[Cite as Rush v. Univ. of Cincinnati Physicians, Inc.,

.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

ANTHONY RUSH, : APPEAL NO. C-150309 TRIAL NO. A-1202669 and : O P I N I O N. TAMMY RUSH, :

Plaintiffs-Appellants, : vs. : UNIVERSITY OF CINCINNATI PHYSICIANS, INC., :

and :

THOMAS JOHN KUNKEL, M.D., :

Defendants-Appellees, :

and :

WEST CHESTER MEDICAL CENTER, : et al.,

Defendants. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: March 11, 2016

Paul W. Flowers Co., Paul W. Flowers, The Becker Law Firm, Michael F. Becker and David W. Skall, for Plaintiffs-Appellants,

Freund, Freeze & Arnold and Mark A. MacDonald, for Defendants-Appellees.

Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

D E W INE , Presiding Judge.

{¶1} This is an appeal in a medical-malpractice case. Anthony Rush

sustained injuries when he fell off a ladder at work. A few days later—while still

hospitalized for his injuries—he became paralyzed. Mr. Rush filed suit, and claims

proceeded to trial against Dr. Thomas Kunkel, an anesthesiologist who had treated him,

and Dr. Kunkel’s employer, University of Cincinnati Physicians, Inc., (“UC Physicians”).

The jury returned a defense verdict. Mr. Rush now appeals. He argues that the court (1)

improperly allowed the defense to offer expert opinions that were not disclosed prior to

trial, (2) erred in granting a directed verdict limiting the liability of UC Physicians to the

conduct of the named anesthesiologist, and (3) improperly gave a “different methods”

jury instruction that was not warranted under the facts of the case. We find no error and

affirm the judgment.

I. Background

{¶2} On November 23, 2010, Mr. Rush fell off a 30-foot ladder while painting

a house. He was taken to West Chester Hospital where he was told he had broken his

clavicle and eight ribs on the right side. At issue in this appeal is the anesthesiology care

that Rush received while at the hospital.

{¶3} Upon Rush’s admission to the hospital, an epidural catheter was inserted

into his spinal canal for the purpose of administering anesthetic medications. Over the

course of his stay at the hospital, Mr. Rush was treated by several anesthesiologists, all of

whom were employees of UC Physicians.

{¶4} During his first few days in the hospital, Mr. Rush continued to suffer

pain that was treated primarily with medications administered via the epidural catheter.

Dr. Kunkel saw Rush for the first time on November 26. Based upon Rush’s complaint

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of right-sided chest pain, Dr. Kunkel delivered an additional dose of medication. Mr.

Rush reported improvement. Because the additional medication had provided relief, Dr.

Kunkel increased the epidural infusion rate. Rush’s pain diminished, and the next

morning, he reported to Dr. Ahmed Khalil that his pain was tolerable.

{¶5} On the evening of November 27, Mr. Rush complained to a nurse of

increasing numbness and weakness in his legs and abdomen. The nurse telephoned an

anesthesiologist about Rush’s worsening condition. The hospital notes do not identify

the anesthesiologist with whom she spoke, but the records contain a telephone order

from Dr. Kunkel instructing her to decrease the epidural rate. Despite his name on the

order, Dr. Kunkel insists that he did not receive this phone call. He testified that he

would have followed a different course of action if he had, and that it was common

practice for anesthesiologists to routinely sign electronic orders for each other. By his

account, it was likely Dr. Khalil who received the call and ordered the decrease, as Dr.

Khalil was the anesthesiologist who was “on call” at the time.

{¶6} By early the next morning, Mr. Rush was incontinent of urine and felt

numb in both legs. A nurse phoned Dr. Kunkel at 3:50 a.m., and he instructed that the

epidural be turned off completely and that the nurse call him back in two hours. At 6:30

a.m., the nurse called back and reported Rush’s condition was improving. Another

nurse called Dr. Kunkel at 9 a.m. and stated that Rush had increasing sensation in his

arms and right leg, but that the numbness persisted in his left leg.

