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Westfall v. Aultman Hospital

Court of Appeals of Ohio, Fifth District, Stark

March 23, 2017

JIMMY WESTFALL, ADMINISTRATOR OF THE ESTATE OF JESSICA ANNE MCKENNA, DECEASED Plaintiff-Appellant
v.
AULTMAN HOSPITAL, ET AL. Defendants-Appellees

         Appeal from the Stark County Court of Common Pleas, Case No. 2014CV02052

          For Plaintiff-Appellant: RICHARD L. DEMSEY JUSTIN D. GOULD

          For Defendants-Appellees: RICHARD S. MILLIGAN PAUL J. PUSATERI

          JUDGES: Hon. William B. Hoffman, P.J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.

          OPINION

          Delaney, J.

         {¶1} Plaintiff-Appellant Jimmy Westfall, Administrator of the Estate of Jessica Anne McKenna, Deceased, appeals the November 20, 2015 judgment entry of the Stark County Court of Common Pleas journalizing a jury verdict in favor of Defendants-Appellees Teri Teel Weber, P.A., Thomas Kinney, M.D., Brad Goldman, M.D., Canton Aultman Emergency Room Physicians, Inc., Chitra Ganta, M.D., Jose Lizcano-Perez, M.D., and Aultman Hospital.

         FACTS AND PROCEDURAL HISTORY

         McKenna Visits Aultman Hospital ER on January 24, 2011

         {¶2} On January 24, 2011, Jessica McKenna presented to the Emergency Room of Defendant-Appellee Aultman Hospital, located in Canton, Ohio. She came to the Emergency Room because she had been suffering from nausea, vomiting, and diarrhea for some time and her symptoms were not resolving. At the time of her admission to the Emergency Room, McKenna was 18 years old and weighed 85 pounds. She had recently given birth to her daughter on December 7, 2010.

         {¶3} After being seen by the triage nurse, McKenna was placed in a room and examined by Defendant-Appellee Teri Teel Weber, a Physician's Assistant employed by Defendant-Appellee Canton Aultman Emergency Physicians, Inc. P.A. Weber gave McKenna a physical exam and took her history. During P.A. Weber's examination, McKenna complained of nausea, vomiting, cough, fatigue, epigastric pain, and shortness of breath. P.A. Weber found McKenna's blood pressure, respiratory rate, lung sounds, and heart sounds to be normal. She observed that McKenna's heart rate was elevated. P.A. Weber ordered blood work and a urine sample. While the blood work was pending, McKenna was administered intravenous fluids and an intravenous medication to reduce her nausea.

         {¶4} The blood test results were within normal limits. McKenna's glucose level and one liver enzyme were minimally elevated. The urine sample did not show severe dehydration.

         {¶5} McKenna was next examined by Defendant-Appellee Dr. Todd Kinney, an employee of Canton Aultman Emergency Physicians, Inc. Dr. Kinney reviewed P.A. Weber's notes and conducted his own physical examination of McKenna. To Dr. Kinney, McKenna reported the same symptoms of nausea, vomiting, and diarrhea. She did not tell Dr. Kinney she had shortness of breath. Dr. Kinney reviewed the results of her blood work. He found her blood pressure, respiratory rate, lung sounds, and heart sounds to be normal.

         {¶6} After receiving fluids, McKenna's heart rate slowed to within normal limits. McKenna reported feeling better. P.A. Weber and Dr. Kenney diagnosed McKenna with gastroenteritis and McKenna was discharged with orders to follow up with her family physician within the next two days.

         McKenna Returns to Aultman ER on January 31, 2011

         {¶7} McKenna returned to the Aultman Hospital Emergency Room on January 31, 2011. She was examined by Defendant-Appellee Dr. Brad Goldman, an employee of Canton Aultman Emergency Physicians, Inc. McKenna's chief complaint to Dr. Goldman was continued vomiting and diarrhea, chest pain, and shortness of breath. Dr. Goldman observed that McKenna looked sick.

         {¶8} His examination discovered that McKenna's heart rate was elevated, but her respiration rate and blood oxygen were within normal limits. He felt her blood pressure was lower than normal. He listened to her lungs and did not hear any abnormal sounds that might indicate fluid in her lungs. He did not hear any abnormalities when he listened to her heart. Based on her elevated heart rate and low blood pressure, coupled with her persistent vomiting and diarrhea, Dr. Goldman administered two liters of I.V. fluids for dehydration. He also ordered laboratory studies. The results of the blood work reviewed by Dr. Goldman showed McKenna was slightly dehydrated.

