JACQUELYN L. SCOTT Appellant
DENNIS C. MCCLUSKEY, et al. Appellees
FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CV-2009-07-4941
R. HOULIHAN, Attorney at Law, for Appellant.
MICHAEL OCKERMAN, Attorney at Law, for Appellees.
DECISION AND JOURNAL ENTRY
Appellant Jacquelyn L. Scott, individually, and as the
executrix of the estate of Roger W. Scott (the estate),
appeals the judgments of the Summit County Court of Common
Pleas finding in favor of Appellees Brenda Hensley-Buis,
and Dennis C. McCluskey, M.D. & Associates, Inc.
("McCluskey, M.D. & Associates"). This Court
On January 28, 2004, Mr. Scott, who at the time was 60 years
old, presented to his doctor's office, McCluskey, M.D.
& Associates, after experiencing intermittent burning
chest pain upon inhalation over the previous two to three
weeks which became worse with upper body exertion and became
better with rest. At the time of the visit, Mr. Scott was not
experiencing active chest pain. Mr. Scott had a cardiac
catheterization in 1996. He was overweight and was on
medication for high blood pressure and high cholesterol. He
was seen by a certified nurse practitioner, Erin
Dr. Hensley-Buis oversaw Ms. Wolfs work on the date of Mr.
Scott's visit. After Ms. Wolf assessed Mr. Scott, she
recommended that he see a cardiologist for a catheterization.
Mr. Scott was then sent home. An appointment with a
cardiologist was ultimately scheduled for February 2, 2004.
On January 30, 2004, Mr. Scott died from a heart attack.
The instant matter is a re-filed action. We previously
summarized the case's early history:
[I]n the original complaint the estate sued [McCluskey, M.D.
& Associates] asserting vicarious liability claims for
the negligence of its employees and/or agents, including
nurses and John/Jane Doe doctors. On the two-year anniversary
of Mr. Scott's death, the estate moved for leave to amend
the complaint instanter and attached an amended complaint
naming Dr. Hensley[-Buis] as Jane Doe #4, asserting medical
malpractice and wrongful death claims against her. The trial
court ruled that the amended complaint was not timely filed
and granted summary judgment to Dr. Hensley[-Buis] on both
claims. After that, the estate voluntarily dismissed its
[In July 2009, w]hen it refiled this action under the savings
clause, the estate named as defendants [McCluskey, M.D. &
Associates] and Dr. Hensley[-Buis]. It asserted wrongful
death and medical malpractice claims against both defendants,
alleging that "[s]aid [d]efendants, including their
employees and/or agents, were negligent in providing medical
care and treatment to decedent, Roger Scott[.]" * * *
Both defendants moved for summary judgment on both claims. On
August 13, 2010, the trial court granted summary judgment to
Dr. Hensley[-Buis] on both claims because it determined that
the estate had failed to commence its action against her
within either the one-year medical malpractice statute of
limitations or the two-year wrongful death statute of
limitations. The estate did not immediately appeal that
judgment. In the August 13 entry, the trial court also denied
[McCluskey, M.D. & Associates'] motion for summary
judgment[.] * * *.
* * * [In response to a motion for reconsideration, t]he
trial court  wrote * * * that the estate was permitted to
proceed against [McCluskey, M.D. & Associates] based only
on the conduct of the nurse, rather than that of the doctor.
Following trial on that limited basis, the jury rendered a
verdict for [McCluskey, M.D. & Associates], and the
estate appealed. On appeal, the estate  abandoned its
arguments in regard to the medical malpractice claims against
Dr. Hensley[-Buis] and [McCluskey, M.D. & Associates],
focusing its arguments on the wrongful death claims against
Scott v. McCluskey, M.D. & Assocs., Inc., 9th
Dist. Summit 25838, 2012-Ohio-2484, ¶ 2-5.
This Court affirmed in part, and reversed in part.
Id. at ¶ 1. We concluded that the trial court
incorrectly granted summary judgment to Dr. Hensley-Buis on
the wrongful death claim. Id. at ¶ 29. Thus, we
also determined that the "trial court incorrectly
limited the estate's theories of liability against
[McCluskey, M.D. & Associates] at trial because it
incorrectly granted Dr. Hensley[-Buis] summary judgment on
the wrongful death claim." Id. at ¶ 31. We
thereafter remanded the matter for a retrial. See
id. at ¶ 33-34.
Following our remand, the matter again proceeded to trial.
After which, the jury found that Dr. Hensley-Buis and Ms.