{¶7} But when Dr. Kunkel arrived at hospital at 12:30 p.m., things had taken

a turn for the worse. He found Rush could not move his left leg and was very weak in his

right leg. Dr. Kunkel ordered an MRI and transferred Rush to University Hospital for

evaluation and possible treatment by a neurosurgeon. Mr. Rush did not recover. He is

now paralyzed and requires the use of a wheel chair.

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{¶8} Mr. Rush and his wife filed suit against a number of defendants who had

been involved in his medical treatment. Eventually all of the defendants were dismissed

except Dr. Kunkel and UC Physicians. The matter proceeded to a jury trial. The

plaintiffs argued that Rush had become paralyzed as a result of a spinal epidural

hematoma. Under this theory, bleeding from the placement of the epidural had caused

compression on the spinal cord that ultimately cut off blood flow to the spinal cord and

caused Rush’s neurological injuries. Dr. Kunkel, they argued, was negligent because he

had failed to timely identify the hematoma and take corrective action.

{¶9} The defendants presented a different theory of causation. Their experts

asserted that Rush did not have an epidural hematoma and that there was no

compression of the spinal cord. In their view, the original fall caused injuries to the

arteries that run along the ribs, and over time, these damaged arteries resulted in

reduced blood flow to the spine. This reduced blood flow caused ischemic injury to the

spinal cord, and nothing could reasonably have been done to prevent Rush’s paralysis.

Further, they opined that Dr. Kunkel’s conduct did not fall below the standard of care.

{¶10} After the plaintiffs presented their case, the defendants moved for a

partial directed verdict, asserting that UC Physicians could not be liable for the conduct

of physicians who were not named in the lawsuit. The court granted the directed

verdict, holding that UC Physicians could be held vicariously liable only for the conduct

of Dr. Kunkel. After the close of evidence, the jury returned a verdict in favor of the

defendants.

II. “New” Expert Opinions

{¶11} In their first assignment of error, the Rushes argue that the trial court

abused its discretion when it permitted defendants to introduce new expert opinions

that were not disclosed prior to trial. Specifically, they contend that the court erred in

4 OHIO FIRST DISTRICT COURT OF APPEALS

permitting two defense experts to testify about posterior rib fractures that the experts

had not identified prior to trial.

{¶12} At trial, Dr. Thomas Brown testified that on his initial review of Rush’s

chest x-rays, he had identified a number of rib fractures on Rush’s front and side. On

subsequent review of his CT scans and MRIs, Dr. Brown also identified a number of

posterior rib fractures that he had not observed on his read of the chest x-ray. Dr.

Bradford Mullin similarly testified that he identified three fractures on the posterior ribs

in his review of Rush’s MRI. The posterior ribs, he noted, were in proximity to the artery

of Adamkiewicz, a major source of blood to the spinal cord.

{¶13} The plaintiffs objected to this testimony arguing that Drs. Brown and

Mullin had not disclosed these rib fractures in their initial reports or at their pretrial

depositions. They argued that the posterior rib fractures constituted a new expert

opinion that the defense was required to disclose prior to trial. The trial court overruled

the objection.

{¶14} Civ.R. 26(B)(5) allows a party to obtain discovery of “facts known or

opinions held” by an opposing party’s expert that are relevant to the subject matter upon

which the expert is to testify. Civ.R. 26(E)(1) requires that a party supplement discovery

responses in regard to questions “directly addressed * * * to the subject matter on which

[the expert] is expected to testify.”

{¶15} We review the court’s decision to admit expert testimony under an

abuse-of-discretion standard. Sindel v. Toledo Edison Co.,

,

(3d Dist. 1993). The Ohio Supreme Court has found it was an abuse of

discretion for a trial court to permit a medical expert to testify about a previously

undisclosed causal connection between an injury and a medical problem. Schumaker v.

