[Cite as Branch v. Cleveland Clinic Found.,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 95475

MARGARET BRANCH, ET AL. PLAINTIFFS-APPELLANTS

vs.

CLEVELAND CLINIC FOUNDATION DEFENDANT-APPELLEE

JUDGMENT: REVERSED AND REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-696928

BEFORE: Keough, J., Cooney, P.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: August 11, 2011 ATTORNEYS FOR APPELLANTS

Paul W. Flowers Paul W. Flowers Co., LPA Terminal Tower, 35th Floor 50 Public Square Cleveland, OH 44113

Michael F. Becker The Becker Law Firm, LPA 134 Middle Avenue Elyria, OH 44035

John F. Romano The Romano Law Group P.O. Box 21349 West Palm Beach, FL 33416

ATTORNEYS FOR APPELLEES

Anna M. Carulas Ingrid Kinkopf-Zajac Douglas G. Leak Roetzel & Andress, LPA 1375 East Ninth Street One Cleveland Center, 9th Floor Cleveland, OH 44114

KATHLEEN ANN KEOUGH, J.:

{¶ 1} Plaintiffs-appellants, Margaret and Turner Branch, appeal from the trial

court’s judgment in favor of the Cleveland Clinic Foundation (the “Clinic”) on Branch’s

medical malpractice claim. For the reasons that follow, we reverse and remand for a new

trial.

I. Procedural History {¶ 2} Branch and her husband refiled their medical malpractice claim against the

Clinic in 20091 alleging that Branch had suffered a severe brain hemorrhage and stroke

during deep brain stimulation (DBS) surgery at the Clinic in February 2007. They

asserted claims for medical negligence, lack of informed consent, negligent credentialing,

and loss of consortium. They subsequently dismissed their claims for loss of consortium

(effectively dismissing Branch’s husband as a party to the suit), negligent credentialing,

and lack of informed consent (in part).2 Branch’s remaining claims proceeded to a jury

trial. After a two-week trial, the jury returned a unanimous defense verdict. In response

to an interrogatory, the jury indicated that the Clinic had complied with the standard of

care that was owed to Branch.

II. The Trial

{¶ 3} The evidence at trial demonstrated that Branch and her husband own the

Branch Law Firm in Albuquerque, New Mexico, and in the 1980s and 1990s, Branch was

an extremely successful plaintiff’s lawyer. She suffered from numerous medical

conditions for years, however, including chronic neck and back pain and depression.

The evidence was disputed regarding how much Branch was still working prior to her

Their first complaint was filed in January 2008 and subsequently dismissed without prejudice. 1

Branch withdrew that part of the lack of informed consent claim that alleged the Clinic had 2

failed to disclose and/or misrepresented the risk of bleeding during the surgery; she specifically retained that portion of the claim that alleged the Clinic’s doctors had misrepresented their experience, success rate, and the doctors who would be participating in Branch’s actual surgery. surgery. Although Branch testified that she was still working approximately 30 hours

per week prior to her surgery, medical records indicated that she had told several doctors

that she was no longer working as of 2005.

{¶ 4} In 2005, Branch developed cervical dystonia, a neurological condition that

caused the muscles in her neck to retract in a manner that forced her head into a

downward position. The dystonia exacerbated Branch’s depression, causing her to abuse

pain medications and attempt suicide.

{¶ 5} In November 2006, Branch was evaluated at the Clinic for DBS surgery for

her cervical dystonia. She and her husband met with Dr. Benjamin Walter, a Clinic

neurologist specializing in movement disorders, and neurologist Dr. Jerrold L. Vitek.

They also met with Clinic neurosurgeon Dr. Andre Machado, who was just finishing his

first year as an attending neurosurgeon. Dr. Machado determined that Branch was a

potential candidate for DBS surgery. He testified that he discussed the risks and benefits

of, and alternatives to, DBS surgery with Branch and her husband that day. The

Branches were also given a 10-page document entitled “The Cleveland Clinic Foundation

Consent to Participate in a Humanitarian Use Device Therapy,” which explained in detail

the nature of the DBS procedure and that there were a number of potential complications

with the procedure, including “paralysis, coma and/or death” and “bleeding inside the

brain (stroke).” On February 15, 2007, Branch signed the consent form acknowledging

the potential risks.