Wolf breached the standard of care; however, the jury also
concluded that their breaches of the standard of care were
not the proximate cause of Mr. Scott's death. Thereafter,
the trial court entered judgment in favor of Dr. Hensley-Buis
and McCluskey, M.D. & Associates and dismissed the
estate's claims. The estate filed a motion for judgment
notwithstanding the verdict ("JNOV") and a motion
for a new trial. The estate maintained that the evidence only
supported that Dr. Hensley-Buis' and Ms. Wolfs negligence
proximately caused Mr. Scott's death. After the trial
court denied the motions, the estate appealed, raising four
assignments of error for our review. McCluskey, M.D. &
Associates and Dr. Hensley-Buis have raised a
cross-assignment of error.
OF ERROR I
trial court erred by failing to grant [the estate's]
motion for judgment notwithstanding the verdict[.]
The estate asserts in its first assignment of error that the
trial court erred by failing to grant its motion for JNOV.
Specifically, the estate argues that Dr. Hensley-Buis and
McCluskey, M.D. & Associates failed to rebut the
estate's evidence concerning proximate cause.
"After a court enters judgment on a jury's verdict,
a party may file a motion for JNOV to have the judgment set
aside on grounds other than the weight of the evidence."
Catalanotto v. Byrd, 9th Dist. Summit No. 27302,
2015-Ohio-277, ¶ 8, citing Civ.R. 50(B). "'JNOV
is proper if upon viewing the evidence in a light most
favorable to the non-moving party and presuming any doubt to
favor the nonmoving party reasonable minds could come to but
one conclusion, that being in favor of the moving
party.'" Catalanotto at ¶ 8, quoting
Williams v. Spitzer Auto World, Inc., 9th Dist.
Lorain No. 07CA009098, 2008-Ohio-1467, ¶ 9.
"Neither the weight of the evidence nor the credibility
of the witnesses is for the court's determination in
ruling upon [a motion for JNOV]." Jackovic v.
Webb, 9th Dist. Summit No. 26555, 2013-Ohio-2520, ¶
15, quoting Osler v. City of Lorain, 28 Ohio St.3d
345, 347 (1986).
"In order to prove medical malpractice, the plaintiff
has the burden to prove, by a preponderance of the evidence,
that the defendant breached the standard of care owed to the
plaintiff and that the breach proximately caused an
injury." Segedy v. Cardiothoracic & Vascular
Surgery of Akron, Inc., 182 Ohio App.3d 768,
2009-Ohio-2460, ¶ 11 (9th Dist.). "A medical
malpractice claim requires the plaintiff to 'prove
causation through medical expert testimony in terms of
probability to establish that the injury was, more likely
than not, caused by the defendant's
negligence.'" Id., quoting Roberts v.
Ohio Permanente Med. Group, Inc., 76 Ohio St.3d 483, 485
(1996). Thus, "[i]n order to prove [its] wrongful-death
claim based on medical negligence, [the estate] had the
burden to prove, by a preponderance of the evidence, that
[there was a] deviat[ion] from the applicable standard of
care in treating [Mr. Scott] and that the deviation more
likely than not caused [his] death." Segedy at
¶ 11. "The trier of fact 'may not disregard
credible and uncontradicted expert testimony[.]'"
Cromer v. Children's Hosp. Med. Ctr. of Akron,
9th Dist. Summit No. 25632, 2016-Ohio-7461, ¶ 26,
quoting State v. White, 118 Ohio St.3d 12,
2008-Ohio-1623, ¶ 74.
In the instant matter, much of the testimony at trial focused
on whether Dr. Hensley-Buis and Ms. Wolf breached the
standard of care and whether Mr. Scott's symptoms were
characteristic of atypical chest pain or acute coronary
syndrome. Via interrogatories, the jury found that Dr.
Hensley-Buis breached the standard of care by not examining
Mr. Scott, by not sending him directly to the emergency room,
and by not following up on her recommendation. The jury also
found that Ms. Wolf breached the standard of care by
performing an incomplete exam on Mr. Scott, by not keeping
complete records, and by not following the recommendation of
Dr. Hensley-Buis. However, the jury also found that the
breaches by Dr. Hensley-Buis and Ms. Wolf did not proximately
cause Mr. Scott's death. Thus, verdicts were entered in
favor of Dr. Hensley-Buis and McCluskey, M.D. &
Associates. On appeal, the estate maintains that Dr.
Hensley-Buis and McCluskey, M.D. & Associates failed to
present sufficient evidence to rebut the estate's
testimony concerning proximate cause.
On January 28, 2004, Mr. Scott, who was 60 years old at the
time, phoned McCluskey, M.D. & Associates to make an
appointment to address chest pain he had been experiencing.