Oliver B. Cannon & Sons, Inc.,

,

(1986). Civ.R.

5 OHIO FIRST DISTRICT COURT OF APPEALS

26(E), however, does not require parties to provide detailed information with regard to

the basis for an expert’s opinion. Metro. Life Ins. Co. v. Tomchik,

,

(7th Dist. 2000). Instead, the opposing party must be adequately

informed as to the subject matter about which the expert intends to testify.

{¶16} In this case, Dr. Brown stated in his pretrial report that the damage to

the spinal cord was likely caused by “vascular injury to the segmental arteries in the

upper thoracic region.” He then noted that the right-sided rib fractures displayed on

Rush’s x-ray demonstrated the severity of the initial traumatic injury. Finally, he

concluded that “[d]ecreased blood flow to the cord as a result of the initial trauma

ultimately produced [a] spinal cord infarct (a.k.a. “spinal stroke”).” The Rushes’ attorney

asked Dr. Brown several questions in his deposition about literature related to arterial

infarct and whether such an injury to Rush’s arteries would be visible on the available

imaging. The Rushes’ counsel did not ask Dr. Brown where Rush’s rib fractures were

located during the deposition.

{¶17} Dr. Mullin noted in his report that the rib fractures were “correctly

positioned to affect the artery of Adamkiewicz.” He further explained that the “most

definitive MRI reading states that the findings were most consistent with ischemic

change and infarct within the distribution of the artery of Adamkiewicz.” At his

deposition, Dr. Mullin explained that the trauma from the fall caused damage to the

vasculature that supplied blood to Rush’s spinal cord, resulting in the spinal infarct. The

Rushes’ counsel did not ask Dr. Mullin where the rib fractures were located during the

deposition.

{¶18} Based upon our review of the trial transcript and the discovery

proceedings, we conclude that the testimony about posterior rib fractures did not

constitute a new “subject matter” of expert testimony that required the defendants to

6 OHIO FIRST DISTRICT COURT OF APPEALS

supplement their discovery responses. See Civ.R. 26(E). The theory of the defense

experts throughout the case had been that the cause of paralysis was an ischemic injury

caused by fractured ribs. Indeed, Dr. Mullin specifically noted in his report that the

fractures were positioned to affect blood flow through the artery of Adamkiewicz. It is

true that the experts never pinpointed the fractures prior to trial as posterior; but it is

also true that the plaintiffs never asked them to pinpoint the fractures.

{¶19} This is not a case like Schumaker,

,

,

where the expert presented a completely new and previously undisclosed theory of

causation. Nor is it like Walker v. Holland,

,

(2d

Dist. 1997), where the expert offered testimony at trial that contradicted what he had said

in his deposition.

{¶20} Closer to our case is Tracy v. Merrell Dow Pharmaceuticals, Inc.,

,

(1991). There, the Ohio Supreme Court held that a trial

court did not abuse its discretion in allowing an expert to offer testimony that differed

from his previous expert report in the precise cause of death, though not in his opinion

that the defendant’s product was not responsible.

. If anything, the

discrepancies between what was said at trial and what was disclosed pretrial were much

greater in the Tracy case than here. See Faulk v. IBM, 1st Dist. Hamilton Nos. C-

000765 and C-000778,

(Sept. 7, 2001).

{¶21} While the testimony provided at trial was more detailed than that

presented in the expert report, we do not find that it constituted a new subject matter of

expert testimony. It was not a new theory of causation, and what was presented was

consistent with the matters disclosed in discovery. In these circumstances, we cannot

conclude that the trial court abused its discretion. The first assignment of error is

overruled.

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III. Respondeat Superior

{¶22} In their second assignment of error, the Rushes contend the trial court

erred as a matter of law when it granted a directed verdict on all claims against UC

Physicians, except for those arising from any negligence committed by Dr. Kunkel. We

review a trial court’s decision to grant a directed verdict de novo. White v. Leimbach,

,

,

, ¶ 22.