{¶ 6} To provide relief from dystonia, the neurosurgeon must access the globus pallidus internus (GPI), the area of the brain responsible for sending the abnormal

impulses that cause the dystonia, and place bilateral electrodes on both sides of the GPI.

After the electrodes have been successfully planted, they are programmed to send

impulses that relieve the dystonia.

{¶ 7} To reach the GPI, the neurosurgeon drills a burr hole in the top of the

patient’s skull above the ear. A small tube, known as a cannula, is slowly passed through

the brain and towards the GPI. Once the target has been reached, the stylette inside the

cannula is removed and an electrode is passed through the cannula and placed at the

appropriate spot. The cannula is then removed from the patient’s head and the process is

repeated on the other side of the skull.

{¶ 8} Prior to surgery, the neurosurgeon must develop a detailed target plan to

determine the location of the GPI, the proper placement of the burr holes, and the

trajectory paths of the cannulas. To develop his target plan, Dr. Machado used a

complex computer software program that fused the magnetic resonance imaging (MRI)

and computer tomographic (CT) scans of Branch’s head into a single three-dimensional

image. From this fused image, Dr. Machado obtained a “probe’s eye view” of Branch’s

brain to develop the target plan. Dr. Machado testified that he plotted a trajectory that

was designed to avoid Branch’s lateral ventricle.

{¶ 9} During the procedure on February 19, 2007, Dr. Machado drilled the right

and left burr holes for Branch’s DBS procedure without incident. He inserted three

cannulas through the burr hole on the left side, using the predetermined targets, and then sucessfully inserted a microelectrode. Dr. Machado then proceeded to the right side. A

cannula was inserted through the burr hole but Branch’s blood pressure dramatically

increased and Dr. Machado saw blood coming out of the cannula. The procedure was

aborted, but the bleeding was substantial and Branch suffered a stroke that caused

significant subsequent neurological deficits during the bleed.

{¶ 10} Branch’s expert, Dr. Robert S. Bakos, concluded that Dr. Machado had

misplaced the right-side burr hole, misdirected the cannula off its intended trajectory, and

breached the lateral ventricle, causing Branch’s stroke. Dr. Machado agreed at trial that

he would have been off the planned target course if he had pierced the ventricle wall

during the procedure, but insisted that had not happened.

{¶ 11} Following the surgery, Branch was hospitalized in the Clinic’s intensive

care unit for several weeks. One side of her body was paralyzed and she was barely able

to speak. She was subsequently transferred to a hospital in Houston, Texas, where Dr.

Stanley Fisher, her treating neurologist, confirmed that Branch had suffered a bleed in the

right basal ganglia and right lateral ventricle. Dr. Fisher testified that Branch suffered a

“significant and permanent injury” due to the bleed and that she “will never be able to

function independently.”

III. Life Care Planning and Economic Expert Testimony

{¶ 12} Branch called Carroll Highland, a life care planner, and Robert Johnson, an

economic expert, to testify regarding her future economic damages. In her first

assignment of error, Branch contends that the trial court erred in striking Highland’s testimony on the ground that it was based on hearsay. In her second assignment of error,

she contends that the trial court erred in prohibiting Johnson from testifying as a sanction

for an alleged discovery violation.

{¶ 13} The jury found no negligence by the Clinic and thus did not consider the

issues of either proximate cause or damages. As Highland and Johnson’s testimony

related only to damages, an issue the jury did not reach, even if this court were to find

error in the exclusion of their testimony, any error was harmless.

{¶ 14} Branch’s first and second assignments of error are therefore overruled.

IV. The Clinic’s Eleventh-Hour Disclosure of its Computer Re-creation

{¶ 15} Branch’s expert, Dr. Robert Bakos, testified at trial that Dr. Machado

deviated from the standard of care because he breached Branch’s right ventricle with the

cannula. Dr. Bakos opined that Dr. Machado placed the right side burr hole too medially

and was off the intended trajectory when he breached the ventricle wall. During his

testimony, Dr. Bakos used a two-dimensional computer animation to demonstrate how

proper target planning of Branch’s procedure could have avoided the ventricle wall, but

he told the jury several times that what they were viewing “[was] not Margaret Branch”

nor an actual “probe’s eye view” of her brain.