         {¶9} Based on McKenna's recent pregnancy and her symptoms, Dr. Goldman was concerned McKenna could be suffering from a pulmonary embolism. He ordered a CT scan of her chest. The CT scan was read by Dr. Allen Rovner, a radiologist with Aultman Hospital. The CT scan showed McKenna's entire lung. Dr. Rovner did not observe any fluid in McKenna's lungs. He also did not observe indications of a pulmonary embolism. In his report of the CT scan, Dr. Rovner identified that McKenna's heart appeared moderately enlarged and there was an enlargement of the left ventricle. He also observed a small pericardial effusion, which is fluid around the heart.

         McKenna is admitted to Aultman Hospital on February 1, 2011

         {¶10} Dr. Goldman made the decision to admit McKenna to Aultman Hospital. His admitting diagnosis was based on her intractable vomiting and diarrhea and on the cardiac findings in the CT scan. In order to admit McKenna to the hospital, Dr. Goldman worked with third-year resident, Defendant-Appellee Dr. Jose F. Lizcano-Perez, and first-year resident, Defendant-Appellee Dr. Chitra Ganta, both employees of the Canton Medical Education Foundation. Drs. Lizcano-Perez and Ganta were rotating with general medicine services. The attending physician on-call that night was Dr. Kevin Hill. As attending physician, Dr. Hill supervised the care provided by Drs. Lizcano-Perez and Ganta; however, Dr. Hill was not at Aultman Hospital on January 31, 2011.

         {¶11} Both resident doctors conducted an initial assessment and evaluation of McKenna. Among McKenna's previous symptoms of vomiting and diarrhea, the doctors observed her heart rate was elevated and she had shortness of breath upon exertion. She complained of mild epigastric pain. Dr. Lizcano-Perez found trace lower extremity edema. Neither doctor, however, observed signs of heart failure. Dr. Lizcano-Perez felt her mildly enlarged heart was a normal condition due to her recent pregnancy where a pregnant woman's heart enlarges to compensate for the increased blood volume. The doctors ordered more blood work. McKenna was admitted to the general medicine floor of the hospital at 12:00 a.m. on February 1, 2011.

         {¶12} At 3:40 a.m., the resident doctors received the results of McKenna's blood work. One of the tests showed McKenna's liver enzymes were significantly elevated. Based on this result, the resident doctors ordered an abdominal ultrasound, hepatitis panel, and toxin screen. The results of the test were not available until after the end of the resident doctors' shift at 6:00 or 7:00 a.m.

         {¶13} After McKenna's admission to the general medicine floor of the hospital, Drs. Lizcano-Perez and Ganta did not examine McKenna again. Dr. Lizcano-Perez or Dr. Ganta contacted Dr. Kevin Hill by telephone on January 31, 2011 or February 1, 2011 to review their findings. Dr. Hill signed off on Dr. Ganta's orders written on January 31, 2011.

         {¶14} At 7:00 a.m., McKenna was taken from her room for some testing. When she returned, around 9:00 a.m., she and her fiancée discussed leaving Aultman Hospital to check on the baby and go to another local hospital for treatment. After discussion with the doctors and her family, McKenna decided to stay at Aultman Hospital. At 10:00 a.m., McKenna's blood oxygen level dropped to 70% and she was moved to the intensive care unit. A Code Blue was called for McKenna at 2:20 p.m. The hospital performed an echocardiogram and discovered the left and right ventricles of her heart were severely dysfunctional. The hospital discovered her hemoglobin levels were low and at 2:24 p.m., the hospital started a blood transfusion for McKenna. From 2:24 p.m. to 3:25 p.m., McKenna received eight units of blood. Even with the blood transfusion, McKenna's hemoglobin levels did not return to normal levels. The hospital connected her to an extracorporeal membrane oxygenator to provide oxygen to her blood. At 3:11 p.m., the hospital conducted an x-ray of her abdomen and it showed fluid in her abdomen. At 3:25 p.m., McKenna was examined and found to have no brain function.

         {¶15} No autopsy was conducted on McKenna. The death certificate completed by a doctor with Aultman Hospital stated McKenna's cause of death was postpartum cardiomyopathy. Postpartum or peripartum cardiomyopathy is a rare form of heart failure seen in pregnant women.