{¶23} The court was on solid legal ground in granting a directed verdict. In

Natl. Union Fire Ins. Co. v. Wuerth,

,

,

, paragraph one of the syllabus, the Ohio Supreme Court held that because a law firm

does not practice law, it cannot be liable for legal malpractice. Thus, a law firm can only

be legally liable for malpractice when one of its principals or associates is liable for

malpractice.

at paragraph two of the syllabus. In reaching its decision, the court

found “instructive” its precedent on medical malpractice, explaining that “because only

individuals practice medicine, only individuals can commit medical malpractice.” Id. at

¶ 14, citing Browning v. Burt,

,

(1993). We have

applied Wuerth to medical-malpractice claims. See Henry v. Mandell-Brown, 1st Dist.

Hamilton No. C-090752,

; but see Taylor v. Belmont Community

Hosp., 7th Dist. Belmont No. 09 BE 30,

. In Henry, we concluded that

where the claims against a doctor were not filed within the statute-of-limitations period,

the plaintiff could not pursue vicarious-liability claims against the doctor’s employer.

. Thus, under Wuerth and our precedent, it is clear that UC Physicians

may not be vicariously liable for the conduct of an unnamed physician.

{¶24} Despite this clear authority, the Rushes ask that we carve out an

exception for this case. They argue that it is unfair to allow the defendants to point the

finger at Dr. Khalil as responsible for the order to which Dr. Kunkel’s name was

8 OHIO FIRST DISTRICT COURT OF APPEALS

attached, yet allow UC Physicians to avoid liability for any negligence by Dr. Khalil.

They contend further that by the time that they discovered that the defendants intended

to assert that Dr. Khalil had signed the note, it was too late for them to name Dr. Khalil

in their lawsuit.

{¶25} We are not unmindful of the potential unfairness asserted by the Rushes.

Wuerth, however, leaves no room for vicarious liability for medical malpractice where a

doctor cannot be found to be liable for malpractice. The Rushes’ real complaint is not

the theory of vicarious liability adopted by the Supreme Court in Wuerth. Rather, it is

the potential unfairness that may be caused where inaccurate hospital records prevent a

plaintiff from discovering the identity of a potentially liable defendant until after the

limitations period has passed. But the law in Ohio is clear that once a cognizable event

occurs that places a plaintiff on notice that an injury may have resulted from medical

treatment, the statute begins to run and the plaintiff has a duty to investigate and

identify all potential tortfeasors. See Akers v. Alonzo,

,

(1992); Pratt v. Wilson Mem. Hosp., 2d Dist. Montgomery No. 18030,

(June 30, 2000). The Rushes’ argument would be better

addressed to an extension or tolling of the limitations period than to an expansion of

vicarious liability.

{¶26} The trial court properly granted a directed verdict in favor of UC

Physicians other than for the negligence of Dr. Kunkel. We overrule the assignment of

error.

IV. Different Methods Instruction

{¶27} In their third assignment of error, the Rushes argue that the trial court

improperly provided the following instruction to the jury:

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Although some other physician may have used a different method of

treatment—used a method of treatment different from that used by the

defendant this circumstance will not by itself prove the defendant was

negligent. You shall decide whether the diagnosis and treatment used by

the defendant was reasonably prudent in accordance with the standard of

care required of an anesthesiologist in his field of practice.

{¶28} The Rushes argue that this “different methods” instruction was

inappropriate because the crux of this case pertains to Dr. Kunkel’s failure to timely

order spinal imaging and diagnose Rush, not whether Dr. Kunkel chose the best

treatment option available.

