R.T. et al., Plaintiffs-Appellees,
William Knobeloch, M.D. et al., Defendants-Appellants.
from the Franklin County Court of Common Pleas No. 14CV-4879
Westfall, LLP, and Allan L. Hale; Burg Simpson Eldredge Hersh
& Jardine PC, Calvin S. Tregre and Janet G. Abaray, for
Todaro & Welch, Grier D. Schaffer and Gregory B. Foliano,
1} William Knobeloch, M.D., American Health Network,
Inc., American Health Network of Ohio Care Organization, LLC,
and American Health Network of Ohio Professional Corp.
("appellants"), are appealing the jury verdict of
the Franklin County Court of Common Pleas awarding damages to
appellee, S.T., a minor, by and through her mother and next
friend, R.T. For the following reasons, we affirm the
judgment of the Franklin County Court of Common Pleas.
FACTS AND CASE HISTORY
2} This case arises from the treatment of then six
year old S.T. by Dr. Knobeloch, a pediatrician, in the summer
of 2012. S.T. was presenting significant behavioral issues in
kindergarten which led to a consultation with Dr. Knobeloch.
On June 4, 2012, Dr. Knobeloch referred S.T. for counseling
with Karen Cowie, LSW.
3} On July 31, 2012, S.T. and her mother met with
Dr. Knobeloch for a behavioral consultation. Dr. Knobeloch
gave a diagnosis of anxiety and panic disorder but did not
rule out pediatric bipolar disorder. S.T. was prescribed 10
mg of Prozac. While the Prozac did seem to make some
improvement in S.T.'s behavior, new behavior problems
4} On August 21, 2012, R.T. and Dr. Knobeloch
discussed S.T.'s behavior. Dr. Knobeloch spoke with Ms.
Cowie who indicated it was her impression that there were
instances of mania being exhibited. Dr. Knobeloch, with this
new information, now determined a different diagnosis of
bipolar disorder though there was a question of whether Dr.
Knobeloch told R.T. this new diagnosis. Dr. Knobeloch
instructed R.T. to immediately stop giving the Prozac to S.T.
and begin administering Lamictal with a one-time daily dose
of 25 mg. Lamictal is an anti-epileptic drug that has been
used off-label to treat pediatric bipolar disorder.
5} On September 4, 2012, Dr. Knobeloch increased the
dosage of Lamictal to 50 mg per day after his nurse spoke to
R.T. about S.T.'s behavior. On September 5, 2012, S.T.
was seen by Dr. Knobeloch's partner, Brad Pfau, M.D. S.T.
had what Dr. Pfau called bug bites and some sort of eye
infection that blurred her vision and produced swollen dry
eyes. S.T. was prescribed antibiotics as treatment. R.T.
expressed her concern that the problems with S.T.'s eyes
were related to the Lamictal.
6} On September 7, 2012, S.T. was seen by Dr.
Knobeloch. S.T. had redness and swelling around her eyes with
a greenish discharge, had oral ulcers, and was covered in a
target rash, which appeared as little bullseyes. R.T. also
stated that S.T. had developed a high fever. Dr. Knobeloch
diagnosed S.T. with Stevens-Johnson Syndrome
("SJS"), a serious rash that develops painful sores
and in which the skin sloughs off. SJS exhibits a targeted
rash and the involvement of two mucus membranes, the eyes and
mouth in this case. S.T. was taken directly to Nationwide
Children's Hospital where she remained from September 7,
to October 1, 2012. S.T. had to be placed in a medically
induced coma to combat the pain of her skin sloughing off.
7} On May 6, 2014, appellees filed suit against Dr.
Knobeloch, American Health Network, Inc., and CVS pharmacy,
claiming among others, medical malpractice, negligence, and a
lack of informed consent. The claims centered on Dr.
Knobeloch's improper prescription of Lamictal which
allegedly proximately caused SJS.
8} On August 15, 2016, a jury trial began and, over
two weeks later, the jury returned a verdict. It found that
Dr. Knobeloch had been negligent and there was a lack of
informed consent while finding no liability as to CVS. The
total verdict was $1, 578, 539.51. A remittitur reduced the
verdict to $1, 028, 539.51.
9} On October 31, 2016, the verdict was journalized
creating a final appealable order. Appellants timely
ASSIGNMENTS OF ERROR
10} Appellants bring seven assignments of error for
I. The trial court gave two improper jury instructions and
failed to give a third instruction, which is prejudicial
II. The court's repeated, leading, invasive interrogation
of, and instructions to four of Plaintiffs' experts
violated Evid.R. 614(B) and destroyed Defendants' right
to receive a fair, impartial trial.