         Medical Malpractice Action

         {¶16} Plaintiff-Appellant Jimmy Westfall, Administrator of the Estate of Jessica Ann McKenna, Deceased ("Administrator") originally filed his complaint for medical negligence in Cuyahoga County. The case was transferred to the Stark County Court of Common Pleas on July 12, 2013. Administrator voluntarily dismissed the complaint on September 12, 2013.

         {¶17} Administrator refiled the complaint on September 4, 2014 naming the Defendants-Appellees discussed in the medical history above. Administrator's complaint included claims for survivorship and wrongful death, but the survivorship claim was dismissed as time-barred. Discovery and expert reports were exchanged.

         {¶18} The case was tried before a jury for six days beginning on November 9, 2015. Administrator argued Defendants-Appellees fell below the reasonable standard of care by their failure to diagnose and treat McKenna's postpartum cardiomyopathy, causing her death. On November 19, 2015, the jury returned a verdict for all Defendants-Appellees. The trial court journalized the verdict on November 20, 2015 and it is from this judgment entry Administrator now appeals.

         ASSIGNMENTS OF ERROR

         {¶19} Administrator raises seven Assignments of Error:

         {¶20} "I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY PERMITTING DEFENDANTS-APPELLEES, OVER OBJECTION FROM PLAINTIFF-APPELLANT, TO PRESENT SURPRISE EXPERT TESTIMONY FROM TWO WITNESSES, IDENTIFIED BY DEFENDANTS-APPELLEES AS FACT WITNESSES, AFTER DEFENDANTS-APPELLEES NEVER PREVIOUSLY IDENTIFIED SAID WITNESSES AS EXPERTS AND FAILED TO PROVIDE PLAINTIFF-APPELLANT WITH EXPERT REPORTS, BOTH OF WHICH WERE REQUIRED BY COURT ORDER.

         {¶21} "II. AFTER PERMITTING SURPRISE EXPERT TESTIMONY FROM DEFENDANTS' FACT WITNESS, KEVIN HILL, M.D., WITHOUT IDENTIFICATION AS AN EXPERT OR A REPORT, THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY LIMITING PLAINTIFF'S CROSS-EXAMINATION OF DR. HILL TO A SPECIFIC DATE OF TREATMENT OF PLAINTIFF'S DECEDENT.

         {¶22} "III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY REFUSING TO ALLOW PLAINTIFF-APPELLANT TO INTRODUCE DEPOSITION TESTIMONY OF MARK RICHARD BIBLER, M.D., AS REBUTTAL TESTIMONY ON MATTERS WHICH WERE FIRST ADDRESSED IN DEFENDANTS-APPELLEES' CASEIN-CHIEF.

         {¶23} "IV. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DENYING PLAINTIFF-APPELLANT'S CHALLENGE FOR CAUSE OF PROSPECTIVE JUROR NO. 3, WHEN QUESTIONING OF THAT JUROR REVEALED BIAS REGARDING THE PREPONDERANCE OF THE EVIDENCE STANDARD AND THEREFORE PLAINTIFF-APPELLANT WAS FORCED TO USE A PEREMPTORY CHALLENGE TO DISMISS THAT JUROR, WHICH RESULTED IN PLAINTIFF-APPELLANT HAVING FEWER PEREMPTORY CHALLENGES THAN THE LAW PROVIDES.

         {¶24} "V. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ALLOWING 'THE ALIGNED DEFENDANTS' TO EACH EXERCISE THREE PEREMPTORY CHALLENGES.

         {¶25} "VI. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY SUSTAINING THE OBJECTION OF DEFENDANTS-APPELLEES AND REFUSING TO PERMIT PLAINTIFF-APPELLANT TO INTRODUCE THE DAUGHTER OF PLAINTIFF-APPELLANT'S DECEDENT TO THE JURY IN ORDER TO PROVE, ON THE RECORD, THE EXISTENCE OF THE PRIMARY WRONGFUL DEATH BENEFICIARY.

         {¶26} "VII. THE TRIAL COURT COMMITTED PLAIN AND PREJUDICIAL ERROR BY INSTRUCTING THE JURY TO SPECULATE AS TO WHY THE TRIAL COURT SUSTAINED OBJECTIONS AND WHAT THE ANSWERS TO A QUESTION MIGHT HAVE BEEN HAD THE QUESTION BEEN ALLOWED TO BE ANSWERED."