{¶29} The “different methods” instruction is properly given where there is

evidence that more than one method of diagnosis or treatment is acceptable for a

medical condition. Pesek v. Univ. Neurologists Assn.,

,

(2000). The expert witnesses testified that Dr. Kunkel had alternative

methods to choose from once Rush reported numbness in his feet and legs. The Rushes’

expert testified that when a patient complains of numbness, a CT scan must be

conducted immediately. Dr. Kunkel’s expert stated the numbness must be addressed,

but it is not necessary to rush the patient to a CT or MRI. Instead, he opined, a doctor

can cut back on the epidural—or stop it all together—and check the patient’s progress

after an hour or two. Because evidence was presented that indicated Dr. Kunkel could

have utilized different methods and still have acted within the standard of care, the

instruction was proper. The third assignment of error is overruled.

IV. Conclusion

{¶30} The judgment of the trial court is affirmed.

Judgment affirmed.

10 OHIO FIRST DISTRICT COURT OF APPEALS

MOCK, J., concurs. STAUTBERG, J., concurs separately.

STAUTBERG, J., concurring separately.

{¶31} I concur with the majority opinion, but write separately to discuss the

analysis and disposition of appellant’s second assignment of error. In it, appellants

argue that the trial court should not have granted a directed verdict on all claims

against UC Physicians except for those derivative of the claim against Dr. Kunkel.

Appellants argue the trial court should have allowed their claims against UC

Physicians to proceed notwithstanding the absence of the other possibly culpable

physicians as parties. I agree, but am constrained by our previous holding in Henry

v. Mandell-Brown, 1st Dist. Hamilton No. C-090752,

, and the

doctrine of stare decisis, and therefore concur in our outcome.

{¶32} We join the trial court in relying upon Natl. Union Fire Ins. Co. v.

Wuerth,

,

,

, for the proposition

that an employer of a physician may not be held liable for the malpractice of its

employee-physician on the theory of respondeat superior unless that physician is a

named defendant in the lawsuit. I do not agree Wuerth should be read so broadly.

{¶33} It is well settled that

[w]here a liability arises against both a master and his servant in favor

of a party injured by the sole negligence of the latter while acting for

the master, such injured party may sue either the servant, primarily

liable, or the master, secondarily liable, or both, in separate actions, as

a judgment in his favor against one, until satisfied, is no bar to an

action against the other, the injured party being entitled to full

satisfaction from either the master or servant or from both.

11 OHIO FIRST DISTRICT COURT OF APPEALS

Losito v. Kruse,

,

(1940), paragraph two of the

syllabus. Not only is Losito still good law, it was favorably cited for the same

proposition in Wuerth. Indeed, other courts have come to the conclusion that

Wuerth is and should be limited in its application to the particular facts of that case.

See Tisdale v. Toledo Hosp.,

,

,

(6th Dist.) and Taylor v. Belmont Community Hosp., 7th Dist. Belmont No. 09 BE

30,

. These cases conflict with our analysis and outcome.

{¶34} Here, UC Physicians was sued as the employer of providers of medical

care to Mr. Rush before the expiration of the statute of limitations. In my view,

Wuerth should not apply to preclude any claim for vicarious liability flowing from

the alleged malpractice of physicians not named as parties in the lawsuit. Indeed, in

State ex rel. Sawicki v. Lucas Cty. Court of Common Pleas,

,

,

, the Supreme Court passed on an opportunity to

expand or even mention Wuerth. Rather, the court there reiterated the employer can

still be held vicariously liable for the negligence of a statutorily-immune, and

dismissed, physician.

{¶35} Nevertheless, in Henry v. Mandell-Brown, 1st Dist. Hamilton No. C-

090752,

, we applied Wuerth to medical malpractice claims and

prohibited a claim against the employer where the physician was not named in a

lawsuit until after the statute of limitations had run. We are bound by the doctrine of

stare decisis to follow that application unless and until the Supreme Court resolves

the differing interpretation of Wuerth in this area of the law.

Please note:

The court has recorded its own entry on the date of the release of this opinion.

12