III. The improper exclusion of liability expert, David Franz,
M.D., denied Defendants a fair trial, prejudiced the defense
before the jury and prohibited presentation of new, material
evidence as represented in opening statement.
IV. The court committed prejudicial error by submitting the
unsupported informed consent claim to the jury and by
overruling Defendants' repeated motions for directed
V. The jury had no competent evidence to find that Dr.
Knobeloch's negligence caused harm by "doubling the
patient's dose of Lamictal without seeing the
VI. The court erred by admitting prejudicial, scientifically
unreliable, misleading testimony that the dosage of Lamictal
proximately caused this patient's SJS and by denying our
repeated motions for a directed verdict.
VII. The court erred by admitting testimony of Drs. Kaye and
Arrendondo, as their legal competency was never established
pursuant to Evid.R. 601(D).
THE TRIAL COURT DID NOT ERR IN GIVING THE JURY
11} We will address the assignments of error in
logical groupings. In the first assignment of error,
appellants argue the trial court improperly gave jury
instructions on the lack of informed consent and instructions
on the Federal Drug Administration's ("FDA")
"Black Box" warning. Appellants also argue the
trial court erred in failing to give a failure to mitigate
damages instruction to the jury.
12} A trial court has discretion in deciding whether
to give or refuse a particular instruction, and an appellate
court will not disturb that decision absent an abuse of
discretion. Clark v. Grant Med. Ctr., 10th Dist. No.
14AP-833, 2015-Ohio-4958, ¶ 50. Requested instructions
should be given if they are correct statements of the law
applicable to the facts in the case and reasonable minds
might reach the conclusion sought by the instruction.
Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585,
13} "However, when a jury instruction contains
an incorrect statement of the law, a reviewing court applies
a mixed de novo and abuse of discretion standard of
review." State v. Teitelbaum, 10th Dist. No.
14AP-310, 2016-Ohio-3524, ¶ 127, citing State v.
Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, ¶ 21,
citing Kokitka v. Ford Motor Co., 73 Ohio St.3d 89,
93 (1995). Thus, "[i]n examining errors in a jury
instruction, a reviewing court must consider the jury charge
as a whole and 'must determine whether the jury charge
probably misled the jury in a matter materially affecting the
complaining party's substantial rights.' "
Kokitka at 93, quoting Becker v. Lake Cty. Mem.
Hosp. W., 53 Ohio St.3d 202, 208 (1990). However, in
reviewing "the instructions as a whole, and, if taken in
their entirety, the instructions fairly and correctly state
the law applicable to the evidence presented at trial,
reversible error will not be found merely on the possibility
that the jury may have been misled." State v.
Shepard, 10th Dist. No. 07AP-223, 2007-Ohio-5405, ¶
7, citing Wozniak v. Wozniak, 90 Ohio
App.3d 400, 410 (9th Dist.1993). "In reviewing a record
to ascertain the presence of sufficient evidence to support
the giving of a special instruction, an appellate court
should determine whether the record contains evidence from
which reasonable minds might reach the conclusion sought by
the instruction." Feterle v. Huettner, 28 Ohio
St.2d 54 (1971), syllabus.
DISCLOSURE IS REQUIRED TO GIVE INFORMED CONSENT
14} Appellees argue that, because appellants offered
their own jury instruction as to informed consent, they
cannot now complain that the trial court should not have
given one under the invited-error doctrine. Under the
invited-error doctrine, "[a] party will not be permitted
to take advantage of an error which he himself invited or
induced." Hal Artz Lincoln-Mercury, Inc. v. Ford
Motor Co., Lincoln-Mercury Div., 28 Ohio St.3d 20
(1986). While appellants did offer a proposed instruction as
to informed consent that was reviewed by the trial court, it
is not in the record. Without the language of the proposed
instruction, we cannot determine whether appellants invited
or induced the error they now complain of.
15} The doctrine of informed consent emerged in the
context of the tort of battery. The theory was that failure
to obtain informed consent violates the right that every
competent human has, a right to determine what is to be done
to their body. Bedel v. Univ. of Cincinnati Hosp.,
107 Ohio App.3d 420, 427 (10th Dist.1995). The doctrine of
informed consent has never required that the physician, prior
to administering the treatment, fully inform the patient of
all potential risks. Id., citing O'Brien v.