{¶ 16} Dr. Machado had conceded earlier in the trial 3 that despite the bleed,

neither the fused image of Branch’s brain nor the target planning data for her surgery had

been retained by the Clinic following her surgery. But ten minutes before Dr. Machado

Branch called Dr. Machado on cross-examination in her case-in-chief. 3 was to return to the stand as the final defense witness, defense counsel disclosed that a

demonstration had been prepared during which Dr. Machado would re-create his target

planning for Branch on a three-dimensional software system for the jury. Although the

trial court initially sustained Branch’s objection to the just-disclosed re-creation, the trial

court reversed its ruling and allowed the demonstration to procede.

{¶ 17} During the demonstration, Dr. Machado told the jury that they were viewing

“a three-dimensional reconstruction of [Branch’s] face with the head frame as it was

placed in the very day of surgery” and that “all the films here belong to [Branch], the

films that were used for her surgery.” Using data from his operative notes and a

newly-created fused image of Branch’s brain, Dr. Machado showed the jury the trajectory

he had allegedly taken during Branch’s procedure.

{¶ 18} In her third assignment of error, Branch contends that the trial court erred in

allowing Dr. Machado to perform the computer re-creation because it was disclosed to

her only moments before Dr. Machado testified. We agree.

{¶ 19} It is well established that a trial court has broad discretion in the admission

or exclusion of evidence. Rigby v. Lake Cty. (1991),

,

. So long as the discretion is exercised in accord with the rules of procedure and

evidence, an appellate court will not reverse absent a clear showing of an abuse of

discretion with attendant material prejudice.

“Moreover, error predicated on an

evidentiary ruling does not warrant reversal of the trial court’s judgment unless the

court’s actions were inconsistent with substantial justice and affected the substantial rights of the parties.” Perry v. Univ. Hosps. of Cleveland, Cuyahoga App. No. 83034,

, citing Evid.R. 103(A); Civ.R. 61.

{¶ 20} “‘Generally, in order to find that substantial justice has been done to an

appellant so as to prevent reversal of a judgment for errors occurring at the trial, the

reviewing court must not only weigh the prejudicial effect of those errors but also

determine that, if those errors had not occurrred, the jury or other trier of the facts would

probably have made the same decision.’” Id., at ¶30, quoting Cappara v. Schibley,

,

,

.

{¶ 21} Prior to opening arguments in this case, the trial judge made it a point to

confirm that the parties had shared their demonstrative exhibits with each other. Branch

shared her animation with defense counsel at the beginning of trial on July 1, 2010.

Branch’s counsel even agreed to email the animation to defense counsel. The animation

was later used by Dr. Bakos during his testimony. Defense counsel did not cross-examine

Dr. Bakos until the morning of July 8, 2010, a full week after she had been allowed to

review Branch’s demonstrative exhibits. The record reflects that the Clinic used this

time to prepare its expert, Dr. Starr, to criticize the animation during his testimony.

{¶ 22} But Branch was not afforded the same opportunity because the Clinic’s

computer re-creation was not disclosed until ten minutes before Dr. Machado testified.

The Clinic offers no explanation as to why defense counsel waited until the morning of

July 13, 2010 before disclosing that Dr. Machado would use a computer re-creation while

testifying that morning. It is apparent, however, that defense counsel knew of the re-creation well before the morning of Dr. Machado’s testimony and failed to disclose it.

During opening argument, defense counsel told the jury that “Dr. Machado will tell you in

this particular case he did not go through the ventricle and he will reconstruct it for you

and show you exactly based on all this how it didn’t go through the ventricle.”

(Emphasis added.) Just before Dr. Machado testified, when Branch’s counsel and

defense counsel were arguing about whether the Clinic’s re-creation should be allowed,

the trial judge asked defense counsel “How long have you guys been planning this? * * *

You must have conceived this at some other time?” Defense counsel admitted, “I mean,

sure.” Thus, despite the Clinic’s argument to the contrary, the re-creation was not a

last-minute response to Dr. Bakos’s in-court animation.

