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Scott v. McCluskey

Court of Appeals of Ohio, Ninth District, Summit

February 14, 2018

DENNIS C. MCCLUSKEY, et al. Appellees


          THOMAS R. HOULIHAN, Attorney at Law, for Appellant.

          MICHAEL OCKERMAN, Attorney at Law, for Appellees.


          SCHAFER, JUDGE

         {¶1} 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, D.O.[1] and Dennis C. McCluskey, M.D. & Associates, Inc. ("McCluskey, M.D. & Associates"). This Court affirms.


         {¶2} 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 Wolf[2] 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.

         {¶3} 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 claims.
[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[3] 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 both defendants.

Scott v. McCluskey, M.D. & Assocs., Inc., 9th Dist. Summit 25838, 2012-Ohio-2484, ¶ 2-5.

         {¶4} 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.

         {¶5} 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.



         The trial court erred by failing to grant [the estate's] motion for judgment notwithstanding the verdict[.]

         {¶6} 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.

         {¶7} "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).

         {¶8} "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.[4]" 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.

         {¶9} 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.[5] 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.

         {¶10} 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.

         {¶11} 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.

         {¶12} 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.

         {¶13} 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.

         {¶14} 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.

         {¶15} 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.

         {¶16} 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.

         {¶17} 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 ...

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