While he was offered an earlier appointment, he turned it
down and opted to wait until that evening when his wife,
Jacquelyn Scott could accompany him. After having dinner at a
local restaurant, Mr. and Mrs. Scott went to the appointment.
Mr. Scott was seen by a medical assistant and then Ms. Wolf,
a certified nurse practitioner. Mr. Scott complained of
burning midsternal chest pain with inhalation that radiated
to his back, became worse with an upper body workout, and
decreased with rest. He denied chest pain when using his
exercise bicycle, but stated that he would have pain if he
worked his arms while on the bicycle. He indicated that he
had been experiencing the chest pain on and off for two to
three weeks. However, Mr. Scott was not experiencing chest
pain at the time of the office visit. Mr. Scott generally
denied any shortness of breath, but would sometimes awaken
with shortness of breath.
Mr. Scott's history was significant for sleep apnea, high
blood pressure, and high cholesterol, which was being managed
by medications, as well as a prior heart catheterization in
1996 which revealed blockages in his coronary arteries.
Additionally, Mr. Scott was overweight, weighing 302 pounds.
These factors, along with Mr. Scott's age and sex were
known risk factors for heart disease. Mr. Scott's blood
pressure was mildly elevated at the time of the appointment
with a reading of 140/90. Further, Ms. Wolf detected edema
and a new onset heart murmur.
Ms. Wolf ordered an EKG, which indicated that Mr. Scott had
sinus bradycardia, or a slightly slower than normal heart
rate, but Ms. Wolf testified that the EKG was otherwise
normal. She did acknowledge that when she later looked at the
EKG after the appointment she noticed that there was a small
ST elevation, but believed that the EKG could still be
considered normal. Because the nature of Mr. Scott's
chest pain was somewhat unclear to her, Ms. Wolf then
discussed the case with Dr. Hensley-Buis, who was the
supervising physician that day. Dr. Hensley-Buis agreed with
Ms. Wolfs assessment and did not see any acute change on the
EKG that would indicate he was having a heart attack;
however, she did not examine Mr. Scott. Ms. Wolf concluded
that Mr. Scott was suffering from atypical chest pain and
that he should be referred to a cardiologist for a cardiac
catheterization. Additionally, Mr. Scott was prescribed
aspirin and a diuretic.
Dr. Hensley-Buis' testimony about what her
recommendations were that night was somewhat confusing.
Initially she testified that she "recommended he should
be in the emergency room to get a workup." She also
agreed that she had recommended to Ms. Wolf that the quickest
way for Mr. Scott "to get worked up" was to send
him to the emergency room. Dr. Hensley-Buis acknowledged that
Ms. Wolf did not follow that recommendation and that failing
to follow the recommendation of a supervising physician was a
violation of the standard of care. Nonetheless, Dr.
Hensley-Buis testified that she did not believe that,
overall, Ms. Wolf failed to meet the standard of care in
treating Mr. Scott. When later asked about her
recommendations, she clarified that if Mr. Scott wanted a
quicker workup, he should go to the emergency room but that
she did not tell Ms. Wolf that she needed to send Mr. Scott
to the emergency room.
Dr. Hensley-Buis testified that Ms. Wolf informed her later
that evening that Mr. Scott was not going to the emergency
room, and Dr. Hensley-Buis thereafter told Ms. Wolf that she
had to talk to outpatient services the next day to get Mr.
Scott in to see a cardiologist. According to Mrs. Scott, Mr.
Scott was told that, if he had sustained chest pain, then he
should go to the emergency room. The records also reflect
that if Mr. Scott experienced sustained chest pain, then he
should go to the emergency room. Ultimately, Mr. Scott was
scheduled to see a cardiologist Monday, February 2, 2004.
On Friday, January 30, 2004, while at work, Mr. Scott was
found unresponsive and was rushed to the hospital. Mr. Scott
could not be resuscitated and was pronounced dead. No autopsy
was performed, but the certificate of death listed his cause
of death as acute myocardial infarction with asystole (heart
attack) due to coronary artery disease. Mrs. Scott indicated
that Mr. Scott had not complained of chest pain following his
office visit, and he did not seek additional medical care
prior to his death.
The estate's experts' testimony focused on Mr.
Scott's symptoms and how they could be an indication of
acute coronary syndrome. Additionally, their testimony
concluded that the standard of care required that Mr. Scott
be sent to the emergency room for further observation and
evaluation. Both parties' experts appeared to be in
agreement that, if a patient was experiencing acute ...