{¶ 23} Furthermore, despite the Clinic’s assertion that Branch could have

generated her own re-creation using Dr. Machado’s operative notes, the re-creation could

only be performed on the Clinic’s three-dimensional “Stealth” software, to which Branch

did not have access.

{¶ 24} This court considered an argument similar to that raised by Branch in

In Perry, the plaintiff alleged that her doctor had mishandled critical ultrasound

measurements of her amniotic fluid and precipated a stillborn delivery. During trial, the

defendant doctor used a previously undisclosed exhibit to remeasure the amniotic fluid.

Id., ¶31. The doctor, with counsel, had downloaded an image from the appellant’s

original ultrasound and then superimposed calipers on the re-created image to perform the

remeasurement. Id. Using the previously undisclosed image, the doctor testified that his remeasurement established that the amniotic fluid pocket contained a normal amount

of fluid. Id. The jury then returned a defense verdict. Id., ¶23.

{¶ 25} On appeal, the plaintiff–appellant argued that the trial court had abused its

discretion in admitting the undisclosed exhibit at trial. This court reversed the judgment

and ordered a new trial. It stated:

{¶ 26} “The central factor in our analysis is that the exhibit was not disclosed to

[plaintiff] prior to trial. * * * [T]he perpendicular calipers inserted onto the image to

conduct the remeasurement produced critical evidence in the case. [Plaintiff] should have

been afforded the opportunity to review the exhibit prior to trial and provided the chance

to conduct her own analysis, or to prepare a defense to the remeasurement claims of [the

doctor]. However, [plaintiff] never saw the exhibit prior to trial and could not have

anticipated its use or prepared to refute its conclusions with her own expert medical

testimony. The jury was left to merely accept [the doctor’s] assertion that the

remeasurement performed with the aid of the inserted calipers produced an accurate

result, without an effective challenge from [plaintiff]. [Plaintiff] was denied an

opportunity to examine the image and effectively question its authenticity and reliability.”

Id., ¶26, 32. (Emphasis added.)

{¶ 27} As in Perry, we find that the trial court’s decision to allow the computer

re-creation, despite the Clinic’s failure to timely disclose it, prejudiced Branch and

affected her substantial rights. By waiting to disclose the computerized reconstruction

until only a few minutes before Dr. Machado took the stand, the Clinic effectively precluded Branch from scrutinizing the computerized reconstruction with her own

experts, who had left Cleveland several days earlier, and preparing a proper

cross-examination.

{¶ 28} As in Perry, the jury in this case was left to merely accept Dr. Machado’s

assertion that as demonstrated by the computer re-creation, he had followed a safe

trajectory that avoided Branch’s ventricle. The prejudicial impact of the computer

re-creation was especially significant in light of testimony by the Clinic’s expert, Dr.

Phillip Starr, that without the target plan data, “elements” of the target plan could be

reconstructed, “but the entire plan can’t be.” Dr. Starr, the only neurosurgeon called to

testify in support of Dr. Machado, also refused to express any opinion as to whether the

ventricle wall had been breached. But despite Dr. Starr’s opinion to the contrary, Dr.

Machado testified that using the three-dimensional software system, he had, in fact,

re-created the “probe’s eye view” of precisely the same trajectory he had plotted through

Branch’s brain, a trajectory that not surprisingly completely avoided the ventricle.

Because Branch was effectively precluded from scrutinizing the computerized

reconstruction with her own experts, there was no meaningful way for her to dispute that

Dr. Machado had just re-created for the jury what the Clinic’s expert had testified could

not be fully re-created. The prejudicial effect of Branch’s inability to effectively

challenge Dr. Machado’s demonstration because of the Clinic’s last-minute disclosure

was magnified by the fact that the demonstration was the last piece of evidence the jury

saw before deliberating. {¶ 29} Further, although the Clinic argues that Dr. Machado’s demonstration was

“simply offered as an illustration for the jury,” it is apparent that the re-creation was

intended to give the jurors the impression that they were watching a virtual identical

reconstruction of the procedure performed on Branch in 2007. But unlike as for

Branch’s animation, the Clinic was not required to inform the jurors that they were not

actually watching a video of Branch’s surgery. In fact, the judge told the jury that

“Defendant intends at this time to reconstruct the target plan from Dr. Machado’s

operative notes,” reinforcing the jury’s misimpression that they were watching a

reconstruction of the identical procedure performed on Branch three years earlier.