         ANALYSIS

         {¶27} For ease of analysis, we discuss Administrator's Assignments of Error out of order. The order of the Assignments of Error will follow the chronological order of the alleged errors as they occurred during the trial.

         VI. Appearance of Decedent's Child at Trial

         {¶28} On November 6, 2015, Administrator filed a motion for clarification about the trial court's position on permitting McKenna's child to be present at trial. Administrator raised the issue again before the start of jury selection and requested the trial court permit McKenna's child to be present at trial or to allow the child be introduced to the jury. (Vol. I, 9). Administrator argued the child was entitled to be present as a beneficiary, in addition to McKenna's parents, in the wrongful death action. Defendants-Appellees objected to the child's presence at trial or the child's introduction to the jury. The child was not going to be a witness subject to cross-examination. (Vol I., 9).

         {¶29} The trial court denied Administrator's request to bring the child into court. The court permitted Administrator to introduce the child by picture or video without sound, or the child's father could speak about the child during his testimony. (Vol. I., 11).

         {¶30} Prior to the testimony of Jimmy Westfall, the father of McKenna's child and McKenna's fiancée, Administrator requested the trial court explain to the jury that the trial court would not permit the child to be present in the courtroom. (Vol. IV, 7). The trial court agreed and stated to the jury:

THE COURT: Additionally, the next witness that you're going to hear from is Jimmy Westfall who is [the child's] father. Now, [the child] is the child of Jessica McKenna. She is four years old. Out of respect for her age and to avoid any unnecessary trauma for having to bring her into this courtroom, she has been excused by the Court; so the testimony that you will hear about her will come to you through Mr. Westfall. Okay? Is that satisfactory? MR. DEMSEY: Right, and no inference, of course. THE COURT: And no inference is to be drawn by the fact that she is not here. I have excluded her essentially from being here. Okay?

(Vol. IV, 10-11).

         {¶31} Administrator argues the trial court erred when it would not allow him to introduce McKenna's child, the primary beneficiary of the wrongful death action, to the jury. We disagree.

         {¶32} "A party in a civil case is entitled to be in the courtroom, both personally and by counsel, at all stages of the trial." Long v. Maxwell Co., 118 Ohio App.134, 136, 183 N.E.2d 423 (2nd Dist.1962). In this case, however, McKenna's child is not a party to the action - the child is a beneficiary interested in a judgment against the Defendants-Appellees pursuant to R.C. 2125.02. A wrongful death action is brought in the name of the personal representative for the decedent for the benefit of the surviving spouse, children, parents, and next of kin of decedent. R.C. 2152.02(A)(1). The personal representative is required to prove the existence of statutory beneficiaries at the time of trial in order to recover damages in a wrongful death action. Id.; Mansour v. Woo, 7th Dist. Ashtabula No. 2011-A-0038, 2012-Ohio-1883, ¶ 7. Administrator contends that by not permitting McKenna's child to be introduced to the jury to demonstrate active proof of her existence, the trial court prevented Administrator from meeting one of the essential elements of a wrongful death cause of action.

         {¶33} It has been held that it is within the trial court's discretion to permit a beneficiary, especially a child, to be present in the courtroom during a wrongful death action. Long at 136-137; See also State v. Levy, 8th Dist. No. 83114, 2004-Ohio-4489, ¶ 45-46. In order to determine whether the trial court abused its discretion, we may examine the circumstances under which the trial court made the decision. Long at 137.

         {¶34} In this case, the circumstances supported the trial court's decision to exclude the child from the courtroom. The child was six-weeks-old when McKenna died. At the time of trial, the child was four-years-old. At this young age, her presence could offer no special aid to the proper trial of the wrongful death action. The jury was fully informed of her existence through witness testimony. See Long at 137. On behalf of the Administrator, the child's father. The mother of McKenna and the father of McKenna testified at trial. The father of the child is raising the child. McKenna's father and mother have a relationship with the child. All three witnesses testified about the child, showed pictures of the child, and testified about McKenna's relationship with the child.

         {¶35} The trial court instructed the jury that it was the decision of the trial court to exclude the child from the courtroom due to her young age. The trial court further instructed the jury that it should make no inference as to why the child was not present in the courtroom.