Angley, 63 Ohio St.2d 159 (1980).
tort of lack of informed consent is established when:
(a) The physician fails to disclose to the patient and
discuss the material risks and dangers inherently and
potentially involved with respect to the proposed therapy, if
(b) the unrevealed risks and dangers which should have been
disclosed by the physician actually materialize and are the
proximate cause of the injury to the patient; and
(c) a reasonable person in the position of the patient would
have decided against the therapy had the material risks and
dangers inherent and incidental to treatment been disclosed
to him or her prior to the therapy.
Nickell v. Gonzalez, 17 Ohio St.3d 136 (1985),
16} The lack of informed consent jury instruction
given in this case states:
LACK OF INFORMED CONSENT: DEFENDANT WILLIAM KNOBELOCH, M.D.
Plaintiffs claim that Defendant Dr. Knobeloch breached the
standard of care by failing to inform them about his
treatment of his diagnosis of bipolar disorder, and the risks
and benefits of the drug Lamictal he prescribed for [S.T.] To
demonstrate lack of informed consent, [appellees] must prove
by a greater weight of the evidence that:
(A) Defendant Dr. Knobeloch failed to disclose and discuss
the material risks and dangers inherently and potentially
involved with his treatment of his diagnosis of bipolar
disorder, and the risks and benefits of the drug Lamictal;
(B) the risks and dangers that should have been disclosed
actually occurred and were a proximate or direct cause of
injuries, harm, or loss to the Plaintiffs; and
(C) a reasonable person in the Plaintiffs' position would
have decided against taking Lamictal if the material risks
and dangers inherent and incidental to it had been disclosed.
(Aug. 31, 2016 Jury Instructions at 9-10.)
17} Appellants not only argue there was no testimony
as to what constitutes the proper standard of care in order
to give informed consent, they also argue the instructions
improperly contained the phrase "of his diagnosis of
bipolar disorder." Appellants argue that the
instructions improperly focused the jury on a factual untruth
that Dr. Knobeloch did not tell R.T. he was treating S.T. for
bipolar disorder with Lamictal. This argument is not
well-taken. The jury instruction does not state whether Dr.
Knobeloch informed R.T. of his diagnosis of bipolar disorder.
The focus of the instruction is whether Dr. Knobeloch
discussed the material risks and dangers inherently and
potentially involved with the treatment.
18} Appellants argue there was no testimony from
appellees' experts as to what the standard of care should
have been to give proper informed consent stating that it was
misleading and improper to submit the unsupported informed
consent claim to the jury. This argument is a
mischaracterization of the law. The first prong of a lack of
informed consent claim requires appellees to present evidence
that a physician failed to disclose to the patient and
discuss the material risks and dangers inherently and
potentially involved with respect to the proposed therapy.
Nickell at syllabus. The jury instruction properly
states that appellees must prove that "Dr. Knobeloch
failed to disclose and discuss the material risks and dangers
inherently and potentially involved with his treatment of his
diagnosis of bipolar disorder, and the risks and benefits of
the drug Lamictal." (Aug. 31, 2016 Jury Instructions at
19} The remaining question is whether appellees
presented competent and credible evidence that Dr. Knobeloch
failed to disclose to R.T. and discuss the material risks and
dangers inherently and potentially involved with respect to
the proposed therapy of prescribing Lamictal for a diagnosis
of pediatric bipolar disorder.
20} R.T. testified at trial that, on August 21,
2012, Dr. Knobeloch called her after talking to Ms. Cowie who
had seen S.T. the previous day. R.T. was very concerned about
S.T.'s behavior and her reaction to Prozac. Dr. Knobeloch
instructed her to immediately stop administering Prozac and
Q. What were you told by Dr. Knobeloch that day?
A. Dr. Knobeloch said that he had spoken with Karen Cowie and
that he was going to prescribe a medication that would help
stabilize her mood.
Q. What were you told about Lamictal?
A. I was just told that it was a drug that was going to be
used to calm her down, to take away the side effects from the
Prozac that she was having.
Q. Did he tell you about the risks and benefits of Lamictal?
A. No, he did not.
Q. Did he tell you about any other alternatives?
A. No, he did not.
Q. Had he told you about any other drugs?
Q. What about the alternatives of taking nothing?
A. He did not.
Q. What were you told about the dosage of Lamictal?
A. We did not discuss a dosage.
Q. Did Dr. Knobeloch ask to see [S.T.]?
Q. What did he tell you about the dose he was prescribing for
A. He didn't discuss a dosage. He didn't tell me.
Q. Did he tell you about any possible adverse reactions and