{¶ 30} Branch was clearly prejudiced and her substantial rights affected by the trial

court’s decision to allow the computer re-creation by Dr. Machado despite its

eleventh-hour disclosure; accordingly, the trial court abused its discretion in allowing the

re-creation.

{¶ 31} Branch’s third assignment of error is therefore sustained.

V. Directed Verdict on Branch’s Claim for Lack of Informed Consent

{¶ 32} Count 2 of Branch’s complaint sought damages under a theory of lack of

informed consent. Prior to trial, she voluntarily withdrew that aspect of the claim

pertaining to the disclosure of the risk of a hemorrhage during the DBS procedure. She

reserved her right to pursue a recovery regarding the alleged failure to disclose the

experience and qualifications of the Clinic’s surgeons. Specifically, Branch alleged that

she was misled as to Dr. Vitek’s involvement in her surgery and that she was not informed about Dr. Machado’s qualifications or credentials. After the defense had

rested, the trial judge granted a directed verdict on the remainder of Branch’s informed

consent claim. In her fourth assignment of error, Branch argues that the trial court erred

in dismissing this aspect of her informed consent claim.

{¶ 33} Civ.R. 50 sets forth the standard for granting a motion for a directed

verdict:

{¶ 34} “When a motion for directed verdict has been properly made, and the trial

court, after construing the evidence most strongly in favor of the party against whom the

motion is directed, finds that upon any determinative issue reasonable minds could come

to but one conclusion upon the evidence submitted and that conclusion is adverse to such

party, the court shall sustain the motion and direct a verdict for the moving party as to that

issue.”

{¶ 35} A motion for a directed verdict tests the legal sufficiency of the evidence to

take the case to the jury. “It is the duty of the court to submit an issue to the jury if there

is sufficient evidence to permit reasonable minds to reach different conclusions on that

issue; conversely, the court must withhold an issue from the jury when there is not

sufficient evidence presented relating to the issue to permit reasonable minds to reach

different conclusions.” Harris v. Mt. Sinai Med. Ctr. (May 28, 1998), Cuyahoga App.

No. 72668.

{¶ 36} A motion for directed verdict presents a question of law, not one of fact;

hence, we employ a de novo standard of review in evaluating the grant or denial of a motion for directed verdict. Grau v. Kleinschmidt (1987),

,

.

{¶ 37} In Nickell v. Gonzalez (1985),

,

,

the Ohio Supreme Court held that “[t]he tort of lack of informed consent is established

when:

{¶ 38} “(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 any;

{¶ 39} “(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

{¶ 40} “(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.”

{¶ 41} To prevail on a claim for lack of informed consent, medical expert

testimony is necessary to establish the significant risks of the proposed treatment or

procedure that should have been disclosed. Ratcliffe v. Univ. Hosps. of Cleveland (Mar.

11, 1993), Cuyahoga App. No. 61791. See, also, Bedel v. Univ. OB/GYN Assoc., Inc.

(1991),

,

.

{¶ 42} Branch contends that the trial court erred in granting the motion for directed

verdict on her lack of informed consent claim because the evidence showed that both she and her husband were under the impression that Dr. Vitek would be handling her DBS

procedure. Further, they wanted someone who was experienced in this procedure, and

did not want anyone performing the surgery who was not board certified. Instead, Dr.

Machado, who had been an attending neurosurgeon for only a year and had handled only

between five to ten dystonia cases, and who was not eligible for board certification in the

United States because he had received his medical training in Brazil, performed the

procedure. Dr. Machado testified that he could not recall what he had told Branch and

her husband regarding his training or experience. In light of this evidence, Branch

contends that there was a legitimate factual dispute over her claim of informed consent

that precluded a directed verdict.

{¶ 43} Branch’s argument fails because she presented no testimony as to the third

prong of the Nickell test: that a reasonable person in Branch’s position would have

decided against DBS surgery had she been informed of Dr. Machado’s qualifications or

that Dr. Walter, instead of Dr. Vitek, would perform the microelectrode recording during

her surgery. Further, the testimony was clear that Branch and her husband were

determined to have Branch’s surgery performed at the Clinic. Accordingly, the trial

court did not err in entering a directed verdict on Branch’s lack of informed consent

claim.