         {¶36} We find the trial court's decision to exclude the child from the courtroom was not an abuse of discretion. Through witness testimony, Administrator demonstrated McKenna's child and McKenna's parents were McKenna's beneficiaries pursuant to R.C. 2501.02.

         {¶37} Administrator's sixth Assignment of Error is overruled.

         V. Peremptory Challenges

         {¶38} Administrator claims the trial court erred in granting Defendants-Appellees six peremptory challenges: three to Dr. Kinney, P.A. Weber, Dr. Goldman, and Canton Aultman Emergency Physicians, Inc.; and three to Dr. Lizcano-Perez, Dr. Ganta, and Aultman Hospital. Administrator contends the interests of all Defendants-Appellees were essentially the same, so Defendants-Appellees were only entitled to three peremptory challenges.

         {¶39} Civ.R. 47 governs jurors. Subsection (C) states the following:

(C) Challenges to prospective jurors. In addition to challenges for cause provided by law, each party peremptorily may challenge three prospective jurors. If the interests of multiple litigants are essentially the same, "each party" shall mean "each side."
Peremptory challenges shall be exercised alternately, with the first challenge exercised by the plaintiff. The failure of a party to exercise a peremptory challenge constitutes a waiver of that challenge, but does not constitute a waiver of any subsequent challenge. However, if all parties or sides, alternately and in sequence, fail to exercise a peremptory challenge, the joint failure constitutes a waiver of all peremptory challenges.
A prospective juror peremptorily challenged by either party shall be excused.
Nothing in this rule shall limit the court's discretion to allow challenges to be made outside the hearing of prospective jurors.

         {¶40} In Brown v. Martin, 5th Dist. Fairfield No. 14-CA-31, 2015-Ohio-503, we analyzed a similar argument as to the number of peremptory challenges in a medical malpractice action where there were multiple defendant doctors. We reviewed the status of peremptory challenges vis-à-vis Civ.R. 47(C) as set forth by the Ohio Supreme Court in LeFort v. Century 21-Maitland Realty Co., 32 Ohio St.3d 121, 125, 512 N.E.2d 640 (1987):

Chakeres v. Merchants & Mechanics Federal S. & L. Assn. (1962), 117 Ohio App. 351, 24 O.O.2d 131, 192 N.E.2d 323, summarizes the current status of the law with respect to peremptory challenges in civil cases. Chakeres provides at 355, 24 O.O.2d at 133, 192 N.E.2d at 326:
"Under statutes which allow a specific number of challenges to 'each party, ' the majority view is that those who have identical interests or defenses are to be considered as one party and therefore only collectively entitled to the number of challenges allowed to one party by the statute. * * * However, if the interests of the parties defendant are essentially different or antagonistic, each litigant is ordinarily deemed a party within the contemplation of the statute and entitled to the full number of peremptory challenges. * * * "
This court, in Nieves v. Kietlinski (1970), 22 Ohio St.2d 139, 51 O.O.2d 216, 258 N.E.2d 454, adopted the Chakeres rule and found that multiple plaintiffs who filed a common complaint, relied upon a singular statement of facts, and employed the same attorney to represent them could properly be considered a single party for the purposes of determining the proper number of peremptory challenges.

Brown, ¶¶ 13-15.

         {¶41} The task under this rule of law is to evaluate the nature and defenses of each defendant-group. This involves a general review of the status of the litigation prior to trial. In this case, there are two defendant-groups: (1) the emergency room physicians and physician's assistant who treated McKenna in the Aultman Emergency Department and (2) the resident physicians who admitted McKenna to Aultman Hospital.

         {¶42} On November 9, 2015, the trial court and counsel discussed the jury selection process. The trial court addressed counsel as to the challenges for cause and peremptory challenges:

THE COURT: The parties will be given an unlimited number of challenges for cause; three peremptory challenges per side. And just let me identify for the record that the Court finds that the Canton Aultman Emergency Physician parties are not necessarily aligned with, for lack of a better term, the Aultman defendants. And the Court will give each set of defendants three peremptories.

(Vol. I, 23-24). Administrator objected to each defendant-group receiving three peremptories each:

MR. DEMSEY: * * * I do believe they are aligned. They are partners in the same law office; every motion is virtually identical, with exception of changing the names of the parties. I believe that they have the same insurance or insurance representative. There seems to be an alignment there. I'm not sure exactly what it is.

(Vol. I, 24-25). Counsel for the defendant-group emergency room physicians and counsel for the defendant-group resident ...


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