a particular case * * *.”   Id., at 246.   An error in charging
on  contributory  negligence,  comparative  negligence  or  assumption  of  risk  is  not
prejudicial when the jury answers  “no” to the first interrogatory asking whether the

Richland County, Case No. 12CA44                                                                      24
defendant is negligent.    Sech v. Rogers,  6 Ohio St.  3d  462,  466,  453 N.E.2d  705
(1983).   In such case, the inquiry into whether it was error for the trial court to have so
charged  is  immaterial  and  moot  since  a  finding  that  defendant  is  not  negligent
obviates  “  *  *  *  the  need  for  the  jury  to  address  the  affirmative  defenses  *  *  *.”
Johnson v. Toledo Cardiology Assoc., Inc., 6th Dist. No. L-89-292, 1991 WL 43064
(Mar.  29,  1991),  *2  citing  Sech  v.  Rogers,  supra,  at  466;  Wagner  v.  Ohio  Bldg.
Restoration, 6th Dist. No. L-84-394, 1985 WL 7586, (Aug. 30, 1985).
{ ¶ 5 9 } We therefore find any error asserted by Miller is harmless based on the
jury’s verdict finding Dr. Andrews and American Health Network of Ohio not negligent.
{ ¶ 6 0 } Miller’s fifth Assignment of Error is overruled.
VI.
{ ¶ 6 1 } Miller argues in her sixth Assignment of Error the trial court erred in
instructing the jury on remote cause.   We disagree.
{ ¶ 6 2 } The jury instructions stated,  “A person is not responsible for injury to
another if his or her negligence is a remote cause and not a proximate cause.    A
cause  is  remote  when  the  result  could  not  have  been  reasonably  foreseen  or
anticipated as being the natural or probable cause of injury.”                                        (T. 1119).
{ ¶ 6 3 } Miller argues the language of the last sentence is nonsensical.   Miller
does not in her appellate brief point to the record where counsel objected to the
instruction.   Further, based on the reasoning in the fifth Assignment of Error, we find
any error to be harmless because the jury did not reach the issue of proximate cause
based on its finding that Dr. Andrews did not fall below the standard of care.
{ ¶ 6 4 } Miller’s sixth Assignment of Error is overruled.

Richland County, Case No. 12CA44                                                             25
CROSS-APPEAL OF DEFENDANTS-APPELLEES DANA ANDREWS, M.D. AND
AMERICAN HEALTH NETWORK OF OHIO
FACTS AND PROCEDURAL HISTORY
{ ¶ 6 5 } The deposition of defense expert Mathew Lee, M.D. was scheduled for
February 23, 2012 in Richmond, Virginia.   Plaintiff’s counsel traveled to Richmond on
February 22, 2012.   The deposition began on February 23, 2012 at 10:20 a.m. and
went until 11:45 a.m.   The deposition adjourned at 11:45 a.m. under plaintiff counsel’s
objection due to defense counsel’s flight arrangements.
{ ¶ 6 6 } On March 5, 2012, Miller filed a motion in limine for sanctions or for an
order compelling discovery with regard to a deposition of Dr. Lee.   In her motion, Miller
requested attorneys fees and costs associated with the February 23, 2012 deposition.
{ ¶ 6 7 } A video conference deposition was held with Dr. Lee on March 13, 2012.
{ ¶ 6 8 } Dr. Lee did not testify at trial.
{ ¶ 6 9 } The trial court did not hold an oral hearing on the motion for sanctions.
On May  14,  2012, in its judgment entry journalizing the jury verdict, the trial court
ordered sanctions against defendants in the amount of $5,235.37 for expenses related
to the termination of Dr. Lee’s deposition.
{ ¶ 7 0 } It is from this decision Dr. Andrews and American Health Network of
Ohio appeal.
ASSIGNMENT OF ERROR
{ ¶ 7 1 } Dr.  Andrews  and  American  Health  Network  of  Ohio  raise  one
Assignment of Error in their Cross-Appeal:

Richland County, Case No. 12CA44                                                               26
{ ¶ 7 2 } “THE    TRIAL    COURT    FAILED    TO    COMPLY    WITH    THE
REQUIREMENTS OF R.C. 2323.51 AND ABUSED ITS DISCRETION IN ORDERING
THE DEFENDANTS TO PAY SANCTIONS IN THE FORM OF COSTS RELATED TO
THE DEPOSITION OF DEFENSE EXPERT MATTHEW LEE, M.D.”
ANALYSIS
{ ¶ 7 3 } The trial court awarded sanctions to Miller under R.C. 2323.51(A)(2)(i).
The statute defines frivolous conduct under this subsection as conduct that,  “*  *  *
obviously serves merely to harass or maliciously injure another party to the civil action
or appeal or is for another improper purpose, including, but not limited to, causing
unnecessary delay or a needless increase in the cost of litigation.”
{ ¶ 7 4 } R.C.                                                                                 2323.51  provides  that  a  trial  court  may  award  court  costs,
reasonable attorney fees, and other reasonable expenses incurred in connection with
the civil action or appeal to any party to the civil action or appeal who was adversely
affected  by  frivolous  conduct.    Huntsman.  v.  Lowery,  5th  Dist.  No.2003CA00210,
2004-Ohio-753, ¶ 11.
{ ¶ 7 5 } In order to award sanctions, R.C. 2323.51(B)(2)(a) requires a trial court
to  set  a  date  for  a  hearing  to  determine  whether  the  conduct  was  frivolous  and
whether the frivolous conduct adversely affected a party to the action.   The trial court
must provide notice of the hearing to each party or counsel of record who allegedly
engaged  in  the  frivolous  conduct  and  to  any  party  who  was  allegedly  adversely
affected by the frivolous conduct.   R.C. 2323.51(B)(2)(b).   The trial court must then
conduct a hearing at which the court “allows the parties and counsel of record involved
to present any relevant evidence, including evidence of reasonable attorney's fees.

Richland County, Case No. 12CA44                                                        27
R.C. 2323.51(B)(2)(c) and 2323.51(B)(5)(a).   See Hunt v. Allen, 5th Dist. No. 11-CA-
70, 2012-Ohio-1212, ¶ 31.
{ ¶ 7 6 } In  this  case,  the  trial  court  did  not  comply  with  R.C.              2323.51(B)(2).
Accordingly, the portion of the May  14,  2012 judgment entry awarding sanctions in
favor of Miller is reversed and the cause remanded for further proceedings consistent
with R.C. 2323.51.
{ ¶ 7 7 } The  sole  Assignment  of  Error  of  Dr.  Andrews  and  American  Health
Network of Ohio is sustained.

Richland County, Case No. 12CA44                                                          28
CONCLUSION
{ ¶ 7 8 } The six Assignments of Error of Plaintiff-Appellant/Cross-Appellee Carol
S. Miller are overruled.
{ ¶ 7 9 } The  May  14,  2012  judgment  entry  of  the  Richland  County  Court  of
Common   Pleas   journalizing   the   general   verdict   in   favor   of   Defendants-
Appellees/Cross-Appellants Dana H. Andrews, M.D. and American Health Network of
Ohio is affirmed.
{ ¶ 8 0 } The sole Assignment of Error of Defendants-Appellees/Cross-Appellants
Dana H. Andrews, M.D. and American Health Network of Ohio is sustained.   The May
14,                                                                                       2012  judgment  entry  as  to  sanctions  against  Defendants-Appellees/Cross-
Appellants  only  is  reversed  and  the  matter  remanded  for  further  proceedings
consistent with R.C. 2323.51.
By: Delaney, P.J.
Gwin, J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JOHN W. WISE
PAD:kgb/PM

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