{¶ 44} Branch’s fourth assignment of error is overruled.

VI. A “Different Methods” Instruction

{¶ 45} As part of their proposed jury instructions, the Clinic requested that the court charge the jury on “different methods.” Over Branch’s objection, the jury was

instructed as follows:

{¶ 46} “Although some other healthcare provider might have used a method of

diagnosis, or treatment, medication, or procedure different from that used by Dr.

Machado, this circumstance will not by itself prove that the physician was negligent.

{¶ 47} “You should decide whether the methods of diagnosis, treatment, and

procedure used in this case were in accordance with the standard of care.”

{¶ 48} In her fifth assignment of error, Branch contends that the trial court erred in

supplying the jury with this “different methods” instruction.

{¶ 49} Contrary to Branch’s assertion that our review is de novo, it is

well-established law that we review the trial court’s choice of jury instructions under an

abuse of discretion standard. Fifth Third Bank v. Gen. Bag Corp., Cuyahoga App. No.

92793,

, ¶26, citing State v. Wolons (1989),

,

. “Abuse of discretion” means that the court’s decision was unreasonable,

arbitrary, or unconscionable.

{¶ 50} The “different methods” instruction informs the jury that alternative

methods can be used and that the selection of one method over the other is not in and of

itself negligence. Pesek v. Univ. Neurologists Assoc., Inc.,

,

,

. But the charge is not appropriate in all medical

malpractice cases. “By its very terms, in medical malpractice cases, the ‘different

methods’ charge to the jury is appropriate only if there is evidence that more than one method of diagnosis or treatment is acceptable for a particular medical condition.”

{¶ 51} Branch argues that the “different methods” instruction was erroneous

because no testimony was offered that recognized alternative methods of treatment.

Specifically, she contends that her theory of malpractice was that Dr. Machado deviated

from the course he had plotted through her brain and ruptured the ventricle, and that “not

a single witness testified that slicing into the highly vascular chamber was a viable option

for performing the surgery in this particular instance.” Therefore, she contends, by

giving the “different methods” instruction, the trial court led the jurors to believe that

violating the standard of care that had been established did not necessarily mean that

negligence had occurred. We agree.

{¶ 52} The Clinic’s expert, Dr. Starr, testified that although he generally tries to

avoid the ventricle during DBS surgery, in some surgeries the surgeon must go through

the ventricle in order to reach the target. Dr. Machado likewise acknowledged that

sometimes the best approach in DBS surgery is to go through the ventricle. This would

suggest that an alternative methods instruction was appropriate in this case. But Dr.

Machado testified that the target plan he developed for Branch’s procedure was to avoid

the ventricle, and that if he did in fact hit Branch’s ventricle during the procedure (which

he denied), he was off his intended trajectory. Thus, as Dr. Machado admitted, there was

only one acceptable method of properly performing Branch’s procedure: reaching the

GPI and inserting the microelectrodes without hitting the ventricle.

{¶ 53} The Clinic contends that the instruction was proper because Branch’s expert, Dr. Bakos, testified that, in medicine, there are different schools of thought as to

how to perform surgery and acknowledged that his mapping strategy varies from that of

Dr. Starr, the Clinic’s expert.4 But mapping strategy was not at issue in this case; Dr.

Machado testified that his pre-operative mapping developed a trajectory that was

designed to miss the ventricle. Hence, whether Dr. Bakos would have mapped out fewer

tracks to the GPI than Dr. Machado did is irrelevant. Furthermore, Dr. Bakos’s

acknowledgement that that there are different schools of thought as to how to perform

“surgery” did not relate to DBS surgery generally or Branch’s procedure specifically.

{¶ 54} Thus, the trial court erred in giving the “different methods” instruction in

this case. Because the instruction “‘probably misled the jury in a matter substantially

affecting the complaining party’s substantial rights,’” Pesek, at 499, quoting Becker v.

Lake Cty. Mem. Hosp. W. (1990),

,

, a new trial is

warranted.

{¶ 55} Branch’s fifth assignment of error is sustained.

VII. Evidentiary Inference from Missing Evidence

{¶ 56} Throughout trial, Branch’s counsel made much of the fact that Dr. Machado

had not saved the fused image of Branch’s brain with the target planning data on a

computer disc, and argued that in all likelihood, the fused image and target planning data

would have shown that Dr. Machado deviated from the course that he had plotted and

Dr. Bakos’s approach to DBS surgery is to do the least amount of tracks to the target as 4

possible; other experts and institutions map out more tracks to the target. breached the ventricle wall. Branch’s counsel asserted, and at several points during trial

the trial court agreed, that because that evidence was missing, the jury was entitled to

draw an inference that the unsaved image and data would have been unfavorable to the

Clinic.

{¶ 57} Near the end of his rebuttal argument in closing, Branch’s counsel

mentioned the “coincidence that the best piece of evidence as to what happened is

missing.” When defense counsel objected, the trial court sustained the objection, noting

there was no evidence of “anything willful about the destruction of any documents,” and

instructed Branch’s counsel to “avoid that topic.” In her sixth assignment of error,

Branch argues that the trial court erred in precluding counsel from arguing the inference.

{¶ 58} The determination of whether the bounds of permissible argument have

been exceeded is within the trial court’s discretion and will not be reversed absent an

abuse of that discretion. Pang v. Minch (1990),

,

.

{¶ 59} This court recognized the negative inference that may be drawn from

missing evidence in Cherovsky v. St. Luke’s Hosp. of Cleveland (Dec. 14, 1995),

Cuyahoga App. No. 68326, where it stated:

{¶ 60} “‘The unexplained failure or refusal of a party to judicial proceedings to

produce relevant and competent documentary evidence * * * which would tend to throw

light on the issues authorizes, under certain circumstances, an inference or presumption

unfavorable to such party.’”

quoting 31-A C.J.S. Evidence § 156(2) at pp. 401-402. Continuing, the court explained that the inference is allowed when “there has been an

actual suppression or withholding of the evidence; no unfavorable inference arises where

the circumstances indicate that the document or article has been lost or accidentally

destroyed, or where the failure to produce it is otherwise properly accounted for * * *.”

Id.

{¶ 61} Cherovsky involved a medical malpractice claim and a spoliation claim

based on missing biopsy slides of the plaintiff’s lung. The trial court denied the

plaintiff’s request for a specific adverse inference jury instruction regarding the missing

slides, but gave a general instruction on inferences. This court held, for various reasons

not applicable to our discussion, that the trial court properly rejected the adverse inference

jury instruction. Of note, however, is this court’s recognition that a negative inference

arose from the missing evidence and the importance this court placed on the opportunity

for plaintiff’s counsel to argue the negative inference during trial and in closing

argument, even though the specific adverse inference instruction was not given. The

court stated, “We are satisfied that the trial court gave an adequate general instruction on

inferences which gave the plaintiff’s counsel the leeway he needed to argue the negative

inferences from the missing slides, while, at the same time, properly instructing the jury.”

Later, the court again stated, “[T]he trial court gave Ohio’s standard permissive

inference instruction which allowed plaintiff to argue all the adverse inferences she

wished from the missing slide evidence. * * * Under this instruction, the jury was

permitted but not required, to infer that the missing biopsy slides were unfavorable, i.e., did not show cancer.” Id. See, also, Simms Builders v. Liberty Insulation Co. (Feb. 16,

1983), Warren App. No. 73 (no error in failing to give requested specific adverse

inference instruction; inference is permissible and counsel appropriately drew that

inference in closing argument for the jury’s consideration); Signs v. Ohio Dept. of Rehab.

& Corr. (Nov. 23, 1994), Franklin App. No. 94API05-628 (jury may draw inference that

evidence would be unfavorable to party that fails to produce relevant evidence under the

control of party without reasonable explanation).

{¶ 62} Here, the record reflects that although the trial court recognized several

times during trial that the jury was entitled to draw a negative inference from the missing

evidence, the judge abruptly prohibited Branch’s counsel from arguing that inference to

the jury during closing argument because there was no evidence the Clinic had willfully

destroyed the evidence. But Branch was not required to demonstrate that the Clinic

willfully destroyed the evidence to be entitled to the inference. In Cherovsky, this court

found that there was “no evidence of intentional destruction or suppression of the slides,”

but nonetheless concluded that the plaintiff could argue the negative inference from the

missing slides. Id. The court recognized that the inference is permissive and arises

“where there is relevant evidence under the control of a party who fails to produce it

without satisfactory explanation.” Cherovsky, quoting Signs, supra.

{¶ 63} Here, the original fused image and target planning data were missing and,

hence, Branch was entitled to argue the adverse inference to the jury. The jury was not

required to accept the inference (Dr. Machado testified that the fused image and target planning data are only kept in “rare instances”) but Branch was entitled to argue it. By

prohibiting counsel from discussing the missing image and target plan data, the trial court

unjustly deprived Branch of the benefits of an inference that this court and others have

long recognized. We hold, therefore, that the trial court abused its discretion and

committed reversible error in precluding Branch’s counsel from arguing the negative

adverse inference in closing argument.

{¶ 64} Branch’s sixth assignment of error is therefore sustained.

Reversed and remanded.

It is ordered that appellants recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

SEAN C. GALLAGHER, J., CONCURS; COLLEEN CONWAY COONEY, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE OPINION.

COLLEEN CONWAY COONEY, J., CONCURRING IN PART AND DISSENTING IN PART:

{¶ 65} I concur in the majority’s disposition on the first, second, and fourth assignments of error. On the remaining assignments, however, I respectfully dissent. I

would affirm the jury’s verdict and specific finding that Dr. Machado did not deviate

from the standard of care. The jury heard the Clinic’s expert, Dr. Starr, testify that the

brain is “a very vascular structure” with many blood vessels, some too small to be seen in

an MRI. Dr. Starr also stated that it is not a deviation from the standard of care to hit the

ventricle. The consent form for this procedure advises that stroke is a risk of the

procedure.

{¶ 66} I find no error in the trial court’s allowing the “attempted

re-creation/illustration” that the Clinic indicated in its opening argument would be shown

to the jury. Many motions in limine were filed in the instant case, but none related to this

allegedly improper demonstration. Moreover, it was merely demonstrative evidence and

not an actual exhibit that accompanied the jury into the deliberation room for further

review, the situation presented in Perry. The fact that the Clinic’s expert had stated it

cannot be re-created lends further credence to the position it was only demonstrative. I

find nothing prejudicial about the attempted re-creation/illustration.

{¶ 67} As Branch’s trial counsel stated to the judge, “As long as you indicate that

this is an attempt to re-create.” (Tr. 1644.) The court complied with this request and

instructed the jury that “this is an attempted simulation, or re-creation of the evidence.”

(Tr. 1656.)

{¶ 68} Branch’s counsel knew from the Clinic’s opening argument that Dr.

Machado would “reconstruct” the procedure for the jury. Branch cannot now complain that the reconstruction was not disclosed until just minutes before Dr. Machado testified.

{¶ 69} Moreover, I find no prejudice to Branch from the attempted re-creation. The

critical testimony of the Clinic’s expert, Dr. Starr, indicated that it is not a deviation from

the standard of care to hit the ventricle. (Tr. 1152.) He also testified that, in his

opinion, Branch had a basal ganglia hemorrhage and not a ventricle bleed. (Tr. 1230.)

It was well within the province of the jury to believe this expert testimony.

{¶ 70} I also disagree with the majority’s resolution of the fifth and sixth

assignments of error. I would find no error in the court’s “different methods” jury

instruction since different mapping strategies were put forth by the expert witnesses.

{¶ 71} Moreover, I would affirm the court’s rejection of the negative adverse

inference argument. The majority’s reliance on Cherovsky v. St. Luke’s Hosp. of

Cleveland (Dec. 14, 1995), Cuyahoga App. No. 68326, is misplaced. That case involved

a claim for spoliation — missing biopsy slides. And this court found in Cherovsky that

“the unexplained failure” to produce relevant evidence may justify the negative inference.

In the instant case, there was no “unexplained failure” or refusal to produce evidence.

The testimony of Dr. Starr and Dr. Machado established that this original fused image and

target data are not ordinarily retained. This is a satisfactory explanation which was never

rebutted by Branch’s witnesses.

{¶ 72} Accordingly, I would affirm the jury’s verdict.